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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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The Financial Services Enforcement Database This database collates granular details on every substantive FCA and PRA Final Notice and, where obtainable, Decision Notices, from 2014 onwards. Coverage extends from 2014 to the present. Entries can be searched and filtered by: regulator, breach of rules/legislation, keyword, sector, date, financial penalty, aspects of penalty analysis, outcomes including redress and prohibition orders, other actions, such as referrals to the Upper Tribunal. The Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) are distinct legal bodies with differing objectives and separate investigatory and enforcement powers; nevertheless, arrangements exist that allow investigations to be undertaken jointly or in a co-ordinated manner. This Practice Note examines the legal framework and arrangements under which joint PRA and FCA investigations, disciplinary and enforcement action,...
This Practice Note summarises the Financial Conduct Authority’s ( FCA) Asset Management Market Study, conducted from November 2015 to June 2017. It considers: the study’s background its key findings remedies the FCA proposed to tackle the problems uncovered and progress in implementing those remedies since the FCA’s final report Background to the study The FCA released the terms of reference for the Asset Management Market Study ( AMMS) on 18 November 2015, alongside its dedicated AMMS webpage. Those terms emphasised the scale of UK assets under management—around £6.6trn in 2014–15—and the central role of asset managers in matching prospective investors with companies or governments seeking capital for investment, expansion or to finance ongoing operations. Given the sector’s substantial size and its impact on consumers, whether directly (for example via pension funds) or indirectly (through insurance premiums), the FCA stressed that effective competition is vital for these services. On that basis, the...
This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...
This Practice Note explores the Financial Conduct Authority ( FCA)’s expectations of culture within financial services firms, and how regulatory instruments such as the Senior Managers & Certification Regime ( SM& CR) and the Consumer Duty are used to direct FCA supervision and enforcement towards firms’ cultural frameworks. Although the FCA is the dominant conduct regulator in this space, the Prudential Regulation Authority ( PRA) also scrutinises how culture influences prudential risks, which is considered below. Key points addressed include: regulators’ position that culture is a principal driver of conduct outcomes and market integrity the expectation that culture is actively owned and overseen by firms and their senior managers the connection between culture, psychological safety and challenge, and how the SM& CR, amendments to the Conduct Rules to reflect the FCA’s expectations on...
Scope of this Practice Note This Practice Note addresses matters linked to technology used to help firms comply with their regulatory duties—often referred to as ‘regtech’. It reviews how the Financial Conduct Authority ( FCA) and the Bank of England ( Bo E) (including the Prudential Regulation Authority ( PRA)) engage with regtech, highlights industry activity, and records both the proposal and subsequent withdrawal of an FCA ‘ Robo Handbook’. It examines these facets of what has come to be known as ‘regtech’: what is regtech? the FCA’s approach FCA Tech Sprints digital sandbox other regulator-side developments towards a Robo Handbook industry-side developments other initiatives What is regtech? Regtech is a broad label for the use of technology to help firms discharge regulatory requirements more efficiently and effectively than legacy systems allow—and, at times, for the use of...
This Practice Note outlines the UK framework for product governance that insurance firms must follow when manufacturing and distributing insurance products. It explains how the rules introduced by the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD) were transposed in the UK, as reflected in Chapter 4 of the Financial Conduct Authority’s Product Intervention and Product Governance sourcebook ( PROD 4), and summarises the position of those rules after the UK’s withdrawal from the EU... Background IDD product oversight and governance requirements The IDD brought in product oversight and governance ( POG) duties for insurers and intermediaries that design insurance products for customers. Under Article 25, firms must establish, run and periodically review a product approval process for every insurance product—and for any material changes to an existing product—before it is marketed or distributed. That process must be...
Note The FCA issued its Regulatory Priorities Report for retail banking in March 2026 (see FCA publishes 2026 regulatory priorities report for retail banking). This Practice Note will be updated to take account of the Report. This Practice Note examines how the FCA’s Consumer Duty applies to retail banks and building societies. For simplicity, the term ‘retail bank’ is used throughout to cover both institutions, unless a distinction is required. The Consumer Duty became effective on 31 July 2023 for new and existing products and services that remain open for sale or renewal. In broad terms, the Duty applies to firms carrying out regulated activities in the UK within the FCA’s remit. Given their extensive product and service ranges, retail banks may have direct relationships with retail customers, and indirect ones through participation in distribution chains that end with a retail customer. The Consumer Duty is...
