Featured documents
This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
Most recent Practice notes
The Islamic finance glossary brings together essential definitions and abbreviations for terms frequently used across the Islamic finance industry and its products, and directs readers to relevant resources. It is continually expanding as additional entries are identified. Please note that the transliteration of Arabic terms into Roman script follows no fixed system and simply mirrors preferences commonly adopted within the Islamic finance sector... Auditing and Accounting Organisation for Islamic Financial Institutions ( AAOIFI ) The foremost Islamic, international, autonomous, not‑for‑profit organisation that develops accounting, auditing, governance, ethics and Shari’ah standards for Islamic Financial Institutions ( IFIs) and the global Islamic finance industry. Established in Bahrain in 1991, it is supported by institutional members from over 45 countries, including: central banks and regulatory authorities financial institutions accounting and auditing firms legal firms Its standards are adopted by leading Islamic financial...
Regulation ( EU) 648/2012 of the European Parliament and Council, on OTC derivatives, central counterparties and trade repositories ( EU EMIR), was passed on 4 July 2012 and came into effect on 16 August 2012. In the UK, the assimilated version of Regulation ( EU) 648/2012 ( UK EMIR) is in force. Meeting the demands of EU EMIR and/or UK EMIR may oblige parties to revise procedures and documentation. To support this, the International Swaps and Derivatives Association ( ISDA) has, to date, issued four protocols addressing specific requirements. This Practice Note summarises those protocols, the matters they cover and the benefits of adherence. What are ISDA protocols? ISDA protocols offer a tool for multilateral amendments to contracts. If both parties adhere to the same ISDA protocol, their agreements are amended automatically in line with the protocol’s terms. This frequently removes the need for...
Mis-selling interest rate hedging products—a guide for R& I lawyers Introduction Before September 2008, numerous small and medium-sized enterprises ( SMEs) entered into interest rate hedging products ( IRHPs) to accompany borrowing agreed with major financial institutions. After the collapse of Lehman Brothers and the subsequent financial crisis, many found themselves either tied to swaps they did not need or facing far higher-than-envisaged costs to terminate these products. The core aim of IRHPs was to provide protection against movements in interest rates. Broadly, they comprised the following: swaps—which fix the interest rate at a pre-agreed level caps—which place a ceiling on any rise in interest rates collars—which confine rate movements within a specified range structured collars—which also confine rate movements within a specified range, but may include terms whereby, if the reference rate falls below the lower bound, the...
Investment-regulated pension schemes ( IRPSs) Investment-regulated pension schemes ( IRPSs) are a distinct class of registered pension schemes that face extra controls over the asset types permitted as investments. They were established as a separate form of registered pension scheme by the Finance Act 2004 ( FA 2004), then adjusted ahead of 6 April 2006 by the Finance Act 2006, as set out by the Chancellor in the Autumn Statement on 5 December 2005. An IRPS may take the form of either an occupational or a personal pension scheme, with the main types generally treated as IRPSs commonly described as: small self-administered schemes ( SSASs) (a form of occupational pension scheme), and self-invested personal pensions ( SIPPs) (through which a member can exercise almost complete control over investment choices) Unless transitional protection applies (see below), from 6 April 2006 IRPSs have been...
Why these Regulations were introduced The 2007 financial crisis, exemplified by the collapse of Lehman Brothers in September 2008, revealed the profound economic consequences that can arise when major financial institutions fail. In consequence, the Investment Bank Special Administration Regulations 2011 (the Regulations), SI 2011/245, were brought into force on 8 February 2011 under powers in the Banking Act 2009 ( BA 2009). The Investment Bank Special Administration ( England and Wales) Rules 2011 (the Rules), SI 2011/1301, then commenced on 30 June 2011. Following the Bloxham review (see below) and a 2016 consultation, HM Treasury introduced the Investment Bank ( Amendment of Definition) and Special Administration ( Amendment) Regulations 2017, SI 2017/443, effective from 6 April 2017, updating the Regulations facilitate an administrator’s ability to transfer client assets reinforce the bar date mechanism confirm that client money claimants are not...
