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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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Background to the regulated activity of accepting deposits Section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000) prevents any person from lawfully performing regulated activities in the UK unless they are authorised or otherwise exempt from authorisation. This restriction is commonly termed the general prohibition. For fuller guidance on the general prohibition and its territorial reach, see the Practice Notes: The general prohibition and implications of its breach, and Territorial scope of the general prohibition. ‘ Regulated activities’ encompass specified activities carried on by way of business that concern ‘specified investments’, or any property to which the relevant activity relates. For these purposes, ‘specified’ means identified by HM Treasury. The Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) sets out a range of activities and investments that are so specified. For...
Background to telephone and electronic communication recording requirements This Practice Note sets out the Financial Conduct Authority’s ( FCA) requirements for capturing telephone conversations. It applies to investment businesses such as banks, stockbrokers, investment managers (including managers of collective investment schemes and hedge funds) and firms dealing in financial and commodity derivatives. The objective of the recording framework is chiefly to identify and deter market abuse. In March 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), introduced rules on the recording of calls and electronic communications (the taping rules). These rules partially implemented elements of the Markets in Financial Instruments Directive ( Directive 2004/65/ EC) ( Mi FID), notably Article 51 of Commission Directive 2006/73/ EC (the Mi FID Implementing Directive). The regime took effect from March 2009. At the outset, the taping rules excluded telephone conversations and electronic...
Background This Practice Note outlines, at a high level, the definition of a client in chapter 3 of the Financial Conduct Authority’s Conduct of Business sourcebook ( COBS), and how such clients are classified as retail clients, professional clients or eligible counterparties for regulatory purposes. The COBS 3 provisions stem from the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID). Mi FID was superseded by the recast Mi FID ( Directive 2014/65/ EU) ( Mi FID II) together with the EU Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014, OJ L 173, 12.6.2014) ( EU Mi FIR) (collectively, the EU Mi FID II framework). As amended, most of the EU Mi FID II framework has been in force since 3 January 2018, and EU Member States had until 3 July 2017 to implement Mi FID II into their...
This Practice Note provides a broad overview of: the intergovernmental agreement between the UK and the US to enhance international tax compliance and to give effect to FATCA, signed on 12 September 2012 (the UK: US IGA), and the International Tax Compliance Regulations 2015, SI 2015/878 (the International Tax Compliance Regulations), insofar as they relate to implementing the UK: US IGA The International Tax Compliance Regulations took effect on 15 April 2015. They supersede and repeal the International Tax Compliance Regulations ( United States of America) Regulations 2014, SI 2014/1506, which were in force from 30 June 2014 until 14 April 2015. The International Tax Compliance Regulations and the UK: US IGA comprise detailed and demanding provisions. This Practice Note is a summary and does not address every facet of the framework. In certain sections, it necessarily adopts a...
ARCHIVED: This Practice Note is archived and is not maintained. A major overhaul of the UK listing framework took effect on 29 July 2024, abolishing the premium and standard segments and introducing a single listing category for equity shares of commercial companies. This reform replaced the earlier two-segment approach with one category for those equity shares, reshaping the overall regime. The commercial companies category is strongly disclosure-led and sits beside other categories, including shell companies, secondary listing and closed ended investment fund categories. To deliver these changes, the UK Listing Rules sourcebook came into force and the former Listing Rules sourcebook was withdrawn. For more detail see Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note describes the position before 29 July 2024 and is retained for reference purposes only. The Financial Conduct Authority ( FCA) holds a statutory power under the...
The Investigatory Powers Act 2016 ( IPA 2016), which secured Royal Assent on 29 November 2016, reshaped the statutory regime for covert surveillance by public authorities. Much of the earlier structure had been provided—though not entirely—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). See Practice Note: The regulation of intelligence gathering—an introductory guide... FCA powers of surveillance The Financial Conduct Authority ( FCA) is authorised to undertake surveillance to obtain information for the prevention and detection of crime. Its powers include: Acquiring communications data (see Practice Note: Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016) Conducting covert surveillance, which may be recorded (see Practice Note: Covert intelligence sources) Using informants—covert intelligence sources or covert human intelligence sources ( CHIS) (see Practice Note: Covert intelligence sources) Compelling the provision of encryption keys or...
This Practice Note explores Chapter 5 of the Financial Conduct Authority’s Consumer Credit sourcebook ( CONC 5). It sets out rules and guidance on responsible lending, covering creditworthiness checks before agreements are made and conduct of business standards for credit broking. Background Creditworthiness spans two strands: credit risk to the firm and affordability for the customer. Firms often have strong commercial reasons to gauge risk, but weaker incentives to test affordability or the potential detriment to a customer’s broader finances where lending remains profitable. CONC 5 requires a reasonable assessment that weighs both the likelihood of repayment and whether payments can be sustained without materially harming the customer’s wider financial situation. The FCA has avoided overly prescriptive rules to reduce harmful side effects, such as on the price and availability of credit. Instead, firms should adopt a proportionate approach that reflects the size, cost and risk of the...
