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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 This Practice Note offers an overview of the exemptions and exclusions relevant to the general prohibition set out in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000, s19). Those exemptions and exclusions are contained within the following instruments: FSMA 2000 itself The Financial Services and Markets Act 2000 ( Exemption) Order 2001, SI 2001/1201 ( Exemption Order) The Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) FSMA 2000, the Exemption Order and the RAO have each undergone a number of amendments since coming into force. This Practice Note addresses the most up-to-date iterations of these instruments. In this Practice Note, references to exemptions concern persons who are relieved from the requirement to seek prior authorisation from the Prudential Regulation Authority ( PRA) or the Financial Conduct Authority ( FCA) in order to...
This Practice Note outlines the principal defences that may arise in road traffic accidents ( RTAs), with particular emphasis on contributory negligence. Examples include failing to wear seat belts or helmets, incidents involving children, and cases where alcohol has been consumed. The Note also addresses unavoidable accidents, involuntary acts, latent defects, and the defence of illegality (or ex turpi causa). Contributory negligence is routinely advanced in RTA claims and guidance should be taken from the relevant case law. Where a claimant’s injuries are made worse by not wearing a seat belt, a typical reduction for contributory negligence falls within the range of 15% to 25%... Unavoidable accident A defendant can escape liability if they demonstrate that the accident could not have been avoided......
Defendant insurers frequently challenge matters going to the quantum of hire charge claims. The usual areas in dispute are: need/type period rate For further guidance on credit hire claims, see Practice Notes: Credit hire—an introduction, which includes the Supreme Court case of Armstead (recovery of contractual liabilities owed by the claimant to the hire company for damage to the hire car caused by the defendant), and Credit hire—common liability issues. Need/type of replacement Where the claimant had no alternative vehicle, was too injured to drive after the accident, or was on holiday during the hire period, it is typically straightforward to show a replacement was needed. Disagreement can arise if the claimant hires, in place of their own car, an expensive or prestige model. The necessity for such a high-cost vehicle rather than a standard model may be questioned. The same approach applies to the...
Enforceability of contracts Certain credit hire contracts have been open to challenge as unenforceable when the hire company has not adhered to specific rules, whether relating to the contract’s terms or required formal steps. If a contract is unenforceable against the hirer, the consequence is that the hirer is treated as having sustained no loss and cannot recover. Consumer Credit Act and exempt agreements The House of Lords in Dimond v Lovell confirmed that these hire arrangements amount to credit agreements and fall within the Consumer Credit Act 1974 ( CCA 1974), as modified by the Consumer Credit Act 2006, unless their terms satisfy the criteria for exemption. Where an agreement is not exempt and so is regulated, it will probably be classed as improperly executed under CCA 1974, s 61(1)(a), because it omits the ‘total cash price for the services’ at that point. However, the Court of...
Major changes to the Highway Code came into force on 29 January 2022. The new framework introduced a ‘hierarchy of road users’, designed to make it clearer for vulnerable users who should have rights of way at junctions. Further information can also be found in The Highway Code and The Highway Code—8 key changes from 29th January 2022. To succeed with a personal injury claim, a claimant must first show that the defendant owed them a common law duty of care, that this duty was breached, and that the breach caused their injuries. In short, three points must be shown: a duty, a breach, and resulting injury. For more guidance, see: Proving negligence or breach of statutory duty—overview. There may then be an issue of contribution by the claimant, because individuals also owe themselves a duty to take care to protect themselves from harm, and their own...
Scope of this Practice Note The Financial Services Authority ( FCA)’s Chapter 4 rules in the Conduct of Business sourcebook ( COBS 4) broadly apply to firms when they communicate with a client or a prospective client while undertaking designated investment business, Mi FID business, equivalent third‑country or optional exemption business, and when they communicate or approve a financial promotion relating to investment business. This Practice Note forms part of a series reviewing COBS 4 and should be read together with the following Practice Notes: Introduction to the FCA’s COBS 4 rules Application of the FCA COBS 4 rules FCA COBS 4 rules— Compiling financial promotions FCA COBS 4 rules— Form and content of promotions COBS 4— Direct offers and cold calling COBS 4— Approval and confirmation of compliance of financial promotions and record keeping COBS 4— Promotion of restricted mass market investments and non‑mass market...
NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) This protocol applies to accidents occurring on or after 31 May 2021 where the injury element of the claim does not exceed £5,000 and the total value is capped at £10,000. The small claims track limit for personal injury arising from road traffic accidents has been raised to £5,000 for damages for pain, suffering and loss of amenity ( PSLA), subject to specified exceptions. For more about the RTA Small Claims Protocol, including when it is disapplied, see: The RTA small claims protocol—key features checklist. Whiplash claims, often described as soft tissue injury claims, arise from an impact to a vehicle that causes sudden acceleration and a forceful overextension of the claimant’s neck. While the body remains...
