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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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The concept of ‘damage’ in the insurance context ‘ Damage’ is pivotal in defining the extent of cover offered across many forms of insurance. Typical policy classes where recovery depends on establishing property damage include: marine cargo insurance construction all risks ( CAR) cover household and commercial property insurance business interruption insurance, particularly when paired with a traditional property policy sue and labour or investigation expense cover under certain property policies liability policies responding to the insured’s legal liability for physical damage to a third party’s property The exact sense of ‘damage’ can shift, and it is always shaped by the context in which the word appears. There is no all‑purpose definition that applies in every case; as ever, the term must be construed by reference to the specific insurance policy in which it features. A policy may or may not set out a bespoke definition, or, failing that, offer other...
Loss settlement clauses Reinsurance agreements can be set up on a proportional or a non‑proportional basis, and loss settlement clauses appear across both structures. Their core role is to capture the parties’ consensus on how the reinsured can evidence its loss when seeking to recover under the reinsurance. It documents the evidential route and threshold to be followed in presenting any reinsurance claim, where applicable by the reinsured party. Where the reinsurer has adequate confidence in its cedant’s handling of inwards claims, the usual aim is to ease the reinsured’s evidential burden that would otherwise arise at common law, and to reduce the need for reinsurers to re‑examine the underlying claims. Certain loss settlement provisions also include express safeguards or provisos to prevent the reinsurer’s bargain being defeated by binding settlements that fall outside the granted cover. Wording dealing with loss...
Where an agreement for lease is silent on insurance, the open contract position applies: neither party has a duty to arrange cover for the premises; and the risk transfers to the tenant on exchange of the agreement for lease. In short, absent an express clause, there is no automatic cover and the tenant carries the peril once the agreement is exchanged. If the agreement adopts the Standard Commercial Property Conditions ( Second or Third Editions) or the Standard Conditions of Sale (5th Edition), the default (absent express variation) is identical: the seller/landlord need not insure the property, so the buyer/tenant bears the risk from exchange. That default applies unless the parties agree a different arrangement. Consequences of either of those scenarios For an unconditional agreement for lease, the effect is that the tenant must complete the lease even if the property is destroyed after...
Duties of an office-holder to realise property Insolvency processes (such as administration, liquidation or bankruptcy) involve appointing an insolvency office-holder whose principal duty (for a liquidator or trustee in bankruptcy) is to collect in the insolvent company’s or bankrupt individual’s assets and realise them for the ultimate benefit of creditors. Their central function is to maximise returns to creditors by turning property into cash or value as efficiently as practicable, consistent with their statutory remit. An administrator has authority to do this whilst pursuing one of the three statutory purposes of administration (see Practice Notes: Role, powers, functions and duties of an administrator, Role, powers, functions and duties of a liquidator and Role, powers, functions and duties of a trustee in bankruptcy). In this context, insurance claims—being choses in action—are property capable of realisation for the estate. This Practice Note considers the...
Part VII transfer schemes This Practice Note logs key hearing dates, either proposed or listed, in the High Court, Insolvency and Companies Court ( Chancery Division) daily cause list from 1 January 2026 onwards, prioritising the most recent first, for Part VII transfer schemes: transfer schemes under Part VII of the......
This Practice Note looks at the powers of the Prudential Regulation Authority ( PRA) to impose and vary requirements For guidance on the cancellation of requirements, refer to Practice Note: Prudential Regulation Authority—cancelling permission and requirements. A ‘requirement’ is a condition the PRA places on an authorised person. The PRA’s remit over requirements is narrower than that of the Financial Conduct Authority ( FCA). It may only set requirements on: individuals who have applied for permission to carry on PRA‑regulated activities; PRA‑authorised persons who have applied for permission or for a variation of an existing permission; and FCA‑authorised persons who have applied to add PRA‑regulated activities to their permission. By comparison, the FCA can impose requirements on persons whether they have applied to the PRA or the FCA for permission or to vary a permission. Illustrations of a...
This Practice Note looks at the powers of the Financial Conduct Authority ( FCA) to impose and vary requirements This Practice Note explores the FCA’s authority to set and adjust requirements applicable to firms. For guidance on the cancellation of requirements, see Practice Note: Financial Conduct Authority—cancelling permission and requirements. A ‘requirement’ is a condition placed on an authorised person by the regulator where that person has made an application for: Part 4A permission, or the variation of a Part 4A permission. Such a requirement takes effect on, or after, the giving or variation of the permission, as the FCA considers appropriate. The FCA may impose a requirement on a firm irrespective of whether the application for permission, or for a variation of permission, was submitted to the FCA itself or to the Prudential Regulation Authority ( PRA). Examples include a...
