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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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Overview The Financial Services and Markets Act 2000 ( FSMA 2000) bars anyone from conducting a regulated activity in the UK unless they hold authorisation or are an exempt person; this is commonly called the general prohibition. A regulated activity means an activity of a specified type (namely, one identified in the FSMA 2000 ( Regulated Activities) Order 2001, SI 2001/544) carried on by way of business in the UK. Breaching the general prohibition is a criminal offence, attracting a fine or imprisonment. This Practice Note sets out how the Financial Conduct Authority ( FCA) acts against unauthorised business. Further material on unauthorised business is available in Practice Note: Unauthorised business—legal and regulatory framework. Key points include: the FCA’s supervision and enforcement functions focus on disrupting unauthorised firms and individuals seeking to defraud customers and on warning customers the FCA’s Warning List—a list of firms not...
This Practice Note explains the Financial Conduct Authority ( FCA) training and competence regime. The framework underpins the FCA’s consumer protection objective, aiming to ensure that staff who engage with customers in the regulated financial services market are competent and appropriately qualified to do so. The training and competence framework comprises: an overarching competence obligation (the ‘competent employees rule’) applying to individuals undertaking regulated activity in all UK‑authorised firms (including wholesale firms), as set out in the Senior Management Arrangements, Systems and Controls sourcebook ( SYSC); and more granular requirements for particular retail activities, including the need to obtain a qualification where relevant, as provided in the Training and Competence sourcebook ( TC) The regime should also be viewed in light of the FCA Consumer Duty in Principle 12 of the FCA Handbook ( PRIN 12), which mandates that a firm must act to deliver good outcomes for retail...
ARCHIVED: This Practice Note is archived and is no longer maintained. UCITS VI UCITS VI outlines the European Commission’s consultation on Undertakings for Collective Investment in Transferable Securities, issued on 26th July 2012. For information on UCITS V, see UCITS V [ Archived]. The consultation considered product rules, liquidity management, depositary matters, money-market funds and long-term investments. It followed the Commission’s UCITS V legislative proposals, likewise published in July 2012 (see UCITS V [ Archived]). In light of the European Securities and Markets Authority ( ESMA) speech by ESMA Chair Steven Maijoor on 6th November 2014, the topics raised under UCITS VI were not to be progressed through a single measure, i.e. by amending the UCITS Directive. By way of example, there was at the time a proposal for a regulation concerning money-market funds ( MMFs). For further detail on the Money Market Funds...
BREXIT: As at 31 January 2020, the UK ceased to be an EU Member State and moved into an implementation period, during which the EU continues to treat it as a Member State for many purposes. As a third country, the UK can no longer take part in the EU’s political institutions, agencies, offices, bodies and governance structures (save to the limited extent agreed), yet it must still meet its obligations under EU law (including EU treaties, legislation, principles and international agreements) and accept the ongoing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in Part 4 of the Withdrawal Agreement. For further reading, see: Brexit—introduction to the Withdrawal Agreement. This affects this Practice Note. For guidance, see Practice Note: Brexit—impact on finance transactions [ Archived]— Brexit planning and impact—key issues for debt capital markets...
OTC derivatives and ETDs Derivatives broadly fall into two categories: over the counter ( OTC) derivatives; and exchange traded derivatives ( ETDs). OTC products can then be divided into: non‑cleared OTC derivatives; and cleared OTC derivatives, which exhibit traits common to both non‑cleared OTC trades and ETDs. For further detail on OTC derivatives and ETDs, see the Practice Notes: OTC and exchange traded derivatives—key features and concepts, and OTC and exchange traded derivatives—documentation. Why are derivatives regulated? Derivatives dealing is a major area of finance and has long been regulated; however, the purpose and breadth of that regulation shifted following the 2007–2008 global financial crisis. Prior to the crisis, in summary: ETDs were regulated because they are traded on public exchanges, with a view to safeguarding market participants and the public from fraud, manipulation and abusive practices; but OTC...
This Practice Note outlines the categories of firm within scope of the Financial Conduct Authority’s ( FCA’s) Mortgages and Home Finance: Conduct of Business sourcebook ( MCOB), explains how obligations change according to the nature of the customer a firm serves, and indicates where requirements differ by the product offered. It further sets out the expectations for certain overarching areas of a firm’s operations in MCOB 2, together with supplementary provisions in MCOB 2A that give effect to aspects of the EU Mortgage Credit Directive ( Directive 2014/17/ EU) ( MCD). For guidance covering other parts of MCOB, see Practice Notes: Mortgage and home finance conduct of business—financial promotion and communications regime, Mortgage and home finance conduct of business—distribution and disclosure requirements, and Mortgage and home finance conduct of business—responsible lending, charges and arrears...
