Featured documents
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:
Most recent Practice notes
Scope of this Practice Note This Practice Note outlines the exemptions from the financial promotion restriction most pertinent to corporate work. For detail on the restriction itself, see Practice Note: The financial promotion regime—essentials. The exemptions addressed here appear in Part VI of the Financial Services and Markets Act 2000 ( Financial Promotion) Order 2005, SI 2005/1529 ( FPO), as amended, including by the Financial Services and Markets Act 2000 ( Claims Management Activity) Order 2018, SI 2018/1253, and the Financial Services and Markets Act 2000 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/632. They cover: transaction-led financial promotions company-focused financial promotions recipient-specific financial promotions A graphic summarises the exemptions within each of these three categories: Financial Promotion Order—groups of exemption. The FPO 2005, SI 2005/1529, sets out more than 70 exemptions available to those who are not PRA/ FCA...
ARCHIVED: This Practice Note has been archived and is not maintained FCA approach on the supervision of financial promotion This Practice Note explains how the Financial Conduct Authority ( FCA) ensures that financial promotions issued by firms comply with its rules, and points to examples of enforcement action where non-compliance has been identified. For wider context on the financial promotion regime, see Practice Note The financial promotion regime—essentials. In recent years, the FCA has sought to embed an outcomes-focused model of supervision while retaining elements of a conduct-focused approach. Following a consultation in March 2018, the FCA published its supervisory approach in March 2019. It noted that most firms are supervised as part of portfolios comprising firms with similar business models. The FCA assesses each portfolio and sets a strategy to act on those firms presenting the greatest risk of harm. The regulator...
Scope of this Practice Note The FCA’s rules in chapter 4 of the Conduct of Business sourcebook ( COBS 4) apply broadly to firms when they communicate with a client or a prospective client while carrying on designated investment business, Mi FID, equivalent third country or optional exemption business, and when communicating or approving a financial promotion relating to investment business. This Practice Note sets out what direct offer financial promotions and cold calls are, and identifies which FCA provisions govern them. It forms part of a wider series on 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 FCA COBS 4 rules— Form and content of promotions COBS 4— Approving and...
Background to, and application of, CASS 9 Before 1 December 2014, the bulk of client information and reporting obligations relating to client assets held by investment firms were set out in the Conduct of Business sourcebook ( COBS). A key exception covered disclosure and reporting requirements specific to prime brokerage, which were contained in CASS 9. In consultation paper CP13/5, Review of the client assets regime for investment business, the Financial Conduct Authority ( FCA) sought views on a major re-write of CASS, introducing a package that addressed: the frequency with which firms report to clients; the information to be provided to clients before investment services are undertaken; and the creation of a standalone disclosure document summarising key provisions within client agreements that may affect rights or protections under CASS These elements formed part of the proposed re-write of CASS......
This Practice Note examines the function of prime brokers and offers a concise outline of the typical services prime brokerage houses provide to clients, notably alternative investment funds ( AIFs) and their managers. It also summarises the regulatory landscape applicable to prime brokers, together with the supervisory priorities of the Financial Conduct Authority ( FCA) and the Bank of England ( Bo E) in the prime brokerage context. The focus is on prime brokers operating for an AIF within the EU or UK. What is prime brokerage? Prime brokerage firms—being investment banks or other financial institutions—may deliver prime brokerage services (both expressions having the meanings given in the FCA Handbook Glossary, as expanded on below), for example to an AIF or other substantial investment client. Typical offerings include extending cash or securities to an AIF to support that fund’s long and short...
The Retail Distribution Review and the Training and Competence sourcebook The Financial Conduct Authority ( FCA) established the status of 'accredited body' after a lengthy consultation process launched by the Financial Services Authority ( FSA) in 2006. In 2008, the FSA issued its final concluding statement on the Retail Distribution Review ( RDR), setting out new professionalism standards for retail investment advisers. In December 2012, those standards were then implemented through changes to the rules within the Training and Competence sourcebook ( TC) of the FCA Handbook......
Part XII of the Financial Services and Markets Act 2000 ( FSMA 2000) Under Part XII of FSMA 2000, any controller or proposed controller must first secure consent from the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) before acquiring or increasing control in a UK authorised firm, and is also required to notify the relevant regulator when reducing or ceasing control in a firm. This Practice Note outlines the duties on controllers and proposed controllers to notify and secure the appropriate regulator’s approval prior to acquiring or increasing control in a UK authorised firm. The PRA’s requirements are set out in the Change in Control Part of the PRA Rulebook, and the FCA’s requirements are contained in Chapter 11 of the Supervision manual in the FCA Handbook ( SUP 11). A summary of the FCA...