Introduced in 2023, the Financial Conduct Authority’s ( FCA) Consumer Duty (the Duty) signalled a major change in the FCA’s regulation of the retail sector, setting higher expectations for the level of care firms owe to consumers. The Duty forms part of the FCA’s shift to an outcomes‑based regime, prompted by worries that many firms took a reactive, ‘tick‑box’ approach to compliance. The FCA was dissatisfied with the consumer outcomes achieved under existing Handbook provisions, including the Principles for Businesses Sourcebook ( PRIN), the Product Intervention and Product Governance Sourcebook ( PROD), and the pre‑existing client best interest rules within the Conduct of Business Sourcebook ( COBS) and the Insurance: Conduct of Business Sourcebook ( ICOBS). Consequently, the FCA expects firms to raise their standards to meet the Duty’s requirements... Key points on the Consumer Duty are as follows: It took effect on 31 July 2023 for...
This guidance sets out the structure, make-up, accountability and governance arrangements—covering the Board and its committees—of the Financial Conduct Authority ( FCA). The governance framework defines how the Board, as the FCA’s governing body, establishes, steers and oversees the organisation. For details about the FCA and the UK financial services regulatory system, see UK regulators—financial services—overview. For details of the FCA’s roles, aims and statutory powers, see Practice Notes: Financial Conduct Authority—functions and Financial Conduct Authority—objectives and powers. FCA and corporate governance The FCA came into being on 1 April 2013, assuming responsibility for conduct and certain prudential regulation from the Financial Services Authority ( FSA). Under the Financial Services and Markets Act 2000 ( FSMA 2000), as revised by the Financial Services Act 2012 ( FSA 2012), the FCA took on a wide and varied set of regulated activities, notably banking...
This Practice Note offers guidance on applying limitation periods to insurance and reinsurance claims. It addresses how to determine when a cause of action arises and what follows once a limitation period has lapsed. It also explains routes to extend time, including the use of standstill agreements. In addition, it examines limitation periods and other key deadlines in special situations, such as contribution claims... Introduction In England and Wales, the Limitation Act 1980 ( LA 1980) sets the time limits for specific claims. See Practice Note: Limitation-the principal limitation periods for a summary of that statute and how it has been read by the courts. Claims involving insurers and reinsurers face the same time bars, yet features of insurance and reinsurance contracts, and London market practice more broadly, have generated limitation questions addressed here... This Practice Note covers: Pinpointing accrual of the cause of action in...
Introduction This Practice Note sets out to familiarise readers with the principal ideas underpinning the law of marine insurance, noting where it coincides with, and where it diverges from, insurance law in general. The evolution of marine insurance in England, and the jurisprudence that accompanies it, can likely be followed back to the thirteenth century, when insuring ships and their cargoes emerged in step with growing maritime commerce. In origin, marine insurance law sprang from the carriage of goods and passengers by sea, extending to cover both property perils and liability exposures. The statutory definition of a marine insurance contract in section 1 of the Marine Insurance Act 1906 ( MIA 1906) is notably broad: an agreement under which the insurer promises to indemnify the assured for marine losses, namely losses arising out of a marine adventure. That expansive wording is developed further by MIA 1906,...
Introduction War risks insurance brings together a range of distinct hazards, grouped largely for historical reasons, as they were once excluded from, or not embraced by, standard marine cover. The method used to insure war risks prior to 1982/1983 was intricate. Certain perils were carved out of marine insurance by a warranty requiring the subject-matter to be ‘free of capture and seizure’ (‘f. c. & s.’). War risks insurance stepped in to protect against those very perils removed by the f. c. & s. clause. This Practice Note concentrates on war risks insurance for marine hull and marine cargo as arranged in the London market, although much of it is equally relevant to other categories of marine war risks insurance (eg marine liability insurance). For hull insurance, the assorted war-related perils are now consolidated within the Institute War and Strikes Clauses- Hulls (the Hull War...
Introduction and evolution of insurtech Insurtech-what is it and why does it matter? Insurtech refers to deploying technology across the insurance value chain in inventive ways. Challenging the incumbent market, it has reshaped underwriting, distribution, claims and administration by offering accessible tools that enhance delivery of insurance services and/or connect with new customers. Once peripheral to board agendas in the incumbent space, it is now recognised across stakeholders that insurtech has a significant role in the evolution of insurance services. This Practice Note reviews insurtech’s evolution and its impact on the sector. It also considers emerging technologies and the UK regulatory landscape, with practical guidance for those operating in the insurtech space. The evolution of insurtech-2010 to 2020 Insurtech in the early to mid-2010s arose from key technological shifts. Often seen as springing from fintech and the push for better customer experiences, its rise was driven by...
Insurance & Reinsurance-trackers and timelines This paper presents a catalogue of Insurance & Reinsurance trackers and timelines outlining key changes and regulatory frameworks that......
