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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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Tipping off and prejudicing an investigation Once a suspicious activity report ( SAR) has been filed, warning the alleged offender that their behaviour is attracting attention would strip the authorities of the benefit, as they could take steps to conceal their misdeeds or even disappear. To address this risk, the Proceeds of Crime Act 2002 ( POCA 2002) sets out the discrete offences of ‘tipping off’ and ‘prejudicing an investigation’. These offences share certain common features, yet they are aimed at distinctly different forms of offending conduct. The tipping off provisions apply solely to the regulated sector and are engaged where an individual knows or suspects that a disclosure (including a SAR) has been made under POCA 2002, s 337 (protected disclosure) or POCA 2002, s 338 (authorised disclosure) (see Practice Note: Authorised disclosure, protected disclosure and appropriate consent). By...
The Lexis+® UK Financial Services FCA/ PRA Enforcement Database: Contains comprehensive details on all substantive FCA and PRA Final Notices and, where available, Decision Notices issued from 2014 onwards. Beyond enabling searches by particular rule or statutory breach, users may stack multiple filters, covering sector, keywords, and outcomes including public censures, prohibitions and Upper Tribunal judgments. The Database also provides in-depth analysis of financial penalties so that searches can be refined by criteria such as seriousness, aggravating and mitigating factors, and financial hardship. All material particulars of each matter appear within the Database, accompanied by the relevant Final Notice/ Decision Notice, any connected notices, and FCA/ PRA press releases......
In the UK, particular relationships and close ties held by firms may sway how a business is managed, shape consumer outcomes, and hinder effective regulatory oversight. Consequently, the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) exercise specific powers over close links to ensure financial services firms can be adequately supervised. A key impetus for the regime is curbing financial crime and market abuse... The UK close links regime This Practice Note outlines the UK close links regime, highlighting the threshold conditions that authorised firms with close links must meet so that they remain capable of effective supervision by the FCA and PRA, as well as the expectation that firms keep the FCA and/or PRA apprised of their close links on a continuing basis... The concept of ‘close links’ derives from Directive 95/26/ EC (the Post- BCCI Directive), introduced to lessen the...
Scope of this Practice Note Land (or real property) is routinely provided as collateral for borrowing. In this setting, land is more significant than some other assets, as it may serve in personal lending scenarios (e.g. home purchases) just as much as in commercial lending transactions......
Many companies aim to promote their goods or services by drawing comparisons with a rival to secure a commercial edge. For example, a business might present its products as superior in quality or more competitive in price than a competitor’s. The law in this area seeks to balance the various interests affected when comparative advertising is permitted. In short: adverts may point out comparable features of products to consumers, but adverts must not distort competition, harm trade mark proprietors, or negatively impact consumer choice Content This Practice Note examines the following areas: What is comparative advertising? Legal framework What conditions must be satisfied for a comparative advert to be lawful? How does comparative advertising relate to trade mark law? Enforcement in the UK See also: —checklist. What is comparative advertising? It is defined as any advertising which, expressly or by...
An activity counts as a regulated activity only when it is undertaken by way of business in the UK. The Financial Services and Markets Act 2000 ( FSMA 2000) does not define that phrase, so it retains its ordinary meaning. Deciding whether an activity is conducted by way of business is ultimately a matter of judgment. There are, nonetheless, particular circumstances in which activities will be regarded as by way of business, identified for a limited set of activities by the Treasury under its FSMA 2000 powers. This Practice Note outlines how HM Treasury’s interpretation of business applies to those categories of activity. For details on whether an activity is a regulated activity, see Practice Note: What are regulated activities? For further information on the carrying on of regulated activities in the UK, see Practice Note: Territorial scope of the general...
This Practice Note examines the rise in ESG and climate-focused litigation and regulatory enforcement, and outlines measures financial institutions can take to ready themselves for and reduce this risk. Key points Many financial institutions remain ill-equipped to handle climate risk, leaving them vulnerable to more climate-linked claims and enforcement. Simultaneously, a growing cohort of claimants is turning to litigation to push businesses towards climate-friendly policies. Multiple drivers are fuelling more climate litigation and enforcement. While most pronounced in North America, other regions are rapidly catching up. As pivotal financiers of economic activity, financial institutions are increasingly targeted. Until lately, cases chiefly sought to compel disclosure of climate information. The emphasis is shifting from allegations of inadequate disclosure to actions scrutinising what prudent financial management entails. Greenwashing-related claims are also increasing. Financial institutions would be wise to plan for and lessen exposure, for instance by reviewing their...
