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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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Building Safety Act 2022 ( BSA 2022) In July 2021, the government laid the Building Safety Bill before Parliament, aimed at delivering the recommendations and principles from Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, and confronting the urgent safety issues exposed by the Grenfell Tower tragedy of July 2017. Branded as the most significant overhaul of building safety rules in a generation, it obtained Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). BSA 2022 makes sweeping changes to the law and regulation of building safety, with the objective of securing the safety of people in or around buildings and improving the standard of buildings. This Practice Note outlines for construction lawyers the principal elements of BSA 2022, including its reshaping of regulatory regimes and standards for building and fire safety and for...
This Practice Note explores the nature of joint names insurance, the differences between joint and composite cover, and the broader implications for construction insurance contracts. It is a frequent stipulation of construction agreements that insurance be placed in joint names, so that one policy extends protection to the interests of all parties involved. Under the umbrella of joint names insurance we mean: joint insurance, and composite insurance (commonly known as co-insurance) Joint insurance—definition Insurance that, through a single policy, secures the identical interests of two or more parties in the insured subject matter—for instance, spouses’ stakes in a matrimonial home. A breach by any one party of the policy terms—such as fraud, non-disclosure, breach of condition or breach of warranty—can impair the other insured’s rights. In joint insurance, each insured’s entitlements stand or fall together; in other words, they hold an...
This Practice Note sets out the UK financial sanctions legal and regulatory framework as it applies to firms regulated by the Financial Conduct Authority ( FCA) under the Financial Services and Markets Act 2000 ( FSMA 2000), and to firms within the FCA’s supervisory scope, such as e-money and payment firms (collectively, firms). It outlines the FCA and Prudential Regulation Authority ( PRA) regulatory requirements for firms and senior management concerning sanctions. It also explores the interplay between the anti-money laundering ( AML)/counter-terrorist financing ( CTF) framework and sanctions compliance, and the FCA and Joint Money Laundering Steering Group ( JMLSG) guidance on sanctions compliance, including the scope and status of that guidance. Key points Firms have legal and regulatory duties to put in place, and maintain, robust defences and risk management frameworks that identify and mitigate financial crime risk, including sanctions risk The FCA does not make,...
This Practice Note Use this Practice Note when identifying the governing law for contracts concluded between 17 December 2009 and 31 December 2020. Where agreements were made outside those dates, the UK courts apply a different governing law framework; for guidance, see: Applicable law regimes for insurance contractual disputes below. The Note examines the insurance contract rules in Regulation ( EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations ( Rome I). It sets out definitions and explains the distinct regimes for large risks and non‑large risks, covering party choice of law, absence of choice, escape routes, and EU Member State derogations. It also outlines obligations concerning insurance cover and how to ascertain the location of the risk. Provisions relevant to reinsurance arrangements are touched on briefly. Finally, it considers whether...
What is a friendly society? Since the first Friendly Societies Act in 1793, friendly societies have been subject to registration and regulation. Two Acts now govern the area: the Friendly Societies Act 1974 ( FSA 1974) and the Friendly Societies Act 1992 ( FSA 1992). Before FSA 1992, all friendly societies were unincorporated associations of individual members. Although unincorporated societies may continue, the larger ones have become bodies corporate under FSA 1992, and any new societies must be created as incorporated societies. A friendly society is a type of mutual society: a voluntary association of individuals who subscribe for provident benefits, meaning benefits intended to meet future needs. Today, every friendly society must include among the benefits it offers at least one of the permitted activities listed in FSA 1992, Sch 2, and may in addition pursue social or benevolent purposes and other...
In England and Wales, the Third Parties ( Rights Against Insurers) Act 2010 ( UK) ( TP( RAI) A 2010 ( UK)) facilitates the enforcement of claims against an insolvent policyholder’s insurer. A plaintiff or claimant who holds a cause of action against an insolvent, albeit insured, defendant is protected by TP( RAI) A 2010 ( UK) through the statutory transfer of the insured’s rights under the insurance policy to the third party. For example, if a construction worker brings a claim against their insolvent employer, TP( RAI) A 2010 ( UK) allows the employee to pursue the employer’s liability insurers directly to obtain recovery. For practical guidance on TP( RAI) A 2010 ( UK), refer to Practice Notes: Third Parties ( Rights Against Insurers) Act 2010 and-by way of summary- Third Parties ( Rights against Insurers) Act 2010-one minute guide. In...