International Organisation of Securities Commissions The International Organisation of Securities Commissions ( IOSCO) was formed in 1983 following a resolution by a group of securities regulators from North and South America. Its reach broadened rapidly in 1984, with UK regulators among the earliest non‑ American participants. Today, its members oversee more than 130 jurisdictions, accounting for over 95% of the world’s securities markets... IOSCO sets global benchmarks for securities markets and serves as the principal forum for co‑operation among market regulators. Beyond standard‑setting, it delivers technical assistance, particularly to regulatory authorities in emerging securities markets. It has introduced key measures that underpin cross‑border co‑operation, curb global systemic risk, protect investors, and support fair, efficient markets. These include: a methodology that articulates IOSCO’s interpretation of its Objectives and Principles of Securities Regulation (the IOSCO Principles) a multilateral memorandum of...
Data export restriction Restriction under the Data Protection Directive Directive 95/46/ EC, (the Data Protection Directive) ARCHIVED: This Practice Note outlines the data export limitation under the Data Protection Act 1998 ( DPA 1998), which restricts the transfer of personal data to countries outside the European Economic Area ( EEA) unless those destinations provide an adequate level of privacy protection. It summarises the data protection framework in place before 25 May 2018 and reflects the position under the DPA 1998. This Note is offered for background purposes only and is not updated... For details on the position under the General Data Protection Regulation, Regulation ( EU) 2016/679 (the GDPR), refer to the following Practice Notes: Introduction to the EU GDPR and UK GDPR, which includes a section on international personal data transfers and transfers to international organisations UK GDPR and EU...
What is insurance law? Insurance law divides into three strands: insurance contract law, setting the rules of the bargain between policyholders and insurers the law of intermediaries, governing insurance arranged via agents (as with the majority of placements) insurance company law, addressing prudential soundness, integrity and the supervision of insurers This Practice Note focuses chiefly on insurance contract law. For wider regulatory material, see our ‘regulation of insurance’ subtopic, including Insurance & Reinsurance—regulatory framework—overview and Insurance & Reinsurance— Regulated activities—overview. Reform of the insurance sector In January 2006, the Law Commission and the Scottish Law Commission (together, the Law Commissions) began consulting on modernising insurance contract law. Their programme was then separated into three streams: consumer insurance law reform: pre-contract disclosure and misrepresentation insurance contract law reform: business disclosure, warranties, insurers’ remedies for fraudulent claims, and late payment insurance contract law...
Introduction to the Insurance Act 2015 The Insurance Act 2015 ( IA 2015) was granted Royal Assent on 12 February 2015 and, save for Part 6, commenced on 12 August 2016. It marks the most far-reaching overhaul of the statutory framework of English insurance contract law since the Marine Insurance Act 1906 ( MIA 1906). This Practice Note examines the principal provisions of IA 2015 and the ways in which they reform the law. It also reviews reforms introduced by the Enterprise Act 2016 ( EA 2016), with relevant sections taking effect in May 2017. This Practice Note addresses IA 2015 provisions relating to: the duty of fair presentation remedies for a breach of that duty warranties and other terms fraudulent claims amendments to the Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) ...
Applicable legislation Insolvency legislation typically includes bespoke measures for insurers, reflecting the sector’s regulated nature and the significance of insurance to the wider economy. The Financial Services and Markets Act 2023 ( FSMA 2023) revises the UK framework for insurer insolvency, clarifying certain aspects and broadening safeguards for insurers and their policyholders undergoing insolvency or write-down processes—the government consulted on these reforms in 2021 and issued its response in April 2022 (refer to News Analysis: Financial Services Markets Bill sets out post- Brexit framework for UK financial services, HM Treasury publishes response to consultation on insolvency arrangements for insurers— LNB News 07/04/2022 78 and Practice Note: The Financial Services and Markets Act 2023—essentials). The Prudential Regulation Authority ( PRA) released consultation paper CP3/23, Dealing with insurers in financial difficulties, outlining proposed rules and policy in light of the FSMA 2023 changes (see: LNB News...