What is non-negligent damage? Where damage to neighbouring property stems from a contractor’s negligence or breach of contract, the contractor is liable in the tort of negligence or nuisance to the owner whose property is lost or damaged. See Practice Note: Negligence in construction. The adjoining owner may pursue either the contractor or the employer, as the party for whom the work is undertaken. The contractor must provide an indemnity to the employer against claims for property damage caused by the contractor’s negligence or breach of contract. If the employer is sued, it can seek an indemnity from the contractor for any damages awarded. Difficulties arise when damage to a neighbour’s property is not due to the contractor’s negligence or breach—non‑negligent damage. The issue first emerged in the 1958 case, Gold v Patman and Fotheringham, where the property adjoining the site of the works suffered damage caused by a...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It outlines the core doctrines of marine insurance as set out in the Marine Insurance Act 1906 ( MIA 1906). It considers indemnity principles within marine cover, the notion of a marine adventure, combined land and sea exposures and perils of the sea. It further reviews insurable interests, the main risks insured, marine policy forms, the role of marine insurance brokers and the insurer’s rights of subrogation under a marine policy among other related matters. For fuller guidance on types of marine insurance, see: Marine insurance—overview Practice Notes: Marine insurance—essentials Marine cargo insurance Hull and machinery insurance Protection and indemnity insurance Marine war risks What is marine insurance? Marine insurance is defined in MIA 1906 as a contract by which the insurer agrees, in the manner and to the...
This Practice Note explores the following data protection, privacy and security matters arising in connection with the use of autonomous and connected vehicle technology: The technology Declaration of Amsterdam Cooperative Intelligent Transport Systems ( C- ITS) United Kingdom General Data Protection Regulation Privacy and Electronic Communications Regulations 2003 Cybersecurity The Product Security and Telecommunications Infrastructure Act 2022 Connected and autonomous vehicles in the EU International Practical issues For further detail and context on additional UK legal considerations linked to this technology, see the Practice Notes: Autonomous vehicles—key legal issues and Autonomous vehicles and insurance, and for a concise overview of dates and key points, see: UK automated vehicles—tracker. To monitor developments within the EU, also consult the Practice Notes: Automated vehicles—key legal issues in the EU and EU automated vehicles—tracker. The technology Contemporary vehicles already incorporate a suite of external communications, such as satellite navigation, in-car entertainment and emergency assistance, capable of...
Allocation In the context of insurance and reinsurance, ‘allocation’ is the process of identifying which policy covers a loss, or a share of a loss. In many claims this point never surfaces. If a driver wrecks their car, the motor insurance policy in force on the date of the accident will respond. Yet, in the smaller number of cases where it does arise, the consequences can be substantial for a (re)insurer's inwards liability and the availability of its outwards reinsurance. Consider a business that employs a worker for 40 years. During that period the worker is exposed to asbestos and, after retirement, develops mesothelioma and dies. The estate sues the former employer. The company had workers’ compensation/employers’ liability insurance throughout the employee’s service, but which policy, if any, should respond to the claim? Or take an insurer that covers a power station which later...
Insurance contracts have long seemed enigmatic to law students and practising lawyers. The reason is that they are contracts of the utmost good faith. They are unlike ordinary agreements: they must be treated with exceptional care. The central element of the obligation of utmost good faith, as articulated in the Marine Insurance Act 1906 ( MIA 1906), is the policyholder’s duty to volunteer information to the insurer that would ‘influence the judgment of a prudent insurer’ when deciding whether to accept the risk and what to charge for it (see: MIA 1906, s 18). This has always been a demanding requirement. In truth, it has long been a tall order. It expects the policyholder to second‑guess the insurer’s thinking and make disclosure on that basis. The insurer, by contrast, was free to sit back and remain passive, under no obligation to offer the...
Consumer insurance and commercial insurance for businesses This Practice Note sets out an overview of several widely used insurance types, who may require them, and how they operate. Broadly, insurance falls into two groupings: cover for consumers cover for businesses For individuals purchasing as consumers, the governing statute is the Consumer Insurance ( Disclosure and Representations) Act 2012 ( CI( DR) A 2012). CI( DR) A 2012 describes a consumer as an ‘individual who enters into the contract wholly or mainly for purposes unrelated to that individual’s business trade or profession’. The Act addresses what a consumer is obliged to tell the insurer before making, or changing, an insurance contract. See Practice Note: A guide to the Consumer Insurance ( Disclosure and Representations) Act 2012 for additional detail. For business policyholders, the applicable legislation is the Insurance Act 2015 ( IA 2015). IA 2015...
The Financial Ombudsman Service ( FOS) has two areas of jurisdiction: the compulsory jurisdiction (that is, the part of the FOS to which firms authorised by the Financial Conduct Authority ( FCA), payment service providers, electronic money issuers and certain other entities are obliged to submit under binding regulatory requirements), and the voluntary jurisdiction (that is, the part of the FOS for businesses not within the compulsory remit but wishing to sign up to the FOS’s scheme and participate contractually) Both “compulsory jurisdiction” and “voluntary jurisdiction” are described in full in the Glossary to the FCA Handbook. The voluntary jurisdiction of the Financial Ombudsman Service is addressed in Chapters 2 and 4 of the FCA’s Dispute Resolution: Complaints Sourcebook ( DISP), and is provided for by section 227 and Schedule 17, Part IV of the Financial Services and Markets Act 2000 ( FSMA...
