Featured documents
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
This Practice Note sets out practical steps for arranging the execution of a document by an individual who has an impairment or disability, or where the individual and their adviser do not share the same language. For overarching guidance on executing contracts and deeds, see the following Practice Notes: Deeds Executing documents—deeds and simple contracts We have also created a comprehensive, interactive collection to help users recognise and navigate key concepts and frequent issues in document execution. Each stage includes practical guidance, precedent clauses and Q& As tailored to that phase. For further details, see: Execution collection. Inability to read or comprehend documents in writing An impairment may prevent a signatory from reading a document themselves, for instance where they are partially sighted or blind. It may equally be that the signatory does not read or speak the language used in the...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by limited liability partnerships ( LLPs). See also Precedents: Execution clause—limited liability partnership—contract and Execution clause—limited liability partnership—deed. For commentary on establishing an LLP, see Practice Note: Forming a limited liability partnership. We have created a collection that serves as a comprehensive, interactive tool to help users pinpoint and navigate the concepts and common issues that arise when executing documents. Each stage or phase supplies practical guidance, precedent clauses and Q& As relevant to that part. For further details, see: Execution collection. The law Before 1 October 2009, the execution formalities applicable to LLPs were contained in the Companies Act 1985. From 1 October 2009, LLPs have been governed by the Companies Act 2006 ( CA 2006) by virtue of, and as modified by, the Limited Liability...
The ordinary time limit for defamation and malicious falsehood claims A claimant has one year to issue a defamation claim from the point when the cause of action arises, namely the date the defamatory statement is first made public (section 4A of the Limitation Act 1980 ( LA 1980), inserted by section 5 of the Defamation Act 1996). The Court of Appeal in Siniakovich v Hassan- Soudey confirmed that a claim is treated as ‘brought’ on the day the claim form is first delivered to the court office, even if the office properly declines to issue it because the whole of the appropriate fee has not been paid. For libel, the claimant’s ignorance of any publication at the time is irrelevant to accrual, and so does not postpone the start of the limitation period applicable to their claim. In most varieties of slander and...
Copyright theft Unauthorised use of copyright is a criminal matter under the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Trade Marks Act 1994 ( TMA 1994) and the Video Recordings Act 1984 ( VRA 1984). It may alternatively be brought under the Fraud Act 2006 ( Fr A 2006), or pursued as a conspiracy contrary to the Criminal Law Act 1977 ( CLA 1977), or at common law as conspiracy to defraud. See Practice Notes: Conspiracy and Conspiracy to defraud. Cases can be taken by the Crown Prosecution Service or by trading standards. Enquiries may call on HM Revenue and Customs, the UK Border Agency and the National Crime Agency. Most CDPA 1988 offences—namely those in CDPA 1988, s 107(1)(a)–(b), (d)(iv) and (e)—are either-way, meaning trial may occur in the magistrates’ court or the Crown Court. They are treated as the graver...
Practice Note This Practice Note offers practical direction on how companies should execute documents after 6 April 2008 (being the date on which the pertinent provisions of the Companies Act 2006 ( CA 2006) took effect). It addresses the execution of deeds by companies, and the execution of simple contracts by and on behalf of companies. If advising on documents signed before 6 April 2008 (for instance, in a dispute), practitioners should consider the relevant provisions of the Companies Act 1985. Throughout, it is assumed the executing company is a private company subject to CA 2006 and that the document is in writing. For execution points relevant to other legal entities, see: Execution—overview. We have assembled a collection that serves as a comprehensive, interactive resource to help users identify and work through the concepts and common issues that arise when executing...
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
Parties often wish to stipulate that the entirety of their contractual relationship is governed by the written agreement they have signed. This is known as an ‘entire agreement clause’. This Practice Note examines why such clauses are used and the principal issues relevant to their operation, including the interplay between entire agreement clauses and implied terms, misrepresentation, fraud and exclusion clauses, non-reliance statements, and broader matters of evidential estoppel and contractual estoppel. For further guidance on construing the scope of parties’ contractual obligations, see Practice Notes: The parol evidence rule in interpreting contracts Contract interpretation—admissibility of surrounding documents and related content What is an entire agreement clause? At its simplest, an entire agreement clause provides that the whole of the parties’ contractual dealings is governed exclusively by the terms contained in their written contract. Consequently, when interpreting the contract, the court is...
