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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:
Most recent Practice notes
Elements of the offence of misleading statements in relation to benchmarks Under the Financial Services Act 2012 ( FSA 2012), an offence is established in relation to deceptive statements and impressions concerning benchmarks......
This Practice Note examines in detail the failure to prevent fraud offence under the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023). ECCTA 2023 obtained Royal Assent on 26 October 2023 and came into force on 1 September 2025 via the Economic Crime and Corporate Transparency Act 2023 ( Commencement No 4) Regulations 2025, SI 2025/349 (see: LNB News 17/03/2025 1). It sets out the offence’s constituent elements and overall scope, and compares it with the other corporate ‘failure to prevent’ offences concerning bribery and the facilitation of tax evasion. The Note also addresses the defence of having reasonable procedures to prevent fraud, describing what companies must build into their fraud prevention framework in order to rely on that defence in practice. Government statutory guidance has been issued on the offence, offering large organisations clear direction on the...
This Practice Note examines how the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs) apply to financial services firms. It includes: a high-level outline of the legislation guidance and regulatory expectations linked to the MLRs the MLRs’ obligations relating to: risk assessments, policies, controls and procedures staff training customer due diligence ( CDD), including enhanced due diligence ( EDD) and simplified due diligence ( SDD) beneficial ownership information, the UK register of trusts, and reporting discrepancies in registers the statutory framework of the MLRs—background and reform Key points Key points to note: the MLRs span a broad range of...
This Practice Note presents an overview of the key features of the UK‑ EU Trade and Cooperation Agreement ( UK‑ EU TCA) that pertain to trade in services between the UK and the EU. It explains the TCA’s scope for services and the generally applicable principles, including Market Access, National Treatment, Most Favoured Nation ( MFN), Domestic Regulation, performance requirements, recognition of professional qualifications, entry and temporary stay of persons for business purposes, and the nationality of senior management and boards. It also outlines disciplines tailored to delivery services, telecommunications services, financial services, international maritime transport services, and legal services. Introduction to the UK- EU Trade and Cooperation Agreement On 24 December 2020, UK and EU negotiators reached a deal defining their future relationship. The UK‑ EU TCA is a comprehensive accord responding to the UK’s withdrawal from the EU’s internal market ( Brexit)....
This Practice Note examines how supranational bodies—including the International Organisation of Securities Commissions ( IOSCO) (the international body that brings together the world’s securities regulators), the Financial Stability Board ( FSB) and the Basel Committee on Banking Supervision ( BCBS) (the primary global standard setter for the prudential regulation of banks)—approach the regulation of cryptoassets. It also outlines the meaning of cryptoassets and the distinct challenges they pose for regulators. For EU material, see Practice Note: EU regulation of cryptoassets. For the UK position, see Practice Note: UK regulation of cryptoassets. Read this alongside Practice Note: Web 3.0, digital assets and cryptoassets—essentials, which covers: What are cryptoassets? Common terms associated with cryptoassets Development of cryptoassets Characteristics of cryptoassets Considerations for businesses looking at cryptoasset technology Cryptoassets, the smart contract and ICOs Disputes involving cryptoassets Regulation of...
Introduction Oversight of senior leaders across financial services underwent a dramatic overhaul when the Senior Managers and Certification Regime ( SM& CR) arrived for banks in March 2016. The scope later widened to insurers in December 2018 and, from December 2019, to virtually all other financial services businesses. The regime was designed to drive a wholesale shift in compliance culture across the sector in the wake of the global financial crisis. It reinforces personal accountability at the top by enabling the Financial Conduct Authority ( FCA) and/or the Prudential Regulation Authority ( PRA) to more readily pursue senior managers for their firms’ shortcomings. The framework also reaches the broader workforce through the Certification Regime and the Conduct Rules, which bind all staff other than ancillary employees. For practical materials on the SM& CR, see Practice Note: Senior Managers and...
Quick Look Brexit Financial Services Legislation Status Guide This Quick Look Brexit Financial Services Legislation Status Guide sets out high-level detail on the position of Regulation ( EU) 1286/2014 on key information documents ( KIDs) for packaged retail and insurance-based investment products ( PRIIPs) (the PRIIPs Regulation) within UK law from 1 January 2021... For more in-depth material, see Practice Note: Impact of Brexit: Packaged retail and insurance-based investment products ( PRIIPs)—quick guide [ Archived] and Packaged Retail and Insurance-based Investment Products ( PRIIPs)—essentials... Across the implementation period from 31 January 2020 to 31 December 2020 ( IP completion day), the PRIIPs Regulation applied directly in the UK under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended by the European Union ( Withdrawal Agreement) Act 2020, and the Withdrawal Agreement between the UK and the EU... From IP...