What is an insistent client? An ‘insistent client’ usually describes someone who, after receiving a personal recommendation, decides to proceed in a different way to that advice. For a time, there was no settled meaning, which risked uneven use of the term. On 3 January 2018, through the Conduct of Business Sourcebook ( Insistent Clients) Instrument 2017, FCA 2017/66, the Financial Conduct Authority ( FCA) set out a definition in COBS 9.5A. Under this definition, an insistent client is a person who: receives a personal recommendation from an FCA‑regulated firm chooses to enter into a transaction that differs from the firm’s recommendation wants the firm to facilitate that alternative transaction Accordingly, the FCA views the concept from the adviser’s perspective, where the firm is asked to execute the very course of action it advised against. This has become...
This Practice Note outlines the duty on an issuer with financial instruments admitted to trading on certain UK trading venues (or seeking such admission) to maintain an insider list under the UK Market Abuse Regulation ( Assimilated Regulation ( EU) No 596/2014), to safeguard and control the circulation of inside information. This duty equally applies to any person acting for the issuer or on their account. Companies with securities admitted to trading on the Main Market of the London Stock Exchange, as well as those on AIM, fall within the scope of the insider list regime, although the rules for AIM issuers are marginally more flexible... Background The EU Market Abuse Regulation applied across the EU from 3 July 2016. Its objective was to create a common framework for insider dealing, the unlawful disclosure of inside information and market manipulation...
What is clearing of derivatives? Clearing is the mechanism that removes the usual danger, in practice, that one side to a derivatives deal will fail to perform (counterparty risk). The main participants involved in the clearing process are: a financial institution called a clearing house, and other financial institutions, typically banks or brokers, that enter into a clearing agreement with the clearing house—these institutions are indeed known as clearing members of the clearing house, or simply clearing firms within this framework In cleared transactions: the following applies: every trade is undertaken by clearing members, who may do so for their own accounts or for the accounts of their clients, and the clearing house inserts itself between the clearing members that entered into the trade, becoming a party to each transaction—each participant is therefore exposed to the risk of the clearing house, not to the risk of...
This Practice Note addresses the United Nations-supported Principles for Responsible Investment and considers sector guidance and recommended practical actions for private equity houses to embed environmental, social and governance ( ESG) considerations within private equity vehicles and their portfolio businesses. Overview of tools and resources Numerous industry and sector-focused organisations (including development finance institutions ( DFIs) and non-governmental organisations ( NGOs)) provide publicly available tools and resources to assist private equity firms with integrating ESG factors into their investment decisions and operations. The principal bodies and their tools and resources include: Principles for Responsible Investment ( PRI): Supplies guides and case studies on ESG integration. ( Resource/tool: PRI Data Portal) Sustainability Accounting Standards Board ( SASB): Provides sector-specific ESG standards for financial materiality. ( Resource/tool: SASB Materiality Finder) Global Reporting Initiative ( GRI): Sets out a framework for...
This Practice Note explains the Financial Conduct Authority ( FCA) framework permitting authorised funds to deploy side pockets for assets hit by Russia’s invasion of Ukraine and the ensuing sanctions. It provides questions and answers on this framework, including topics such as: scope initial considerations impact on investors cost considerations alternatives changes to the FCA’s proposed rules any further FCA guidance relating to side pockets and managing side pockets It also highlights initial and ongoing considerations for establishing, operating, and managing side pockets within authorised funds effectively. Background On 6 July 2022, the Financial Conduct Authority ( FCA) published policy statement PS22/8, ‘ Protecting investors in authorised funds following the Russian invasion of Ukraine’, which outlined urgent measures to manage the invasion’s effects on authorised funds and retail investors. Those rules came into effect on 11 July 2022. That policy...
