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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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The Financial Services Enforcement Database The Financial Services Enforcement Database houses comprehensive details on all substantive Financial Conduct Authority ( FCA) and Prudential Regulation Authority ( PRA) Final Notices and, where available, Decision Notices, from 2014 to the present. It also includes any and all Decision Notices issued by the Payment Systems Regulator ( PSR). In addition to enabling filtering by rule breach, the Enforcement Database allows users to refine results by sector, keywords, seriousness factors, aggravating factors, mitigating factors, financial penalty, and other action, such as appeals. This document sets out the keywords for the Financial Services Enforcement Database. It can be used as a tool to assist with identifying words and terms to search for across the Database......
The global commodities market The global commodities market spans a broad spectrum of goods, usually classified as hard or soft commodities. ‘soft commodities’—typically harvested outputs such as wheat, sugar, cocoa, soya beans or corn ‘hard commodities’—materials extracted from the earth, including precious or base metals, rubber, and energy products like oil Trading relies on uniform benchmarks—deliverable grades and standardised pricing by weight—so participants can purchase without inspection, assured the goods conform to recognised standards. What are commodity derivatives? Commodity derivatives are financial instruments whose value is derived from the price of a traded commodity, with payments or physical delivery contingent on how that price moves. They can be traded over the counter or on an exchange—see Practice Note: The nature of financial derivatives— Over‑the‑counter or exchange traded derivatives. These products let investors gain exposure to commodities without owning the underlying physical goods. As with other...
Chapter 4 of the Financial Conduct Authority’s ( FCA) Conduct of Business sourcebook ( COBS 4) sets out the conduct of business standards for communications—including financial promotions—issued by authorised firms to their clients. This Practice Note outlines how COBS 4 operates for firms in the UK and helps those firms assess whether the rules apply to them and in which situations... Scope of this Practice Note The FCA’s rules in chapter 4 of the Conduct of Business sourcebook ( COBS 4) generally apply where a firm communicates with a client or prospective client while carrying on designated investment business or Mi FID, equivalent third country or optional exemption business, and where it communicates or approves a financial promotion connected to investment business... This Practice Note addresses chapter 4.1 of the Financial Conduct Authority’s ( FCA) Conduct of Business Rules ( COBS 4.1), which clarifies how the COBS 4...
Scope of this Practice Note The Financial Services Authority’s ( FCA) rules in chapter 4 of the Conduct of Business sourcebook ( COBS 4) broadly apply to firms when interacting with a client or prospective client while conducting designated investment business or Mi FID, equivalent third-country or optional exemption business, and when issuing or approving a financial promotion concerning investment business. These provisions apply as appropriate and where relevant across such activities. This Practice Note flags matters the FCA considers material regarding the assembly of a financial promotion, so as to ensure it meets the regulatory requirements set out in chapter 4 of the FCA’s Conduct of Business Rules ( COBS 4). For more on what amounts to a financial promotion, refer to Practice Note: The financial promotion regime—essentials......
Background to the FCA regulation of claims management activities In April 2007, the Ministry of Justice ( Mo J) created the Claims Management Regulation Unit ( CMRU) to oversee and directly regulate claims management companies ( CMCs). Since that point, the government has grown increasingly concerned about widespread misconduct within the claims management sector nationwide. In 2015, it commissioned the independent Brady Review to assess fully the nature and true scale of problems in the market and to propose practical improvements to regulation. The Review’s final report set out several detailed recommendations aimed at strengthening authorisation, supervision and enforcement processes for the regulation of CMCs. It concluded that, in principle, the most suitable route would be a new, standalone independent regulator focused solely and specifically on CMC regulation. However, given the government’s drive to reduce the number of public and...
This Practice Note explores how the Financial Conduct Authority ( FCA) Consumer Duty affects FCA‑authorised firms’ outsourced service arrangements and their operational systems and controls. It also outlines practical points for firms to consider when reviewing in‑scope material outsourcing agreements for compliance with the Duty. The Consumer Duty applies to all regulated firms that materially influence, or determine, retail customer outcomes. For the core elements of the FCA’s Consumer Duty, see Practice Note: The FCA Consumer Duty—essentials. For requirements on manufacturers and distributors to share information within the distribution chain and with the FCA under the Duty, see Checklist: The FCA Consumer Duty Checklist—information sharing in the distribution chain. Good and poor practice concerning third parties is covered in The FCA Consumer Duty Checklist—implementation— Third parties (working across the manufacturing and the distribution chain). For key developments, see The FCA Consumer...
