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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 Contractors’ All Risks insurance? Construction insurance falls into two principal categories: ‘property’ and ‘liability’. Property insurance provides cover for damage to physical assets and can be extended to include consequential losses (e.g. business disruption, loss of profits, etc). Liability insurance provides cover for claims made against the insured by third parties, contractors, employees and others, for personal injury, property damage or loss of profits. Cover for damage to the construction works themselves is referred to as Construction All Risks, of which Contractors’ All Risks ( CAR) is one form. CAR is a type of Construction All Risks policy drafted to identify who is intended to benefit from the insurance, rather than to specify the particular damage it insures. The market has not settled on uniform standard definitions, and underwriters continue to produce their own policy wordings to address market...
This Practice Note outlines the steps for commencing an arbitration and replying to a notice of arbitration in line with the third edition of the ARIAS ( UK) Rules, adopted in 2014 (the ARIAS Rules). Those Rules govern any ARIAS reference begun on or after 1 January 2014. ARIAS arbitrations started before 1 January 2014 are subject to the ARIAS Rules 1997 (click here for the second edition). For an introduction to ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014. For guidance on agreeing to adopt the ARIAS Rules for resolving disputes, see Practice Note: ARIAS (2014)—general procedure. Starting an arbitration Notice of Arbitration The party initiating the arbitration (the claimant) does this by serving the intended respondent with a written notice of arbitration ( ARIAS, rule 4.1)......
This Practice Note outlines the legal and regulatory landscape for assessing whether an arrangement amounts to a contract of insurance, and the potential ramifications of undertaking activities connected to such contracts without the requisite regulatory permissions. For more detail, refer to Practice Note: Identifying contracts of insurance in English law—an introduction, and the decision tree in Identifying a contract of insurance—flowchart. The legislative and regulatory background There is no precise or exhaustive statutory definition of a ‘contract of insurance’ in English insurance law. Under the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001 ( RAO), SI 2001/544, a ‘contract of insurance’ means ‘any contract of insurance which is a contract of long-term insurance or a contract of general insurance’. Determining whether an agreement is a contract of insurance is significant because such contracts are likely to fall within the meaning of a...
This Practice Note highlights why (re)insurers and intermediaries must confront environmental, social and governance ( ESG) risks. For direction on the ESG initiatives, regulations and legislation pertinent to (re)insurers and intermediaries, see Practice Note: ESG and insurance—essentials. Risk landscape Physical risks Losses linked to physical risk drivers, including weather, are insurable and can immediately impact insurance firms through elevated claims. Since the 1980s, the tally of recorded weather-related loss events has trebled, and, as a contributing element alongside other losses, inflation-adjusted insurance losses have risen by about US$45bn—from roughly US$10bn in the 1980s to around US$55bn in the past decade. The Committee on Climate Change ( CCC)—an independent statutory body created in 2008 and charged with advising the UK government on climate change—observed that physical risks from flooding and coastal change are expected to grow, and that major flood events, such as Calder Valley in 2020, are more...
Environmental insurance provides a practical route to managing environmental risks that stem from work undertaken by contractors and consultants. For general guidance on environmental insurance, refer to the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Scope of activity For the purposes of this note, contractors and consultants are parties engaged to deliver work on a client’s behalf. Contractors typically carry out the works, while consultants may undertake design or investigative tasks. Although these activities are relevant to contaminated land consultants and contractors, the potential scope is much wider, including: architects who may produce a design for fuel storage a foundation and earthworks contractor who may disturb soils, and internal fix contractors who may handle chemicals (even glue) in confined...
Why is environmental insurance relevant? Environmental insurance exists to protect the insured against pollution and environmental harm. Although a standard Public Liability ( PL) policy offers limited protection, it typically applies only to ‘sudden and accidental’ incidents. The challenge is that: pollution can occur continuously, often gradually and even intentionally (for example, discharging pollution into a drain); and as decided in the Bartoline case, PL wordings confined to ‘damages’ do not include liabilities for remediation costs required by statutory remediation notices. Therefore, major pollution exposures are not covered by usual insurance arrangements, but can be addressed through specialist environmental policies. For guidance on when environmental insurance is appropriate and its pros and cons, see the Practice Notes: Environmental insurance—when is it needed? and Environmental insurance—advantages and disadvantages. Types of environmental insurance The three core categories of environmental cover focus on: property ...
