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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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Practice Note Under Part 4A of the Financial Services and Markets Act 2000 ( FSMA 2000), any firm—be it a business, a not-for-profit body or a sole trader—undertaking one or more regulated activities in the UK must be authorised or registered by the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA). Banks, credit unions, insurers and managing agents of a Lloyd’s syndicate are required to apply to the PRA for authorisation. Firms seeking approval to conduct any other activities should apply to the FCA. This Practice Note outlines the FCA and PRA authorisation process under FSMA 2000, Pt 4A. It does not cover the FCA’s authorisation and registration processes for consumer credit, payment services or electronic money institutions, which are set out in the following Practice Notes: FCA authorisation of consumer credit firms UK regulation of payment services...
The Practice Note titled UK financial and trade sanctions for insurers sets out which sanctions affect insurers, what those measures involve, how the Financial Conduct Authority oversees compliance, and the screening and due diligence insurers should implement. It delves further into policy wording—especially how sanctions interact with insurance contracts and the purpose of sanctions clauses. Lloyd's Market Association Sanctions Clauses The Note concentrates on the market-standard formulations: the Lloyd’s Market Association ( LMA) 3100A clause ( LMA 3100A) and the LMA 3200 clause ( LMA 3200). These were issued in October 2023 following an LMA consultation on the LMA 3100 clause first published in 2010. LMA 3100A keeps the LMA 3100 wording, but its title removes the words ‘and exclusion’ to indicate the clause pauses, rather than removes, cover. Under LMA 3100A, the Sanctions Limitation Clause provides that no (re)insurer is taken to provide cover, nor be...
Statute provides for two tax-efficient alternatives to a life assurance policy held within a registered occupational pension scheme: the relevant life policy ( RLP), and the excepted group life policy ( EGLP) In statute, an EGLP falls within the wider RLP concept; nevertheless, because it insures more than one life—rather than a single life—it is treated as a distinct insurance product line. For clarity in what follows, ‘ RLP’ is used for single-life policies and ‘ EGLP’ for multiple or group life policies. Originating in section 539A of the Income and Corporation Taxes Act 1988 in the run-up to ‘ A‑day’, and now set out in the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) and in sections 480–482 of the Income Tax ( Trading and Other Income) Act 2005 ( ITTOIA 2005), EGLPs and RLPs provide lump sum...
This Practice Note examines the standard of care in professional negligence, rooted in Bolam v Friern Hospital as the touchstone of ‘reasonable skill and care’, and how that test is applied in practice; it also addresses the Montgomery v Lanarkshire Health ‘material risk’ inquiry, the duty to warn, and the role of industry opinion. It surveys practical illustrations across sectors and notes the position of trade unions. Given the wealth of case law in this area, the standard expected of solicitors and barristers is considered separately in Practice Note: Standard of care—solicitors and barristers. The discussion explains how Bolam operates in real‑world settings and where Montgomery informs the scope of warning obligations and the significance of prevailing professional views. Practical application of these principles is shown through sector‑specific examples. Construction Financial services Accountancy Trade unions...
This Practice Note outlines the position under the Pre- Action Protocol for Professional Negligence claims currently in force. Scope of this Practice Note It reviews the Pre- Action Protocol for Professional Negligence claims (the Protocol), covering its use, objectives, the general implications of non-compliance, and how limitation interacts with Protocol compliance. It sets out the principal steps mandated by the Protocol, namely the preliminary notice, the letter of claim, the acknowledgement, the letter of response, and the subsequent commencement of proceedings. The Note also addresses the exchange of information between the parties, the role of experts, alternative dispute resolution ( ADR), and the Protocol’s stocktake provision. For focused guidance on the Protocol from the standpoint of a prospective party to such a claim, see: Practice Note: Professional negligence claims—pre-action protocol—claimant issues Checklist: Professional negligence claims—claimant...
This Practice Note outlines the key principles on reinstatement in property insurance. What is reinstatement? Reinstatement means repairing or replacing property so that it is restored to its pre-loss condition, or to a state that is materially equivalent. The drafting of reinstatement clauses differs from policy to policy and can lead to markedly different outcomes for the policyholder. Depending on the exact wording, the policyholder may or may not receive a cash settlement, may or may not be obliged to rebuild, and may or may not have to rebuild on the same site. Many policies also give the insurer the option to reinstate. Who does it? Typically, the policyholder undertakes the reinstatement. However, numerous policies allow the insurer, at its election, to carry out the reinstatement. Why might an insurer choose to do so? Insurers may have several reasons for electing to reinstate themselves rather than allowing the...
The offence of driving with no insurance Under the Road Traffic Act 1988 ( RTA 1988), it is unlawful to use a motor vehicle, or to cause or allow another to use one, unless a policy of insurance or a security covering third parties is in force. Driving without insurance is a summary-only offence that carries a maximum penalty of an unlimited fine. Elements of the offence uses, or causes or permits use of a motor vehicle on a road or other public place without valid third-party insurance or security in force Meaning of ‘use’ The person regarded as the user of a vehicle is generally the driver, or their employer where the driving occurs in the course of employment. There must be some element of control, management, or operation of the vehicle at the relevant time. An owner can still be...
