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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 FCA rules concerning the use of investment platforms As a strand of its consumer protection agenda, the Retail Distribution Review ( RDR) prompted the Financial Services Authority ( FSA)—predecessor to the Financial Conduct Authority ( FCA)—to reassess how investment platforms, and their deployment, should be regulated. At an early stage the FCA also differentiated between the regulatory approach to platform providers and the approach applied to platform users, drawing a clear line between the two. The emphasis here is therefore on obligations of users rather than requirements for providers. This note, in particular, addresses the latter, setting out the FCA’s expectations of financial adviser firms regarding systems and controls, and of professionals in relation to indicative behaviours when using platforms. This Practice Note further considers the quality of advice, the distinctions between advised and non‑advised platform use, systems and controls, and the...
Stakeholder pension schemes after 1 October 2012 The duty on employers to nominate and provide access to a stakeholder pension scheme (as set out in section 3 of the Welfare Reform and Pensions Act 1999 ( WRPA 1999)) ended on 1 October 2012, when the requirement to enrol workers automatically into a qualifying scheme (introduced by the Pensions Act 2008) took effect. However, unless a relevant exception applies (eg where an employer is notified that a designated stakeholder pension scheme has commenced winding up), employers remain under a continuing duty in respect of relevant employees to deduct employee contributions to an existing stakeholder scheme from their pay and remit them to the trustees or managers of the schemes. In addition, any existing or new stakeholder pension schemes must continue to be operated in line with the statutory requirements for such schemes, eg...
FSB Formed in April 2009 at the London G20 summit, the FSB succeeded the Financial Stability Forum ( FSF). It was set up after G20 leaders called for an expanded FSF membership to enhance its effectiveness as a vehicle for national authorities, standard-setting bodies ( SSBs) and international financial institutions ( IFIs), and to oversee the implementation of robust regulatory, supervisory and other financial sector policies. The FSB functions as a formalised international convening and co-ordinating body, based in Basel, Switzerland. It advances international financial stability by working through, and co-ordinating, national competent authorities and international standard-setting bodies as they develop regulatory, supervisory and other financial sector policies. Its particular aim is to fortify financial systems and improve the stability of international financial markets, bringing together national authorities responsible for financial stability in significant financial sectors, namely central banks, treasuries,...
This Practice Note explains the steps to secure Financial Conduct Authority ( FCA) authorisation for a unit trust, highlights the necessary documentation, and points to the applicable provisions of the Financial Services and Markets Act 2000 ( FSMA 2000) together with the Collective Investment Schemes sourcebook ( COLL) within the FCA Handbook. It also considers COLL 7.4, which prescribes the winding-up procedure for an authorised unit trust ( AUT)... What is an AUT? A unit trust is a form of collective investment scheme ( CIS) where a trustee holds the assets for investors (the unitholders) under a trust deed. An AUT is a unit trust granted authorisation by the FCA under FSMA 2000, s 243. Other permitted UK-authorised CIS structures include open-ended investment companies ( OEICs) and authorised contractual schemes ( ACSs) (see Practice Notes: Open-ended investment companies ( OEICs) and Taxation of...
The Financial Conduct Authority’s Collective Investment Schemes Sourcebook ( COLL) is a specialised sourcebook that sits within the FCA Handbook. COLL sets out the detailed framework that governs how authorised funds operate, and this Practice Note succinctly summarises its key provisions. What is COLL? The Collective Investment Schemes sourcebook ( COLL) is a specialised sourcebook within the Financial Conduct Authority ( FCA) Handbook. It defines the detailed parameters under which FCA-authorised funds function. COLL is supported by the COLL information guide ( COLLG), which is addressed in COLLG below as well. The rules in Chapters 2 to 8 of COLL constitute a significant component of the product regulation regime for investment companies with variable capital ( ICVC), authorised unit trust schemes ( AUT), authorised contractual schemes ( ACS) and related parties......
This Practice Note examines non- UCITS retail schemes ( NURS), namely authorised collective investment schemes ( CIS) that are not undertakings for collective investment in transferable securities ( UCITS). It covers their investment scope, key investor information documents ( KIIDs), marketing, and NURS arranged as funds of alternative investment funds ( FAIFs) or property authorised investment funds ( PAIFs)... What is a NURS? Alongside UK-authorised UCITS, NURS represent another category of UK-authorised CIS. A NURS may be structured as an authorised unit trust ( AUT), an open-ended investment company ( OEIC), or an authorised contractual scheme ( ACS). For more on AUTs, OEICs and ACSs, see Practice Notes: OEIC authorisation and winding-up, Authorised unit trusts ( AUTs) and Taxation of authorised contractual schemes ( ACSs)—overview. As each of these vehicles is open-ended, a NURS is invariably an open-ended authorised fund. Other types of non- UCITS...