What is clearing of derivatives? Clearing is the mechanism that removes the usual risk that a party to a derivatives transaction will fail to perform. The principal participants are: a financial institution called a clearing house, a central counterparty or CCP; and other financial institutions, typically banks or brokers, that enter a clearing agreement with the clearing house—these are the clearing members of the clearing house, also referred to as clearing firms. In cleared transactions: all trades are placed by clearing members, either for their own books or on behalf of their clients; and the clearing house inserts itself between the member firms to the trade, becoming counterparty to every transaction—so each side bears the clearing house’s risk rather than the other party’s risk. The manner in which the clearing house is inserted between the clearing members depends on whether it uses: the principal model—here, Clearing Member A and Clearing Member B enter into a...
This Practice Note charts the financial services carve-outs from the moratorium provisions and the restrictions on ipso facto clauses introduced by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) into the Insolvency Act 1986 ( IA 1986). For general information on CIGA 2020 and links to further materials, see News Analysis: Corporate Insolvency and Governance Act 2020. Moratorium CIGA 2020 inserts a new Part A1 into IA 1986, establishing a fresh insolvency process under which directors of insolvent companies, or companies likely to become insolvent, may obtain a 20 business day moratorium period. The purpose is in particular to give viable businesses time and breathing space in order to restructure or to seek new investment free from creditor action. An insolvency practitioner serves as the ‘monitor’, overseeing the moratorium, while directors remain in control of the company’s day-to-day running of the business on a...
This Checklist Created for those advising financial services firms within scope of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs), this Checklist covers the following types of firm: credit and financial institutions cryptoasset exchanges custodian wallet providers It explains the legal duties on financial services firms that rely on third parties to undertake customer due diligence ( CDD)—also known as know your customer ( KYC)—under Regulation 39 of the MLRs, together with the associated regulatory requirements and guidance issued by the Financial Conduct Authority ( FCA). It also signposts industry guidance published by the Joint Money Laundering Steering Group ( JMLSG), and incorporates relevant guidance for the insurance and banking sectors from the International Association of Insurance Supervisors ( IAIS) and the Basel Committee on Banking...
Background to the implementation of the Acquisitions Directive Before the Acquisitions Directive ( Directive 2007/44/ EC) came into force in March 2009, a range of directives covering the banking, insurance and securities sectors set out how to obtain supervisory consent for acquiring a bank, insurer or securities firm. Yet each Member State retained significant discretion in interpreting those requirements. This raised fears that regulatory barriers could be wielded to obstruct a bid for political motives rather than for valid supervisory reasons. In response, the European Commission proposed full harmonisation of the approval regime within the relevant directives and, on 12 September 2006, issued its proposal for the Acquisitions Directive. The aim was to enhance and standardise the procedures national supervisory authorities should apply when evaluating proposed mergers and acquisitions in the banking, insurance and securities fields, thereby preventing EU supervisors from...
Part XII of the Financial Services and Markets Act 2000 ( FSMA 2000) obliges existing and prospective controllers to obtain consent from the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) before acquiring or increasing control in a UK authorised firm, and to give notice to the appropriate regulator when reducing or relinquishing control. UK authorised firms must likewise inform the FCA and PRA when a person’s control falls or ends. This Practice Note outlines the core concepts of the controllers regime, including the definitions of ‘controller’, ‘control’ and ‘control band’, together with related terminology. For step-by-step actions that controllers and proposed controllers should consider when acquiring/increasing or disposing/decreasing control, see Change in control process—checklist. For deeper guidance on the FSMA 2000 controllers regime, see the following Practice Notes: Obligations of...
This Practice Note discusses the meaning of capital call facilities, ' NAV' or asset-backed facilities, and hybrid facilities the commercial applications of capital call facilities the due diligence that lenders will undertake the standard security package typically required by lenders the principal terms of capital call facilities ' Capital call facilities' and other types of fund finance A capital call facility, also known as a subscription line facility, is financing extended by a lender to a fund and is ordinarily collateralised by investors’ undrawn commitments. Accordingly, funds tend to obtain these lines early in their life cycle, when unfunded commitments are at their highest yet the fund holds few or no investments that can be charged in favour of lenders. Nevertheless, particularly where recallable capital commitments persist (see below), capital call facilities can remain beneficial well into the fund’s...
