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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:
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This Practice Note outlines green loans and the principal considerations when preparing a green loan agreement. It centres on the Green Loan Principles ( GLP) issued by the Loan Market Association ( LMA), the Asia Pacific Loan Market Association ( APLMA) and the Loan Syndications and Trading Association ( LSTA)... Clarifies the meaning of a green loan Introduces the GLP and the accompanying GLP guidance Sets out the four core components of a green loan under the GLP and summarises the related guidance Condenses GLP and GLP guidance on what qualifies as a green loan, on reviews, and on greenwashing risks Provides sources for precedent wording, including the Loan Market Association draft provisions, plus drafting pointers What is meant by a green loan? Under the GLP, green loans encompass any form of loan instrument and/or contingent facility (for example, bonding lines,...
The Financial Services Enforcement Database brings together comprehensive details on all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. Searches can be run and narrowed by a range of fields, including: rule/legislation breach keyword such as ‘ Open and cooperative’ sector date financial penalty aspects of financial penalty analysis outcomes including redress and prohibition orders other actions such as referrals to the Upper Tribunal Non-compliance with a requirement under Part XI of the Financial Services and Markets Act 2000 ( FSMA 2000)—for instance, failing to supply documents or information, or supplying false information—can have serious consequences. The process for addressing such non-compliance during a Financial Conduct Authority ( FCA) investigation is set out in FSMA 2000, s 177. Failure to comply with an FCA information or document...
Part XII of the Financial Services and Markets Act 2000 ( FSMA 2000) Part XII of FSMA 2000 obliges controllers and prospective controllers to secure approval from the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) prior to acquiring, or increasing, control in a UK authorised firm, and to inform the appropriate regulator when they decrease or cease such control thereafter. The FCA and PRA likewise expect UK authorised firms to notify them when a person reduces, or no longer holds, control in the firm. This Practice Note considers the criminal and regulatory consequences of failing to follow the change of control regime in FSMA 2000, Part XII and the linked FCA and PRA rules. It also summarises the powers available to the FCA and PRA under the controllers regime to: object to an individual or entity holding control over a UK...
Practice Note Retail investment advisers, pension transfer specialists, individuals involved in regulated funeral plan activities, and relevant employees within firms carrying out insurance distribution are required to comply with the professional standards established and overseen by the Financial Conduct Authority ( FCA), which include completing a minimum level of suitable continuing professional development ( CPD) each year. This Practice Note summarises the FCA’s CPD requirements as outlined in the Training and Competence sourcebook ( TC)......
This Practice Note explores the implications of the Financial Conduct Authority’s ( FCA) Consumer Duty for credit unions. The Duty has applied from 31 July 2023 to new and existing products and services that remain open for sale or renewal. For products and services where contracts with retail customers were entered into before 31 July 2023 and have not been marketed or distributed to retail customers on or after that date (including by way of renewal) — referred to here as closed products — the Duty took effect on 31 July 2024. For developments, see The FCA Consumer Duty—timeline. For the principal features with general application, see Practice Note: The FCA Consumer Duty—essentials. For additional materials and sector‑specific practical guidance, see: Consumer protection and FCA Consumer Duty—overview. Key points for credit unions The FCA Consumer Duty applies to all regulated...
Employment-related loans The benefits code in ITEPA 2003, Part 3 contains tailored provisions for ‘employment-related loans’ which, in some circumstances, give rise to income tax and National Insurance contributions ( NICs) for directors and employees, and employer’s NICs for employers, in respect of such borrowing. This Practice Note explains what amounts to an employment-related loan for the purposes of the benefits code. The concept is broadly framed and is treated as covering loans made by the employer and by other associated persons. Lending by prospective employers also falls within the definition. As with any other form of employment reward, where a third party rather than the employer provides the loan, it is prudent to consider whether the disguised remuneration rules in ITEPA 2003, Part 7A apply, as those provisions take precedence over most other employment income charging rules (including the benefits code). For further...
Introduction—transactional Islamic finance There is a diversity of views and guiding maxims expressed by members of Shari’ah boards when applying Shari’ah to commercial contexts, which in turn can lead to apparent divergence in the legal documents used within Islamic finance transactions. In response to these recognised market inconsistencies, attention worldwide has increasingly turned to the development of national, centralised regulatory authorities dedicated to Islamic finance. As an illustration, in 2017, following the national sanction of an Islamic finance industry, Morocco created by royal decree the Moroccan Shari’ah Committee for Participative Finance, comprising 10 Islamic scholars and financial experts, to oversee and regulate the newly established financial sector. The Central Bank of Bahrain (the CBB), which has overseen Bahrain’s financial system since 2002, has taken a comparable path, announcing in September 2017 that all banking...