The Financial Ombudsman Service’s ( FOS) approach to handling complaints is set out in the Financial Conduct Authority ( FCA) Handbook, within Dispute Resolution: Complaints—commonly the ‘ DISP’ rules—with particular focus on DISP 3 in detail. DISP stipulates the processes and obligations for firms when managing complaints, and also defines the FOS’s remit and procedure. Collectively, they provide a structured route for addressing grievances and set expectations for both businesses and the ombudsman scheme. They also clarify when the service can look at a matter and how it should proceed. Beyond DISP, consumer complaints escalated to the FOS are also governed by the Alternative Dispute Resolution ( ADR) Directive 2013/11/ EU (the ADR Directive). The UK began complying on 9 July 2015, following its transposition via the Alternative Dispute Resolution for Consumer Disputes ( Competent Authorities and Information) Regulations 2015 and the...
Introduction to the FCA’s requirements on information about firms, adviser charging and consultancy charging This Practice Note outlines, in summary, the regulatory regime and guidance that dictates what information a firm must give to clients about its services and remuneration arrangements, and about adviser and consultancy charging when it undertakes designated investment business in this context. The Financial Conduct Authority ( FCA) has set rules requiring a firm to disclose clearly to clients details about the firm and the services it offers. Many of these obligations originally arose from implementing provisions within the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID). The rules sit largely in the General Provisions Manual ( GEN) and the Conduct of Business Sourcebook ( COBS). Mi FID was subsequently replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the EU...
This Practice Note explains the Financial Conduct Authority ( FCA) training and competence regime. The framework underpins the FCA’s consumer protection objective, aiming to ensure that staff who engage with customers in the regulated financial services market are competent and appropriately qualified to do so. The training and competence framework comprises: an overarching competence obligation (the ‘competent employees rule’) applying to individuals undertaking regulated activity in all UK‑authorised firms (including wholesale firms), as set out in the Senior Management Arrangements, Systems and Controls sourcebook ( SYSC); and more granular requirements for particular retail activities, including the need to obtain a qualification where relevant, as provided in the Training and Competence sourcebook ( TC) The regime should also be viewed in light of the FCA Consumer Duty in Principle 12 of the FCA Handbook ( PRIN 12), which mandates that a firm must act to deliver good outcomes for retail...
Fraud in personal injury claims can cover a spectrum of conduct, from overstating particular heads of damage to wholly inventing an accident and the ensuing injuries and losses. The available remedies where dishonesty is in play have been radically altered by section 57 of the Criminal Justice and Courts Act 2015 ( CJCA 2015). This provision can permit defendants to have otherwise meritorious claims struck out, to remove the shield of qualified one-way costs shifting ( QOCS), and to invalidate a claimant’s legal expenses cover. See Practice Notes: Personal injury claims and the Criminal Justice and Courts Act 2015 and Qualified one-way costs shifting ( QOCS). Duties and responsibilities of parties and legal advisers Pleadings— CPR By virtue of CPR 16.5(2), if a defendant disputes an allegation in the particulars of claim, they must give their reasons; and where they propose a different account from the...
This Practice Note sets out a summary of the principal provisions of the Financial Conduct Authority’s ( FCA) Insurance: Conduct of Business sourcebook ( ICOBS) that cover general matters and information disclosure requirements. Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) On 6 January 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), brought ICOBS into force, replacing the earlier Insurance: Conduct of Business sourcebook ( ICOB). Its key shift moved supervision away from a prescriptive, rule‑based model towards a more principles‑led or outcome‑focused approach. Consequently, legacy ICOB rules were simplified where the FSA judged that specific customer protection was unnecessary. ICOBS has since been amended several times, most notably to implement the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), which was transposed into UK law on 1 October 2018. Although the UK has withdrawn from the EU and...
This Practice Note summarises the principal elements of the FCA’s Insurance: Conduct of Business sourcebook ( ICOBS) that address cancellation rights and the handling of claims, with particular reference to ICOBS 7 and ICOBS 8. Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) ICOBS took effect on 6 January 2008 under the Financial Services Authority ( FSA), then the FCA’s predecessor, supplanting the former Insurance: Conduct of Business sourcebook ( ICOB). Its key reform shifted supervision away from detailed, prescriptive rules towards a principles-led, outcomes-focused approach. Accordingly, ICOB’s detailed provisions were streamlined where the FSA considered bespoke consumer protections unnecessary. Subsequent updates have followed, most significantly to give effect to the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), implemented in the UK from 1 October 2018. Despite the UK’s withdrawal from the EU, and the transfer and...
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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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