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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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Resolving workplace issues is a shared duty for all. Identifying concerns proactively is essential, but you must also research them and present sound solutions in the right way so your ideas are heard and taken seriously by decision‑makers across the business and acted upon accordingly too. This Practice Note gives guidance on critical thinking and problem solving, including how to determine what services you can provide to your business, understand and value the enterprise’s commercial context, and then show that reasoning when communicating with the management team clearly and with confidence. It also considers the DMAIC model, applied to continuous improvement for problem solving, and will support you in using this approach in your workplace in practice. This Practice Note is intended to assist with the Solicitors Regulation Authority’s ( SRA’s) continuing competence regime, particularly requirement A5 in the Statement of solicitor competence, which concerns critical...
What is commercial awareness/business acumen? This Practice Note offers practical guidance and tips for in-house lawyers on cultivating and enhancing their commercial awareness and business acumen. These capabilities develop progressively—rather than as a single, completed lesson—and should keep evolving. In brief: Commercial awareness is understanding the business landscape you operate in and the elements that may affect or influence success Business acumen (also called having business sense or being business savvy) blends knowledge, skills and experience with the confidence and ability to apply them to make sound decisions, plan strategically, deliver successful outcomes and boost performance Remaining commercially alert and current with trends and issues that could affect your business or sector is vital to ensure you support and advise your organisation in the most effective way... Gaining familiarity with your organisation Most businesses will expect their in-house lawyers to be familiar with the: ...
This Practice Note outlines the context for the in‑house lawyer’s role and what their organisations expect of them. It sets the scene for understanding shifting responsibilities and perceptions in organisations today. What are in-house lawyers expected to do? Not long ago, the prevailing view was that moving in‑house marked a somewhat second‑tier route—the refuge for those who hadn’t fully thrived in private practice. That perception has decisively shifted, and expectations have altered accordingly. Businesses now demand far more of their legal functions and the professionals within them. Standards are, rightly, high—yet what, precisely, is being asked? To answer, it helps to trace where the in‑house community has come from. Consider this extract from an SRA‑commissioned report dated February 2014: it notes that the evolution of in‑house counsel over roughly three decades is rooted in the United States. Yet, during the past 10–15 years, the UK......
Practice Note This Practice Note is aimed at in-house counsel. It sets out a concise overview of work allocation. The core idea is that deploying resources must be intentional and methodical, and that legal functions should resist the belief that they must personally shoulder every legal risk; with appropriate frameworks and support, others within the business can handle risk just as well. In the end, no legal department will ever be staffed with enough lawyers to operate solely as executors. Two models for resourcing legal work are the ‘chute’ and the ‘portal’. Under the chute model, all items with a legal element across the organisation are channelled straight to lawyers, who wait for the flow to arrive. Over time this becomes unsustainable, because the volume demands an ever-growing number of lawyers to keep pace with the workload, as the...
Many in-house legal teams often act as the gateway through which the business engages law firms. Where the legal function holds responsibility for managing the budget for external spend, that approach is reasonable. However, if the business user or beneficiary of the advice funds the work and needs guidance regularly, well-governed direct access can be sensible. This Practice Note offers practical pointers for in-house lawyers on setting up processes that allow business colleagues to reach external legal resources directly. Direct access—risks to avoid When exploring direct routes to external legal advice, certain pitfalls must be tightly controlled or avoided; a business user might: pose the wrong question provide partial or misleading information to the law firm run up higher or avoidable costs misread or misinterpret the advice received hide or downplay unpalatable...
The in-house function, within a fully aligned, value-creating setting, does far more than dispatching legal know‑how reactively to deal with colleagues’ discrete questions. Though that might sound self-evident, mapping the journey from a reactive service to a proactive, value-enhancing partner is not always straightforward. The path, its milestones and everyday behaviours for shifting from reactive to proactive are, in many settings, anything but clear. That ambiguity often persists. Collaboration with a company’s marketing team offers a revealing example. Marketers often see themselves as inventive, energetic, rapid in execution, ‘plugged-in’ and operating at the forefront of presentation and ideas. Without leaning on clichés, they may presume that lawyers do not necessarily bring comparable attributes to their craft. Back to first principles A legal team forms part of the assurance function. Stating this clearly helps embed both the cooperative and oversight dimensions when advising ‘front line’...
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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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