UK data protection law includes a right to data portability. That entitlement enables people to receive from a controller a copy of their personal data in a structured, machine-readable form. Moreover, in certain situations, people can require the controller to transmit that data straight to a different controller. This Practice Note considers the right to data portability. It presumes some familiarity with UK data protection law. For an overview of UK data protection law, with guidance on core concepts and terminology, see the UK data protection law collection. Note that there are notable parallels between the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR) and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) and this Practice Note concentrates on the position under the UK GDPR. For details on the background to the UK GDPR and how it...
A Shari’ah compliant leasing agreement Under Shari’ah, leasing is arranged as an ijarah, which may resemble either an operating lease or a finance lease. The ijarah structure determines how the asset is treated at the close of the rental term and how value is recovered. Operating lease: the asset is handed back to the lessor when the rental period ends (comparable to hiring a car). Finance lease: the total rent payable equals at least 100% of the asset’s full market value and, at expiry, title may transfer to the lessee. For further detail on these lease types, see Practice Notes: Operating leases and Finance leases. In practical terms, arranging a Shari’ah compliant lease involves only limited departures from a conventional lease. As ijarah is used chiefly for Shari’ah compliant asset finance and residential mortgages, structures typically envisage the asset passing to the lessee on...
This Practice Note outlines the legal and regulatory landscape for assessing whether an arrangement amounts to a contract of insurance, and the potential ramifications of undertaking activities connected to such contracts without the requisite regulatory permissions. For more detail, refer to Practice Note: Identifying contracts of insurance in English law—an introduction, and the decision tree in Identifying a contract of insurance—flowchart. The legislative and regulatory background There is no precise or exhaustive statutory definition of a ‘contract of insurance’ in English insurance law. Under the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001 ( RAO), SI 2001/544, a ‘contract of insurance’ means ‘any contract of insurance which is a contract of long-term insurance or a contract of general insurance’. Determining whether an agreement is a contract of insurance is significant because such contracts are likely to fall within the meaning of a...
This Practice Note outlines the core structure of a UK commercial debt sale, the responsibilities of the parties, and the main points within the sale papers, including how each party mitigates relevant risks. It also examines the debt sale and purchase process; the make-up of a debt sale and purchase agreement; the supporting documentation; operative provisions; warranties; and the onward transfer of a purchased debt portfolio. Background The debt sale and purchase market is a key route for lenders and debt sellers to lessen balance sheet exposure. It is frequently used to realise value from under-performing accounts, yet transactions arise across all categories of debt: regulated mortgages, loan and card agreements regulated by the Consumer Credit Act 1974 ( CCA 1974), specialist obligations such as store card debt, and distressed or insolvent debt. While the type of debt influences the detail of the sale...
Relevant news analysis Lexis®PSL Financial Services has released news analysis on the Market Abuse Regulation, which are presented and set out via the links indicated therein in the table below. 1 June 2017 — Reviewing the FMLC paper on the Market Abuse Regulation: Christopher Poon, counsel at Akin Gump Strauss Hauer & Feld, explores and evaluates the overall background, the scope, and the main findings of the Financial Markets Law Committee ( FMLC) paper, addressing the uncertainty over which financial instruments are captured within the scope of the Market Abuse Regulation ( MAR). ......
ARCHIVED: This archived timeline outlines the principal legislative milestones within the data protection reform package. It is supplied for background purposes only and is not maintained. This timeline contains information relating to: the General Data Protection Regulation, Regulation ( EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC ( GDPR) the Data Protection Law Enforcement Directive, Directive ( EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free...
This Practice Note reviews the EU environmental, social and governance ( ESG) — also termed sustainability — integration measures, which revised delegated acts under the Alternative Investment Fund Managers Directive 2011/61/ EU ( AIFMD), the Undertakings for Collective Investment in Transferable Securities ( UCITS) Directive 2009/65/ EC and the recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II), and considers their industry impact. It also briefly highlights the UK’s departure in respect of these measures. What were the ESG integration measures? In August 2021, a package of measures (the Delegated Acts) appeared in the Official Journal of the EU; see Application of the ESG measures below, and they affected UCITS management companies, alternative investment fund managers ( AIFMs) and Mi FID investment firms (together, managers). For practical guidance on managers, refer to Practice Notes: Undertakings for Collective Investment in...
