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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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This Practice Note presents a comparison table outlining the differences and similarities between the US Foreign Corrupt Practice Act 1977 ( FCPA 1977) and the UK Bribery Act 2010 ( BA 2010). For details on the UK BA 2010, see Practice Note: The Bribery Act 2010—an introductory guide. For material on the US FCPA, see Practice Note: US Foreign Corrupt Practices Act ( FCPA). For information on international co-operation and co-ordination between the US and the UK, together with the main considerations when investigating and enforcing potential FCPA breaches, see Practice Note: FCPA internal investigations and enforcement proceedings ( US)... Key aspects US Foreign Corrupt Practice Act 1977 Who does the Act apply to? US companies (incorporated or not), US residents and non-residents acting within the US, US...
STOP PRESS : The Financial Choice Act, approved by the US House of Representatives in June 2017, aims in substantial measure to roll back numerous restrictive elements of the Dodd- Frank Act, among them the Volcker Rule. In the wake of that vote, the US Treasury issued a 150-page document (‘ Treasury Report’) for President Donald J. Trump, reviewing the United States’ financial regulatory architecture and setting out executive steps and rule changes that could be implemented swiftly and promptly without delay to ease the burden on firms......
This Practice Note outlines the US laws, regulations and supervisory bodies most pertinent to international issues of debt securities outside the US, and covers—(1) Rule 144A, (2) Regulation S, (3) the TEFRA C and D Rules, (4) 10b-5 letters, (5) the Securities and Exchange Commission, (6) the Commodity Futures Trading Commission, (7) the registration and reporting obligations for foreign private issuers that issue securities, or seek a secondary public trading market for their securities, in the US, and (8) state securities (blue sky) laws. Introduction The US provisions most relevant to international issues of debt securities outside the US are: the exemptions available under Rule 144A and Regulation S of the Securities Act of 1933 (the Securities Act); and US Treasury Regulations section 1.163 5(c)(2)(i)( C) and ( D) ( TEFRA C and D Rules). The US regulatory authorities with greatest relevance to...
This Practice Note explores the principal regulatory considerations concerning unregulated collective investment schemes ( UCIS) in the UK. It outlines what UCIS are, the risks they present, the regulatory framework applicable to UCIS, limits on their treatment, and how they align with the UK alternative investment fund managers ( AIFM) regime... What are unregulated collective investment schemes? In the UK, an unregulated collective investment scheme ( UCIS) is any collective investment scheme ( CIS) that is not supervised by the Financial Conduct Authority ( FCA) as either an authorised (regulated) fund or a recognised scheme. Businesses and individuals can consult the FCA register to verify whether a CIS is authorised or recognised. For more on authorised and recognised funds, including the meaning of a CIS, see Practice Note: Collective investment...
Under the Investment Advisers Act of 1940 (the Advisers Act), investment advisers registered with the Securities and Exchange Commission ( SEC) owe a sweeping fiduciary obligation to act in the best interests of their clients. ( Be aware that most smaller to mid-sized investment advisers must register with one or more states and are barred from SEC investment adviser registration.) For an outline of the duties owed by such investment advisers, reference should be made to the applicable state statutes and regulations currently in force. There are five broad types of obligations or requirements that are imposed on investment advisers by the SEC, namely: a fiduciary duty of care owed to clients Advisers Act prohibitions designed to deter fraud and other substantive regulation books and records requirements SEC supervision via inspection contractual...
The restriction on insider trading What is insider trading? Insider trading is often linked with unlawful behaviour, yet the term covers both lawful and unlawful activity. The lawful form arises when corporate insiders of a public company, such as officers, directors and employees, deal in their own company’s shares. When corporate insiders of a US publicly traded company transact in their own securities, they should notify the SEC of their dealings. Further details on this reporting duty appear in Forms 3, 5 and 5 within the Securities and Exchange Commission’s Fast Answers databank. Unlawful insider trading is the purchase or sale of a security, in breach of a fiduciary duty or other relationship of trust and confidence, while holding material, nonpublic information ( MNPI). Other breaches include: ‘tipping’ such information securities trading by the person ‘tipped’ securities trading by those who...
Securities and Exchange Commission ( SEC) What is the SEC? Established by the Securities Exchange Act of 1934, the SEC came into being as that statute amended and reinforced the Securities Act of 1933, brought in after the 1929 stock market crash. Together, Acts sought to rebuild investor confidence in US capital markets by ensuring investors and the markets received more dependable information and clear, unambiguous rules for honest dealing. The SEC functions as an independent and autonomous government body responsible for supervising US securities markets, applying securities law, and overseeing exchanges that trade shares, options, and other securities......
