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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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ARCHIVED: This Practice Note is archived, not maintained, and provided for background use only. For further details on the Prospectus Regulation, see Practice Note: The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation roadmap The Prospectus Regulation ( EU) 2017/119 ( PR) was published in the Official Journal of the European Union on 30 June 2017 and took effect on 20 July 2017, with most provisions applying from 21 July 2019. The PR materially revises the prospectus publication obligations contained in the Prospectus Directive 2003/71/ EC (the PD). As a regulation, it has direct applicability across Member States. This Practice Note sets out an article-by-article roadmap of the PR, detailing for each article: the article title and number, and the corresponding PD provisions For additional guidance on the PR, see Practice Notes: The UK Prospectus...
Commission Directive 2006/73/ EC You may locate the complete text of Commission Directive 2006/73/ EC here in full...
Purpose of Mi FID level 3 measures The Markets in Financial Instruments Directive (2004/39/ EC) ( Mi FID) was introduced in 2004 as a level 1, or framework, instrument within the Lamfalussy process, and was required to be implemented into the national laws of European Union ( EU) Member States by 1 November 2007, although some Member States failed to meet that deadline. It superseded the Investment Services Directive ( ISD), adopted in 1993. Its purpose was to strengthen the competitiveness of EU financial markets by establishing a single market for investment services and activities. Under the Lamfalussy approach, level 1 denotes high-level framework legislation produced via the standard co-decision procedure. Level 2 refers to secondary legislation adopted by the European Commission in the form of delegated acts or implementing acts. For further details about the level 1 and level 2 measures under Mi FID, see...
The Financial Ombudsman Service ( FOS) has two areas of jurisdiction: the compulsory jurisdiction (that is, the part of the FOS to which firms authorised by the Financial Conduct Authority ( FCA), payment service providers, electronic money issuers and certain other entities are obliged to submit under binding regulatory requirements), and the voluntary jurisdiction (that is, the part of the FOS for businesses not within the compulsory remit but wishing to sign up to the FOS’s scheme and participate contractually) Both “compulsory jurisdiction” and “voluntary jurisdiction” are described in full in the Glossary to the FCA Handbook. The voluntary jurisdiction of the Financial Ombudsman Service is addressed in Chapters 2 and 4 of the FCA’s Dispute Resolution: Complaints Sourcebook ( DISP), and is provided for by section 227 and Schedule 17, Part IV of the Financial Services and Markets Act 2000 ( FSMA...
The UK GDPR regime This Practice Note offers a concise high‑level overview of the rules concerning cross‑border scope and the designation and appointment of representatives under the following: the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) framework; and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR) framework (in force under UK law from the close of the Brexit implementation period on 31 December 2020) Assimilated law is the label applied to retained EU law ( REUL) that continues to operate after the end of 2023. Re‑classification of REUL (and related terminology) as assimilated law signals a shift in its status and handling under UK law, so that it is, in general, construed in line with ordinary UK domestic legal doctrines and principles. From 1 January 2024, REUL is ‘assimilated’ into domestic law because it is...
ARCHIVED This Practice Note has been archived and is no longer maintained. It offers an overview of the implementation and principal changes brought in by the EU Transparency Directive and the EU Transparency Directive Amending Directive in the UK. It reflects the law as at February 2019 and has not been revised to address the UK’s withdrawal from the EU. It also briefly outlines Directive 2004/109/ EC of the European Parliament (15 December 2004) on the harmonisation of transparency obligations concerning information about issuers whose securities are admitted to trading on a regulated market, and its amendment of Directive 2001/34/ EC (the Transparency Directive), together with its background, substance and UK implementation. History and implementation The Transparency Directive emerged from the European Commission’s broader Financial Services Action Plan ( FSAP), a programme designed to establish the legislative foundations for a single EU market in...
The Financial Ombudsman Service’s ( FOS) approach to handling complaints is set out in the Financial Conduct Authority ( FCA) Handbook, within Dispute Resolution: Complaints—commonly the ‘ DISP’ rules—with particular focus on DISP 3 in detail. DISP stipulates the processes and obligations for firms when managing complaints, and also defines the FOS’s remit and procedure. Collectively, they provide a structured route for addressing grievances and set expectations for both businesses and the ombudsman scheme. They also clarify when the service can look at a matter and how it should proceed. Beyond DISP, consumer complaints escalated to the FOS are also governed by the Alternative Dispute Resolution ( ADR) Directive 2013/11/ EU (the ADR Directive). The UK began complying on 9 July 2015, following its transposition via the Alternative Dispute Resolution for Consumer Disputes ( Competent Authorities and Information) Regulations 2015 and the...
