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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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This Practice Note charts the financial services carve-outs from the moratorium provisions and the restrictions on ipso facto clauses introduced by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) into the Insolvency Act 1986 ( IA 1986). For general information on CIGA 2020 and links to further materials, see News Analysis: Corporate Insolvency and Governance Act 2020. Moratorium CIGA 2020 inserts a new Part A1 into IA 1986, establishing a fresh insolvency process under which directors of insolvent companies, or companies likely to become insolvent, may obtain a 20 business day moratorium period. The purpose is in particular to give viable businesses time and breathing space in order to restructure or to seek new investment free from creditor action. An insolvency practitioner serves as the ‘monitor’, overseeing the moratorium, while directors remain in control of the company’s day-to-day running of the business on a...
Chemical sites in the UK Across the UK there are many active and former chemical facilities. Most sit within industrial zones, yet that does not remove environmental sensitivity; in the North East, for instance, rivers such as the Tyne are adjacent to mudflats designated as a Site of Special Scientific Interest ( SSSI). Numerous older plants have since been redeveloped, and those closer to the centre of towns and cities may have been converted to residential end use. Potential environmental liabilities associated with chemical works Operational chemical sites can present environmental risk arising from bulk liquid storage, processing areas and waste streams—especially via the drainage network. Fires at such facilities can also inflict major harm; a notable example is the 2011 Chemie Pack blaze in Rotterdam. Case study— Chemie Pack, Rotterdam 5 January 2011—a catastrophic fire broke out at the Chemie- Pack facility on a large...
The Building Safety Act 2022 ( BSA 2022) marks the most significant shake-up of building controls in forty years, reshaping oversight for the design, construction and management of, among others, residential properties and, in particular, ‘higher-risk’ buildings ( HRBs) (for what qualifies as a HRB, see Practice Note: Building Safety Act 2022—what is a higher-risk building?). Stricter requirements on competence and safety reporting, coupled with new causes of action and court orders to expedite remediation of historical defects, carry notable insurance consequences. The anticipated uptick in claims against construction and real estate professionals will trigger more policy notifications and potential coverage disputes, as the market calibrates to novel exposures amid developing case law. This Practice Note therefore examines key insurance issues likely to arise from BSA 2022 in relation to enhanced duties, extended liabilities, new remedies and policy...
E& W Brussels I (recast)—dealing with insurance matters [ Archived] ARCHIVED : This Practice Note is archived and is not being maintained. It assists in identifying which EU Member state’s courts hold jurisdiction to determine an insurance claim. In particular, it examines the amendments in Regulation ( EU) 1215/2012, Brussels I (recast), insofar as they concern insurance. Those provisions are found in Chapter II, Section 3, Articles 10–15 of the Regulation. The Note reviews the basic principle that a defendant is to be sued in the state of their domicile, together with departures from that principle when the insured—treated as the weaker party—is involved. It also surveys the position where the parties are on an equal footing. Further safeguards are discussed where there could otherwise be tacit prorogation of jurisdiction, as well as the effect of an agreed jurisdiction clause in an...
E& W Brussels I (recast)—application and exclusions This Practice Note reviews Regulation ( EU) 1215/2012, Brussels I (recast), explaining the matters to which it applies and identifying those expressly excluded from its scope. It also sets out the transitional arrangements, international requirements, and clarifies what is meant by civil and commercial matters. Impact of UK’s departure from the EU Following exit day (ie 31 January 2020), the UK assumed the status of a third state for the purposes of Regulation ( EU) 1215/2012, Brussels I (recast). Under the transitional provisions in the Withdrawal Agreement between the UK and the EU, the UK continued to be subject to Regulation ( EU) 1215/2012, Brussels I (recast) throughout the implementation period, which commenced on exit day and concluded on IP completion day (ie 31 December 2020, at 11 pm). The position after IP completion day requires...
Like their conventional peers, takaful operators (ie Islamic insurance providers) employ several channels to distribute their Shari’ah‑compliant life insurance (known as family takaful) and their non‑life insurance (known as general takaful) to the public. These routes include the operator’s direct sales force, independent insurance brokers, and e‑tools. Another channel is bancatakaful. What is bancatakaful? Bancatakaful is the distribution of takaful products through banks— Islamic or conventional—so long as the activities conform to Islamic principles ( Shari’ah). In essence, the bank acts as the takaful operator’s agent, allowing the operator to utilise the bank’s network. The key reasons takaful operators use banks as distribution partners are to: tap the banks’ existing customer base align with reputable banks and benefit from their expertise in product distribution maintain smaller direct sales teams, as bank staff sell the takaful products to the banks’ customers maintain smaller...
Practice Note This Practice Note offers a concise overview of the function of reinsurance brokers when arranging reinsurance intended to operate ‘back-to-back’ with the base policy market-wide. It explains how the obligations owed by reinsurance brokers diverge from those of brokers placing only direct insurance arrangements. It sets out guidance on potential conflicts of interest arising when arranging back-to-back reinsurance, and highlights risks and typical errors that could prompt claims against brokers operating in a dual role within such placements. This Practice Note further offers practical pointers on how brokers may avoid or reduce negligence claims, and includes links to associated materials for readers elsewhere. The expression ‘direct’ is used within insurance and reinsurance placement contexts to denote cover for the original policyholder, as distinct from reinsurances of that underlying risk in question specifically. The term ‘direct’ should not be mistaken for...