Part XII of the Financial Services and Markets Act 2000 ( FSMA 2000) Part XII of FSMA 2000 obliges controllers and prospective controllers to obtain approval from the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) before acquiring or increasing control in a UK authorised firm, and to inform the relevant regulator when reducing or ending control in a firm. This Practice Note outlines the obligations on controllers to notify the appropriate regulator when they decrease or cease control in a UK authorised firm. The PRA’s rules are contained in the Change in Control Part of the PRA Rulebook, and the FCA’s rules are set out in Chapter 11 of the Supervision manual in the FCA Handbook ( SUP 11). A summary of the FCA notification obligations is provided in SUP 11 Annex 1G. For practical steps that...
The general prohibition At the centre of the UK regulatory framework sits a fundamental restriction: no person may carry on a regulated activity in the UK, or hold themselves out as doing so, unless they are either: authorised by the appropriate regulator, or exempt This is the general prohibition, set out in the Financial Services and Markets Act 2000 ( FSMA 2000), s 19. The inclusion of the phrase ‘or purport to do so’ means a breach can arise even where no regulated activity is actually performed, if someone represents that they do or seeks to undertake it. Further information on the general prohibition, exemptions and the regulators can be found in: The general prohibition—overview The general prohibition and implications of its breach FCA—corporate governance UK regulators—financial services—overview What are regulated activities? Regulated...
The Financial Services Compensation Scheme ( FSCS) derives its fundraising powers from Chapter 6 of the FEES sourcebook within the Financial Conduct Authority ( FCA) Handbook, alongside designated chapters of the Prudential Regulation Authority ( PRA) Depositor Protection and Policyholder Protection rules. This Practice Note offers a synopsis of the principal provisions. Application and scope Sections 213 and 224 of the Financial Services and Markets Act 2000 ( FSMA 2000) confer on the regulators (that is, the FCA and the PRA) the ability to set rules permitting the FSCS to charge levies to authorised persons to cover its costs. Those rules appear in FEES 6 of the FCA Handbook, and in Depositor Protection 33 and Policyholder Protection 21 of the PRA Rulebook. This delineates that the PRA is the competent authority for rulemaking on claims relating to deposits and insurance, while the FCA oversees all other...
This Practice Note examines the impact of the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA) falling within the scope of the Freedom of Information Act 2000 ( FIA 2000). It complements broader notes on freedom of information and does not provide detailed guidance on making or answering FIA 2000 requests. In particular, it addresses the position of firms where the regulators might release material a firm regards as commercially sensitive or confidential. For additional reading, see Lexis+® UK IP and IT Practice Notes: Compliance with a freedom of information request Absolute exemptions to a freedom of information request Freedom of information request—flowchart The regulators and FIA 2000 For FIA 2000 purposes, the PRA and the FCA are classified as public authorities, so the public may submit requests to one or both regulators for disclosure of recorded...
Connect Connect is the online platform for applications and notifications. Since 1 October 2014, the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA) have used Connect, which superseded the former Online Notification and Application System ( ONA). The FCA administers the Connect platform, yet it is employed by both the FCA and PRA. Submissions are directed to the appropriate regulator and, for firms that are dual-regulated, the PRA leads on processing those submissions within the system accordingly......
The Financial Services Compensation Scheme ( FSCS) operates distinct regimes for deposit claims, non‑deposit claims, and insurance policyholder protection. The Prudential Regulation Authority ( PRA) sets the rules that apply to claims relating to deposits and the provision of insurance, whereas the Financial Conduct Authority ( FCA) is responsible for all other forms of FSCS‑covered financial activity. The relevant rules are located in the Compensation ( COMP) sourcebook within the FCA Handbook, and in the Depositor Protection and Policyholder Protection parts of the PRA Rulebook. From 3 July 2015, both (a) Chapters 9 to 12 of COMP and (b) specified chapters of the PRA Rulebook have addressed the practical aspects involved in calculating and paying compensation, once the qualifying conditions have been satisfied and the FSCS has decided that compensation is payable. There are limits on the amount of...
From 1 April 2013, the PRA and the FCA replaced the FSA. From 1 April 2013, alongside determining which regulator is relevant to a firm’s operations and, where necessary, seeking dual authorisation from the PRA and FCA, firms have had to consider the category of PRA‑regulated activities for which permissions are required, as well as regulated activities for which FCA permissions are required by the relevant regulators, respectively. For further details see: Regulated activities—specified activities and investments—overview, Prudential Regulation Authority—supervisory approach—deposit-takers, and Prudential Regulation Authority—supervisory approach—insurers. A key change from 1 April 2013, described in FCA publications CP12/24, CP12/26 and PS13/05, concerned the process for a firm to apply to vary or cancel its authorisation or Part 4A permissions, or to vary or cancel requirements imposed by the PRA or FCA. Firms now use the Connect system for matters relating to...