Scope of this Practice Note This Practice Note examines the UK regulatory considerations encountered by crowdfunding platforms from a financial services standpoint. It ought to be read in conjunction with the Financial Services and Markets Act 2000 ( FSMA 2000), together with relevant secondary legislation, and regulatory rules and guidance, including, in particular, provisions within the Financial Conduct Authority ( FCA) Handbook and the FCA’s webpage devoted to crowdfunding. This Note briefly outlines initiatives at EU level in relation to regulating crowdfunding, which are discussed in detail in Practice Note EU Regulation of crowdfunding—the ECSP Regulation and the Mi FID II Crowdfunding Directive. Crowdfunding (sometimes referred to as 'crowd sourcing' or 'crowd financing') operates on the basis that individuals seeking capital, such as entrepreneurs, present ventures or businesses on an online platform, and members of the public contribute funds through that platform. There is no...
Introduction to the senior managers regime The Senior Managers and Certification Regime ( SM& CR) is a comprehensive framework of legislation, regulation and conduct standards designed to cut consumer harm and uphold market integrity by ensuring individuals are accountable for their behaviour and competence. It covers UK financial institutions, including banks, building societies, credit unions, PRA‑designated investment firms and insurers. For an introduction, see Practice Note: SM& CR—one minute guide. Further background and the key principles are outlined in: SM& CR—essentials for banks and PRA‑designated investment firms Conduct Rules for SM& CR Firms The SM& CR was shaped by the Independent Commission on Banking ( ICB) and the Parliamentary Commission on Banking Standards ( PCBS), established following the LIBOR scandal. For detailed analysis of LIBOR and subsequent enforcement, see Practice Notes: Benchmark enforcement action—essentials [ Archived] and Conspiracy to defraud. See also, News...
ARCHIVED: This Practice Note is archived and no longer maintained. It offers contextual guidance on the main types and doctrines of EU law and legislation, and considers how Brexit affects EU-derived law and legislation in the UK, as background reading. For more detail on this topic, see the Practice Notes: Brexit—key legislation explained and Retained EU law and assimilated law. For broader Brexit materials, see: Brexit collection. This Practice Note is not maintained. Effect of Brexit on EU law in the UK The UK ended its EU membership at 11 pm on 31 January 2020 (exit day). From that moment, directly applicable EU law no longer applied to the UK under the EU Treaties, and the UK was no longer bound by duties under those treaties, which oblige Member States to ensure their domestic legislation complies with obligations set out in EU laws. EU law itself, and its...
The Lexis+® UK Financial Services Enforcement Database brings together granular details on every substantive FCA and PRA Final Notice and, where obtainable, Decision Notices issued from 2014 to date. The Database can be searched and refined by rule contravention, keyword, sector, date, prohibition order, financial penalty, and other actions, including referrals to the Upper Tribunal. Prohibition orders Under section 56 of the Financial Services and Markets Act 2000 ( FSMA 2000), the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) may prohibit individuals who are not fit and proper from performing functions connected to regulated activities carried on by firms. The FCA or PRA may use this power where it considers it appropriate either to stop an individual performing any function in relation to regulated activities, or to limit the functions that individual may perform. a particular regulated...
ARCHIVED: This Practice Note has been archived and is no longer maintained. Stop Press: On 3 June 2025, the FCA issued Policy Statement PS25/5, launching the new Enforcement Guide ( ENFG), which replaces the former Enforcement Guide ( EG) from 3 June 2025. This Practice Note is being revised to reflect this change. For further details, see: FCA publishes new Enforcement Guide, LNB News 03/06/2025 30. Lexis+® UK Financial Services FCA/ PRA Enforcement Database This resource gathers detailed information on all substantive FCA and PRA Final Notices and, where available, Decision Notices from 2014 to the present. The Database, available here, can be searched and filtered by: rule breach and keyword sector and date seriousness, aggravating and mitigating factors financial penalty other actions, such as referrals to the Upper...
Unitranche facilities have become a core source of financing for both financial sponsor-backed and non sponsor-backed borrowers in the European leveraged loan market. First gaining traction in the US mid‑market in 2005, they have, from 2012 onwards, steadily captured a share of the European mid‑market each year. This Practice Note describes unitranche facilities, sets out the benefits and drawbacks for borrowers, and examines their principal features in depth. For broader introductory material on acquisition and leveraged finance, see Practice Note: Acquisition finance—introductory guide. For explanations of terminology used in this Practice Note, see: Glossary of acquisition finance terms and jargon. What is a unitranche facility? In essence, a unitranche facility is a single‑tranche term loan bearing a blended senior/junior interest rate, typically recorded in one loan agreement. Unitranche financings are commonly arranged by non‑traditional lenders, ie private debt funds and other...
