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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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Offences relating to financial services The Financial Services Act 2012 ( FSA 2012) sets out three offences aimed at market manipulation: issuing false or misleading statements, or deceitfully hiding material facts, under FSA 2012, s 89 producing false or misleading impressions under FSA 2012, s 90 making false or misleading statements, and related conduct, concerning benchmarks under FSA 2012, s 91 See also Practice Notes: Misleading statements etc in relation to benchmarks and Misleading impressions under Financial Services Act 2012. For details of the previous regime for market manipulation under section 397 of the Financial Services and Markets Act 2000 ( FSMA 2000), which has been repealed, refer to Practice Note: Misleading the market and market manipulation under s 397 FSMA 2000 [ Archived]......
The time limits which apply to a complaint taken to the Financial Ombudsman Service ( FOS) are set out in Chapter 2 of the Dispute Resolution: Complaints ( DISP) sourcebook in the FCA Handbook. DISP 2.8.2 R explains that the FOS is not able to consider a complaint if it is referred later than: six months after the date the respondent firm sent its final response, redress determination (issued under a consumer redress scheme), or summary resolution communication (summary resolution communication as defined in DISP 1.5.4 R); and that response must inform the complainant of the six‑month time limit for taking the complaint to the FOS (see below); or six years from the event being complained about, or, if later, three years from when the complainant became aware (or ought reasonably to have become aware) that they had cause to...
The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices from 2014 onwards. Search and filter options include: Rule breach (including breach of Principle 6) Keyword (including ‘ Treating Customers Fairly ( TCF)’) Sector Date Seriousness Aggravating and mitigating factors Financial penalty Other actions (such as referrals to the Upper Tribunal) Overview and key points This Practice Note explores the continuing significance of the Financial Conduct Authority’s ( FCA) Treating Customers Fairly ( TCF) initiative after the arrival of the FCA’s Consumer Duty. TCF’s core building blocks are found in the FCA’s Principles for Business ( PRIN), especially Principles 6 and 7. Once a central pillar of the FCA’s consumer protection objective, TCF was integral to securing a fair deal for consumers. This Practice Note...
Principles for Businesses ( PRIN) This Practice Note outlines the Principles for Businesses ( PRIN) established by the Financial Conduct Authority ( FCA). These Principles sit within the FCA’s High Level Standards in the FCA Handbook and express the fundamental obligations owed by firms and other relevant persons under the regulatory regime. The Prudential Regulation Authority ( PRA) has comparable high-level standards in its Rulebook, known as the Fundamental Rules. There are significant differences between PRIN and the PRA’s Fundamental Rules, so firms regulated by both bodies must consider these distinctions when addressing their conduct and prudential duties. In particular, the PRA’s Fundamental Rules require firms to plan for resolution so that, if necessary, they can be resolved in an orderly fashion with minimal disruption to critical services. For further detail on the PRA’s Fundamental Rules, see Practice Note: Prudential Regulation Authority and Bank of...
The Financial Services Enforcement Database The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. The Database can be searched and filtered by: rule breach keyword sector date seriousness aggravating and mitigating factors financial penalty other actions, including referrals to the Upper Tribunal The Financial Conduct Authority ( FCA) has a range of powers (see sections 97, 131E, 131F, 165–169, 171–173, 175, 176 and 284 of the Financial Services and Markets Act 2000 ( FSMA 2000)) to gather information, appoint investigators, and require a skilled persons report ( FSMA 2000, s 166). In each situation, the FCA selects the combination of powers it deems most appropriate. For reasons of fairness, transparency and efficiency, it will usually use formal statutory powers to obtain...
