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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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What is open data? Put simply, ‘open data’ describes information released to the public in an open, machine-readable form, on licence terms that let users access, reuse and exploit it on a royalty-free basis. There is no single, universally agreed definition of open data. One widely cited example is the Open Definition 2.1 from the Open Knowledge Foundation. That definition is detailed, specific and designed to foster the widest uptake. Key elements of the Open Definition are: Data should be supplied at no more than a reasonable, one-off reproduction cost. Data should be available without restrictions on use, and it must be possible to process it using at least one open source, free or ‘libre’ software tool. The accompanying licence must meet certain conditions. In broad terms, it must allow use for any purpose without limiting the field of use, and permit...
This Practice Note considers the legal and practical issues when entering into a subcontract or authorising subcontracting: What is subcontracting? When may subcontracting be allowed? The legal consequences of subcontracting Subcontractor’s liability for the contractor’s consequential loss Subcontractor’s liability to the customer What is subcontracting? While contractual rights and benefits are, unless expressly restricted, generally capable of assignment, contractual duties or burdens are not. Nonetheless, in some cases those obligations can be performed vicariously through subcontracting. Subcontracting is the delegation by the main contractor of part or all of its obligations under its contract with the customer to a third party (the subcontractor) for the subcontractor to perform. Where such vicarious performance is permitted, the contractor’s liability under the main contract does not pass to the subcontractor. The contractor remains answerable to the customer for any non-performance by the subcontractor, even if the customer has agreed to the...
This guide explains the use of e-signatures across a range of international jurisdictions. A comprehensive table provides a quick-reference overview of whether, and in what ways, e-signatures are deployed in different countries. More extensive detail on every overseas jurisdiction listed is provided in the sections that follow. For detailed information on executing contracts in multiple jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For guidance on the execution of deeds in different jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For insight into how contracts are formed across various jurisdictions, see Practice Note: Contract formation—jurisdictional guide. For information concerning the execution of documents under Scots law, see Execution— Scotland—overview. Please note that this is an introductory resource only, and that local advice from suitably qualified legal professionals in the relevant country should be obtained where...
This Practice Note Use this Practice Note when identifying the governing law for contracts concluded on or after 1 January 2021. UK courts apply a different applicable law regime to agreements formed before 1 January 2021. The operative regime turns on the date the contract was made. For guidance on the regimes and how they interact, see Practice Note: Applicable law regimes. This Practice Note cites UK Rome I, Regulation ( EC) 593/2008. Previously called Retained Rome I, from 1 January 2024 it is styled Assimilated Rome I—the alteration is in title only; the regulation’s provisions are unchanged. Authorities may use either label, and for convenience this Practice Note uses UK Rome I. For information on assimilated law, see Practice Note: Assimilated law. This Practice Note explains when and why UK Rome I, Regulation ( EC) 593/2008 was introduced. It addresses the...
The tort of misuse of private information The tort of misuse of private information centres on protecting human autonomy and dignity—the ability to control how details of one’s private life are shared, and the claim to others’ esteem and respect ( Campbell v MGN). Commonly, as in Campbell, the only alleged ‘misuse’ is the unlawful publication, or threatened publication, of personal information to the world at large. The alleged wrongdoer is frequently a media organisation and/or an individual seeking disclosure through the media. A claim may nevertheless be brought where material is circulated more narrowly, if that would unjustifiably interfere with the claimant’s right to respect for private life under article 8 of Part I of Schedule I to the Human Rights Act 1998 ( HRA 1998), which gives effect to rights contained in the European Convention on Human Rights ( ECHR). The tort is not...
This Practice Note provides an introduction to the tort of malicious falsehood. Unlike a defamation claim, a malicious falsehood action does not require proof that the words complained of are defamatory. Instead, the claimant must show the following three elements: the defendant published an untrue statement about the claimant; the publication was malicious; and the statement caused actual pecuniary loss, or the case falls within section 3 of the Defamation Act 1952 ( DA 1952). The tort of malicious falsehood is governed by a mixture of statute and the common law. The relevant statutory provisions are contained in DA 1952, whereas the Defamation Act 2013 ( DA 2013) contains no provisions relevant to malicious falsehood. Malicious or injurious falsehood (sometimes, and confusingly, called 'trade libel') is not concerned with reputation. It is a separate tort from defamation, aimed at the...
The handling of personal data for policing objectives is expressly and specifically governed by Part 3 of the Data Protection Act 2018 ( DPA 2018) and operates as a separate and distinct regime from the general processing of personal data under the UK General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). DPA 2018, Pt 3 applies to those competent authorities that process personal data for ‘law enforcement purposes’. It includes processing for preventing, investigating, detecting or prosecuting criminal offences, or carrying out criminal penalties, and encompasses safeguarding against, and preventing, threats to public security. DPA 2018, Pt 3 transposed the EU Law Enforcement Directive ( EU) 2016/680 ( EU LED) into UK law. The Information Commissioner’s Office ( ICO) has issued guidance specifically on duties under DPA 2018, Pt 3, which is essential reading for advisers in this field. The ICO...