This Practice Note explores the Financial Conduct Authority ( FCA)’s expectations of culture within financial services firms, and how regulatory instruments such as the Senior Managers & Certification Regime ( SM& CR) and the Consumer Duty are used to direct FCA supervision and enforcement towards firms’ cultural frameworks. Although the FCA is the dominant conduct regulator in this space, the Prudential Regulation Authority ( PRA) also scrutinises how culture influences prudential risks, which is considered below. Key points addressed include: regulators’ position that culture is a principal driver of conduct outcomes and market integrity the expectation that culture is actively owned and overseen by firms and their senior managers the connection between culture, psychological safety and challenge, and how the SM& CR, amendments to the Conduct Rules to reflect the FCA’s expectations on...
This Practice Note outlines the UK framework for product governance that insurance firms must follow when manufacturing and distributing insurance products. It explains how the rules introduced by the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD) were transposed in the UK, as reflected in Chapter 4 of the Financial Conduct Authority’s Product Intervention and Product Governance sourcebook ( PROD 4), and summarises the position of those rules after the UK’s withdrawal from the EU... Background IDD product oversight and governance requirements The IDD brought in product oversight and governance ( POG) duties for insurers and intermediaries that design insurance products for customers. Under Article 25, firms must establish, run and periodically review a product approval process for every insurance product—and for any material changes to an existing product—before it is marketed or distributed. That process must be...
What is Takaful? Takaful stems from the Arabic term ‘ Kafala’, meaning to support one another. It is a form of risk protection arranged in accordance with the principles of Islamic law ( Shari’ah). It provides a distinctive and important substitute for conventional insurance, meeting the protection needs of many Muslims worldwide. Owing, inter alia, to Shari’ah prohibitions on undue interest (riba) and uncertainty (gharar), some Muslim scholars have ruled conventional insurance haram, i.e. impermissible for Muslims. For further details on these barred elements, see Practice Note: Key principles of Islamic finance. As a direct result, until takaful arose, many Muslims across the globe had no practical way to safeguard effectively against risk. Nevertheless, takaful is not limited solely to Muslims; takaful solutions are open to all, regardless of belief or religion. Accordingly, it fills a historic gap that left many without...
Warranty and indemnity ( W& I) insurance in M& A transactions W& I insurance can be used in private company sales and purchases, whether the deal is a share sale or an asset sale. The buyer or the seller may arrange cover for losses arising from breaches of the seller’s warranties or indemnities set out in the relevant share purchase agreement or asset purchase agreement (the acquisition agreement), including any tax indemnities under a tax covenant. Although chiefly applied in private company M& A, it may on occasion feature in public company transactions where the target or its shareholders provide warranties. As well as allocating risk, parties frequently use the policy tactically: a bidder in a competitive auction can separate its offer from rivals, and sellers can reduce sums locked in escrow and realise proceeds more quickly. In the UK and other...
This Practice Note examines in detail the failure to prevent fraud offence under the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023). ECCTA 2023 obtained Royal Assent on 26 October 2023 and came into force on 1 September 2025 via the Economic Crime and Corporate Transparency Act 2023 ( Commencement No 4) Regulations 2025, SI 2025/349 (see: LNB News 17/03/2025 1). It sets out the offence’s constituent elements and overall scope, and compares it with the other corporate ‘failure to prevent’ offences concerning bribery and the facilitation of tax evasion. The Note also addresses the defence of having reasonable procedures to prevent fraud, describing what companies must build into their fraud prevention framework in order to rely on that defence in practice. Government statutory guidance has been issued on the offence, offering large organisations clear direction on the...
This Practice Note examines how the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs) apply to financial services firms. It includes: a high-level outline of the legislation guidance and regulatory expectations linked to the MLRs the MLRs’ obligations relating to: risk assessments, policies, controls and procedures staff training customer due diligence ( CDD), including enhanced due diligence ( EDD) and simplified due diligence ( SDD) beneficial ownership information, the UK register of trusts, and reporting discrepancies in registers the statutory framework of the MLRs—background and reform Key points Key points to note: the MLRs span a broad range of...
This Practice Note reviews the authorities on the meaning of ‘fraud’ and sets out the core principles applicable to business insureds, both when arranging insurance at inception and throughout the claims process. What amounts to fraud, and how is it established? Fraud There is no rigid definition of fraud in the insurance sphere. A leading statement of the test for deceit appears in Lord Herschell’s speech in Derry v Peek: first, an action for deceit requires proof of fraud; nothing less will do. Secondly, fraud is made out where a false representation is shown to have been made (i) knowingly, (ii) without any belief in its truth, or (iii) recklessly, being indifferent as to whether it is true or false. Although the second and third limbs are often described separately, the third is really an example of the second, because a person who makes a...