Chapter 16 Annex 16A of the Financial Conduct Authority ( FCA) Handbook's Supervision Manual ( FCA SUP 16, Annex 16A) Annex 16A in Chapter 16 of the FCA Handbook’s Supervision Manual ( FCA SUP 16, Annex 16A) describes the standing data kept by the regulators for every authorised firm. This information covers: the firm’s registered name and any trading names registered office and main place of business website address complaints contact and complaints officer the name and email address of the principal compliance contact information about the firm on the Financial Services Register name and address of the firm’s auditor accounting reference date details of any locum used The FCA and PRA use this standing data to: ensure a firm is provided with the correct regulatory return when reporting...
Practice Note This Practice Note presents the law and regulatory framework aimed at preventing bribery and corruption across financial services firms......
Background to investment research rules This Practice Note outlines the Financial Conduct Authority’s ( FCA) regime on investment research, set out in Chapter 12 of the Conduct of Business sourcebook ( COBS 12). The COBS 12 provisions address conflicts of interest and prescribe detailed obligations for creating and distributing investment research and non-independent research. Before 3 January 2018, COBS 12 gave effect to Articles 24 and 25 of Commission Directive 2006/73/ EC (the Mi FID Implementing Directive), which itself implemented the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID). Mi FID was subsequently replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) (the Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) (together, the Mi FID II framework). Both the Mi FID II Directive and Mi FIR...
Background to FCA suitability requirements This Practice Note examines the suitability rules set by the Financial Conduct Authority ( FCA)... For detailed guidance on gauging a customer’s risk appetite and capacity, and selecting suitable investments, see Practice Note: Establishing risk and suitable investment selections... Conduct of business rules for investment activity appear in the FCA Handbook’s Conduct of Business sourcebook ( COBS)... In 2006, the Financial Services Authority ( FSA)—now the FCA—reworked COBS to implement the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID)... Mi FID was subsequently superseded by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), together forming the Mi FID II framework... The Mi FID II Directive and Mi FIR entered into force on 2 July...
Background to this Practice Note Section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000) bars any person from undertaking regulated activities in the UK—or even holding themselves out as doing so—unless they are duly authorised or fall within an available exemption. This is commonly termed the general prohibition. In this Practice Note, references to exemptions concern persons who are relieved from applying to the Prudential Regulation Authority ( PRA) or the Financial Conduct Authority ( FCA) for the authorisation needed to perform regulated activities. For further detail on the general prohibition, in particular, see Practice Note: The general prohibition and implications of its breach. For additional practical guidance on regulated activities, see the Practice Note: What are regulated activities? For discussion of the territorial scope of the general prohibition and the meaning of carrying on regulated activities by way of business, see...
Introduction This Practice Note examines the policing and enforcement of the UK listing framework by the FCA. It outlines the FCA’s powers over an issuer for contraventions of the UK Listing Rules ( UKLR), the Prospectus Rules: Admission to Trading on a Regulated Market ( PRM), the transparency regime set out in the Disclosure Guidance and Transparency Rules ( DTR), and the obligations to disclose under Articles 17, 18 and 19 of the UK Market Abuse Regulation (disclosure requirements). The role of the FCA The Financial Conduct Authority ( FCA) supervises financial services firms and financial markets in the UK. Its remit, aims, powers and duties are defined in the Financial Services and Markets Act 2000 ( FSMA 2000). FSMA 2000, s 1B provides that the FCA’s overarching strategic objective is to ensure that financial markets function well. The FCA also serves as the UK’s...
This Practice Note concentrates on the admission requirements for equity shares within the commercial companies category of the Financial Conduct Authority’s ( FCA) Official List. It sets out the core listing standards that apply to all securities, alongside the additional obligations for the commercial companies category, as provided for in the UK Listing Rules ( UKLR). Structure of the UK listing regime The UK listing regime comprises 11 distinct categories, each designed for different issuer types and the securities seeking admission. An issuer must adhere to the specific provisions of the UK Listing Rules ( UKLR) that correspond to the category under which it is seeking a listing......
EU corporate governance centres on the ties linking a company’s management, its board, shareholders and wider stakeholders, and thus on how the undertaking is directed and controlled. 2003 EU Corporate Governance Action Plan In 2003, the Commission launched a formal action plan to improve corporate governance across Europe, entitled ‘ Modernising Company Law and Enhancing Corporate Governance in the European Union— A Plan to Move Forward’ (the 2003 Action Plan). It drew on the 2002 report of the High Level Group of Company Law Experts, chaired by Jaap Winter (the Winter Report), tasked with devising a modern regulatory framework for company law in Europe. The principal aims of the 2003 Action Plan were to: bolster shareholders’ rights and protections for employees, creditors and other counterparties, while tailoring company law and corporate governance rules to different categories of company promote business efficiency and...