Background to FCA inducements requirements This Practice Note sets out the Financial Conduct Authority’s rules on inducements—such as fees, commission and non-monetary benefits—covering both the general ban and the circumstances where exemptions apply. The UK regime has long imposed detailed requirements on benefits connected to dealings in retail investment products. In the past, the FCA’s inducement standards were chiefly located in COBS 2.3 and implemented obligations arising from: the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID) the Mi FID Implementing Directive ( Commission Directive 2006/73/ EC) the fourth Undertakings for Collective Investment in Transferable Securities Directive ( Directive 2009/65/ EU) ( UCITS IV) the UCITS IV Implementing Directive ( Commission Directive 2010/43/ EU) Mi FID has been replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the EU Markets in Financial...
Treating complainants fairly Rules on how firms must handle customer complaints sit in the Dispute Resolution: Complaints Sourcebook ( DISP) within the Financial Conduct Authority ( FCA) Handbook. DISP 1 sets out requirements and guidance for dealing with complaints swiftly and fairly, including matters that might be taken to the Financial Ombudsman Service ( FOS). Entitled ‘ Treating complainants fairly’, DISP 1 underscores how strongly the FCA prioritises fair treatment of anyone raising concerns about a financial service. The DISP regime is prescriptive, covering: consumer awareness ( DISP 1.2) complaints handling ( DISP 1.3) recording of complaints ( DISP 1.9) complaints reporting ( DISP 1.10) publication of complaints data ( DISP 1.10A) As a result, firms have limited latitude in their approach to complaints. The FCA aims to ensure consumers are not put at a disadvantage because they typically have less power and...
When authorised firms stop conducting regulated activities, their Part 4A permission will be revoked. The Financial Conduct Authority ( FCA) may likewise exercise its own-initiative powers to remove a permission where particular circumstances arise. The same approach applies to requirements imposed on authorised firms: such requirements can be cancelled either on the firm’s request, or where the FCA deploys its own-initiative powers. This may occur, as necessary, in particular cases. Cancellation of permission Cancellation at the request of an authorised person The FCA can cancel the Part 4A permission of an authorised person at that person’s request. Firms should give early notice, at the earliest opportunity, to their relevant regulator if they intend to cease performing one or more regulated activities on a permanent basis. This is to comply with Principle 11 of the FCA’s Principles for Businesses ( PRIN 11) ( SUP 15.3.8G (1)(d)), which...
Introduction to the FCA authorisation process Putting together an application for Financial Conduct Authority ( FCA) authorisation can be demanding. You must assemble and submit numerous documents for the FCA to review. Although application types differ in method, layout and content, the cornerstone for most is the regulatory business plan, commonly called the ‘ RBP’. This Practice Note sets out guidance on building the RBP. The advice applies broadly across the principal financial services arenas: investment, insurance intermediation, mortgages, credit and payment services. By contrast, applications made to the Prudential Regulation Authority ( PRA)—for banks and risk‑taking insurers, for instance—follow a specialist route and fall outside the scope of this Practice Note. For further detail on the FCA’s authorisation journey, see: Obtaining authorisation and fees—overview. See also: FCA— Authorisation, FCA— How to apply for authorisation or registration, and FCA— Sample business...
On 24 December 2020, the UK Government and the European Commission revealed they had reached agreement in principle on the legal framework for the future UK- EU relationship. Taking provisional effect from 1 January 2021 and entering fully into force on 1 May 2021, the EU- UK Trade and Cooperation Agreement ( TCA) sets out provisions on trade in goods and services, economic and social co-operation, law enforcement and security co-operation, alongside overarching governance rules. A series of related declarations and accords supplement the TCA, among them the Agreement on Security Procedures for Exchanging and Protecting Classified Information ( SIA) and a distinct Nuclear Cooperation Agreement ( NCA). It also features placeholders and commitments anticipating additional agreements to be concluded. Publicised only a week before the Brexit transition ended at 11 pm on 31 December 2020 ( IP completion day), the deal arrived at the...