This Practice Note This Practice Note outlines the motor finance sector and the Financial Conduct Authority’s ( FCA) review of firms’ historic use of discretionary commission arrangements ( DCAs) between lenders and credit brokers. It includes: background on the FCA’s work in this area an introduction to motor finance, covering the main forms of motor finance the regulated activities that apply to motor finance the core regulatory obligations relevant to motor finance, spanning the FCA Handbook and the Consumer Credit Act 1974 ( CCA 1974) an outline of how to raise complaints about firms in the motor finance market and when to refer a matter to the Financial Ombudsman Service ( FOS) analysis of recent high-profile matters in motor finance, including the Supreme Court’s landmark judgment in Johnson v First Rand Bank Ltd ( London Branch) (trading as Moto Novo...
Practice Note This Practice Note outlines our materials for corporate lawyers on the UK Market Abuse Regulation ( Assimilated Regulation ( EU) 596/2014). Following the conclusion of the Brexit implementation period, the UK Market Abuse Regulation is in force in the UK. Resources for corporate teams on the UK Market Abuse Regulation ( Assimilated Regulation ( EU) 596/2014) are available within the topic: Financial services regulation for corporate lawyers, under the subtopic Market abuse and market conduct......
This Practice Note outlines and critiques the restrictions that arise when advice is provided to an individual who wishes to move from a defined benefit ( DB) occupational pension scheme to a manner of defined contribution ( DC) arrangement. It concentrates on what amounts to suitable independent advice, identifies which persons are authorised to deliver advice, and explains the Financial Conduct Authority ( FCA) requirements placed upon those persons. The need to take advice Since 6 April 2015, members holding safeguarded benefits—broadly, DB entitlements—valued at £30,000 or more must obtain advice from a professional, independent financial adviser (described by the FCA as a Pension Transfer Specialist) if they intend to surrender safeguarded benefits in favour of flexible benefits—broadly, DC entitlements—whether by transferring them to a flexible benefit scheme, converting benefits into flexible benefits, or receiving them as an...
The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices issued from 2014 onwards. The Database can be searched and filtered by: rule breaches keywords sector date seriousness aggravating and mitigating factors financial penalties other actions, such as referrals to the Upper Tribunal Background The statutory power to require a firm to seek an independent view from a third party (a ‘skilled person’) on aspects of a regulated firm’s activities under section 166 of the Financial Services and Markets Act 2000 ( FSMA 2000), as amended by the Financial Services Act 2012, is routinely used by the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) within their regulatory toolkits. Either the FCA or the PRA may exercise this power when they need further...
The Financial Services Enforcement Database The Database collates detailed information on all substantive FCA and PRA Final Notices and, where available, Decision Notices from 2014 onwards. Search and filtering are available by: Regulator Rule or legislation breach Keyword — including ‘ Anti-money laundering ( AML) systems and controls’ and ‘ Customer Due Diligence ( CDD)’ Sector Date Financial penalty and aspects of financial penalty analysis Outcomes, including redress and prohibition orders Other actions, such as referrals to the Upper Tribunal This Practice Note assists advisers to financial services firms in complying with the UK AML, counter-terrorist financing ( CTF) and countering the financing of proliferation of weapons of mass destruction ( CPF) framework. The Checklist sits within a wider series addressing customer due diligence ( CDD), also known as ‘know your customer’ ( KYC), as set out in the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer)...
Introduction This Practice Note offers practical, practitioner-focused guidance on the trading of financial services. It considers the Annex and Second Annex on financial services, together with the Decision on financial services and the Understanding on commitments in financial services. These instruments are considered collectively. Trade in financial services is governed by the World Trade Organisation’s ( WTO) General Agreement on Trade in Services ( GATS). Accordingly, our materials on the GATS apply to trade in financial services. See Practice Note: An introduction to Trade in Services. However, two annexes on financial services to the GATS, as well as an understanding and a decision, are key to understanding trade in financial services. The annexes are titled the Annex on Financial Services and the Second Annex on Financial Services. The understanding is the Understanding on commitments in financial services. The decision is the Decision on Financial...
Employment Rights Act 1996 and Public Interest Disclosure Act 1998 By virtue of the Employment Rights Act 1996 ( ERA 1996), as modified by the Public Interest Disclosure Act 1998 ( PIDA 1998) and subsequently by the Enterprise and Regulatory Reform Act 2016, any agreement made between employees and their employer is of no legal effect, in so far as it aims or purports to stop an employee from making a protected disclosure......