This Practice Note examines the strategic and operational aims and powers of the Financial Conduct Authority ( FCA). It reviews the FCA’s objectives and powers in general terms and considers changes brought in by the Financial Services and Markets Act 2023 ( FSMA 2023). The FCA was formed on 1 April 2013, assuming responsibility for conduct and relevant prudential regulation from the Financial Services Authority ( FSA). For more on the FCA and the other UK financial services and markets regulators, see Overview: UK regulators—financial services—overview and Diagram: UK financial services regulatory structure diagram. Guidance on the FCA’s functions and how the FCA works with other regulators and bodies is set out in Practice Note: Financial Conduct Authority—functions. For information on the FCA’s corporate governance and constitution, see Practice Note: FCA—corporate governance, structure and...
Threshold conditions This Practice Note outlines the threshold conditions applicable to authorised firms, covering firms authorised by the Financial Conduct Authority ( FCA), those authorised by the Prudential Regulation Authority ( PRA), and firms that are dual-regulated by the FCA and PRA. All firms authorised under the Financial Services and Markets Act 2000 ( FSMA 2000) must meet minimum requirements to obtain and continue to hold authorisation. These requirements are known as the ‘threshold conditions’. The threshold conditions are contained in Schedule 6 to FSMA 2000. They were modified by the Financial Services and Markets Act 2000 ( Threshold Conditions) Order 2013, SI 2013/555 (the Threshold Conditions Order). Amendments made to FSMA 2000 by the Financial Services Act 2012 ( FSA 2012) took effect on 1 April 2013. FSMA 2000, s 55C, inserted by FSA 2012, s 11(2), provides that HM Treasury may, by order, amend FSMA...
This Practice Note outlines the conditions that must be met for a person to receive compensation from the Financial Services Compensation Scheme ( FSCS). It summarises rules on: who can seek compensation from whom compensation may be claimed the losses or liabilities that can be compensated There are separate regimes within the FSCS for deposit claims, non-deposit claims, and insurance policyholder protection. The Prudential Regulation Authority ( PRA) sets the rules for deposits and insurance, while the Financial Conduct Authority ( FCA) is responsible for other FSCS-covered activities. The relevant provisions appear in the COMP sourcebook of the FCA Handbook and in the Depositor Protection and Policyholder Protection parts of the PRA Rulebook. Compensation paid to eligible claimants Claims under COMP For claims falling within the FCA’s scope, the FSCS may pay compensation to an eligible claimant (subject to COMP 11 ( Payment of...
Personal pensions, brought in during 1987, were hailed as creating fresh options for both employees and the self-employed. It soon became clear the proposition could equally be promoted to employers, and the group personal pension ( GPP) swiftly emerged to meet that demand. In essence, a GPP is a collection of individual personal pension policies housed within a single personal pension scheme and run by the provider for the workforce of one employer, or a group of employers. GPPs are therefore ‘workplace personal pension schemes’. Consequently, rules apply to GPPs that do not apply to personal pensions used outside the workplace. For example, they are overseen by independent governance committees ( IGCs) (see —principal legal features below) and limits apply to charges borne by members. For more detail on workplace requirements for GPPs, see Practice Note: Personal pensions—an...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES Central to the disclosure framework for occupational and personal pension schemes are the Occupational and Personal Pension Schemes ( Disclosure of Information) Regulations 2013, SI 2013/2734 (the 2013 Disclosure Regulations), which took effect on 6 April 2014, and remain the core source within the disclosure regime for such schemes. Nonetheless, further disclosure duties appear, in a fragmented way, across other areas of pensions legislation. Accordingly, this Practice Note concentrates on the disclosure obligations that fall outside the 2013 Disclosure Regulations. For guidance focused specifically on the 2013 Disclosure Regulations, see Practice Note: Disclosure requirements applicable to occupational and personal pension schemes from 6 April 2014. In this Practice Note, any reference to ‘trustees’ is intended to include the managers of a contract-based scheme......
BREXIT At 11pm GMT on 31 December 2020—the ‘ IP completion day’—the transition/implementation phase that followed the UK’s exit from the EU, and which had been entered into after the UK’s withdrawal, came to a close. From that moment, key transitional measures ended, and significant changes started to operate across the UK’s legal regime. This note provides guidance on topics affected by these shifts. Before proceeding with your research, please refer to: Brexit and financial services: materials on the post‑ Brexit UK/ EU regulatory regime ( Archived). ESRB Background The European Systemic Risk Board ( ESRB) was established in line with recommendations that arose during the early stages of the 2007–08 financial crisis. The European Commission aimed to strengthen European Union‑level supervisory arrangements for the financial system to bolster consumer protection and rebuild trust in finance. It was considered that oversight should emphasise the...
Popular documents
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 ]...
Discover more from LexisNexis
