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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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Contractual set-off Set-off gives Party A, to whom Party B owes money, the means to secure payment by netting the sum due against Party A’s separate liability to Party B arising from another dealing. Where a creditor and debtor have mutual transactions, the creditor may deduct from the debt owed to them any amount they themselves owe to the debtor. See Practice Note: What is set-off and when is it available? Contractual set-off is one of the five principal types identified in Practice Note: Types of set-off. It arises where the parties have created a right of set-off by an express contractual term. Parties use it to widen or restrict the set-off rights available at general law; however, it cannot change the scope or operation of insolvency set-off, which applies mandatorily despite any contractual arrangement between the parties—see Practice Note: Types of set-off—...
ARCHIVED: This archived Practice Note sets out key details of the data protection regime before 25 May 2018 and records the legal position under the Data Protection Act 1998 ( DPA 1998). This Practice Note is provided for general background purposes only and is not currently maintained. Background to consent To meet the first data protection principle in the DPA 1998, as stemming from Directive 95/46/ EC (the Data Protection Directive), data controllers must be able to evidence, among other things, that they have satisfied: one of the conditions for processing personal data under DPA 1998, Sch 2; and if the data amounts to sensitive personal data, then, in addition, one of the conditions for processing sensitive personal data under: DPA 1998, Sch 3; or under the Data...
STOP PRESS: This document is currently being revised to take account of the Data ( Use and Access) Act 2025 ( DUAA 2025), which updates the UK GDPR and the Data Protection Act 2018. For further detail on DUAA 2025 compliance, see Practice Note: Data ( Use and Access) Act 2025—compliance implications. This Practice Note draws on the UK General Data Protection Regulation ( UK GDPR) and the consent guidance issued by the Information Commissioner’s Office ( ICO). Under the UK GDPR, consent is rarely the default lawful basis for handling personal data, and organisations should assess whether another lawful ground is more suitable from both legal and operational viewpoints—see below: Do you need consent? and Practice Note: How to process personal data lawfully. What is consent? Consent means a freely given, specific, informed and unambiguous expression of the data subject’s wishes, whereby they indicate...
STOP PRESS: On 19 June 2025, the Data ( Use and Access) Bill obtained Royal Assent, becoming the Data ( Use and Access) Act 2025 ( DUAA 2025) and entering partly into force on that date. Certain provisions of DUAA 2025, addressing matters such as dealing with data subject access requests and conferring powers to make further regulations, took effect immediately on 19 June 2025. Other provisions, concerning notices from the Information Commissioner and particular aspects of law enforcement processing, commenced on 19 August 2025 (being two months from the date of Royal Assent). The majority of DUAA 2025’s measures require further regulations (in the form of statutory instruments) to be made to bring them into operation. Parts 5 and 6 of DUAA 2025 act to amend aspects of data protection and e Privacy law in the UK, including the United Kingdom General Data...
ARCHIVED: This Practice Note has been archived and is no longer maintained. For guidance on the acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016 ( IPA 2016), see Practice Note: Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016. IPA 2016 sets the current legal framework for public authorities’ use of covert surveillance. Much—though not all—of this regime previously appeared in the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). The rules on retaining communications data are contained in IPA 2016, Pt 4. Part 4 permits telecommunications and postal operators to retain communications data so that, where authorised under IPA 2016, public authorities can access it subsequently. For more on IPA 2016, see Practice Note: The regulation of intelligence gathering—an introductory guide. Powers to require retention of certain types of data Under IPA 2016, s 87, the...
This Practice Note This Practice Note explains how information set out in a document, or a statement given by or on behalf of a person, can be relied upon where authenticity must be verified in a commercial setting. It outlines the principal ways to validate information and documents, indicates when statutory declarations, oaths, affirmations and affidavits are appropriate, how to check they have been properly prepared, and offers guidance for practitioners when employing these validation methods. It sets out the requirements for: Statutory declarations Oaths Affirmations Affidavits Formalities for administering statutory declarations, oaths, affirmations and affidavits Statutory declarations and affidavits out of jurisdiction For information on notaries, their purpose, steps required to notarise a document and the meaning of legalisation, see Practice Note: Notaries and notarisation. For guidance on certified copies, including what a certified copy is, when a...