Environmental insurance provides a practical means to manage environmental risks, relevant to day‑to‑day operations as well as numerous transactions and development schemes. For more on environmental insurance in general, please see the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Pollution legal liability insurance In a transactional setting, the pollution legal liability ( PLL) insurance product is frequently relied upon to address unknown liabilities that remain with a deal—for instance, where pollution is suspected but not identified. This offers the advantage of delivering financial confidence to......
Certain groups of claimants are regarded as more vulnerable than others. This group includes: pedestrians children passengers The opening of the Highway Code (rules H1– H3) sets out the ‘hierarchy of road users’. At its peak are pedestrians, as they face the greatest danger in a collision. Because children are at heightened risk of injury, they hold a more prominent place within this hierarchy. Those operating vehicles capable of causing the most harm carry the highest duty to act with care and limit the danger they create (for example, drivers of large goods and passenger vehicles, vans/minibuses, cars/taxis and motorcycles). Cyclists, horse riders, and drivers of horse-drawn vehicles also share responsibility for reducing risks to...
What is product liability insurance? This cover indemnifies businesses for legal responsibility owed to end users of goods they make or supply. In general, such responsibility may stem from negligence (see: Donoghue v Stevenson), the strict regime under the Consumer Protection Act 1987 ( CPA 1987), or contractual duties, whether express or implied by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, or the Consumer Rights Act 2015. At its core, the policy responds to claims for personal injury or physical damage to property. It typically excludes loss to the faulty item itself and purely economic loss. This insurance is not mandatory and no single ‘standard form’ applies; numerous packaged options exist, frequently bundled with public liability and/or general liability insurance. Larger insureds with elevated risk, or those making or selling unusual goods, can obtain bespoke...
NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) covers collisions taking place on or after 31 May 2021, in circumstances where the sum claimed for the injuries does not exceed £5,000, and the overall claim value is capped at £10,000 in total. The small claims track threshold for personal injury arising from a road traffic accident has been lifted to £5,000 in respect of damages relating to pain, suffering and loss of amenity, subject to certain exceptions. For comprehensive information on the RTA Small Claims Protocol, including situations in which it does not apply, see Practice Note: The road traffic accident small claims protocol and Checklist: The RTA small claims protocol—key features checklist......
Employment Rights Act 1996 and Public Interest Disclosure Act 1998 By virtue of the Employment Rights Act 1996 ( ERA 1996), as modified by the Public Interest Disclosure Act 1998 ( PIDA 1998) and subsequently by the Enterprise and Regulatory Reform Act 2016, any agreement made between employees and their employer is of no legal effect, in so far as it aims or purports to stop an employee from making a protected disclosure......
Warranty and indemnity ( W& I) insurance—insured v uninsured claims Warranty and indemnity ( W& I) insurance is a well-established mechanism for shifting risk in private M& A deals. For more detail on what W& I insurance is and how it is deployed, see Practice Note: Warranty and indemnity ( W& I) insurance in M& A transactions. The route for advancing a claim under a W& I policy differs in several respects from pursuing an equivalent uninsured claim directly against a seller. Over the past ten years, W& I cover has evolved alongside the broad promotion and uptake of alternative dispute resolution, aimed at steering parties away from court proceedings. In England and Wales, both the Ministry of Justice and the judiciary have made concerted efforts to encourage resolution by means other than the courts, as litigation is frequently lengthy, costly and...
This Practice Note explores waivers in the context of insurance underwriting and claims-handling. Although it chiefly focuses on the law of waiver for a ‘non-consumer insurance contract’ (as defined in section 1 of the Insurance Act 2015 ( IA 2015)), it also distils principles from case law concerning a ‘consumer insurance contract’ (as defined in section 1 of the Consumer Insurance ( Disclosure and Representations) Act 2012 ( CI( DR) A 2012))... Waiver during the underwriting process The duty of fair presentation IA 2015 introduced a duty on the insured to give a fair presentation of the risk to the insurer in relation to a ‘non-consumer insurance contract’. In short, this means the insured must either: disclose to the insurer ‘every material circumstance which the insured knows or ought to know’; or ‘failing that, disclosure which gives the insurer sufficient...
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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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