Search and seizure—the law The Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) (together, the Regulators) possess powers to enter premises and carry out searches and seizures under a warrant. The chief power, and the focus of this Practice Note, arises under section 176 of the Financial Services and Markets Act 2000 ( FSMA 2000). A range of the Regulators’ other key powers—exercisable both with and without a warrant—are outlined below under Other powers of search and seizure. This Practice Note: sets out the Regulators’ powers of entry, search and seizure examines the duties on firms and individuals to co‑operate with the Regulators offers practical guidance on preparing for a dawn raid details how firms and individuals should respond when a warrant is executed Power to apply for warrant Under FSMA 2000, s 176, the Regulators may apply to a...
Lexis+® UK Financial Services FCA/ PRA Enforcement Database: Brings together comprehensive details of all substantive FCA and PRA Final Notices and, where obtainable, Decision Notices from 2014 onwards. The Database, available here, can be queried and refined by rule contravention, keyword, sector, date, severity, aggravating and mitigating factors, financial penalties, and further outcomes such as referrals to the Upper Tribunal. This Practice Note reviews applications to the Upper Tribunal ( Tax and Chancery Chamber) under Rules 5, 10, 14 and 37 of the Tribunal Procedure ( Upper Tribunal) Rules 2008, SI 2008/2698. In particular, it covers bids to suspend the effect of a regulator’s decision, and applications concerning privacy, extensions of time and costs, with pertinent case law. For guidance on the law and procedure for making a reference to the Upper Tribunal following a disciplinary or...
The Financial Services Enforcement Database The Financial Services Enforcement Database brings together comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. Searches can be tailored and refined by: rule breach keyword sector date seriousness aggravating and mitigating factors financial penalty other actions, such as referrals to the Upper Tribunal This Practice Note addresses disclosure matters that may arise during an investigation conducted by the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA). It explains the rules governing disclosure of confidential information, privileged and protected material, and the circumstances for sharing with third parties, including overseas regulators and potential litigants. It also sets out the regulators’ duties to provide materials gathered during an investigation to the subject under scrutiny and to those with...
This Practice Note explores international regulatory cooperation with an emphasis on cross-border regulatory investigations. It outlines the Financial Conduct Authority’s ( FCA) statutory obligation to collaborate with overseas authorities and the supervisory and investigatory powers it may deploy to support those authorities’ inquiries. It also explains how cross-border investigations operate in practice and offers practical guidance for individuals responding to an overseas regulator’s information request or engaged in concurrent cross-border investigations... Key points The FCA is legally required to cooperate with overseas regulators; this can range from supplying requested information to using its own investigatory powers on an overseas authority’s behalf The FCA retains discretion over the scope of its cooperation and is subject to defined limits on the assistance it may provide Early, proactive and inquisitive engagement can benefit recipients of information requests and those who are the subject of...
The Financial Services Enforcement Database The Financial Services Enforcement Database contains comprehensive details of every substantive FCA and PRA Final Notice and, when published, Decision Notices dating back to 2014. Users can search and refine the Database by rule breach, keyword, sector, date, seriousness, aggravating and mitigating factors, level of financial penalty, and further measures, including referrals to the Upper Tribunal. Under the Financial Services and Markets Act 2000 ( FSMA 2000), the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) hold a range of powers to gather information for supervisory and enforcement purposes. This Practice Note outlines the FCA’s information‑gathering powers and the limits placed on the disclosure and use of material obtained. These include powers in FSMA 2000, ss 165–169, enabling the regulators to compel firms to supply information and reports, appoint...
Financial Conduct Authority interviews The Financial Conduct Authority ( FCA) may hold interviews either on a voluntary basis or under compulsion, and it alone decides which route to take. As a matter of routine, set out in the FCA Handbook’s Enforcement Guide ( ENFG), the regulator invokes statutory powers to require questions to be answered in interview, promoting fairness, openness and efficiency. That framework is adopted for reasons of fairness, transparency and efficiency. Where the FCA suspects regulatory and/or criminal misconduct, it need not immediately determine whether any later proceedings will be criminal or regulatory. The FCA retains discretion to deploy whatever powers it considers suitable to carry out its statutory function of investigating the alleged misconduct. If there is a prospect of criminal prosecution, or in market abuse enquiries, the FCA may question suspects under caution. Ordinarily, an interviewee is...
The Practice Note sets out the law as it stood before 18 May 2021. It summarises the post‑ Brexit challenges for UK financial institutions that previously accessed EU markets through passporting rights. It also examines the UK’s position as a third country (a jurisdiction outside the European Economic Area ( EEA)), equivalence considerations, and the UK’s post‑ Brexit status for financial services firms. Brexit and financial services This note outlines the issues encountered by UK firms that formerly conducted business across the EU via passporting and the implications arising from the loss of those rights. This Practice Note sits within a suite of key notes on Brexit and financial services. Other guides include the following: Brexit— Financial Services—overview Brexit and financial services: materials on the post- Brexit UK/ EU regulatory regime [ Archived] Brexit—impact on financial services [ Archived] Brexit and...