This Practice Note This Practice Note explores matters affecting professional photographers who capture images of models or other individuals, as well as the organisations that commission, produce, licence and use photographs for commercial ends. It explains how UK data protection and privacy law applies and should be navigated when photographs are used commercially in the UK. Commercial use means reproducing a photograph in any form primarily aimed at commercial advantage or financial reward, including marketing on a company’s website or its social media channels. While some principles overlap, this Practice Note is not intended to cover editorial use. Press photographers may need to consider additional data protection and privacy considerations, such as the ICO data protection and journalism code of practice or the IPSO Editors’ Code of Practice, and different exemptions may apply. Nor does this note address domestic use limited to purely...
This Practice Note This Practice Note serves as a practical ‘how to’ for assessing an NDA (also referred to as a non-disclosure agreement or confidentiality agreement) and directs you to relevant materials. It sets out a snapshot of what an NDA comprises, when it is needed in a commercial deal, and offers a high-level overview of the legal and practical points to weigh up when considering an NDA. For links to fuller guidance on the law of confidentiality, refer to Precedent: Confidentiality—training materials and Confidential information—overview. For further insight into how confidentiality duties are commonly addressed in commercial agreements, see Practice Note: Trade secrets and confidential information—protection and enforcement. Where confidential information is exchanged, the assumption is that the disclosing party will usually prepare and circulate an NDA, with the recipient undertaking review. That said, in many circumstances information flows both ways, making it...
ARCHIVED: This Practice Note has been archived and is no longer being maintained or updated for future use at present. At 11 pm ( GMT) on 31 December 2020, the implementation period — designed to allow the UK to move away from the EU’s legal framework and bodies — formally came to a close in the UK. That moment in time (termed ‘ IP completion day’ within this note) triggered immediate, material changes to the UK’s domestic legal order and regulatory landscape. This Practice Note briefly outlines what this meant in practice for the following areas and themes of Commercial law and practice: Overview—what happened on 31 December 2020 Commercial law implications of the EU- UK Trade and Cooperation Agreement Advertising Agency Confidential information Consumer protection Contract clauses Contract breach and remedies Contractual joint ventures Data...
This Practice Note outlines cloud computing concepts and sets out the core principles shaping the UK cloud market. It covers: History of cloud What is cloud? Software as a service ( Saa S) Platform as a service ( Paa S) Infrastructure as a service ( Iaa S) Deployment models Benefits and risks Relationship to outsourcing Legal issues Cloud terminology Detailed guidance on cloud-related legal issues appears in Practice Note: Cloud computing—key legal issues, together with an examination of typical contractual terms and negotiating positions. See also Lexology Panoramic: Cloud Computing Precedent: Software as a service ( Saa S) agreement—pro-customer The pro-supplier Precedent suite: Software as a service ( Saa S) agreement—master Saa S...
In brief Data protection regimes across the EEA (the EU together with Iceland, Norway and Liechtenstein) and the UK aim to ensure information about living people (within the meaning of 'personal data') is handled fairly and responsibly, in both the EEA and the UK. To achieve that, both EEA and UK data protection rules place extensive and numerous duties on those 'processing' personal data and on controllers overseeing such activity. ' Processing' is interpreted broadly, covering most actions performed on data, including storing, deleting, collecting, disclosing or using it. A key safeguard under both EEA and UK data protection laws is the suite of obligations imposed on 'controllers' (typically those who determine the purposes and means of processing) and 'processors' (those that process personal data for a controller in line with the controller's instructions). Among other matters, EEA and UK data...
What is BYOD? BYOD describes arrangements allowing an organisation’s employees to connect to the corporate IT network with their own communications devices for specified, work-related purposes. Such arrangements may extend to laptops, tablets and smartphones. This Practice Note focuses on BYOD in the employment relationship. Key risks and benefits of BYOD Cost Cost is a central consideration. Potential benefits Reduced organisational spend by avoiding procurement, replacement and day-to-day management of devices for employees. Depending on how costs are shared, lower outgoings on service charges. Potential downsides and risks The organisation must still invest in technical solutions, training and ongoing support so staff can access BYOD, which in some cases could make the approach more expensive overall. Ending the purchase of employee devices under existing agreements with a communications provider—where products and services are often bundled—may diminish discounts applied to other product or service lines. ...