Background to the regulation of assisting in the administration and performance of insurance contracts Under section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000), individuals and firms are prohibited from undertaking regulated activities in the UK unless they are authorised or otherwise exempt; this is referred to as the general prohibition. For details on the general prohibition and how it applies territorially, see the Practice Notes: The general prohibition and implications of its breach and Territorial scope of the general prohibition. ‘ Regulated activities’ are described as including specified activities carried on by way of business that concern ‘specified investments’, or any property to which the specified activity applies. For these purposes, ‘specified’ means designated by HM Treasury. The Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001 ( SI 2001/544) ( RAO) lists the...
This Practice Note outlines the process for appointing arbitrators under the 3rd edition of the ARIAS ( UK) Rules, adopted in 2014 (the ARIAS Rules). For an overview of ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014... Requirements under ARIAS Rules In an ARIAS arbitration, the parties may decide how many arbitrators will sit on the tribunal and what qualifications they must possess ( ARIAS, rule 6.1). If, in whole or in part, the parties fail to agree on the tribunal’s composition, the default provisions in the ARIAS Rules apply, which in their basic structure mirror the appointment process in the ARIAS arbitration clause. The rules provide that, unless the parties agree otherwise: the tribunal will comprise three arbitrators......
Practice Note This Practice Note outlines how disputes progress under the 3rd edition of the AIDA Reinsurance and Insurance and Arbitration Society ( ARIAS) ( UK) Rules (the ARIAS Rules), adopted in 2014. For a primer on ARIAS, see Practice Note: ARIAS ( UK) Rules and Procedure. Unlike many other arbitral rule sets, there is no fixed procedural roadmap taking an ARIAS arbitration through to a hearing. Instead, the focus is on the parties agreeing their own procedure and timetable ( ARIAS, rule 10.1 and Note to Rule 10) so that the dispute is resolved proportionately. Even where consensus is reached, the tribunal may displace any arrangement it believes would not allow the dispute to be determined in a proportionate way, without needless delay or cost ( ARIAS, rule 10.1). In practice, an arbitral tribunal will generally attach significant weight to solutions the parties have...
Insurance & Reinsurance case tracker—2024 [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This tracker focuses on court proceedings and rulings concerning insurance and reinsurance. It presents the status of matters reported from January 2024 and is refreshed fortnightly. Abbreviations Supreme Court — SC Court of Appeal — CA King's Bench Division — KB Chancery Division — Ch The Technology and Construction Court — TCC The Inner House of the Court of Session ( Scotland) — CSIH The Outer House of the Court of Session ( Scotland) — CSOH Judicial Committee of the Privy Council — JCPC For previous years, see: Insurance & Reinsurance case tracker—2023 [ Archived] Insurance & Reinsurance case tracker—2022 [ Archived] Insurance & Reinsurance case tracker—2021 [ Archived] Insurance & Reinsurance case...
Insurance & Reinsurance case tracker—2022 [ Archived] ARCHIVED: This Practice Note is archived and not kept up to date. This tracker covers insurance and reinsurance court cases and rulings. It shows the status of matters reported since January 2022, including forthcoming appeals, with fortnightly updates. Abbreviations European Court of Justice/ Court of Justice of the European Union— ECJ Supreme Court— SC Court of Appeal— CA High Court— HC King's Bench Division— KB Technology and Construction Court— TCC For previous years, see: Insurance & Reinsurance case tracker—2021 [ Archived] Insurance & Reinsurance case tracker—2020 [ Archived] Insurance & Reinsurance case tracker—2019 [ Archived] Decided cases 2022 December Court: KB Case name: Dassault Aviation SA v Mitsui Sumitomo Insurance Co Ltd [2022] EWHC 3287 ( Comm) Subject: Subrogation and non-assignment clauses Details: The English...
Arbitrations arising from insurance and reinsurance disagreements reflect many of the characteristics found in other commercial arbitration. This Practice Note outlines both ad hoc and institutional procedures for arbitrations within the insurance sphere. It further addresses Bermuda Form proceedings that can flow from ‘ Bermuda Form’ policies, a distinct class of excess liability insurance. References to ‘insurance’ in this Practice Note are to ‘insurance and reinsurance’ unless stated otherwise. The Practice Note covers: Agreements to arbitrate in the insurance context, institutional and ad hoc arbitration Bermuda Form arbitrations Agreements to arbitrate, institutional and ad hoc arbitration Agreements to arbitrate For arbitration to be used as a route to resolve a dispute, the parties to the insurance contract must either have agreed to refer the dispute or difference that has arisen to arbitration, or must agree, after the dispute has arisen, to arbitrate. It is...