The PRA’s Fundamental Rules These high-level provisions sit within the PRA Rulebook and, taken together, set out the Prudential Regulation Authority ( PRA)’s expectations of firms. They also articulate the PRA’s general objective of advancing the safety and soundness of firms, and the insurance objective of securing an appropriate degree of protection for those who are, or may become, policy holders. The Fundamental Rules comprise: Fundamental Rule 1 — a firm must run its business with integrity. Fundamental Rule 2 — a firm must carry on its business with due skill, care and diligence. Fundamental Rule 3 — a firm must conduct itself in a prudent manner. Fundamental Rule 4 — a firm must at all times maintain adequate financial resources. Fundamental Rule 5 — a firm must maintain effective risk strategies and risk management systems. ...
Scope of this Practice Note This Practice Note sets out what counts as regulated activities within the UK regulatory framework. In particular, it focuses on the specified activities and specified investments listed in the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO). An authorised person may only undertake regulated activities for which they hold explicit permission from either the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) (as relevant to the activities conducted) under each regulator’s respective authorisation process. This Practice Note also addresses the Designated activities regime introduced by the Financial Services and Markets Act 2023 ( FSMA 2023). The general prohibition and the authorisation regime Under the general prohibition and the authorisation regime, a person must not carry on, or claim to carry on, a regulated activity in the UK unless they are...
What is an 'eligible complainant'? To take a complaint to the Financial Ombudsman Service ( FOS), the individual must qualify as an 'eligible complainant'. This requirement applies whether the case falls within the FOS’ Compulsory Jurisdiction or its Voluntary Jurisdiction (see below and the Practice Notes: Financial Ombudsman Service—compulsory jurisdiction and Financial Ombudsman Service—voluntary jurisdiction). The FOS can only consider a complaint that is made by, or submitted on behalf of, an eligible complainant. Moreover, provided the complainant is eligible, someone authorised by them, or otherwise legally entitled, may bring the complaint in their stead, even if that person (the agent) would not themselves be an eligible complainant—for example, where the complainant opts to be represented by a claims management company ( CMC) or by a relative. For an eligible complainant to permit another to act for them, they must sign the FOS...
Background to appropriateness requirements The Financial Conduct Authority’s rules on ‘appropriateness’ and the associated test, set out in COBS 10 and COBS 10A of the Conduct of Business sourcebook, were first brought in under the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID) to bolster investor protection in the non-advised market. The test’s purpose is to enable firms to judge whether clients possess sufficient knowledge and experience to grasp the risks inherent in a product sought or a service requested. That knowledge and experience must be evaluated in a way proportionate to: the client in question the service the product Mi FID ( Directive 2004/39/ EC) was superseded by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) together with the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR),...
A director of a company limited by shares faces a broad spectrum of possible liabilities arising from actions or failures to act undertaken in the course of the company’s business, in the ordinary running of the company. One method of shielding a director from such exposure is for the company to buy a directors’ and officers’ insurance policy ( D& O policy). This is an arrangement of cover. Companies Act provisions The Companies Act 2006 ( CA 2006) generally forbids relieving or indemnifying directors for liabilities as a general rule. Nevertheless, statutory carve-outs permit protection where directors are covered through: the company’s purchase and upkeep of insurance for its directors against liabilities the grant by the company of qualifying indemnities to its directors for specified liabilities These mechanisms are set out in statute. Before 2005, companies were not allowed to obtain insurance or give...
This Practice Note outlines the professional indemnity insurance obligations for solicitors and provides detailed guidance on the Solicitors Regulation Authority ( SRA)’s Minimum Terms and Conditions of Professional Indemnity Insurance ( MTC)... Regulatory setting Who is the regulator? The SRA is the regulator for solicitors in England and Wales. It exercises statutory powers and sets rules including the SRA Accounts Rules, the Code of Conduct and the SRA Indemnity Insurance Rules... Is insurance compulsory for practice/membership? The SRA maintains both the Indemnity Insurance Rules ( IIRs) and the Minimum Terms and Conditions of Professional Indemnity Insurance ( MTC), with the latest editions effective from 11 April 2025. Under rule 2.1 of the IIRs, every SRA-regulated firm must hold qualifying insurance—being a professional indemnity policy that complies with the MTC—placed with a participating insurer ( IIR, r 2.1). The SRA also prescribes the minimum level of cover in clause 2.1 of the MTC as...
