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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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Introduction This Practice Note outlines the Financial Conduct Authority ( FCA)’s main areas of focus on sustainable finance and environmental, social and governance ( ESG) matters, covering the FCA’s ESG strategy; its work on climate-related disclosures; and sustainability disclosure requirements ( SDR) and investment labels (designed, among other aims, to build trust and address greenwashing). It also describes the FCA’s role in international reporting standards. For material on the UK Prudential Regulation Authority ( PRA)’s priorities—chiefly prudential supervision of climate risk management and related stress testing—see the Practice Notes on prudential supervision of climate risk management in the UK and on climate scenario analysis, stress testing and capital requirements in the UK. For the UK green taxonomy, see the Practice Note: Sustainability Disclosure Requirements and UK Green Taxonomy—government’s 2021 roadmap to sustainable investing. FCA’s priority areas as set out in its November 2021 ESG...
This Practice Note explores how to identify contracts of insurance in English law. It looks at what amounts to a contract of insurance from the viewpoints of UK legislation and the common law, and the regulatory consequences of falling within that category. The problem The task of pinpointing which commercial arrangements ought properly to be treated as ‘contracts of insurance’ in English law is longstanding. Successive lawmakers have sought to regulate insurance and insurers, in one form or another, since Elizabethan times. Owing to the pragmatic bent of the English legal tradition, there is still no settled legal definition of a contract of insurance in English law, even though, in 2023, the UK was estimated to possess the world’s third‑largest insurance sector, with total gross written premiums of £300Bn. The European interlude From the UK’s entry into the European Common Market in 1972 until IP...
This Practice Note explores hard and soft insurance markets and the way trading conditions influence underwriting, premiums and claims in practice over time. It also sets out practical pointers for insurance renewals. The insurance sector is often described as hard or soft, mirroring the broader economy, operating conditions and competition within the market. In a hard phase, fewer insurers are prepared to provide cover and those that do may narrow their terms and seek higher premiums. Life insurance is generally less exposed to unfavourable market shifts than non-life business, which is written for shorter periods of insurance. The market must remain adaptable and ensure its risk appetite and pricing align with changing circumstances as they evolve. An insurer’s diversified portfolio usually enables it to balance losses from one book of business against another, but it should be borne in mind that an insurer will not...
This Practice Note outlines how a dispute progresses under the third edition of the ARIAS ( UK) Rules, adopted in 2014 (the ARIAS Rules). For an introduction to ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014. Formal requirements Under ARIAS Rule 17, an award must: be set out in writing ( ARIAS, rule 17.2) be in the primary language of the arbitration ( ARIAS, rule 17.2) state the seat of the arbitration ( ARIAS, rule 17.2) state the date of the award ( ARIAS, rule 17.2) give reasons (unless the parties agree otherwise, or the tribunal issues a consent award at the parties’ request) ( ARIAS, rule 17.10) be signed by the sole arbitrator, the umpire, or two of the three arbitrators, as appropriate ( ARIAS, rule 17.3) The ARIAS Rules do not prescribe a time frame for when the...
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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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