ARCHIVED: This Practice Note is archived and is not maintained. In each section of this Practice Note, links are provided to the relevant provisions of EU and/or UK legislation, as applicable, and any significant divergence between the relevant EU and UK legislation is clearly identified. EU Market Abuse Regulation—background and purpose The Market Abuse Regulation (the EU Market Abuse Regulation) annulled and superseded the former Market Abuse Directive ( Directive 2003/6/ EC) ( OJ L 96/16) ( MAD) and its implementing legislation on 3 July 2016. The EU Market Abuse Regulation established a refreshed and bolstered EU market abuse framework, introducing a broader scope and more stringent sanctions. Outside of the UK, the Market Abuse Regulation was supplemented by Directive 2014/57/ EU on criminal sanctions for market abuse ( CSMAD). The UK used its powers to opt out of CSMAD, as it already has an...
ARCHIVED: This Practice Note is archived and no longer maintained. Introduction This Practice Note sets out the principal legal security considerations facing mobile payment service providers and their customers, and how forthcoming European legislation seeks to address them. In the UK, the mobile payments sector is growing rapidly, marked by the arrival of Apple Pay, Google’s Android Pay and Samsung Pay. Retail payments have seen notable technological innovation, with swift increases in electronic and mobile transactions and the appearance of new categories of payment services in the marketplace, which strains the existing framework. As a result, payment services legislation—such as the Payment Services Directive (2007/64/ EC) ( PSD), implemented domestically by the Payment Services Regulations ( SI 2009/209) ( PSR)—has, in places, become outdated, particularly on security, prompting reform of the PSD. The European Parliament adopted the second Payment Services Directive ( PSD2) on 8 October 2015. The...
ARCHIVED: This Practice Note has been archived and is not maintained. Last updated March 2021 Tracker overview This Transparency Directive tracker sets out recent legislative and regulatory changes relating to the TD, alongside relevant background materials and subsequent amending and implementing measures from 2001 to the present. It also covers Q& As, recommendations and technical advice issued by ESMA (which succeeded CESR). A list of abbreviations for the tracker is available here. This Practice Note is split into the following sections: Key documents and abbreviations Recent and future developments (2015 onwards) Review and further implementation of the TD (2010–2014) Implementation of the TD (2004–2010) Development of the TD (2001–2004) The TDAD (as adopted), which amended the TD (as adopted), had an implementation deadline of 26 November 2015. For further details, see Recent and future developments (2015 onwards) below. Key documents and abbreviations The following are key materials regarding the...
Introduction to the FCA’s requirements on information about firms, adviser charging and consultancy charging This Practice Note outlines, in summary, the regulatory regime and guidance that dictates what information a firm must give to clients about its services and remuneration arrangements, and about adviser and consultancy charging when it undertakes designated investment business in this context. The Financial Conduct Authority ( FCA) has set rules requiring a firm to disclose clearly to clients details about the firm and the services it offers. Many of these obligations originally arose from implementing provisions within the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID). The rules sit largely in the General Provisions Manual ( GEN) and the Conduct of Business Sourcebook ( COBS). Mi FID was subsequently replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the EU...
This Practice Note centres on the FCA requirement at COBS 19.5 for workplace personal pension schemes to set up an independent governance committee ( IGC). For wider detail on the governance duties that apply to workplace personal pension schemes, see Practice Note: Governance requirements applicable to DC workplace pension schemes— Governance requirements for workplace personal pension schemes. What is an IGC? Since 6 April 2015, certain FCA‑authorised pension providers must have a governing body called an IGC, although in some limited scenarios a governance advisory arrangement ( GAA) may take its place. For more on GAAs, see Alternative arrangements to IGCs—governance advisory arrangements ( GAAs), below. IGCs act independently of the provider and are intended to perform a function akin to trustees of occupational pension schemes. An IGC is established to represent the interests of the following groups so that their investments benefit from an...
The Financial Conduct Authority ( FCA) Training and Competence Sourcebook ( TC) The TC mandates that individuals undertaking specified regulated activities for retail customers obtain appropriate qualifications. These are available via qualification providers and some training companies. The scope and difficulty of such qualifications are set by the appropriate examination standards ( AES). The activities and relevant products/sectors to which TC applies are listed in TC App 1. For further detail on the FCA’s TC regime—including which firms and activities fall within scope and what is required—see Practice Note: FCA—training and competence. Any qualification offered by a provider must align with the AES. It may make up either the entirety or a component of the provider’s qualification. Providers determine the examination strategy and structure used to satisfy the AES. Whatever approach is taken, the way in which achievement against the AES will be assessed 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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