This Practice Note considers the following issues in relation to the development and use of autonomous and connected vehicles (also referred to as self-driving vehicles, driverless cars or automated vehicles): Core terminology and concepts Developments in sector-specific UK law The Law Commissions’ joint report: Automated Vehicles Automated Vehicles Act 2024 Liability Product liability under the Consumer Protection Act 1987 Advertising and marketing Data protection and cybersecurity Mobility-as-a-service Public policy and press coverage around driverless technology has largely centred on privately owned road vehicles, which is the principal emphasis of this note at present. Nonetheless, the underlying systems span multiple industries, and there are indications that earlier, tangible gains may arise from advancing automated vehicle capability in fields such as maritime transport and agriculture. The technology’s relevance extends well beyond personal transport, with earlier adoption likely in...
What is a project policy? A ‘project policy’ usually means insurance the employer arranges to cover Contractors All Risks ( CAR) and public liability. It is for the employer, contractors, sub-contractors and suppliers, and applies to one named project. These are composite policies; subrogation rights between co-insureds do not exist or are waived... What and who is covered/not covered? What is covered? A project policy commonly insures CAR and public liability exposures arising during the works... What is not covered? It will generally exclude matters that would ordinarily fall under a professional indemnity ( PI) policy because: PI is placed in a distinct insurance market; and a project policy responds to occurrences during its term and only needs to operate for the project period. By contrast, PI responds to claims made during the policy period. As professional liability may run for 6 or 12 years, PI must be...
In analysing the causation and remoteness aspects of a professional negligence claim When evaluating causation and remoteness in professional negligence, a sensible point of departure is the pair of 2021 Supreme Court authorities, Manchester Building Society v Grant Thornton (accountants’ negligence) and Khan v Meadows (clinical negligence). In both, heard by the same constitution, the court indicated that adopting the analysis set out below provides a structured way to examine the scope‑of‑duty principle, “but for” causation, and the foreseeability of harm within clinical negligence claims. The result of that exercise informs the proper extent of the claimant’s damages, consistent with the compensatory principle that the law, so far as money can, seeks to place the claimant in the position he or she would have occupied had the defendant not been negligent ( Khan at para [58]). The analysis (at para [6] of...
This Practice Note examines professional indemnity ( PI) insurance in the setting of construction projects—the requirement to carry insurance, the level and basis of cover, and standard clause wording obliging parties to maintain PI cover. For a broader review of professional indemnity insurance, see Practice Note: Professional indemnity insurance—essentials. It also reviews the usual wording found in clauses mandating the maintenance of PI insurance. Although this Practice Note addresses a consultant’s duty to keep PI insurance in force, main contractors and sub-contractors who assume design duties must likewise maintain such insurance, and the same principles outlined below apply equally to them. A contractor with no design role might regard PI cover as unnecessary; however, if it departs from a consultant’s design, an employer might claim the contractor made an ‘on-the-spot design decision’, potentially engaging a PI policy. For further detail, see Practice Note: Design...
This Practice Note outlines the professional indemnity insurance obligations for FCA-regulated practitioners. These obligations extend to all financial services firms, insurance firms, consumer credit firms and investment firms, as well as individuals delivering services within the sector. Regulatory setting Who is the regulator (if any)? The Financial Conduct Authority ( FCA) regulates the UK’s financial services industry, overseeing the conduct of nearly 42,000 businesses, prudentially supervising around 41,000 firms and setting specific standards for around 17,000 firms. Unlike regulators of professional services, such as the Solicitors Regulation Authority ( SRA) and the Institute of Chartered Accountants in England and Wales ( ICAEW), the FCA is not a professional body. Rather, it functions as a financial regulatory authority in the UK. It operates independently of government and is financed through fees levied on members of the financial services industry. All financial services firms, consumer credit firms and...
Introduction to Road Traffic Act 1988 and Motor Insurers Bureau This Practice Note offers a concise overview of motor insurance, uninsured motorists and untraced drivers, clarifying Part VI of the Road Traffic Act 1988 ( RTA 1988) and the Motor Insurers' Bureau ( MIB) Uninsured and Untraced Drivers Agreements. Motor insurance in the UK is notably complex. Across much of mainland Europe, the owner insures the vehicle and the policy extends to any driver who has the owner’s permission. By contrast, UK cover is generally written for specified drivers, and frequently only for stated uses. Part VI of the RTA 1988 requires compulsory third-party motor insurance and sets out a statutory scheme describing when an insurer must pay damages to an injured person. It gives effect to what is now Directive 2009/103/ EC, the Sixth Motor Insurance Directive. The MIB is a private...
This Practice Note explores outsourcing within the insurance market. The related documents pod to the right links to a suite of Practice Notes that deliver broad, practical guidance on commercial outsourcing in general. Outsourcing in insurance Outsourcing has grown markedly across insurance in recent years. Where once insurers largely relied on binding authority arrangements limited to underwriting risk and handling claims, the rise of technology has driven expanded use of third‑party providers. A wide range of activities can now be externalised, including: form processing claims call handling auditing data collection the hiving off of entire books of business (for instance, life portfolios, whose long‑tail profile may require record retention and claims handling for decades after acquisition) Whilst outsourcing can and does deliver advantages for insurers and reinsurers, it also engages numerous legal and regulatory duties when functions are placed with third...
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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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