Practice Note This Practice Note assists with identifying the applicable law for contracts concluded on or after 1 January 2021. For agreements entered into before that date, the UK courts apply a different applicable law framework, which varies according to when the contract was made. For detailed guidance, see the following resources: Practice Note: Applicable law—a guide for dispute resolution practitioners Practice Note: Assimilated law In this Practice Note, UK Rome I refers to Regulation ( EC) 593/2008. That regulation governs the choice of law where the contract was entered into on or after 1 January 2021. Previously called Retained Rome I, from 1 January 2024 it has been retitled Assimilated Rome I—the change is in name only; the regulatory provisions are unchanged. Authorities may use either designation, and therefore, for consistency, this Practice Note adopts the term UK Rome I. This...
Insurance & Reinsurance case tracker—2017 [ Archived] ARCHIVED: This has been archived and is no longer maintained. It surveys insurance-related proceedings in the High Court, Court of Appeal, Supreme Court and the Court of Justice of the European Union (including the General Court). Drawn from our monitoring and analysis of relevant hearings—occasionally supplemented by notes from our own reporters present in court—its purpose is to record key matters promptly and in one accessible location. The Insurance case tracker sets out the status of cases covered since January 2017, includes forthcoming matters, and was updated on a fortnightly cycle. The following abbreviations are used: European Court of Justice / Court of Justice of the European Union — ECJ Court of Justice of the European Union — General Court — CJEU- GC Supreme Court — SC Court of Appeal — CA High Court — HC ...
Insurance & Reinsurance case tracker—2016 [ Archived] ARCHIVED: This tracker is archived and no longer maintained. This centres on 2016 insurance-related decisions in the High Court, Court of Appeal, Supreme Court and the Court of Justice of the European Union (covering the General Court and the Court of Justice). It is assembled from our monitoring and analysis of pertinent court proceedings, at times drawing on reports from our own law reporters present in court. The purpose is to record significant cases as promptly as possible, gathered in one convenient place. The tracker shows the status of cases reported since January 2016, including upcoming cases, and is refreshed fortnightly. The following abbreviations are used: European Court of Justice / Court of Justice of the European Union— ECJ Court of Justice of the European Union– General Court– CJEU- GC Supreme Court— SC Court of Appeal— CA High...
What are exclusion clauses Unlike certain exclusion or exemption terms used in general contracts, an exclusion clause in an insurance policy is seldom intended to remove, curb, or cap a party’s legal liability. Instead, such provisions delineate the edges of the insured risk by specifying what is not insured under the policy. Whereas insuring provisions are often drafted broadly for ease, exclusions operate to pare back the breadth of cover. Exclusion clauses must be differentiated from other policy terms, including conditions precedent and warranties. The role of an exclusion is to identify, from the outset, those particular perils that insurers will not cover in any circumstances under the policy. Conditions precedent and warranties, by contrast, only influence the extent of insurance when the insured breaches them. Under the Insurance Act 2015, a breach of a condition precedent or warranty can result in the...
The compulsory jurisdiction of the Financial Ombudsman Service ( FOS) Set out in Chapter 2 of the FCA’s Dispute Resolution: Complaints Sourcebook ( DISP), and made under section 226 of the Financial Services and Markets Act 2000 ( FSMA 2000), the compulsory jurisdiction of the Financial Ombudsman Service ( FOS) requires that complaint about an act or omission by a person (the respondent) in carrying on an activity to which compulsory jurisdiction applies is considered under the FOS scheme, provided certain criteria are satisfied and the complaint meets those conditions. The conditions are that the following apply: the complainant is eligible and wishes the complaint to be considered under the FOS scheme the respondent was an authorised person at the time of the relevant act or omission, and the relevant act or omission occurred when compulsory...
This Practice Note examines how sub-contractors’ liabilities are commonly insured and considers: difficulties that may arise with sub-contractor insurances, and what those involved in a construction project should do. Sub-contractor liabilities Sub-contractor's own works A sub-contractor is answerable for damage to its own sub-contract works. That duty stems from its obligation to carry out and complete the sub-contract works (see Practice Note: Sub-contracting in construction projects). This is a property damage exposure and is therefore insurable under a property damage policy, for example a Contractor’s All Risks policy (see Practice Note: Contractors’ All Risks ( CAR) Insurance). Remainder of the works The sub-contractor is also responsible if its negligence, breach of contract or breach of statutory duty causes loss to the remainder of the works. That liability is a legal liability and does not derive from any proprietary interest the sub-contractor has in the balance of the works. Strictly...
Heads of loss associated with a road traffic accident claim When valuing a road traffic claim, consider potential losses such as: insurance excess and any loss of no‑claims bonus the insurer’s outlay less the excess (repair costs if economical, or market value less salvage where written off) hire charges vehicle recovery and storage charges specific, evidenced incidental expenses (eg calls to insurers, postage) Note: vague “miscellaneous” sums without detail or proof are routinely rejected the costs of pursuing the claim are costs, not damages A claimant may recover reasonable travel outlays caused by injury, including trips for treatment (not for medical expert appointments), to a garage to collect a damaged car, alternative transport while the vehicle is unusable, police attendances, and collecting prescriptions. Public transport is usually recoverable unless, for example, first‑class or needlessly expensive fares are chosen. Keep taxi and transport receipts. Mileage is often assessed at the HMRC rate of 45p per...
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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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