Introduction Directive 2008/48/ EC concerning credit agreements for consumers (the Consumer Credit Directive) was adopted by the European Parliament on 23 April 2008, with EU Member States obliged to implement it in domestic legislation by 12 June 2010. Its central aim was to secure a high standard of consumer protection to strengthen consumer confidence, facilitate the cross-border provision of credit and correct competitive imbalances stemming from divergent national consumer credit laws. On 15 November 2011, Directive 2011/90/ EU, which amends Part II of Annex I to the Consumer Credit Directive, appeared in the Official Journal of the European Union ( OJ). This measure introduces further assumptions for calculating the annual percentage rate of charge ( APR). Member States were required to apply the rules in Directive 2011/90/ EU by 31 December 2012. In the UK, the Consumer Credit Directive was given effect through several...
What are unauthorised unit trust ( UUTs)? Unit trusts, as a structure, are principally employed as investment funds for investors. An ‘unauthorised’ unit trust ( UUT) is a unit trust that has not been authorised by the Financial Conduct Authority under the Financial Services and Markets Act 2000 ( FSMA 2000). Unit trusts are established by trustees holding assets on trust for unitholders. The trustees hold legal title to the fund’s assets but are obliged to apply those assets for the benefit of the unitholders. A fund manager will provide investment advice to the trustees. Interests in a unit trust may only be promoted to the UK general public (retail investors) if the unit trust has been authorised under FSMA 2000. However, to obtain authorisation under FSMA 2000 a unit trust must comply with various regulatory provisions, including restrictions on its...
On 23 June 2016, the United Kingdom held a referendum on its EU membership, with a majority opting for the UK to leave the EU. On 29 March 2017, the Prime Minister sent formal notice of the UK’s intention to withdraw, setting in motion the Article 50 TEU process. At 11 pm on 31 January 2020 (exit day), the UK’s withdrawal took effect in law and the UK ceased to be an EU Member State. Exit day signalled the close of the Article 50 withdrawal phase and the beginning of a time-limited transition/implementation period, during which the interim arrangements in Part 4 of the Withdrawal Agreement applied. These transitional measures created a standstill period while the UK and the EU set about implementing the Withdrawal Agreement and negotiating the legal terms governing their future relationship, to apply after the transition ended. The EU- UK Trade and...
ARCHIVED: This archived Practice Note sets out details of the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2019, SI 2019/419, together with the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2020, SI 2020/1586, plus salient elements of the EU- UK Withdrawal Agreement and the EU- UK Trade and Cooperation Agreement insofar as they concern data protection. It is no longer updated and is provided for background only. For guidance on continuing divergence between data protection requirements under the GDPR frameworks, refer to Practice Note: Introduction to the EU GDPR and UK GDPR. This Practice Note examines how Brexit affects routine processing of personal data under the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which took direct effect in the UK and all other EU Member States on 25 May 2018, and,...
Statutory framework Section 8 of the Financial Services Act 2012 ( FSA 2012) inserted section 22A into the Financial Services and Markets Act 2000 ( FSMA 2000). That provision enables HM Treasury, by order, to specify which regulated activities are treated as Prudential Regulation Authority ( PRA)-regulated activities. In March 2013 HM Treasury made the Financial Services and Markets Act 2000 ( PRA-regulated Activities) Order 2013 ( PRA RAO 2013), SI 2013/556. The Order confers on the PRA power to designate investment firms authorised to deal in investments as principal, so they fall within the scope of prudential supervision by the PRA. Statement of policy The Statement of Policy— Designation of investment firms for prudential supervision by the Prudential Regulation Authority explains how the PRA intends to approach the designation of investment firms, and the relevant matters the PRA will consider when...
This document sets out trackers and timelines capturing major developments and regulatory regimes affecting financial services firms in the UK, the EU and internationally. It covers (i) priority areas such as Brexit, sustainable finance and ESG, sanctions and the Consumer Duty, (ii) the principal EU financial services Directives and Regulations—tracking proposals, legislative progress, implementation and the corresponding UK regimes—and includes a horizon scanner with comprehensive, topic‑organised lists of upcoming developments presented in chronological order. UK and EU Financial Services regulation—timelines Alternative Investment Fund Managers Directive ( AIFMD)—timeline [ Archived]—this timeline sets out the key milestones for the Alternative Investment Fund Managers Directive 2011/61/ EU. AIFMD was introduced to establish a secure EU framework for the oversight and supervision of alternative investment funds, including hedge funds, private equity, venture capital funds, real estate funds and investment trusts. It was published in the Official Journal of the EU on 1...
STOP PRESS: The Data ( Use and Access) Act 2025 ( Commencement No 6 and Transitional and Saving Provisions) Regulations 2026, SI 2026/82, bring into effect the remaining provisions of the Data ( Use and Access) Act 2025 ( DUAA 2025). Provisions concerning subject access requests, legitimate interests, purpose limitation, automated decision-making, international transfers and enforcement apply from 5 February 2026, while those covering penalty notices and complaints take effect from 19 June 2026. For further information, see Practice Note: Data ( Use and Access) Act 2025—employment implications. This Practice Note will be updated shortly to reflect these changes. This material currently considers Assimilated Regulation ( EU) 2016/679, the UK General Data Protection Regulation ( UK GDPR) and the Data Protection Act 2018 ( DPA 2018), and, unless expressly stated otherwise, legislative links are to Assimilated Regulation ( EU) 2016/679 and the UK GDPR. For a more...
