Featured documents
This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
Most recent Practice notes
This Practice Note explores the limitation period(s) that apply to professional negligence claims. It examines the date of accrual in both contract and tort, and summarises the courts’ approach to issues that commonly arise in such claims. For related limitation guidance, see: Limitation—overview and Practice Notes: Limitation Act 1980—general application Limitation—contract claims Limitation—tort claims For general guidance on professional negligence claims, see also: Professional negligence claims—overview. Professionals owe duties to their clients in both contract and tort Where a professional undertakes responsibility to perform services for another who will rely on them, a duty in tort to exercise reasonable skill and care may arise, even though those services are provided under a contract between the same parties ( Henderson v Merrett, contrasted with Tai Hing v Liu Chong Hing)......
The time limits which apply to a complaint taken to the Financial Ombudsman Service ( FOS) are set out in Chapter 2 of the Dispute Resolution: Complaints ( DISP) sourcebook in the FCA Handbook. DISP 2.8.2 R explains that the FOS is not able to consider a complaint if it is referred later than: six months after the date the respondent firm sent its final response, redress determination (issued under a consumer redress scheme), or summary resolution communication (summary resolution communication as defined in DISP 1.5.4 R); and that response must inform the complainant of the six‑month time limit for taking the complaint to the FOS (see below); or six years from the event being complained about, or, if later, three years from when the complainant became aware (or ought reasonably to have become aware) that they had cause to...
The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices from 2014 onwards. Search and filter options include: Rule breach (including breach of Principle 6) Keyword (including ‘ Treating Customers Fairly ( TCF)’) Sector Date Seriousness Aggravating and mitigating factors Financial penalty Other actions (such as referrals to the Upper Tribunal) Overview and key points This Practice Note explores the continuing significance of the Financial Conduct Authority’s ( FCA) Treating Customers Fairly ( TCF) initiative after the arrival of the FCA’s Consumer Duty. TCF’s core building blocks are found in the FCA’s Principles for Business ( PRIN), especially Principles 6 and 7. Once a central pillar of the FCA’s consumer protection objective, TCF was integral to securing a fair deal for consumers. This Practice Note...
Principles for Businesses ( PRIN) This Practice Note outlines the Principles for Businesses ( PRIN) established by the Financial Conduct Authority ( FCA). These Principles sit within the FCA’s High Level Standards in the FCA Handbook and express the fundamental obligations owed by firms and other relevant persons under the regulatory regime. The Prudential Regulation Authority ( PRA) has comparable high-level standards in its Rulebook, known as the Fundamental Rules. There are significant differences between PRIN and the PRA’s Fundamental Rules, so firms regulated by both bodies must consider these distinctions when addressing their conduct and prudential duties. In particular, the PRA’s Fundamental Rules require firms to plan for resolution so that, if necessary, they can be resolved in an orderly fashion with minimal disruption to critical services. For further detail on the PRA’s Fundamental Rules, see Practice Note: Prudential Regulation Authority and Bank of...
Background to FCA inducements requirements This Practice Note sets out the Financial Conduct Authority’s rules on inducements—such as fees, commission and non-monetary benefits—covering both the general ban and the circumstances where exemptions apply. The UK regime has long imposed detailed requirements on benefits connected to dealings in retail investment products. In the past, the FCA’s inducement standards were chiefly located in COBS 2.3 and implemented obligations arising from: the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID) the Mi FID Implementing Directive ( Commission Directive 2006/73/ EC) the fourth Undertakings for Collective Investment in Transferable Securities Directive ( Directive 2009/65/ EU) ( UCITS IV) the UCITS IV Implementing Directive ( Commission Directive 2010/43/ EU) Mi FID has been replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the EU Markets in Financial...
Treating complainants fairly Rules on how firms must handle customer complaints sit in the Dispute Resolution: Complaints Sourcebook ( DISP) within the Financial Conduct Authority ( FCA) Handbook. DISP 1 sets out requirements and guidance for dealing with complaints swiftly and fairly, including matters that might be taken to the Financial Ombudsman Service ( FOS). Entitled ‘ Treating complainants fairly’, DISP 1 underscores how strongly the FCA prioritises fair treatment of anyone raising concerns about a financial service. The DISP regime is prescriptive, covering: consumer awareness ( DISP 1.2) complaints handling ( DISP 1.3) recording of complaints ( DISP 1.9) complaints reporting ( DISP 1.10) publication of complaints data ( DISP 1.10A) As a result, firms have limited latitude in their approach to complaints. The FCA aims to ensure consumers are not put at a disadvantage because they typically have less power and...