Introduction to bringing an appeal against an ESA decision The three European Supervisory Authorities ( ESAs)—the European Securities and Markets Authority ( ESMA), the European Banking Authority ( EBA) and the European Insurance and Occupational Pensions Authority ( EIOPA)—were established with effect from January 2011. They promote closer cooperation and the exchange of information among national supervisors across the EU, facilitate the adoption at EU level of solutions to cross‑border problems, and advance the coherent interpretation and application of rules. For further information, see The European Supervisory Authorities ( ESAs) and the European System of Financial Supervision and The EU’s Single Supervisory Mechanism. Articles 58 and 59 of Regulation ( EU) No 1093/2010, Regulation ( EU) No 1094/2010 and Regulation ( EU) No 1095/2010 (collectively, the ESAs Regulations) make provision for the establishment of an independent and impartial Board of Appeal of the three ESAs. Under...
This Practice Note is archived and is no longer kept up to date. Regulation ( EU) 2019/834 ( EU EMIR REFIT) appeared in the Official Journal of the EU on 28 May 2019, with application from dates starting on 17 June 2019. Regulation ( EU) 2019/2099 ( EU EMIR 2.2) was published in the Official Journal of the EU on 12 December 2019 and applies from 1 January 2020. This Practice Note outlines the amendments to Regulation ( EU) 648/2012 ( EU EMIR) introduced by EU EMIR REFIT and EU EMIR 2.2. For current detail on EU EMIR, see Practice Note: EU EMIR—essentials and Checklist: EU EMIR—timeline. EU EMIR REFIT The following sets out the principal adjustments to EU EMIR made by EU EMIR REFIT. EMIR REFIT has applied since 17 June 2019, unless otherwise...
Relevant news analysis The Lexis®PSL Banking & Finance team regularly issues EMIR-focused analysis, outlined below. 6 February 2017 - Documentation ‘processes’ are overwhelming market participants. Antony Bryceson, principal at AB Trading advisers, notes a rising belief that the 1 March 2017 cut-off for putting documentation in place-and thus securing regulatory compliance with the new variation margin ( VM) requirements-is unlikely to be met. 29 November 2016 - EMIR Review. This analysis examines the EMIR Review released by the European Commission pursuant to article 85(1) of the European Markets Infrastructure Regulation ( EMIR) on 23 November 2016. The Review outlines areas where consultation feedback and targeted input from various authorities show that measures are required to achieve EMIR’s objectives in a more proportionate, efficient and effective way. 7 October 2016 - ESMA’s proposals for SFTR and EMIR technical standards. On 30...
This Practice Note outlines the European Commission’s July 2020 capital markets recovery package, created to mitigate the impact of the coronavirus ( COVID-19) pandemic. The initiative makes focused adjustments to key frameworks so that capital markets can more readily support European businesses as they emerge from the coronavirus crisis, including: EU Prospectus Regulation ( EU) 2017/1129 Markets in Financial Instruments Directive 2014/65/ EU ( EU Mi FID II) EU Securitisation Regulation ( EU) 2017/2402 ( OJ L 347 28.12.2017 p 35) Capital Requirements Regulation ( EU) 575/2013 ( EU CRR) Background to the capital markets recovery package On 24 July 2020, the European Commission adopted the capital markets recovery package as part of its broader coronavirus ( COVID-19) recovery agenda. In April 2020, it had already advanced a targeted banking package to ease lending to households and businesses across the EU (see...
ARCHIVED: This Practice Note is archived, and is no longer maintained. What is the Capital Markets Union? The Capital Markets Union ( CMU) is a flagship political initiative of the European Commission, unveiled on 30 September 2015 with the publication of the Action Plan for Capital Markets Union. The CMU agenda was subsequently realigned and broadened in the Commission’s Communication on the Mid- Term Review of the Capital Markets Union Action Plan, issued on 8 June 2017, and elements of the programme are periodically refined and advanced as CMU work progresses and EU and industry bodies react to evolving economic and political conditions. On 24 September 2020, the European Commission released a new CMU action plan. For information, see September 2020 CMU action plan. For information on CMU developments, see Practice Note: The Capital Markets Union—recent news [...
ARCHIVED: This document has been archived and is no longer maintained. 21 October 2021 – AFME highlights surge in European capital markets activity— LNB News 21/10/2021 27 12 October 2021 – EBF publishes paper reviewing EU securitisation framework— LNB News 13/10/2021 71 28 September 2021 – ESMA work programme sets 2022 priorities— LNB News 28/09/2021 48 22 September 2021 – ICMA AMIC answers Commission consultation on EU Securitisation Regulation— LNB News 22/09/2021 72 7 September 2021 – EBA and ECB urge full, timely and faithful EU Basel III implementation— LNB News 07/09/2021 61 2 August 2021 – European Commission seeks ESMA and EIOPA advice on retail investor protection— LNB News 02/08/2021 67 15 July 2021 – Commission staff working document: ‘ Monitoring progress towards a capital markets union: a toolkit of...
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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 ]...
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