This Practice Note outlines the Financial Conduct Authority’s ( FCA’s) regulatory reporting obligations in Chapter 16 of its Supervision sourcebook ( SUP 16) for firms undertaking regulated consumer credit activities. It addresses (1) the recurring consumer credit data items ( CCR returns), which differ according to a firm’s permissions and business, and (2) distinct product sales data ( PSD) submissions required of in-scope lenders. It also captures updates in the FCA’s Policy Statement 25/3 ( PS25/3), issued in May 2025, which brought in a new regulatory reporting return for consumer credit firms that carry on any of the following regulated activities: credit broking, debt adjusting, debt‑counselling and providing credit information services. What are the reporting requirements? Reporting operates at two tiers, aligned to a firm’s permission profile: Full permission firms must file one or more CCR returns matching their permissions and...
This Practice Note explores the obligations that debt management firms must meet under Chapter 8 ( Debt Advice) of the Financial Conduct Authority’s ( FCA’s) Consumer Credit sourcebook ( CONC) when interacting with customers. It outlines the scope of CONC 8, including conduct expectations for delivering advice, pre‑contract information and advice obligations, debt solution contracts, debt management plans, the rules applying to debt packagers, and the use of lead generators. For details on the FCA’s treatment of arrears and default, see Practice Note: Consumer credit: rules relating to arrears, default and recovery. Regulatory background Where a consumer falls into arrears or defaults under a consumer credit agreement, it is standard market practice for the lender to assign the debt to a third party debt management firm for recovery, or for the debtor to voluntarily approach a debt management firm with the aim of...
This Practice Note sets out a summary of the principal provisions of the Financial Conduct Authority’s ( FCA) Insurance: Conduct of Business sourcebook ( ICOBS) that cover general matters and information disclosure requirements. Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) On 6 January 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), brought ICOBS into force, replacing the earlier Insurance: Conduct of Business sourcebook ( ICOB). Its key shift moved supervision away from a prescriptive, rule‑based model towards a more principles‑led or outcome‑focused approach. Consequently, legacy ICOB rules were simplified where the FSA judged that specific customer protection was unnecessary. ICOBS has since been amended several times, most notably to implement the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), which was transposed into UK law on 1 October 2018. Although the UK has withdrawn from the EU and...
This Practice Note summarises the principal elements of the FCA’s Insurance: Conduct of Business sourcebook ( ICOBS) that address cancellation rights and the handling of claims, with particular reference to ICOBS 7 and ICOBS 8. Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) ICOBS took effect on 6 January 2008 under the Financial Services Authority ( FSA), then the FCA’s predecessor, supplanting the former Insurance: Conduct of Business sourcebook ( ICOB). Its key reform shifted supervision away from detailed, prescriptive rules towards a principles-led, outcomes-focused approach. Accordingly, ICOB’s detailed provisions were streamlined where the FSA considered bespoke consumer protections unnecessary. Subsequent updates have followed, most significantly to give effect to the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), implemented in the UK from 1 October 2018. Despite the UK’s withdrawal from the EU, and the transfer and...
This Practice Note outlines the consumer credit activities regulated by the Financial Services and Markets 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), and the consequences of undertaking them without the required Financial Conduct Authority ( FCA) authorisation. The FCA and the consumer credit regime From 1 April 2014, consumer credit regulation transferred from the Office of Fair Trading ( OFT) to the FCA, and the OFT was abolished. The FCA is the conduct regulator for firms undertaking consumer credit, including: consumer lenders credit card issuers debt management firms credit brokers credit reference agencies hire purchase providers financial advisers pawnbrokers mail order businesses debt collectors payday lenders Types of authorisation for consumer credit firms, including the limited permission regime, are covered in Practice Note: FCA authorisation of consumer credit firms. Regulated activities—general Section 19(1) of the Financial Services and Markets Act 2000 ( FSMA 2000) imposes a general prohibition on carrying on regulated activities in the UK unless...
Who can issue individual guidance? The FCA has authority to give individual guidance. The PRA lacks an equivalent statutory power in Part 9A of FSMA 2000; however, it may permit PRA authorised firms to have regard to certain FCA guidance. This Practice Note summarises the FCA’s procedures on individual guidance. What is individual guidance? The FCA’s policy on individual guidance appears within the FCA’s Supervisory Handbook ( SUP), chapter 9, namely SUP 9. Individual guidance is spoken or written guidance from a regulator that: is addressed to a particular person rather than to persons generally or regulated persons as a whole, and concerns that person’s specific circumstances or plans for how the rules and general guidance in the FCA Handbook and FSMA 2000, or other regulatory requirements, apply in its circumstances The FCA’s authority to issue individual guidance derives from FSMA 2000, 139A, which also covers its...
The UK’s domestic sanctions framework is underpinned by the Sanctions and Anti-money Laundering Act 2018 ( SAMLA 2018) together with regulations made under it. For further detail, see Practice Notes: The UK sanctions framework under SAMLA 2018 and International sanctions—an introduction. Licences to disapply financial sanctions prohibitions The Office of Financial Sanctions Implementation ( OFSI), part of HM Treasury, can issue a licence (written authorisation) to set aside financial sanctions prohibitions for an activity that would otherwise be barred. The authority to grant licences arises within the individual sanctions regimes, so lawyers advising on licences and exemptions must consult the specific sanctions regulations relevant to their matter. Any individual or organisation wishing to undertake conduct restricted by UK financial sanctions (including UN financial sanctions that apply in the UK) may apply for a licence. Under the SAMLA 2018 framework, general licences have become a more common...