A director of a company that is limited by shares may encounter a broad spectrum of liabilities arising directly or indirectly from their actions or omissions in the ordinary conduct of the company’s business and affairs, whether grounded in statute, contract, or tort, as applicable. The Companies Act 2006 ( CA 2006) sets a general prohibition on excluding, restricting, limiting, or indemnifying directors for those liabilities (see the General rule against protection from liability). Nevertheless, statute recognises specific exceptions that permit directors to be protected against such liability by: the company taking out and keeping insurance for its directors against liabilities (see Insurance) the company granting qualifying indemnities to its directors in respect of certain liabilities (see Indemnities) Shareholders can also relieve directors from liability by ratifying acts of misconduct, so long as the conduct is capable of ratification (see...
Introduction Over roughly the past decade, motor insurers have refined a method for spotting and handling personal injury claims from road accidents, especially alleged whiplash said to result from low-speed impacts. The focus is on collisions that seem minor in nature, typically arising in the following circumstances: two or more vehicles were travelling slowly, or, less commonly, their contact amounted to a slight glancing blow or gentle nudge one vehicle was stationary and another struck it, often at the rear, at very low speed Where an insurer considers a case fits this pattern, the defendant’s insurers may defend the claim on the footing that: whiplash (or another injury) cannot be sustained in such a low-speed impact, asserting there is a threshold of physical force below which an occupant will not be injured consequently, the claimant cannot satisfy the court that they suffered the stated injury, or indeed any injury, in this...
This Practice Note summarises the statutory provisions that prescribe the requirement to be authorised to provide financial services in the UK. The regulators may take action against persons and businesses that operate without the proper authorisations. It introduces and explains the general prohibition in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000), highlights the various exemptions, and notes the related criminal offences under FSMA 2000, ss 23–25. The general prohibition under FSMA 2000 Consistent with section 19 of FSMA 2000, a person must not carry on a regulated activity in the UK, nor hold themselves out as doing so, unless they are either: authorised (by the Prudential Regulation Authority ( PRA) or Financial Conduct Authority ( FCA)), or exempt The inclusion of the phrase ‘or purport to do so’ means the general prohibition is breached even where no...
Work in or adjacent to other buildings An insurance contract may respond to loss or damage to property arising from an insured peril, for example buildings insurance or contractor’s all risk insurance. The peril might be an act of God, or stem from negligence. Insurance can also protect against liabilities owed at law, for instance injury, death or property damage caused by negligence. The insured occurrence must give rise to legal liability, ie a tort. Public liability policies do not extend to accidental damage unless negligence is involved. Such policies also typically exclude contractual liabilities that would not have existed but for the contract. To place insurance over a building, the proposer must hold an insurable interest in it. Usually that interest is ownership, or, for a mortgagee, a financial stake in the property. For further detail, see Practice Note: General...
This Practice Note outlines guidance on the third edition of the ARIAS ( UK) Rules, brought into effect in 2014 (the ARIAS Rules). For direction on using the ARIAS Fast Track Arbitration Rules, refer to Practice Note: ARIAS Fast Track Rules ( AFTAR) 2013. What is ARIAS? The AIDA Reinsurance and Insurance Arbitration Society of the UK ( ARIAS ( UK)) was founded in 1991 as a Centrally Affiliated Chapter of AIDA—the Association Internationale de Droit des Assurances—an international body committed to advancing the study and understanding of insurance law (click here for the ARIAS ( UK) website). ARIAS emerged amid a rise in insurance and reinsurance disputes to champion methods of settling such disagreements that matched market expectations, chiefly via arbitration. Services ARIAS is not an institution. Unlike arbitral bodies such as the LCIA, it has no secretariat, and its involvement in...
Fundamental dishonesty This Practice Note explores fundamental dishonesty in two settings: section 57 of the Criminal Justice and Courts Act 2015 ( CJCA 2015) and the circumstances in which qualified one-way costs shifting ( QOCS) protection falls away under CPR 44.16 The expression ‘fundamental dishonesty’ appears in both CJCA 2015, s 57 and CPR 44.16(1): CJCA 2015, s 57 empowers the court to strike out a whole personal injury claim, even any truthful parts, where the claimant has been fundamentally dishonest about the main claim or a connected claim CPR 44.16(1) carves out an exception to QOCS, permitting costs orders to be enforced in full where fundamental dishonesty is established As neither the CJCA 2015 nor the CPR defines ‘fundamental dishonesty’, its meaning and reach have been shaped by case law in personal injury and clinical negligence claims. For the developing...
Overlapping insurance polices There are numerous and varied ways by which an assured can find themselves unexpectedly with overlapping insurance, whether by intention or by accident. Illustrations include circumstances where the assured relies on cover placed by another party, or, in corporate settings, where risk managers are unaware of legacy policies procured by their predecessors in post. Likewise, an assured might unknowingly arrange insurance for particular assets, not appreciating that those assets already fall within a wider, existing policy providing broader protection. Another possibility is that the assured simply wishes to lift the overall limit of protection or, indeed, to hedge against the chance of their insurers becoming insolvent. At common law there is no obligation to avoid double insurance. Assureds are free to place insurance on the same insurable interest as many times, and under as many contracts, as they choose ( Godin v...