Practice Note: The duty of fidelity and fiduciary duties As explained in Practice Note: The duty of fidelity and fiduciary duties, an implied duty of fidelity in every contract of employment will ordinarily prevent an employee from revealing to third parties confidential material learned in the course of their work. In addition, highly sensitive business information, commonly described as trade secrets, is protected by the equitable duty of confidence. Taken together, these obligations have historically shaped the implied responsibility owed by employees in relation to confidential information. The classification of business information is therefore pivotal: during employment, an employee is subject to an implied obligation not to disclose trade secrets and/or confidential information to others; after employment ends, only the implied restraint against revealing trade secrets persists. One exception is that a former employee may be stopped from benefiting,...
This Practice Note sets out the core principles for securing injunctions concerning confidential information and privacy. Although other remedies exist for claimants in breach of confidence matters, stopping publication of the material by injunction is frequently the only remedy of real practical worth to the claimant. It also addresses anonymised injunctions, alongside both interim and final injunctions. In recent years, injunctions touching on confidentiality and privacy have provoked debate. So‑called ‘super‑injunctions’ have drawn media criticism for constraining free expression; yet much of this derives from misunderstanding of what a ‘super‑injunction’ actually signifies and from the false sense that such orders are far more common than they are. This Practice Note explains the overarching principles for obtaining relief in this field. For further material on privacy injunctions, see the following Practice Notes: Privacy law—misuse of private...
Similarities between Freedom of Information Act and Environmental Information Regulations At their core, the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391, share a common purpose: enabling access to information kept by public authorities. For further detail, see Practice Notes: Environmental Information Regulations 2004—what is environmental information? and Introduction to freedom of information. More specific similarities include: time limits—under each framework, where the information is held and no exemption applies, public authorities must respond within 20 working days duty to advise and assist—both FIA 2000 and EIR 2004 set expectations for handling requests, requiring authorities to offer a reasonable level of advice and assistance to requestors and potential requestors appeals—identical appeal routes are available For more information, see Practice Notes: Environmental Information Regulations...
Background to telephone and electronic communication recording requirements This Practice Note sets out the Financial Conduct Authority’s ( FCA) requirements for capturing telephone conversations. It applies to investment businesses such as banks, stockbrokers, investment managers (including managers of collective investment schemes and hedge funds) and firms dealing in financial and commodity derivatives. The objective of the recording framework is chiefly to identify and deter market abuse. In March 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), introduced rules on the recording of calls and electronic communications (the taping rules). These rules partially implemented elements of the Markets in Financial Instruments Directive ( Directive 2004/65/ EC) ( Mi FID), notably Article 51 of Commission Directive 2006/73/ EC (the Mi FID Implementing Directive). The regime took effect from March 2009. At the outset, the taping rules excluded telephone conversations and electronic...
The Investigatory Powers Act 2016 ( IPA 2016), which secured Royal Assent on 29 November 2016, reshaped the statutory regime for covert surveillance by public authorities. Much of the earlier structure had been provided—though not entirely—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). See Practice Note: The regulation of intelligence gathering—an introductory guide... FCA powers of surveillance The Financial Conduct Authority ( FCA) is authorised to undertake surveillance to obtain information for the prevention and detection of crime. Its powers include: Acquiring communications data (see Practice Note: Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016) Conducting covert surveillance, which may be recorded (see Practice Note: Covert intelligence sources) Using informants—covert intelligence sources or covert human intelligence sources ( CHIS) (see Practice Note: Covert intelligence sources) Compelling the provision of encryption keys or...
The Investigatory Powers Act 2016 ( IPA 2016) now provides the core legal structure for the use of covert surveillance by public bodies. Before this, the field was governed mostly—though not wholly—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). The RIPA 2000 provisions on intercepting and acquiring communications data have been repealed and replaced by IPA 2016. However, the regimes for direct surveillance, covert human intelligence sources ( CHIS), and obtaining electronic data protected by encryption continue to be governed by RIPA 2000. For guidance on interception and the acquisition of communications under IPA 2016, see the following Practice Notes: The regulation of intelligence gathering—an introductory guide Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016 Interception of communications under the Investigatory Powers Act 2016 Equipment interference under the...