This Practice Note summarises the rules that govern credit limits. A borrower is allocated a credit limit by the creditor, being the highest amount of credit available to be drawn under a running credit agreement, for example a credit card facility. It applies to running credit arrangements, including credit cards, for the customer concerned only. Definition of credit limit A credit limit operates in running-account credit agreements and represents the maximum debit balance that may, under a credit agreement, remain outstanding on the account, ignoring any contractual term permitting that maximum to be temporarily exceeded. ‘ Running-account credit’ is defined in the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544, art 60L ( RAO) and includes credit cards. in advertising When a financial promotion states an interest rate or an amount relating to the cost of credit, whether shown as a...
This Practice Note outlines the scope of credit broking under the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544, art 36A ( RAO). It covers: the six credit broking activities exclusions and exemptions the limited permission route for secondary broking core Financial Conduct Authority ( FCA) Handbook obligations credit broking fees enforcement Regulated activities—general Section 19(1) FSMA 2000 imposes a general prohibition on conducting regulated activities in the UK unless the individual or firm is authorised or exempt. Under FSMA 2000, s 22, an activity amounts to a regulated activity only if carried on ‘by way of business’. As set out in the FCA’s Perimeter Guidance Manual ( PERG) ( PERG 2.3.3 G), whether conduct is by way of business turns on factors such as scale, continuity, the presence of a commercial element, and the nature of the...
This Practice Note sets out which agreements are excluded from the Financial Conduct Authority’s ( FCA’s) consumer credit regime and also outlines exemptions for consumer hire agreements. Legislative background to the exemptions On 1 April 2014, the FCA took over responsibility for consumer credit regulation from the Office of Fair Trading ( OFT), which ceased to exist. The handover created a hybrid regime, requiring firms to comply with the Consumer Credit Act 1974 ( CCA 1974) and the Financial Services and Markets Act 2000 ( FSMA 2000), alongside statutory instruments made under each and the relevant sourcebooks in the FCA Handbook, in particular the Consumer Credit sourcebook ( CONC). For further details on the FCA consumer credit regime, see Practice Note: Consumer credit—essentials. What is a regulated credit agreement? Under the Financial Services and Markets Act ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), for...
This Practice Note offers overarching guidance on conflicts of interest obligations contained in Chapter 10 of the Senior Management Arrangements, Systems and Controls sourcebook within the Financial Conduct Authority ( FCA) Handbook ( SYSC 10), in summary, and additionally addresses measures that will supersede Commission Delegated Assimilated Regulation ( EU) 2017/565 (the UK Mi FID II Organisational Regulation) upon its repeal on 23 October 2025. Which firms do the conflicts of interest rules apply to? The following provisions in SYSC 10 are applicable to so-called common platform firms (banks, building societies, designated investment firms and MIFIDPRU investment firms) and are listed below: SYSC 10.1.-4R SYSC 10.1.-3R SYSC 10.1.1R SYSC 10.1.2G SYSC 10.1.3R SYSC 10.1.4R SYSC 10.1.5G SYSC 10.1.6R SYSC 10.1.6AAR SYSC 10.1.7R SYSC 10.1.8R SYSC 10.1.9G SYSC 10.1.10R SYSC...
This Practice Note summarises the statutory provisions that prescribe the requirement to be authorised to provide financial services in the UK. The regulators may take action against persons and businesses that operate without the proper authorisations. It introduces and explains the general prohibition in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000), highlights the various exemptions, and notes the related criminal offences under FSMA 2000, ss 23–25. The general prohibition under FSMA 2000 Consistent with section 19 of FSMA 2000, a person must not carry on a regulated activity in the UK, nor hold themselves out as doing so, unless they are either: authorised (by the Prudential Regulation Authority ( PRA) or Financial Conduct Authority ( FCA)), or exempt The inclusion of the phrase ‘or purport to do so’ means the general prohibition is breached even where no...