This Practice Note examines key aspects of the UK UCITS regulatory regime, covering the authorisation process, UK UCITS management companies, master–feeder structures, depositaries, remuneration, investment information, and UK implementation and areas of UK divergence following the UK’s withdrawal from the EU. What is the UCITS Directive and what is a UCITS fund? Within the EU, the UCITS Directive—also known as UCITS IV ( Directive 2009/65/ EC)—replaced the original UCITS Directive in 2011 ( Directive ( EEC) 85/611). The objective of the initial UCITS Directive was to build a single market for open-ended retail investment funds, offering improved investor protection. The final text of UCITS IV was published in the Official Journal of the EU (the OJ) on 17 November 2009, with EU Member States required to implement it by 1 July 2011. UCITS funds are authorised open-ended investment funds that may be marketed to retail...
What are the remuneration codes? The FCA Handbook currently sets out four distinct remuneration codes (the Codes) in total: Alternative Investment Fund Managers ( AIFM) Remuneration Code ( SYSC 19B), which applies to Alternative Investment Fund Managers—see the relevant Practice Note: UK AIFM Remuneration Code Dual- Regulated Firms Remuneration Code ( SYSC 19D)—see the related Practice Note: Remuneration Code for Dual Regulated Firms MIFIDPRU Remuneration Code ( SYSC 19G)—see the related Practice Note: MIFIDPRU— Remuneration Code Undertakings for Collective Investment in Transferable Securities ( UCITS) Remuneration Code, located in the FCA Handbook SYSC 19E In addition, the CRR Remuneration Code is set out in the Remuneration Part of the PRA Rulebook and applies to CRR firms ( UK banks, building societies and designated investment firms). For further information, see Practice Note: PRA remuneration requirements for UK banks, building societies and systemically important investment firms. Rules on the...
Scope of this Practice Note This Practice Note sets out the investor disclosures that must be provided for UK UCITS funds, as that term is used in section 237 of the Financial Services and Markets Act 2000 ( FSMA 2000)—covering ‘authorised unit trust schemes’, ‘authorised contractual scheme’ and ‘authorised open-ended investment companies’. It additionally reviews the pertinent rules in the Financial Conduct Authority ( FCA) Handbook. In particular, it addresses the Collective Investment Schemes sourcebook ( COLL) and its relevant provisions. The scope includes obligations around the prospectus, reports, pricing information, and the key investor information document ( KIID). UK implementation of UCITS Undertakings for collective investment in transferable securities ( UCITS) are open‑ended collective investment schemes that adhere to the European framework co‑ordinating laws, regulations, and administrative provisions under the UCITS Directive ( Directive 2009/65/ EC, known as UCITS IV), as later amended by...
The Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) Mi FIR established a transaction reporting framework so competent authorities can spot and probe suspected market abuse, and oversee the proper, orderly operation of markets and the business of investment firms, thereby strengthening supervision and investigatory capabilities in particular. Because Mi FIR and the relevant regulatory technical standards on transaction reporting — Commission Delegated Regulation ( EU) 2017/590 ( RTS 22) — had direct applicability in the UK while it remained an EU member, and applied in full, they generally did not need to be transposed into domestic legislation or rulebooks to take effect in practice. At 11 pm ( GMT) on 31 December 2020 ( IP completion day), the Brexit transition/implementation period concluded following the UK’s exit from the EU. From IP completion day, core...
FORTHCOMING CHANGE relating to the tax treatment of carried interest: After a call for evidence on the taxation of carried interest ran through summer 2024, the Autumn Budget 2024 confirmed the government's intention to launch a revamped regime for carried interest from 6 April 2026, positioned within the income tax system and accompanied by bespoke rules recognising the distinctive features of this remuneration. A consultation then explored possible new qualifying criteria for entry to the regime, with the government issuing its response in June 2025. On 21 July 2025, draft legislation establishing the new carried interest rules was released for inclusion in Finance Bill 2026. The measures will apply to carried interest arising on or after 6 April 2026. These announcements were reiterated at the 26 November 2025 Budget, which also noted that certain amendments had been made to the draft to reflect...
Purpose SYSC 12, contained in the Senior Management Arrangements, Systems and Controls sourcebook ( SYSC) of the Financial Conduct Authority ( FCA) Handbook, clarifies how systems and controls obligations apply where a firm belongs to a group, requiring it, as appropriate, to consider the potential impact of risks arising elsewhere in the group as well as from its own operations and activities. Dual-regulated firms should also be mindful of parallel provisions in the following Parts of the Prudential Regulation Authority ( PRA) Rulebook, operating alongside the SYSC 12 framework: Group Risk Systems (applicable to CRR firms), and Conditions Governing Business—3 Risk Management (as applied by Group Supervision—17 Risk Management and Internal Control) (applicable to UK Solvency II firms) In this Practice Note, links to the rules in SYSC 12 are accompanied by links to the corresponding provisions set out in the PRA...
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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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