Incorporated v unincorporated charities Charities commonly adopt a range of incorporated and unincorporated forms. Corporate forms eligible for charitable status include: a charitable company (almost always a company limited by guarantee) a co-operative society or community benefit society (formerly termed industrial and provident societies) charity trustees incorporated under Part 12 of the Charities Act 2011 ( CA 2011) a charitable incorporated organisation (ie the limited-liability model created by Part 11 of CA 2011), requiring registration solely with the Charity Commission a body corporate established by Act of Parliament or Royal Charter (eg the Official Custodian for Charities) Unincorporated charities take one of two forms: a charitable trust; or a charitable unincorporated association Charitable company A charitable company may enter into contracts, execute deeds and issue other documents in the same way as any company formed under the Companies Acts......
ARCHIVED: This archived Practice Note summarises the typical data protection liability positions seen in general business services agreements between controllers and processors in the UK, derived from a 2020 Lexis Nexis® survey of specialists at several leading firms. It reflects the market position as surveyed in 2020 and is not updated; it is provided for background information only. It covers: the purpose of the survey and how to use this Practice Note the controller’s liability for breaches of its data protection obligations the processor’s liability for breaches of its data protection obligations indemnities which aspects of the negotiations usually consume the most time It is standard for a controller to appoint a processor to handle personal data on its behalf, commonly where one organisation supplies a service to the controller and processes personal data in providing that service. As a result, the...
Government security classifications The Government Security Classifications policy took effect in April 2014 and has seen several updates since 2018. It exists to make sure information is appropriately categorised, exchanged and safeguarded. The policy covers all information, in any medium, that is created, processed, gathered, stored or shared by government to provide services and run its operations. Classifications reflect how sensitive the material is, judged by the likely impact if it were compromised, lost or misused. It therefore applies to information in any form across government, used to deliver services and conduct business, with handling guided by the likely impact of compromise, loss or misuse. OFFICIAL SECRET TOP SECRET Before this framework, six grades of classification were in use. The regime aims to streamline the process for handling official documents and refresh a system designed for paper-based material, with the...
The Copyright and Rights in Databases Regulations 1997 ( CRD 1997) The Copyright and Rights in Databases Regulations 1997 ( CRD 1997), SI 1997/3032, gave effect to the EU Database Directive by revising UK copyright law as it relates to databases. The CRD 1997 also established a distinct, sui generis protection: the database right. Unlike copyright, this right applies whether or not the database is an intellectual creation, provided there has been sufficient 'investment'. Copyright in a database and the database right are separate and independent. For deeper guidance on copyright in databases and the database right, see Practice Note: Copyright in databases and database right. Being EU-derived legislation, the CRD 1997 continues to have effect in the UK as assimilated law. Assimilated law is the term for retained EU law ( REUL) that remains in force after the end of 2023. The shift from REUL to...
This Practice Note delivers practical guidance on the valid execution of simple contracts and deeds by liquidators. A liquidation may be: insolvent (where a company cannot meet its debts or its liabilities exceed its assets), or solvent It may be initiated by court order (compulsory liquidation) or out of court (voluntary liquidation). For information on each type, see: Compulsory liquidation—overview Creditors' voluntary liquidation ( CVL)—overview Members' voluntary liquidation ( MVL)—overview Quick view The outline below summarises execution formalities relevant to liquidators and indicates where corresponding precedent execution clauses are located. For fuller detail, navigate to the document type via the links in the first column. Simple contracts: May be made by the company (see section 43(1)(a) of the Companies Act 2006 ( CA 2006)). Under the...
This Practice Note explores applicable law clauses—also called governing law clauses, proper law clauses or choice of law clauses. It explains why parties agree an applicable law clause and the key matters to weigh up. It also provides insight into circumstances in which parties may alter the applicable law clause in their contract, and considers whether floating applicable law clauses and stabilisation clauses are effective. For an introduction to applicable law, see Practice Note: Applicable law—a guide for dispute resolution practitioners. Contracts may include a single provision combining jurisdiction and applicable law. For guidance on jurisdiction clauses, see Practice Note: Jurisdiction agreements—introduction. What is an applicable law clause? An applicable law clause records the parties’ agreement, reached during contract negotiations, specifying which country’s laws the courts are to apply if a dispute arises between the contracting parties and proceedings are commenced that require a...