Replacement vehicles and hire generally Where a motorist’s car has been harmed in a collision to such an extent that it demands repair or outright replacement, they will quite possibly need a stand‑in vehicle for day‑to‑day use. Some motorists may, perhaps through their own insurance policy, have access to a courtesy car for the spell when their vehicle is unavailable to them. However, many drivers will not enjoy that facility and will instead consider hiring an alternative vehicle to bridge the gap. This is especially so where no courtesy car is offered. Conventional vehicle hire will, as a rule, require the hirer to settle the full rental charges when the hire period ends, commonly after paying a sizeable deposit up front in practice. If the substitute car is required for a prolonged period, the cumulative hire charges can become...
Practice Note This Practice Note reviews the overarching principles relevant to road traffic accident claims, touching on matters such as speed, overtaking and queue-jumping, pulling out from a minor road, misleading signals, braking and skidding, the responsibilities of a following driver, vehicle lighting, and collisions involving multiple vehicles. Such claims are usually pursued in negligence. When determining whether a motorist has fallen below the required standard of care, the court looks to the Highway Code; breach of the Code can be used as tending to show liability. Further, although a criminal conviction for a road traffic offence does not of itself prove negligence, it shifts the evidential burden, requiring the defendant to rebut liability in the civil proceedings. Most traffic cases are fact-sensitive. Hard and fast rules are scarce, and the courts have criticised excessive citation of authority in a number of...
NOTE : Amendments to the CPR took effect on 1 October 2023, extending the reach of fixed costs. They apply where the cause of action arises on or after 1 October 2023 (typically, the accrual date is the date of the accident). In this Practice Note, the version of CPR 45 that applied before 1 October 2023 is referred to as ‘ Rule’ or ‘ Part’. For a copy of Part 45 in force prior to 1 October 2023, see: NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents ( RTA SCP) covers accidents occurring on or after 31 May 2021. The small claims track threshold for personal injury claims arising from a road traffic accident has been increased to £5,000 for general damages for pain, suffering and loss of amenity (subject to...
This Practice Note examines how to pursue a breach of warranty claim where warranties are given in a share sale and purchase agreement ( SPA), also referred to as a share sale agreement. For these purposes, we speak throughout about claims under an SPA, although the same broad considerations can be applied to a warranty claim arising from an asset purchase agreement ( APA). It draws out some of the most typical features of such claims, but it is not a replacement for carefully reviewing the contractual documents relevant to your dispute. For an outline of the steps to take, see: Starting a breach of warranty claim—checklist. Diligent analysis of the contract remains essential before progressing any claim further. What is a breach of warranty claim? A warranty is a contractual statement or assurance made by a seller to a buyer that a...
Road Traffic Act 1988—general provisions The obligation to hold motor insurance, and the scope of that protection, is contained in Part VI of the Road Traffic Act 1988 ( RTA 1988), titled ‘ Third- Party Liabilities’, covering sections 143–162. These provisions also define the entitlements of those injured to pursue claims against insurers. RTA 1988—relevant provisions Requirement to insure use of a motor vehicle RTA 1988, s 143 provides that no individual may use, or cause or allow the use of, a motor vehicle on a road or any other public place unless appropriate insurance exists for that vehicle’s use. The Motor Vehicles ( Compulsory Insurance) ( Miscellaneous Amendments) Regulations 2019, SI 2019/1047—effective from 1 November 2019—abolished securities and deposits as substitutes for motor insurance. However, under SI 2019/1047, reg 5, any deposit lodged or security provided before 1 November 2019 can remain valid until 1...
What is professional indemnity insurance? Professional indemnity insurance is a type of liability cover. It offers an individual professional or a firm an indemnity and protection against claims or losses resulting from negligent acts, mistakes or omissions linked to the insured professional practice. This cover usually also includes the acts, errors and omissions of former employees. In certain sectors—such as solicitors, accountants, architects, chartered surveyors, financial advisers and some healthcare professionals—holding professional indemnity insurance is a legal requirement. Nonetheless, any person or business that supplies advice, designs or services in a professional capacity should carry this insurance. The cover is generally intended to respond to client claims for damages arising in the ordinary course of the insured's professional services. These are claims brought by a client in connection with the routine delivery of the insured party’s professional services. For detailed guidance on...
This Practice Note examines product liability insurance primarily through the lens of participants in the construction sector. While this form of cover is relevant to many other industries, for present purposes those fall beyond the remit of this Practice Note (see Practice Note: Product liability and product recall insurance and Q& A: What is Products Liability Insurance?). What is product liability insurance and who needs it? In the construction context, product liability insurance is a form of cover that safeguards the insured against liability for death or bodily injury (excluding employees) or for property damage, where such liabilities arise from defects in products that have been used in the course of a construction project. Firms that manufacture and/or supply products intended to be incorporated into a building structure may face legal action if faults in those products cause damage or injury to the structure...
Popular documents
When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
Discover more from LexisNexis