Scope of this Practice Note This Practice Note sets out the Financial Conduct Authority’s ( FCA’s) competition law powers under the Financial Services and Markets Act 2000 ( FSMA 2000), together with associated investigative tools and sanctions for infringements. It also examines the secondary objective on international competitiveness and growth, introduced for the FCA and the Prudential Regulation Authority ( PRA) by the Financial Services and Markets Act 2023 ( FSMA 2023). In addition, it summarises the FCA’s programme of market studies, calls for input and other competition-focused reviews... Overview of the FCA’s competition law powers Under FSMA 2000, the FCA holds a statutory objective to foster effective competition for the benefit of consumers across markets for regulated financial services and for services supplied by a recognised investment exchange. When pursuing its other two statutory aims—protecting consumers and safeguarding market integrity—it must likewise further...
Scope of this Practice Note This Practice Note sets out the exclusions that may apply to the regulated activities of taking deposits and to activities associated with home finance transactions. These exclusions are contained in the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), and appear after the description of each specified activity to which the exclusion relates. Where an exclusion applies, persons who would otherwise be undertaking regulated activities are, for those purposes, treated as not carrying on those activities. The general prohibition Under section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000), a person must not carry on regulated activities in the United Kingdom unless that person is authorised or exempt. This is referred to as the general prohibition. For details on the territorial scope of the general...
Scope of this Practice Note This Practice Note sets out the relevant offences that may arise in connection with the general prohibition in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000). Namely, FSMA 2000, ss 23 and 24 create two distinct offences, each of which may result in imprisonment and/or fines. The general prohibition Under FSMA 2000, s 19, no person may carry on regulated activities in the UK, or claim to do so, unless that person is duly authorised or otherwise exempt. This is generally referred to as the general prohibition. For further information about the territorial scope of the general prohibition, see Practice Note: Territorial scope of the prohibition. An authorised person is an individual or entity that has been duly granted permission by the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) under FSMA 2000, Part 4A to...
Scope of this Practice Note The exemptions from the financial promotion restriction are set out in the Financial Services and Markets Act 2000 ( Financial Promotion) Order 2005, SI 2005/1529 (the FPO), as updated from time to time (for example by the Financial Services and Markets Act 2000 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/632). For further information on the financial promotion restriction, see Practice Note: The financial promotion regime—essentials. The FPO carve-outs extend to communications concerning all forms of controlled activity. The exemptions are organised into four categories: provisions relevant to all controlled activities ( Pt IV) provisions addressing deposits and insurance ( Pt V) provisions for certain controlled activities ( Pt VI) provisions for controlled claims management activities ( Pt VIA) This Practice Note considers the exemptions that apply to communications relating to deposits and contracts of insurance other than life policies. These...
Scope of this Practice Note The Financial Services Authority’s ( FCA) rules set out in chapter 4 of the Conduct of Business sourcebook ( COBS 4) apply broadly and in general to firms when they communicate with a client or a prospective client while conducting designated investment business or Mi FID business, equivalent third country business, or optional exemption business, and when issuing or approving any financial promotion of any kind connected to investment business. This Practice Note describes the FCA’s requirements on the form and substance of client communications, including financial promotions, under the FCA’s COBS. This Practice Note sits within a series reviewing the provisions in COBS 4 and should be read alongside the following Practice Notes: Introduction to the FCA COBS 4 rules Application of the FCA's COBS 4 rules FCA COBS 4 rules— Putting together financial promotions COBS 4— Past, simulated past and future...
Scope of this Practice Note This Practice Note sets out a concise yet practical overview of the Financial Conduct Authority ( FCA) requirements housed in Chapter 4 of the Conduct of Business sourcebook ( COBS 4). These rules apply to financial promotions and other client communications issued by authorised firms to their clients in connection with designated investment business. Any organisation operating in the UK financial services arena must contend with a broad and detailed suite of rules and regulations that govern their marketing activity and promotions. This is a consequence of the financial promotion regime, which covers all forms of advertising of regulated products or services in the UK. The financial promotion regime derives from the following: the Financial Services and Markets Act 2000 ( FSMA 2000) the Financial Services and Markets Act 2000 ( Financial Promotion) Order 2005, SI...
Scope of this Practice Note The Financial Conduct Authority’s ( FCA) provisions in chapter 4 of the Conduct of Business sourcebook ( COBS 4) broadly cover firms when they communicate with a client or prospective client while undertaking designated investment business, Mi FID, equivalent third-country, or optional exemption business, and when they communicate or approve a financial promotion relating to investment business. This Practice Note outlines the FCA’s requirements for approving and confirming compliance of financial promotions, together with record‑keeping obligations, as set out in the Conduct of Business sourcebook ( COBS) at COBS 4.10 and 4.11......
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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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