Assimilated law and retained EU law are concepts created by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended, arising from Brexit, and denoting a new class of domestic legislation. They are umbrella labels used, at two junctures in the UK legal system’s engagement with Brexit, for the corpus of EU‑derived rules kept within domestic law following the transition period (termed IP completion day in the EU( W) A 2018 and associated legislation). For initial background reading, see Practice Note: Retained EU law and assimilated law. Assimilated law versus retained EU law: what’s the difference? Both expressions describe the residual body of domestic rules originally deriving from the UK’s membership of the EU. The pair marks two phases in the legal system’s adaptation to Brexit: retained EU law was the label for that body as it was...
Introduction This Practice Note reviews the statutory foundation of FCA supervision and the regulator’s supervisory methodology, including its decision‑making framework. It explores the FCA’s supervisory principles, areas of focus and priorities, and also sets out, in summary, how the FCA oversees firms on a day‑to‑day basis. The Note also addresses the supervisory stance taken towards retail and wholesale markets and towards international firms, as well as oversight of specialist domains (financial crime, fintech and outsourcing). It outlines the FCA’s co‑operation with other bodies, such as the PRA, and considers the prudential supervisory approach applied to firms outside of dual regulation with the PRA. The material draws principally on the following primary sources and references: FCA Mission: Approach to Supervision ( April 2019), the FCA Handbook’s Supervision Manual ( SUP), and FCA’s Mission Paper 2017: How we regulate financial services. Further background on the FCA and PRA can be...
This Practice Note sets out a summary of the Financial Conduct Authority’s ( FCA) criminal powers to bring fraud prosecutions under the Fraud Act 2006 ( Fr A 2006), the Theft Act 1968 ( TA 1968), common law conspiracy to defraud and, from 1 September 2025, the corporate offence of failure to prevent fraud. It also outlines key fraud offences and records FCA fraud prosecutions. In addition, this Practice Note reviews the FCA’s ability to bar persons convicted of fraud from participating in financial services by deploying formal enforcement powers under the Financial Services and Markets Act ( FSMA 2000). It further signposts practical, in‑depth guidance... Overview A core function of the Financial Conduct Authority ( FCA) is acting as a private prosecutor, notably for fraud offences, including the general fraud offence in Fr A 2006, s 1. Fraud counts are frequently advanced...
The Financial Services Enforcement Database The Financial Services Enforcement Database collates comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. It can be searched and refined by rule breach, keyword, sector, date, seriousness, aggravating and mitigating factors, financial penalty, and other actions, including referrals to the Upper Tribunal. This Practice Note outlines the Financial Conduct Authority ( FCA)’s approach to contested enforcement against firms and individuals, as distinct from matters handled under the FCA’s Executive Procedures. It covers the issue of Warning, Decision and Final Notices on the recommendation of the Regulatory Decisions Committee ( RDC), the potential for discontinuance or settlement, and references to the Upper Tribunal ( Tax and Chancery Chamber) ( Upper Tribunal). Once FCA investigators have: concluded their investigation determined that enforcement action is appropriate prepared their case papers for the RDC and...
This Practice Note explores the Consumer Rights Act 2015 ( CRA 2015) in the context of how fair and transparent business-to-consumer ( B2C) contract terms and notices must be. It addresses carve-outs from the unfair terms regime, the assessment of fairness, the ‘grey list’ of potentially unfair clauses, the transparency requirement, outright prohibitions, and how these rules are enforced. For an overall guide to the CRA 2015, including the definitions of ‘consumer’ and ‘trader’, see Practice Note: Consumer Rights Act 2015—summary. For how the CRA 2015 applies to goods, services and digital content, see: Consumer Rights Act 2015—goods Consumer Rights Act 2015—services Consumer Rights Act 2015—digital content Guidance on specific B2C boilerplate provisions—adjudication, alternative dispute resolution ( ADR), arbitration, assignment, definitions and interpretation, entire agreement, force majeure, governing law, jurisdiction, variation and waiver—is in Practice Note: Boilerplate clauses in...
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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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