This Practice Note outlines the corporate criminal offence of failing to prevent bribery under section 7 of the Bribery Act 2010 ( BA 2010). It was the first economic crime offence to attach culpability to a company’s failure to stop an offence carried out on its behalf. See Practice Note: Corporate criminal liability. For background on the evolution of corporate criminal liability, see Practice Note: Corporate criminal liability reform—tracker. Corporate criminal liability for bribery—section 7 of the Bribery Act 2010 The failing to prevent bribery offence applies only to relevant commercial organisations ( RCOs), not to individuals. BA 2010 defines RCOs as: bodies incorporated, or partnerships formed, under the law of any part of the UK, that conduct business anywhere, i.e. within the UK or abroad bodies incorporated, or partnerships formed, anywhere that carry on any business in the UK Business includes a trade or...
At 11pm UK time on 31 January 2020 (exit day), the United Kingdom departed the European Union pursuant to a Withdrawal Agreement that had been duly ratified by both the UK and the EU. Throughout the implementation period—ending at 11pm UK time on 31 December 2020 and known as ‘ IP completion day’—the parties worked to settle terms for their future relationship. In readiness for Brexit, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) became law, repealing the European Communities Act 1972 ( ECA 1972) on exit day. The European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) was enacted to enable ratification and domestic implementation of the Withdrawal Agreement, and to provide for implementation of the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. EU( WA) A 2020 also amends EU( W) A 2018....
Relevant articles on Brexit for Banking and Financial Services The Lexis+® UK Financial Services team have curated the following Brexit articles, outlined below: December 2020 — Drafting for Brexit in finance documents (2020) 11 JIBFL 727. In this piece, Avril Forbes, a professional support lawyer within Clifford Chance LLP’s banking and finance practice, considers post– IP completion day drafting in finance documents and approaches to references to EU legislation. October 2020 — Regulating European financial markets between crisis and Brexit (2020) JFRC 28(4), 503–514. The article illustrates how the European regulatory architecture for financial markets evolved after the financial crisis and, from this analysis, discusses how it could develop and be adjusted for a post- Brexit financial market. June 2020 — EU recognition of UK CCPs after Brexit: what it means for the “clearing obligation” (2020) 6 JIBFL 389. Written by Tim Aron, a...
ARCHIVED This Practice Note is archived and is not maintained or updated. It examines how Brexit could affect businesses’ contractual rights and duties for a business, and explores what Brexit means for managing contract risk in advance of IP completion day. For further information and guidance on the impact of IP completion day on contracts and, more generally, on commercial law, see Practice Notes: What does IP completion day mean for contract clauses? and What does IP completion day mean for Commercial? The Note evaluates the effects of Brexit on companies’ contractual rights and obligations and addresses the ramifications of Brexit for contract risk management in practice. It offers practical step-by-step guidance on identifying contractual risk to businesses arising from Brexit and on conducting a Brexit risk-management contract audit and contract review process. See also: Brexit risk management: contract...
This quick guide to the Brexit Bank Recovery and Resolution Directive 2014/59/ EU sets out the UK legislation and retained EU legislation altered or repealed by the Bank Recovery and Resolution and Miscellaneous Provisions ( Amendment) ( EU Exit) Regulations 2018, SI 2018/1394 (the BRRD SI), the Bank Recovery and Resolution ( Amendment) ( EU Exit) Regulations 2020, SI 2020/1350 (the BRRDII SI), and other instruments effective from the end of the implementation period after the UK’s exit from the EU, together with related amendments to Financial Conduct Authority ( FCA) and Prudential Regulation Authority ( PRA) regulatory rules and guidance. It also identifies principal areas where, post-implementation period, the UK has chosen to diverge from the EU bank recovery and resolution framework. For a high-level overview of the position of EU bank recovery and resolution measures in UK law from 1 January 2021, see...
This quick guide to the Payment Accounts Directive ( Directive 2014/92/ EU) ( PAD) outlines UK legislation and retained EU law relating to requirements modified by the Payment Accounts ( Amendment) ( EU Exit) Regulations 2019, SI 2019/661 (the Payment Accounts Exit Regulations 2019), together with other instruments in force at the end of the implementation period after the UK’s withdrawal from the EU, and related updates to the Financial Conduct Authority’s rules and guidance. The summary below explains Brexit readiness measures and fall-back plans for onshoring EU requirements for payment account providers post‑ Brexit. Overview of onshored and preserved EU-derived law post- IP completion day The Payment Accounts Exit Regulations 2019 sit within HM Treasury’s programme of statutory instruments made under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) to address ‘no deal’ Brexit...
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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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