You may owe a regulatory or professional obligation to preserve the confidentiality of your customers’ affairs, and the situations in which you are permitted to reveal details about a customer can be highly restricted. The Proceeds of Crime Act 2002 ( POCA 2002) creates a duty to report knowledge or suspicions of money laundering by submitting a suspicious activity report ( SAR). Significant criminal penalties apply if you fail to comply. The Terrorism Act 2000 ( TA 2000) also imposes a disclosure requirement where you know or suspect that another person has committed, or is about to commit, a principal terrorist property offence. Counter-proliferation financing is the newest component within the long-standing anti-money laundering ( AML) and counter-terrorist financing ( CTF) framework. Obligations concerning counter-proliferation financing were brought into the Money Laundering, Terrorist Financing and Transfer of Funds (...
This Practice Note outlines the suite of information-related regulated activities, namely: the provision of credit information services (article 89A), supplying credit references (article 89B) and running a pensions dashboard service (article 89BA) under the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) framework. It sets out what amounts to each activity, highlights principal exclusions and exemptions, explains authorisation expectations, and also summarises the Financial Conduct Authority’s ( FCA’s) oversight of credit reference agencies ( CRAs) and credit information service providers ( CISPs), among other matters. Regulated activities—general Section 19(1) of the Financial Services and Markets Act 2000 ( FSMA 2000) imposes a general ban on undertaking regulated activities in the UK unless a person is authorised or exempt. In line with FSMA 2000, s 22, an activity counts as regulated if it is carried on ‘by way of...
This Practice Note outlines the debt-related regulated activities set out in Chapter 7B of the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), namely debt adjusting, debt counselling, debt collecting and debt administration. It also provides a summary of the Financial Conduct Authority ( FCA) rules that apply to debt management firms and not-for-profit organisations... What is a debt management firm? The FCA Glossary defines a debt management firm as: a firm that undertakes debt counselling or debt adjusting, whether separately or together, aiming for an individual to enter a particular debt solution; or a firm providing debt counselling where an associate carries on debt adjusting with the purpose in (a) in mind; or a firm carrying on debt adjusting where an associate undertakes debt counselling with the purpose in (a) in...
This Practice Note This Practice Note offers an overview of the exemptions and exclusions relevant to the general prohibition set out in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000, s19). Those exemptions and exclusions are contained within the following instruments: FSMA 2000 itself The Financial Services and Markets Act 2000 ( Exemption) Order 2001, SI 2001/1201 ( Exemption Order) The Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) FSMA 2000, the Exemption Order and the RAO have each undergone a number of amendments since coming into force. This Practice Note addresses the most up-to-date iterations of these instruments. In this Practice Note, references to exemptions concern persons who are relieved from the requirement to seek prior authorisation from the Prudential Regulation Authority ( PRA) or the Financial Conduct Authority ( FCA) in order to...
Scope of this Practice Note This Practice Note sets out information on the regulated activity of dealing in investments (whether as principal or as agent) as contained in article 14 of the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), as amended from time to time. Authorised persons may obtain permission to deal in investments either on their own account or on behalf of another; both routes are specified activities. Dealing as principal is a regulated activity under RAO, SI 2001/544, art 14. When acting as principal (i.e. for oneself), the activity covers the following in respect of securities or contractually-based investments, excluding funeral plan contracts (see article 87 of the RAO) and rights to or interests in investments (see article 89 of the...
Scope of this Practice Note The Financial Services Authority ( FCA)’s Chapter 4 rules in the Conduct of Business sourcebook ( COBS 4) broadly apply to firms when they communicate with a client or a prospective client while undertaking designated investment business, Mi FID business, equivalent third‑country or optional exemption business, and when they communicate or approve a financial promotion relating to investment business. This Practice Note forms part of a series reviewing COBS 4 and should be read together with the following Practice Notes: Introduction to the FCA’s COBS 4 rules Application of the FCA COBS 4 rules FCA COBS 4 rules— Compiling financial promotions FCA COBS 4 rules— Form and content of promotions COBS 4— Direct offers and cold calling COBS 4— Approval and confirmation of compliance of financial promotions and record keeping COBS 4— Promotion of restricted mass market investments and non‑mass market...