This Practice Note reviews the UK prudential framework for investment firms, called the Investment Firms Prudential Regime ( IFPR). It summarises the origins and evolution of the IFPR, together with the rules introduced by the Financial Conduct Authority ( FCA) to put the regime into effect. Background and introduction to the IFPR On 20 December 2017, the European Commission unveiled plans to overhaul the EU prudential regime for investment firms, aiming to deliver a framework that is more proportionate and sensitive to risk. Under the new EU measures—now set out in the Investment Firms Regulation ( EU) 2019/2033 ( IFR) and the Investment Firms Directive ( EU) 2019/2034 ( IFD)—most EU investment firms follow new, simpler prudential requirements, while large, systemic firms undertaking bank-like activities and posing risks akin to banks are regulated and supervised as banks. For more on the IFR and IFD, see...
This Practice Note outlines the principal provisions of the Financial Conduct Authority’s ( FCA) Insurance: Conduct of Business sourcebook ( ICOBS) concerning advice and product information, with particular emphasis on ICOBS 5 and ICOBS 6... Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) On 6 January 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), brought ICOBS into effect, replacing the former Insurance: Conduct of Business sourcebook ( ICOB). The major development was a shift from detailed, prescriptive rules to a more principles-led, outcomes-focused approach to supervising firms. Consequently, existing ICOB requirements were simplified where the FSA judged that specific consumer protection was not essential. ICOBS has been updated on a number of occasions, most significantly to implement the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), which was transposed into UK law on 1 October 2018. Although the UK has since...
Greenwashing This Practice Note explores the notion of ‘greenwashing’ and the various litigation exposures it generates within the legal system of England and Wales. Note: where greenwashing risk is assessed under the Financial Services and Markets Act 2000 ( FSMA 2000), it applies only to UK publicly traded companies or companies seeking admission to a UK stock market, and to their directors, in connection with claims concerning misleading statements and omissions in a company’s prospectus and published information. Where greenwashing is considered in the context of section 463 of the Companies Act 2006 ( CA 2006), it is relevant to all UK companies. ‘ Greenwashing’ is a term of art originating in discussions around environmental and climate change matters, as set out below. It is also frequently mentioned alongside ‘ ESG’, a collective label for the environmental, social and governance elements of a...
Scope of this Practice Note The core purpose of the Financial Services and Markets Act 2000 ( FSMA 2000) was to create and confer powers on the then Financial Services Authority ( FSA), following the government’s decision to introduce a single regulator for financial services in the UK. It serves as an overarching framework for financial services legislation and regulation within the UK. FSMA 2000 took effect on 1 December 2001, at which point the FSA became the sole regulator of the UK financial services industry. As part of government plans to reform the UK’s financial services regulatory architecture, the FSA was abolished on 1 April 2013 and its responsibilities were divided between two new bodies: the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA). FSMA 2000 remained the primary statute for the UK financial services industry, although the...
When a compensation claim is lodged with the Financial Services Compensation Scheme ( FSCS), the FSCS does not need the claimant’s permission to take an assignment of their rights while pursuing redress on their behalf. The FSCS may—and, for a deposit protection claim, must—make any compensation offer conditional upon the claimant assigning their rights to the FSCS. The FSCS can also be automatically subrogated to the claimant’s rights. The rationale for requiring an assignment is twofold: it stops a claimant from pursuing the same claim against another party, avoiding any betterment; and it allows the FSCS to maximise its recoveries. The FSCS pursues claims through insolvency practitioners, such as liquidators or administrators, where there is a realistic prospect of creditor dividends. When taking any assignment, the FSCS must tell the claimant that, if it chooses not to proceed with a claim, the claimant may make a...
Popular documents
When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
Discover more from LexisNexis