Introduction GPs working in the NHS typically practise in partnerships, or within NHS out-of-hours or walk-in centres. Private GPs can be self-employed or employed by larger organisations, such as health insurance providers. Until 1 April 2019, GPs were required to secure their own professional indemnity insurance. Historically, cover came from one of the three principal Medical Defence Organisations ( MDOs): the Medical Defence Union ( MDU), the Medical Protection Society ( MPS) and the Medical and Dental Defence Union of Scotland ( MDDUS), each ensuring the legal obligation was satisfied. In 2019 and 2020, two new government schemes were launched to deliver state-backed indemnity for GPs and practice staff, removing the need for them to arrange and pay for their own cover in respect of liability for clinical negligence linked to the provision of NHS services. The National Health Service ()...
Overview The consequences of breaching health and safety duties at work often include the prospect of paying financial compensation to the claimant or, where relevant, their dependants. This liability usually stems from actions brought in the civil courts or the threat of such proceedings. In addition, the Health and Safety Executive ( HSE) holds various enforcement powers over employing organisations, including the issue of prohibition or improvement notices. Under the Health and Safety at Work Act 1974 ( HSWA 1974), breaches can also result in criminal liability, with potential sanctions for both individuals and companies ranging from fines to, in serious instances, imprisonment. The employer’s duty of care The employer’s duty of care owed to employees is firmly established and requires no further examination. This duty arises in two ways—at common law (negligence) and under statutory regulation. Statutory oversight of workplace safety has existed for almost two...
This Practice Note offers a high-level summary of insurance clauses within commercial agreements. It outlines the main categories of insurance commonly used in such agreements and the principal features of insurance clauses and covenants. It is not intended to set out the law of insurance; in that regard, see Insurance contracts—overview. Nor does it consider the many other ways to obtain security for contractual liabilities beyond placing insurance. Given the potential limits of insurance cover, parties may conclude that alternative arrangements suit their needs better, for example obligations of surety such as guarantees from a group and/or parent company, or performance or guarantee bonds. See Types of security—overview for further guidance. Role of insurance clauses in commercial agreements The core function of a commercial contract is to apportion the risks and benefits of the transaction between the parties. Risk can be allocated in various ways; a clear...
Warranty and indemnity and contingent risk insurance in distressed M& A transactions HWF undertook an in‑depth interview programme with 17 market insurers to produce a paper delivering insight and clear, extensive guidance on how warranty and indemnity ( W& I) and contingent risk insurance are applied in distressed deals, mapping the solutions available and the key requirements to obtain strategic cover. What types of insurance cover are available for distressed transactions? For distressed transactions, three insurance options can be offered: Traditional W& I cover Traditional W& I cover can be used when: the seller and/or management provide warranties under the sale and purchase agreement ( SPA) or a warranty deed ( WD) the sellers give sufficient disclosure on the contents of the warranty suite in the SPA or WD a virtual data room or comparable document repository is available for review buyer due diligence (internal or external) has been completed...
Useful websites for Insurance & Reinsurance lawyers Regulatory architecture Bank of England Financial Conduct Authority ( FCA) FCA Handbook Financial Ombudsman Service Prudential Regulation Authority ( PRA) PRA Rulebook PRA— Solvency II European Insurance and Occupational Pensions......
What is design and build? In its essence, design and build ( D& B): is a procurement route under which one organisation (the D& B contractor) takes responsibility for both the design and the construction stages of a scheme, and can give the employer a single point of contact and accountability, thereby lowering the employer’s risk. Whilst D& B places greater risk on the D& B contractor, this is dealt with through pricing overall What is D& B insurance and why is it needed?......
This Practice Note reviews the Pre- Action Protocol governing Professional Negligence claims that is currently in force and now in effect. Note that proceedings issued in the Business and Property Courts on or after 1 October 2015 may fall within, or be amenable to, either the Shorter Trials Scheme or the Flexible Trials Scheme, as appropriate. For more information, see the following Practice Notes: Business and Property Courts—shorter trials scheme Business and Property Courts—flexible trials scheme Scope of this Practice Note This Practice Note explores issues defendants may encounter when defending professional negligence claims whilst remaining compliant with the Pre- Action Protocol for Professional Negligence claims (the ' Protocol'), and addresses practical considerations. Also see: Professional negligence claims—defendant steps—checklist. For guidance for claimants in this respect, see the following: Practice Note: Professional negligence claims—pre-action protocol—claimant issues Professional negligence...
Ways of providing death-in-service benefits Employers commonly provide their staff with death-in-service benefits (often referred to as 'life assurance' or 'life cover' benefits). This protection is ordinarily limited to employees (hence the term 'death in service', reflecting the label itself), although in certain situations an employer may decide to extend the benefit beyond retirement. Employers can deliver these benefits in three ways: via a dedicated trust-based arrangement that, while registered as a pension scheme for the purposes of Part 4 of the Finance Act 2004 ( FA 2004), provides only death-in-service benefits—such arrangements are frequently known as 'life cover only schemes', 'death-in-service schemes' or 'standalone life assurance schemes', and no other benefits through a registered pension scheme (usually an occupational pension scheme) in which the death-in-service benefits form part of the broader benefit structure of the scheme as a whole. In this type of...