What is a consumer redress scheme? Since 2010, under section 404 of the Financial Services and Markets Act 2000 ( FSMA 2000), the Financial Conduct Authority ( FCA), and before it the Financial Services Authority ( FSA), have had powers to make rules compelling a firm, or multiple firms, to set up and run a consumer redress scheme. Broad guidance on such schemes, and the FCA’s powers concerning them, appears in Chapter 1 of the CONRED sourcebook within the FCA Handbook. A consumer redress scheme comprises rules requiring a firm to take one or more of the following actions, as obligations imposed by the rules on the firm (or firms): examine whether, on or after a specified date, the firm failed to meet particular requirements applicable to an activity it has conducted assess whether that failing has caused (or may cause) loss or damage to...
A recognised investment exchange ( RIE) is a UK recognised body designated under Part XVIII of the Financial Services and Markets Act 2000 ( FSMA 2000), having received a recognition order from the Financial Conduct Authority ( FCA). For the general prohibition in FSMA 2000, s 19, an RIE qualifies as an exempt person, so it requires no permission from the FCA or the PRA ( Prudential Regulation Authority) under FSMA 2000, Pt 4A to undertake regulated activities as part of its business as an investment exchange, or for, or in relation to, the provision of clearing services in the UK. You can find examples of RIEs on the Financial Services Register, such as: London Stock Exchange London Metal Exchange Limited ICE Futures Europe FCA Handbook requirements Rules for RIEs sit in the Recognised Investment Exchanges ( REC) specialist...
This Practice Note traces differences between European Market Infrastructure Regulation ( EU) 648/2012 ( EU EMIR) and Assimilated Regulation ( EU) 648/2012 ( UK EMIR). How to use this Practice Note Use this Practice Note as a navigational aid when reviewing Assimilated Regulation ( EU) 648/2012 ( UK EMIR), by comparing it with the parallel provisions in Regulation ( EU) 648/2012 ( EU EMIR). Set out below are links to all Articles and Annexes in UK EMIR and EU EMIR respectively. Each section provides: the relevant Articles and Annexes as they currently stand, including: the latest changes made, when they were made, and details of the implementing/amending/repealing legislation proposed reforms to specified Articles a brief summary of points of divergence (ie how the...
In the wake of the 2008 banking crisis, the government overhauled the UK financial services regulatory framework. One significant outcome was the creation of the Prudential Regulation Authority (the PRA). As a legally separate subsidiary of the Bank of England (the Bank), it is accountable to the Bank's Court of Directors. The PRA's chairman and chief executive are both Bank executives. For further detail on the PRA's set-up, see Practice Note: Prudential Regulation Authority—structure, functions and duties. The PRA is responsible for micro to prudential regulation of firms that undertake PRA-regulated activities. The Financial Conduct Authority ( FCA) acts as the prudential regulator for firms that do not undertake PRA-regulated activities, and is the conduct regulator for all firms prudentially regulated by either the PRA or the FCA. The purpose of this Practice Note is to explain which regulated activities...
This Practice Note: provides a synopsis of the three principal forms of fund finance: capital call facilities (often referred to as equity bridge facilities) net asset value ( NAV) (or asset backed) facilities hybrid facilities examines green and sustainability-linked finance, together with some types of fund-related finance, GP/ Manager facilities and co-invest facilities sets out key security and documentary considerations, including financial covenants, representations, undertakings, events of default and prepayment events The capital call facility market is well-established and largely standardised, though approaches to assessing investor creditworthiness and differences driven by varied fund structures can diverge. By contrast, NAV facilities and hybrid facilities are highly flexible, taking multiple forms with differing security packages and covenant...
This Practice Note considers what constitutes a collective investment scheme ( CIS), the exemptions available, and how both regulated and unregulated CIS ( UCIS) are treated. Definition of a collective investment scheme The meaning of a CIS is set out in section 235 of the Financial Services and Markets Act 2000 ( FSMA 2000). It is deliberately wide and somewhat imprecise, capturing a broad and varied range of arrangements and not merely conventional investment funds. Accordingly, the Financial Services and Markets Act 2000 ( Collective Investment Schemes) Order 2001, SI 2001/1062 ( CIS Order) was introduced in order to specify a number of categories of arrangements which, where they apply, will mean the arrangements in question are not regarded as a CIS for these purposes. Under section 235 FSMA 2000, a CIS comprises any arrangements concerning property of any kind whatsoever, including money, whose purpose or effect is to...