Guide to executing simple contracts across jurisdictions This guide explains the requirements for signing simple contracts in a range of international jurisdictions. A table gives a quick-reference snapshot of the execution formalities for companies, individuals and partnerships in different countries. Fuller commentary for each overseas jurisdiction listed in the table appears in the sections below. For guidance on the execution of deeds in various jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For electronic signatures, see Practice Note: E-signatures—jurisdictional guide. For the formation of contracts, see Practice Note: Contract formation—jurisdictional guide. For executing documents under Scots law, see: Execution— Scotland—overview. Please note: this is an introductory resource only, and local advice from suitably qualified legal professionals in the relevant country should be obtained where appropriate. Summary table What are the requirements for companies when executing contracts? What are the requirements for...
This Practice Note provides practical guidance on the proper execution of documents by non- Companies Act corporations This Practice Note offers practical direction on executing documents correctly for corporations outside the Companies Act. Such corporations arise under statute, like local authorities and building societies. A corporation has a legal identity distinct from its members, enabling it to enter contracts, own property, and bring or face proceedings in its own name. Here, the focus is on corporations aggregate (groups of persons) rather than corporations sole (a single office-holder). The expressions ‘body corporate’ and ‘corporation’ are broad and include entities constituted by: Statute: including building societies, co-operative or community benefit societies (formerly industrial and provident societies), and friendly societies A general Act of Parliament: such as local government authorities, corporations overseeing public services and industries, bodies with general administrative and advisory roles, and certain entities carrying out special...
This Practice Note explores the definition, interpretation and practical use of conditions precedent in commercial arrangements. It also reviews common conditions precedent and key drafting considerations... What are conditions precedent? In a commercial contract, a condition precedent identifies an event that must occur before either: the contract itself, or a party’s obligations under the contract, take effect Until that event is fulfilled, neither the agreement nor the relevant duty is binding. The leading authority on construing a condition precedent is Bremer Handelsgesellscheft Schaft mb H v Vanden Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109 (not reported by Lexis Nexis®). There, Lord Wilberforce explained that whether a clause amounts to a condition precedent, or is some other form of contractual term, turns on: (i) the wording of the clause, (ii) its place within the agreement as a whole, and (iii) broader legal...
This Practice Note offers hands-on guidance on what is required for a company seal. If a company keeps a seal and chooses to use it, practitioners must check it meets the applicable provisions of the Companies Act 2006 ( CA 2006). Do note, not every company holds a seal, and those that do are not required to execute simple documents under seal, where appropriate and necessary. For more detail, see Practice Note: Execution formalities—companies. We have developed a comprehensive, interactive collection to help users pinpoint and navigate key concepts and frequent issues when executing documents, including guidance on using a company seal. It brings together practical guidance, relevant precedent clauses and Q& As for each section or phase, enabling users to work methodically through that stage. For further information, see: Execution collection for...
Legislative framework This Practice Note explores the transfer of IP rights. It sets out the statutory rules on the formal requirements for effecting legal assignments of patents, trade marks, copyright and designs, as contained in the Patents Act 1977 ( PA 1977), the Trade Marks Act 1994 ( TMA 1994), the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Registered Designs Act 1949 ( RDA 1949) and Assimilated Regulation ( EU) 6/2002, and addresses the possibility of partial assignments. It also addresses equitable assignments of IP rights. Alongside the shared principles applicable to patents, trade marks, copyright and designs, it identifies the specific issues to be considered when transferring each distinct right. The Note additionally deals with the assignment of rights that may arise in future, and with assignments of comparable trade marks and re-registered designs. It explains how to...
This guide outlines the rules and requirements for the execution of deeds across multiple international jurisdictions. A table offers a quick-reference overview and summary of the execution formalities for companies, individuals and partnerships in a range of countries. Further detail on each overseas jurisdiction listed in the table appears in the sections that follow, including any variations in limitation periods for claims under contracts made as a deed. Each section corresponds to the overseas jurisdictions shown in the table for reference. For the execution of contracts across jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For electronic signatures in different jurisdictions, consult Practice Note: E-signatures—jurisdictional guide. For the formation of contracts across jurisdictions, refer to Practice Note: Contract formation—jurisdictional guide. For the execution of documents under Scots law, see Execution— Scotland—overview. Note that this is an introductory resource only; seek local advice from...
Electronic signatures This Practice Note sets out the legal position on electronic signatures—also called digital signatures, e‑signatures, E‑ Signatures, e Signatures, paperless signing or electronic document signing. It explains the categories of electronic signature and the technology used to generate digital signatures, including public key infrastructure ( PKI). It reviews key UK legislation such as the Electronic Communications Act 2000 ( ECA 2000) and the UK e IDAS Regulation, and outlines best practice for executing documents by electronic means. An electronic signature functions as the digital counterpart to a handwritten signature, connecting an individual with the contents of an electronic document. The Note focuses on the general law in England and Wales for commercial contracts in a business‑to‑business context. Readers should be aware that particular transactions may present distinct issues, for example due to laws applicable to consumers. For practical guidance on signing when one or more...
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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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