Introduction to Musharaka—a profit and loss sharing instrument of Islamic finance At the heart of Islamic finance lies the maxim ‘no profit without risk’, ie no person should realise a gain unless they bear some degree of risk. This concept is most clearly shown through the application of profit and loss sharing instruments. For further detail on this principle, see Practice Note: Key principles of Islamic finance. This Practice Note examines Musharaka, an Islamic finance technique originally founded on profit and loss sharing and broadly analogous to a conventional partnership arrangement. In straightforward terms, a Musharaka is a partnership customarily entered into by two or more parties, not necessarily for a fixed term, and most commonly for the purpose of undertaking a business venture. In a typical Musharaka, each participant makes a capital contribution to the venture and profits and losses are shared between them. A...
What is Takaful? Takaful stems from the Arabic term ‘ Kafala’, meaning to support one another. It is a form of risk protection arranged in accordance with the principles of Islamic law ( Shari’ah). It provides a distinctive and important substitute for conventional insurance, meeting the protection needs of many Muslims worldwide. Owing, inter alia, to Shari’ah prohibitions on undue interest (riba) and uncertainty (gharar), some Muslim scholars have ruled conventional insurance haram, i.e. impermissible for Muslims. For further details on these barred elements, see Practice Note: Key principles of Islamic finance. As a direct result, until takaful arose, many Muslims across the globe had no practical way to safeguard effectively against risk. Nevertheless, takaful is not limited solely to Muslims; takaful solutions are open to all, regardless of belief or religion. Accordingly, it fills a historic gap that left many without...
Consumer protection legislation applies to businesses generally and to the regulated financial services sector This Practice Note explores the obligations on firms authorised by the Financial Conduct Authority ( FCA) under the Financial Services and Markets Act 2000 ( FSMA 2000) (herein referred to as ‘firms’) to comply with a central element of consumer protection law, the Consumer Rights Act 2015 ( CRA 2015), together with its predecessor, the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 ( UTCCRs). In addition to these statutory duties, firms must follow the FCA’s regulatory rules and take account of guidance relevant to unfair contract terms. Under the CRA 2015, the FCA may challenge firms regarding the fairness and/or transparency of contractual terms and notices in financial services consumer contracts (whether in standard form or individually negotiated) entered into from 1 October 2015. Under the...
Venture capital is a form of private equity finance supplied to early-stage, start-up companies with limited or no trading history, aimed at backing businesses at the outset. Background to venture capital investment The combination of a short operating track record and, in many instances, an unproven business model underpinned by untested technology means committing funds to these companies is a high-risk strategy. Investors who focus on such ventures will typically contribute technical capability as well as managerial expertise to the management team, but, given the risk profile, they will also seek high rates of return on the capital they deploy. Why seek investment? Businesses that pursue venture capital are generally too small to raise capital in the public markets and are unable to secure debt finance, so equity investment becomes the viable route to funding growth. Types of investment and...
Reporting money laundering under the Proceeds of Crime Act 2002 ( POCA 2002) The Money Laundering Regulations Firms within scope of the Money Laundering Regulations 2007, SI 2007/2157 ( MLRs) must take measures to detect any behaviour they suspect is connected to money laundering or terrorist financing. Money laundering is the means by which criminal proceeds are turned into assets that seem to have a lawful source, allowing them to be kept indefinitely or channelled into further criminal ventures. All organisations covered by the rules must establish proportionate anti‑money laundering controls. For more on the MLRs, see Practice Note: The anti‑money laundering regime. For regulated entities in the UK, the anti‑money laundering framework is driven mainly by the MLRs and by obligations in the Senior Management Arrangements, Systems and Controls Sourcebook ( SYSC) in the Financial Conduct Authority ( FCA) Handbook. HM Treasury is in charge of the MLRs and...
FORTHCOMING CHANGE relating to the tax treatment of carried interest: After a summer 2024 call for evidence on how carried interest is taxed, the Autumn Budget 2024 confirmed a revamped carried interest regime from 6 April 2026, to sit within the income tax framework, with bespoke provisions reflecting the distinctive nature of the reward. A consultation on prospective qualifying criteria for entry to the regime then took place, with the government publishing its response in June 2025. Draft clauses for the regime were released on 21 July 2025 for inclusion in Finance Bill 2026. The rules will apply to carried interest arising on or after 6 April 2026. In the interim, the capital gains tax rate on carried interest increased to 32% with effect from 6 April 2025. For further detail on this carried interest tax reform, including commentary from legal...
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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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