This Practice Note addresses the requirements under Part 6 of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLRs) for those firms required to register with the Financial Conduct Authority ( FCA) for supervision under the MLRs as follows: Cryptoasset exchange operators and custodian wallet providers (collectively, Cryptoasset Businesses) Annex I financial institutions (eg firms carrying on activities including financial leasing, commercial lending—such as forfeiters and trade financiers—and safe custody services) Firms authorised by the FCA under FSMA 2000 that plan to carry out: Money Service Business ( MSB) activity Trust and Company Service Provider ( TCSP) activity These categories are defined within the MLRs; for fuller...
Background As highlighted in Practice Note: Insurance business transfer schemes, the UK has long had a statutory framework for moving blocks of insurance business, first introduced by the Insurance Companies Act 1982 (now repealed). Today, such transfers are overseen and regulated by Part VII of the Financial Services and Markets Act 2000 ( FSMA 2000), which took effect in December 2001. Since the advent of FSMA 2000, Pt VII, UK banking businesses have also been capable of being transferred by an order of the court. Under a Part VII banking business transfer scheme, a bank may, provided specified conditions are satisfied, shift the whole of its undertaking or selected parts of it without needing to secure the consent of each individual customer......
Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
This Practice Note sets out an overview of Lloyd’s of London, alongside its governance and regulatory architecture. It explains how members and managing agents place insurance and reinsurance, and maps the Society of Lloyd’s various connections with members, managing agents, members’ agents, syndicates, brokers and coverholders. It also looks at Lloyd’s of London’s overall capital model, commonly called the Chain of Security, and gives a brief outline of the Society’s investigatory and enforcement powers. What is the Lloyd’s market? The Lloyd’s market is an insurance marketplace tracing its roots to the seventeenth century. Traders gathered at Edward Lloyd’s coffee house in London, arranging insurance cover for one another’s ventures. As global commerce moved largely by sea, until late in the nineteenth century the risks insured at Lloyd’s were almost entirely marine. Today, the Lloyd’s market underwrites risks across most classes of business. At Lloyd’s,...
Practice Note This Practice Note outlines the private rights of action ( PROA) available under the Financial Services and Markets Act 2000 ( FSMA 2000), enabling specified classes of individuals to bring claims against authorised firms where they have incurred loss in certain circumstances. The applicable statutory provisions appear in FSMA 2000, ss 20, 71 and 138D FSMA 2000, and are augmented by the Financial Services and Markets Act 2000 ( Rights of Action) Regulations 2001, SI 2001/2256 (the Rights of Action Regulations)......
What is a captive? Captive insurance is a self-insurance approach. A captive insurance company, put simply, is an insurer or reinsurer owned by the ultimate policyholder (or reinsurance policyholder) whose exposures it covers. As a regulated (re)insurer in its home jurisdiction, a captive can accept risks like any other market participant; however, its defining feature is that it writes risks arising solely or largely from its corporate owner or within its wider group. HM Treasury notes that, in 2021, there were about 7000 captives worldwide, with premiums of roughly US$69bn. Captive arrangements span the spectrum from straightforward to highly intricate. The most basic model is a single company owning a single captive to which it insures its risks. More layered designs may see risks ceded to a fronting insurer (typically an independent third party) and then reinsured back to the...
This archived Practice Note is no longer maintained. It brings together links to Brexit-related News on Financial Services within the Brexit collection. Financial Services Brexit News and News Analysis 29 January 2024 — FCA issues TPR figures for solo-regulated firms, LNB News 29/01/2024 71. The Financial Conduct Authority published headline data on solo-regulated firms that entered, and those that exited, the temporary permissions regime. 2 January 2024 — FCA confirms the end of the TPR, LNB News 02/01/2024 38. The FCA updated its TPR webpage to state it concluded on 30 December 2023. It also notes that arrangements remain under the financial services contracts regime to allow certain EEA firms to wind down UK business in an orderly fashion. The temporary marketing permissions regime will continue until 31 December 2025. ...
Key elements of bai salam As set out in greater detail in the Practice Note: The structure and required elements of a bai salam transaction, in particular with respect to the differing views amongst Shari'ah schools of thought, there are several essential conditions that must be satisfied for a valid bai salam contract to stand: payment of the full purchase price by the buyer to the seller at the moment the contract is concluded and the sale takes effect precise, unequivocal description of the asset’s quality and quantity, generally by reference to recognised trade standards, with all possible particulars expressly set out the contract must not relate to a specific or unique asset clear delivery provisions, in particular the date and location for delivery Additional requirements apply to a parallel bai salam: the parallel bai salam must be...
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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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