Insurance & Reinsurance- Essentials Practice Notes This document sets out the Lexis+® Insurance & Reinsurance ‘ Essentials’ Practice Notes, introducing core insurance legislation, reinsurance, principal classes of insurance and significant regulatory instruments. Insurance legislation Insurance Act 2015 Insurance Act 2015 ( IA 2015)-essentials-this Practice Note outlines the principal elements of the IA 2015, such as the duty of fair presentation and the remedies available for its breach. It also addresses damages for late payment of insurance claims under the Enterprise Act 2016. Consumer Insurance ( Disclosure and Representations) Act 2012 ( CI( DR) A 2012) A guide to the Consumer Insurance ( Disclosure and Representations) Act 2012-this Practice Note explains the context for the introduction of CI( DR) A 2012 and summarises key provisions concerning consumer insurance, including the duty of care relating to misrepresentation in consumer insurance. Third Parties ( Rights Against Insurers) Act 2010 Third Parties ( Rights Against...
ARCHIVED: This material has been archived and is no longer maintained. This tracker highlights insurance and reinsurance court matters in the High Court, Court of Appeal, Supreme Court and the Court of Justice of the European Union (covering both the General Court and the Court of Justice). It is produced from our monitoring and evaluation of relevant court proceedings. Abbreviations European Court of Justice/ Court of Justice of the European Union— ECJ Court of Justice of the European Union— General Court— CJEU- GC Privy Council— PC Supreme Court— SC Court of Appeal— CA High Court— HC Queen's Bench Division— QBD Technology and Construction Court— TCC For previous years, see: Insurance & Reinsurance case tracker—2018 [ Archived] Insurance & Reinsurance case tracker—2017 [ Archived] Insurance & Reinsurance case tracker—2016 [...
What is terrorism? The Reinsurance ( Acts of Terrorism) Act 1993 ( R( AT) A 1993) characterised terrorism as acts by persons acting for, or connected with, any organisation whose activities are directed towards overthrowing or influencing, by force or violence, His Majesty’s Government in the United Kingdom or any other government, whether de jure or de facto (section 2(2)). The Terrorism Act 2000 ( TA 2000), later amended by the Terrorism Act 2006 ( TA 2006) and the Counter- Terrorism Act 2008 ( CTA 2008), reframed the concept. Under this legislation, terrorism includes actions that: involve serious violence against a person cause serious damage to property endanger someone’s life (other than that of the terrorist) pose a risk to the health or safety of the public are intended seriously to interfere with or disrupt an electronic system The purpose behind such actions is to influence the government or an...
This starter guide offers an introductory primer on insurance and reinsurance. It is intended for junior lawyers and individuals who are new to insurance and reinsurance as a practice area. The guide highlights key issues and points to additional resources and materials that provide more comprehensive information on the topics covered. What is insurance law? Insurance law can be divided into three strands: insurance contract law, which governs the contractual relationship between insureds and insurers the law of intermediaries, which regulates insurance business conducted through agents (this is true for most insurance business) insurance regulation and company law, which is concerned with the financial soundness, probity and regulation of insurance companies For further detail, see Practice Note: General principles of insurance contract law. Insurance policies are, at heart, contracts and the usual principles of contractual construction apply. For more guidance on the nature of...
Introduction to claims co-operation and control clauses All liability insurance is written on an indemnity footing, under which the insurer undertakes to hold the policyholder harmless for liability owed to a third party. It was once the case that the insured could recover only after making payment; however, in Post Office v Norwich Union Fire Insurance Society Ltd the court confirmed that the right to an indemnity arises once the insured’s liability is fixed by agreement or judgment. Liability wordings commonly also promise to reimburse all costs incurred in defending third party claims, sometimes subject to a consent requirement that must not be unreasonably withheld. Where a claim sits within the policy limit—save for any excess or deductible—the insurer bears the entire financial exposure for the claim itself. Insurers may likewise be the only party with the requisite expertise and resources to handle the matter. A...
Purpose of the Financial Ombudsman Service The Financial Ombudsman Service ( FOS) is an independent scheme for settling disputes, helping consumers resolve complaints with financial services businesses. Its ombudsmen consider and determine cases between customers and firms. The FOS is not a regulator. Its service is neutral and its decisions are made entirely separately from the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA). It is free for complainants and its remit extends to most regulated financial products and services provided in or from the UK. The FCA Handbook’s Dispute Resolution: Complaints ( DISP) section explains the FOS’s role, remit and processes in detail. For further background on the FOS and complaints about firms generally, see: Complaints against firms—financial services—overview and Practice Note: Complaints handling by financial services firms... Scope of the Financial Ombudsman Service's...
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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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