General role and responsibility of a non-executive director ( NED) For a comprehensive overview of the duties and accountability of NEDs, consult Practice Note: Non-executive directors and the listed company board—corporate governance roles and responsibilities. Guidance on the rules, expectations and remit of NEDs is likewise set out in the UK Corporate Governance Code ( UKCG Code) and in the FRC Guidance on Board Effectiveness, both published by the Financial Reporting Council ( FRC). For further details on the Code itself, see Practice Note: The UK Corporate Governance Code. NEDs who perform SMFs under the SM& CR With effect from 7 March 2016, the Senior Managers and Certification Regime ( SM& CR) applied to UK banks, building societies, credit unions and Prudential Regulation Authority ( PRA)-designated investment firms. The regime then covered all dual-regulated insurers on 10 December 2018, and from 9 December 2019 it was...
The volume of claims brought against banks continues to grow. This Practice Note considers particular issues concerning the tortious duty of care owed by banks to their customers, namely the so‑called ‘ Quincecare duty of care’, assumption of responsibility, and the giving of volunteered advice. For direction on the role of banks in financial mis‑selling claims, see Practice Note: Standard of care in professional negligence claims— Negligent financial mis‑selling claims. For general guidance on tortious claims, see: Tort and negligence claims—overview; and for negligence specifically, consult the following Practice Notes: Negligence—key elements for establishing a negligence claim Negligence—when does a duty of care arise? Negligence—when is the duty of care breached? For guidance on professional negligence more broadly, see: Professional negligence claims—overview. Framing a bank’s duty to its customer Before exploring the potential ambit of a bank’s tortious duty to its customer, it should be borne in mind that—as in...
Part 7 of the Financial Services Act 2012 The Financial Services Act 2012 ( FSA 2012) brought in new criminal offences connected to financial services, namely: issuing false or deceptive statements creating false or misleading impressions issuing false or deceptive statements, or causing a false or misleading impression, in relation to specified benchmarks Under section 401 of the Financial Services and Markets Act 2000 ( FSMA 2000), the Financial Conduct Authority ( FCA) is empowered to prosecute these offences......
The Financial Services Enforcement Database The Financial Services Enforcement Database brings together comprehensive details on substantive Financial Conduct Authority ( FCA) and Prudential Regulation Authority ( PRA) Final Notices and, where obtainable, Decision Notices, covering 2014 onwards. The Database can be searched and refined by fields including rule/legislation breach, keyword, sector, date, financial penalty, facets of financial penalty analysis, outcomes such as redress and prohibition orders, and further actions like referrals to the Upper Tribunal. This Practice Note sets out the law and process for making a reference to the Upper Tribunal ( Tax and Chancery Chamber) following a disciplinary or non-disciplinary decision of the FCA or the PRA; including decisions on restrictions, financial penalties and prohibition orders under the Financial Services and Markets Act 2000 ( FSMA 2000), and the FCA’s registration of cryptoasset firms under the Money Laundering, Terrorist Financing and...
Insurance contracts have long seemed enigmatic to law students and practising lawyers. The reason is that they are contracts of the utmost good faith. They are unlike ordinary agreements: they must be treated with exceptional care. The central element of the obligation of utmost good faith, as articulated in the Marine Insurance Act 1906 ( MIA 1906), is the policyholder’s duty to volunteer information to the insurer that would ‘influence the judgment of a prudent insurer’ when deciding whether to accept the risk and what to charge for it (see: MIA 1906, s 18). This has always been a demanding requirement. In truth, it has long been a tall order. It expects the policyholder to second‑guess the insurer’s thinking and make disclosure on that basis. The insurer, by contrast, was free to sit back and remain passive, under no obligation to offer the...
ARCHIVED : This Practice Note has been archived and is not maintained. Lawyers and the businesses they counsel must grasp their exposure to sanctions in order to craft and roll out a robust compliance plan. However, the contours of sanctions compliance shifted after the UK’s choice to exit the EU. Up to 11 pm on 31 December 2020 (the end of the implementation period), the bulk of the UK’s sanctions regimes derived from the EU, via EU regulations that applied directly in Member States; criminal offences and licensing arrangements were then put in place by UK regulations under the European Communities Act 1972. Domestically, UK sanctions were confined to (very unusually) freezing orders under the Anti- Terrorism, Crime and Security Act 2001 ( ACSA 2001), transactional measures directed under the Counter Terrorism Act 2008 ( CTA 2008), and...
Goode: Consumer Credit Law and Practice This volume offers an authoritative analysis of consumer credit across the UK, considering the effects of shifting consumer credit regulation to the Financial Conduct Authority ( FCA) in April 2014, alongside the implications of the UK’s departure from the EU. Division I: Commentary Division II: Consumer Credit Act Division III: Regulations under the Act Division IV: Financial Service Regulation ......
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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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