Overview of the types of death in service benefits and their tax treatment Employers can provide three common kinds of death in service protection, often described as ‘life assurance’ or ‘life cover’, by arranging a life policy for their staff who are eligible: the registered group life policy the relevant life policy the excepted group life policy These arrangements share the following common features and conditions: employees eligible for cover must be aged from 16 to 74 inclusive using a discretionary trust will normally prevent any inheritance tax (‘ IHT’) charge arising on an employee’s death premiums paid by the employer are usually deductible for tax premiums are not treated as a taxable benefit in kind for employees The registered group life policy This is a group arrangement that is registered with HMRC under Part 4 of the Finance Act 2004 ( FA...
What is cyber insurance? Cyber insurance has rapidly progressed from a narrow form of cover, originally focused on liabilities anticipated following the 2002 Californian Data Security Notification Law, to a sophisticated product delivering a blend of first- and third-party protections, chiefly intended to help insureds manage cyber attacks and to indemnify them for the losses that follow. There is no single, settled definition of cyber risk. For insurance purposes, it is typically viewed as the chance of harm, financial loss, or legal liability resulting from damage to, or unauthorised access to, information systems. Frequent sources of loss include accidental events (e.g. damage to equipment that hosts data or system misconfiguration) and deliberate attacks (e.g. ransomware, business email compromise, distributed denial-of-service attacks). Such events may give rise to a range of significant incident response and remediation costs and expenses; first-party loss;...
The swift worldwide transmission of coronavirus ( COVID-19) and the measures introduced to curb infection are exerting a marked effect on the world economy and, in turn, the financial system. Insurers face pressures on both halves of their balance sheets; on the liabilities side due to shifts in interest rates and the potential rise in claims, and on the assets side from severe market turbulence and uncertainty. The industry is, in general, well capitalised, with advanced risk management that should help the sector collectively absorb the material shocks linked to coronavirus. Insurance plays a vital function during a pandemic, offering essential protection and support for individuals, households and firms. Supervisors of insurance have enacted various regulatory and supervisory actions to ease significant operational burdens on insurers in the wake of the coronavirus outbreak and to allow suitable flexibility so insurers can...
Practice Note The coronavirus ( COVID-19) pandemic has significantly affected the insurance market and policyholders. The Financial Conduct Authority’s ( FCA) widely publicised test case ( The Financial Conduct Authority v Arch Insurance) on coronavirus business interruption cover has removed some obstacles to settling direct business interruption claims, yet important questions about interruption losses remain unanswered. A range of other insurance classes impacted by coronavirus are likewise generating substantial losses for insurers. Many such losses have been placed into reinsurance, including exposures arising from overseas jurisdictions. Challenging issues continue to emerge around how these losses respond under reinsurance, which remain to be determined at the reinsurance layer. The resolutions will identify which reinsurers ultimately meet the cost of coronavirus reinsurance claims and how much of the coronavirus insurance burden stays with direct insurers. This Practice Note explores several issues confronting cedants (the...
Business interruption insurance This form of cover is commonly packaged and sold within standard commercial property policies. Ordinarily, business interruption protection only responds when disruption to, or interference with, operations directly stems from physical damage to insured property at the insured location. Some wordings, however, add ‘non-damage’ extensions that insure loss of income in other scenarios— for example, where entry to, or use of, the business premises is temporarily blocked or materially impeded by circumstances not involving property damage. In March 2020, after the coronavirus ( COVID-19) lockdown, numerous firms sought to claim for such losses under their business interruption insurance, yet few received indemnity, largely because of uncertainty over how non-damage extensions should react to a nationwide outbreak of infectious disease. The Financial Conduct Authority ( FCA), in consultation with policyholders and insurers, commenced and pursued a test case under the...
ARCHIVED: This Practice Note addresses the first-instance decision in The Financial Conduct Authority v Arch Insurance. It is archived and no longer maintained. For material on coronavirus ( COVID-19) and business interruption insurance, including discussion of The Financial Conduct Authority v Arch Insurance, refer to Practice Note: Coronavirus ( COVID-19)— FCA non-damage business interruption insurance test case [ Archived]. STOP PRESS: the decision in The Financial Conduct Authority v Arch Insurance was delivered on 15 January 2021; see LNB News 15/01/2021 107. Business interruption insurance has commonly been marketed as an extension to commercial property cover. Typically, such insurance requires losses to arise from damage to insured property. There is, however, no uniform wording for business interruption insurance, and some insurers provided policies with further triggers for cover, such as denial of access or closure by a public authority. Many businesses have attempted to claim under their...
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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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