Scope of this Practice Note This Practice Note sets out the core ideas behind Web 3.0, digital assets and cryptoassets. Regulators, tax authorities and commentators use a variety of labels—cryptoassets, digital currencies, virtual currencies, cryptocurrencies, and crypto/digital tokens—and it is often uncertain whether these are used as interchangeable terms or with distinct meanings. For the purposes of this Practice Note, ‘cryptoasset’ is adopted as a broad term covering cryptocurrencies, virtual currencies, virtual assets and digital tokens. As outlined in the section What are digital assets and cryptoassets? below, although all cryptocurrencies are cryptoassets and all cryptoassets are digital assets, some digital assets are not cryptoassets, and some cryptoassets are not cryptocurrencies. This Practice Note primarily concentrates on ‘cryptoassets’ rather than the wider category of ‘digital assets’, because targeted regulatory measures in the digital arena have, so far, largely focused on...
Only individuals or firms with authorisation may conduct regulated activities in the UK, and must operate strictly within the scope of their permission. Where they wish to change the way they perform those regulated activities, they will generally need to apply for a variation of that permission. This Practice Note outlines how firms can apply to the Prudential Regulation Authority ( PRA) to vary their Part 4A permission. For guidance where firms cease conducting their activities altogether, see Practice Note: Prudential Regulation Authority—cancelling permission and requirements. Permission and requirements Under the previous Financial Services Authority ( FSA) regime, a Part IV permission could include any requirement the FSA considered appropriate. That is no longer the case. The PRA’s powers relating to permission are distinct from its powers concerning requirements (namely, to impose or vary a requirement), and these powers are treated separately under the current...
Firms may conduct regulated activities in the UK only in line with their permission. If a firm plans to alter the way it undertakes those activities, it will generally need to apply for a variation of permission. This Practice Note outlines the process for firms to apply to the Financial Conduct Authority ( FCA) to vary their Part 4A permission. For guidance where firms intend to stop carrying on activities entirely, see Practice Note: Financial Conduct Authority—cancelling permission and requirements. Permission and requirements Under the former Financial Services Authority ( FSA) regime, a Part IV permission could contain any requirement the FSA considered suitable. That is no longer the position. The FCA’s powers concerning permission are separate from its powers regarding requirements (including imposing or changing a requirement), and under the current regulatory framework these powers are dealt with...
ARCHIVED: This Practice Note is archived and no longer updated. It provides an overview of the law, official guidance and practice concerning unfair terms in consumer contracts under the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083, relevant to consumer agreements made before 1 October 2015. For contracts concluded on or after 1 October 2015, see Practice Note: Consumer Rights Act 2015—unfair terms. The Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 ( UTCCR 1999) generally cover agreements between a seller or supplier and a consumer, subject to certain exclusions. A seller or supplier is any person acting in the course of their trade, business or profession, whether in the public or private sector, and may take the form of an individual or a corporate entity. A consumer is a person acting outside their trade, business or profession. The UTCCR 1999...
Background to the Volcker Rule and implementation US regulators signed off regulations arising from the so‑called Volcker Rule elements of the Dodd‑ Frank Wall Street Reform and Consumer Protection Act 2010 ( Dodd‑ Frank) on 10 December 2013, and the rules then came into force on 1 April 2014. At its core, the Volcker Rule removes the capacity of US banks to deal as principal in particular trading or investment fund‑related activities. The final rule also provided a conformance window running until 21 July 2015, allowing banking entities time to come into compliance with its prohibitions on proprietary trading and on covered fund ownership and sponsorship, as set out in the rule. General requirements of the final rule Section 619 of Dodd‑ Frank inserted a new section 13 into the Bank Holding Company Act of 1956 ( BHC Act). Under that section, in general terms, any...
This Practice Note offers an introduction and addresses matters concerning its scope of application. It sets out best practice guidance on helping your clients meet FCPA requirements, including establishing and running an effective anti‑corruption compliance programme within their organisations. The Practice Note also outlines current FCPA enforcement patterns. For organisations operating across borders, it is crucial that they grasp their duties and constraints under the FCPA. As enforcement intensifies and regulators gain unprecedented visibility into the transactions themselves, informing organisations about the FCPA is a highly valuable professional service lawyers can deliver. For further detail on the FCPA, see Practice Notes: Practical steps in a bribery investigation— UK and US perspectives and The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table, as well as: Best practices in FCPA...
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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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