ARCHIVED: This Practice Note has been archived and is not maintained. It examines the impact of Brexit on commercial contractual clauses ahead of IP completion day. For details on how IP completion day affects commercial clauses, see Practice Note: What does IP completion day mean for contract clauses? The UK’s withdrawal from the EU on exit day, the implementation period, and the time beyond create a range of implications for the drafting, negotiation, and enforcement of contracts governed by English law. This Practice Note focuses on the potential effects that Brexit may have on business-to-business ( B2B) commercial contract clauses specifically. In particular, it assesses whether Brexit might influence, alter, or give rise to a need for: warranty clause hardship clause force majeure clause business continuity clause price variation clause For the impact that Brexit may have on the drafting, negotiation and enforcement of B2B boilerplate clauses, see Practice Note:...
Practice Note This Practice Note offers practical guidance for general commercial practitioners on matters to weigh up when drafting a business-to-business agreement or arrangement intended to minimise the harmful consequences of unforeseen events, shifts in the economic climate, crisis, disaster, or other circumstances beyond the contracting parties' control. It is equally pertinent for practitioners when preparing a contract during a force majeure or other ongoing disruptive event. The Practice Note also examines illegality, hardship, business continuity, rights to terminate, and key risk-mitigation clauses, including those addressing price variation, currency exchange fluctuations, indemnities, insurance, and contract review. For a concise 'how to' guide on preparing contracts to cover unforeseen events that signposts relevant content, with links to potentially relevant issues such as clauses dealing with force majeure, and other commercial and practical considerations, see Practice Note: How to draft a contract to cover...
ARCHIVED: This archived Practice Note outlines the data protection framework prior to 25 May 2018 and reflects the position under the Data Protection Act 1998 ( DPA 1998). It is provided for background reference only and is not maintained. Information Commissioner Under the DPA 1998, the Information Commissioner and officials at the Information Commissioner’s Office ( ICO) are responsible for enforcement. The Commissioner reports directly to Parliament. promote sound practice and compliance with the DPA 1998 by data controllers publish information and provide advice produce codes of practice international co-operation: with the European Commission and supervisory authorities in other European Economic Area ( EEA) states in respect of the United Kingdom’s international obligations concerning the Council of Convention for the...
Defences There are several substantive defences to a defamation action and, since the Defamation Act 2013 ( DA 2013), most are now statutory. Multiple defences can be advanced together in answer to a claim. Truth Defamatory statements are presumed to be untrue, and the onus of proving their truth rests with the defendant. Showing that the substance of the defamatory statement is true is a complete defence. The defence formerly known as justification was given statutory effect by DA 2013, s 2; the common law defence was abolished and section 5 of the Defamation Act 1952 repealed. Pleading and procedural matters in defamation proceedings are governed by CPR PD 53B, which contains particular requirements for truth defences. CPR PD 53B replaced CPR PD 53 with effect from 1 October 2019 (see News Analyses: 109th practice direction update— July to October 2019 and New rules for media and...
This Practice Note offers practical guidance on the proper execution of simple contracts and deeds by administrators. An administrator may be appointed over a company, a partnership or a limited liability partnership. For additional detail, see Practice Notes: Administration—an introductory guide, Administration of a Limited Liability Partnership and Insolvency of general partnerships—administration. For the purposes of this note, we address execution solely within company administrations Quick view The summary below outlines execution formalities applicable to administrators and indicates where related precedent execution clauses can be located. For more information, navigate to the relevant document type using the links in the first column Simple contracts — By the company ( Companies Act 2006, s 43(1)(a)). Under the company’s common seal applied by the administrator ( Insolvency Act 1986, Sch 1, para 8) — Execution...
What is a company's constitution? This Practice Note sets out what is meant by a company’s constitution in detail. It focuses on the core element of that constitution: the articles of association. It reviews the statutory definition under the Companies Act 2006, outlines the character of the articles and distils the typical provisions found in a company’s articles. The Practice Note also addresses entrenched terms within the articles and the importance of the memorandum of association......
This Practice Note offers practical guidance on correct execution of simple contracts and deeds for unincorporated associations. Unincorporated associations arise from agreement between members who come together, typically for a non-profit purpose. Examples include sports clubs or voluntary groups. For more information, see Practice Note: Unincorporated associations. We have created a collection that serves as a comprehensive, interactive resource to help users identify and navigate the concepts and common issues involved in executing documents. Each section or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For more information, see: Execution collection. Capacity An unincorporated association has no separate legal identity, meaning it cannot enter into contracts in its own name. As a result, it has no rights, cannot assume duties and cannot own property. Property said to ‘belong’ to an unincorporated association will be vested in the leading members of the...
Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
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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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