Scope and purpose of this Practice Note This Practice Note outlines the obligations contained in the Financial Conduct Authority’s ( FCA) Conduct of business sourcebook ( COBS) and signposts relevant materials. Firms authorised under the Financial Services and Markets Act 2000 ( FSMA 2000) that undertake ‘designated investment business’ or ‘long‑term insurance business’ in relation to ‘life policies’ must comply with a broad range of high‑level, day‑to‑day conduct standards set out in COBS, which the FCA consistently emphasises. The purpose of COBS is to protect clients and ensure they are treated fairly (see COBS 1.1.1R and 1.1.1AR). The FCA also seeks to ensure that clients can always make effective, well‑informed choices. Separate FCA sourcebooks address conduct of business for: mortgage and home finance business ( MCOB) insurance business ( ICOBS), and banking ( BCOBS) Alongside COBS and the Client Assets sourcebook ( CASS), these reside within the Business Standards block of the FCA...
The UK PRIIPs Regulation, UK implementation and Brexit The purpose of this Practice Note is to set out an overview of the UK Packaged Retail and Insurance-based Investment Products ( PRIIPs) Regulation ( Assimilated Regulation ( EU) 1286/2014), which is being superseded by a UK retail investor disclosure regime for Consumer Composite Investments ( CCIs). Central to the PRIIPs framework is the obligation on product manufacturers to prepare a standardised, pre-investment Key Information Document ( KID) for each PRIIP, enabling retail investors to compare products and decide whether a PRIIP suits their needs. The approach is not novel, drawing largely from the undertakings for collective investment in transferable securities ( UCITS) Key Investor Information Document ( KIID). For further detail on the EU PRIIPs Regulation and associated level 2 measures—covering scope, principal requirements, and the prescribed form and content of the KID—see Practice Note: EU...
This Practice Note considers the Financial Conduct Authority’s ( FCA) statutory powers under the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs). It examines the FCA’s remit under the MLRs, including: the FCA’s supervisory responsibilities, such as obligations to disclose matters to the National Crime Agency ( NCA) duties to co-operate with other supervisory authorities, including regulators overseas investigatory and civil enforcement powers for breaches of the MLRs, covering information requests, the ability to fine, censure or impose restrictions on firms, and to apply to the court for an injunction criminal powers to prosecute offences under the MLRs, and the FCA’s approach to civil or criminal action for MLR contraventions as described in its Enforcement Guide ( ENFG) For details on FCA supervisory priority areas in...
This Practice Note sets out details of the Financial Conduct Authority ( FCA) powers found in Part 18A of the Financial Services and Markets Act 2000 ( FSMA 2000) and in the Financial Services and Markets Act 2000 ( Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001, SI 2001/995, (the Recognition Requirements Regulations) to suspend or remove financial instruments from trading, together with related provisions contained in the FCA Handbook. For information on the EU’s Mi FID II framework for suspending or removing financial instruments from trading, see Practice Note: EU Mi FID II: Suspension and removal of financial instruments from trading. Background and definitions Part 18A of FSMA 2000 empowers the FCA to suspend or remove financial instruments from trading, whereas the Recognition Requirements Regulations set out the relevant statutory requirements for suspension and removal by a UK recognised...
This Practice Note outlines the UK framework for product governance that firms must meet for the design, approval, marketing and continuing oversight of products across their lifecycle, and explains how the requirements introduced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) were given effect in the UK, as set out in the Financial Conduct Authority’s ( FCA’s) Product Intervention and Product Governance sourcebook ( PROD), together with the present status of those requirements following the UK’s departure from the EU. For details on the EU’s Mi FID II product governance regime, see Practice Note: EU Mi FID II product governance requirements. UK implementation of Mi FID II product governance requirements In September 2016, the FCA issued its third consultation on Mi FID II implementation, CP16/29, which set out proposals to transpose the Mi FID II product...
Practice Note This Practice Note sets out the Financial Conduct Authority’s ( FCA) principal priorities for supervising and enforcing adherence to the UK’s anti-money laundering ( AML) and counter-terrorist financing ( CTF) framework. It is applicable to financial services firms authorised under the Financial Services and Markets Act 2000; payment and e-money firms; cryptoasset businesses (such as exchanges and custodian wallet providers); and Annex 1 financial institutions that must register with the FCA under the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs). It covers: the FCA’s function in AML/ CTF priority areas of supervisory focus, including de-risking and the treatment of domestic politically exposed persons ( PEPs) priority sectors for AML/ CTF oversight, including cryptoassets, Annex 1 financial institutions, payment and e-money firms, and challenger banks ...
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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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