This Practice Note outlines the formal requirements for witnesses, covering who may witness another person’s signature on a document connected to a commercial deal, such as a deed or simple contract, as well as witnessing electronic signatures and the current approach to video witnessing in practice. For guidance on witnessing wills, see Practice Note: Validity of Wills—signature. We have created a collection that serves as a comprehensive, interactive resource to help users recognise and navigate the concepts and frequent issues and pitfalls in executing documents, including the witnessing of signatures. Each stage or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For further details, see: Execution collection. Witnessing What is the difference between witnessing and attestation? Witnessing is the act of observing the execution of a document. Attestation adds the further step of noting, on the document itself, that the witness has seen the...
This Practice Note addresses the key practical steps that arise when pursuing a defamation claim, such as: pinpointing a defamatory statement; deciding whether it amounts to libel or slander; and evaluating the overall suitability of interim relief. It thoroughly reviews the effect of the Defamation Act 2013 ( DA 2013) on both claimants and defendants, and sets out practical tactics for the procedural conduct of a defamation case. Defamation Act 2013 Before DA 2013 came into force, defamation proceedings had a reputation for technicality and disproportionate cost, chiefly because arguments centred on the meaning of the impugned words. The government, reacting to a wave of negative media commentary that English defamation law unduly favoured claimants, enacted DA 2013. The Act brought in a suite of reforms, making defamation a tort grounded equally in common law and statute, and, through...
While primary infringement usually involves, in most instances, the act of reproduction, secondary infringement concerns commercially dealing in infringing copyright works. Acts of secondary infringement Secondary infringing conduct comprises: importing; possessing; selling or dealing; providing the means for making copies; permitting the use of premises for an infringing performance; and supplying apparatus for an infringing performance. Unlike primary infringers, who are strictly liable irrespective of what they knew, secondary infringers must have knowledge of the infringement. Secondary acts address those further down the 'chain'. Copyright owners may seek assistance to prevent importation and block entry of infringing copies by writing to HMRC. Where proceedings are in prospect, a claimant should write to the prospective defendant, put them on notice, and allow a reasonable period to assess and evaluate the claims advanced against them. Those in the frame for...
This playbook provides guidance for drafting and negotiating a confidentiality agreement (also known as a non-disclosure agreement or NDA) from a pro-discloser position. It sets out preferred stances and alternative fallback options for the clauses most often contested in these agreements. The template suits solicitors representing the discloser, whether operating in-house or working in private practice. Users should adapt and tailor it as needed to address client-specific issues and safeguard the client’s interests in full. The level of risk referenced throughout may vary depending upon the particular client. Be aware it omits fallbacks for boilerplate clauses, for situations where confidential information comprises personal data, and for detailed intellectual property rights provisions. For a complete index of related confidential information materials, see: Confidential information—overview. For the underlying template agreement, consult: Precedent: Confidentiality...
This Practice Note reviews the principal legal and commercial considerations for cloud services, including: Due diligence Contract documents Service description Service levels Fees Data protection Data portability and backup Security Record keeping and audit rights Compliance with laws Intellectual property Supplier liability for content Liability under the contract Application of TUPE Variation of terms Suspension and termination rights Business continuity and disaster recovery Governing law and jurisdiction Export control laws Sector-specific regulation and guidance International laws For an outline of fundamental cloud concepts and further context, see Practice Note: Cloud computing—introduction. For analysis of laws relevant to cloud services across multiple worldwide jurisdictions, see Practice Note: Lexology Panoramic: Cloud Computing. This note is primarily directed at...
This Practice Note It sets out guidance on applying the Protocol. It covers: when the Protocol operates its objectives and scope typical outcomes of non-compliance how it relates to limitation The Protocol replaced the Pre- Action Protocol for Defamation Claims. For how it differs from that earlier regime, see News Analysis: Pre- Action Protocol for Media and Communications Claims. In addition to defamation, the Protocol extends to a range of other media and communications claims which, before 2019, were not governed by a dedicated pre-action protocol. It formed part of broader reforms to media and communications procedure commencing on 1 October 2019, which also introduced a new CPR 53 and a new practice direction. For more on these changes, see News Analysis: New rules for media and communications claims from 1 October 2019......
Popular documents
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 ]...
Discover more from LexisNexis
