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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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Warranty and indemnity ( W& I) insurance—claims Warranty and Indemnity ( W& I) insurance is a well‑established means of transferring risk in private M& A deals. For more on the nature and application of W& I insurance, see Practice Note: Warranty and indemnity ( W& I) insurance in M& A transactions. Transaction parties frequently concentrate on executing the deal and arranging the W& I policy, yet pay insufficient attention to what is arguably the most crucial feature of any insurance product: the claims process. This Practice Note sets out the key elements of the W& I claims pathway, from decoding the relevant contractual terms in the policy to final settlement. W& I insurance policy wording claims clauses Claims provisions in W& I policies are generally divided into two main groups: notification conduct W& I insurance—claims notification If there is any uncertainty about when to notify or what a...
Only individuals or firms with authorisation may conduct regulated activities in the UK, and must operate strictly within the scope of their permission. Where they wish to change the way they perform those regulated activities, they will generally need to apply for a variation of that permission. This Practice Note outlines how firms can apply to the Prudential Regulation Authority ( PRA) to vary their Part 4A permission. For guidance where firms cease conducting their activities altogether, see Practice Note: Prudential Regulation Authority—cancelling permission and requirements. Permission and requirements Under the previous Financial Services Authority ( FSA) regime, a Part IV permission could include any requirement the FSA considered appropriate. That is no longer the case. The PRA’s powers relating to permission are distinct from its powers concerning requirements (namely, to impose or vary a requirement), and these powers are treated separately under the current...
What is social inflation? Social inflation is a phrase often cited in recent insurance debates, yet it lacks a precise definition. In broad terms, it describes claim costs for defendants or insurers rising faster than general economic inflation. More specifically, it captures the uplift in settlement amounts and jury awards, together with a widening of defendants’ and insurers’ liability exposure, driven by influences beyond the courtroom... Shifts in attitude as the public becomes more alert to social and financial inequalities; Changing views on who ought to shoulder risk and the scope of the duty of care owed to the public; An assertive, organised national plaintiffs’ bar that exchanges knowledge and methods to shape public opinion and potential jurors’ world view, including the use of reptile tactics at trial; Extensive use of social media and technology, such as...
Note: For collisions after 1 March 2017, the Motor Insurers’ Bureau ( MIB) will meet claims for damage to an uninsured motorist’s car where another untraced driver caused it. The government said this amendment was required to comply with the EU Motor Insurance Directive and that the changes would be revoked following Brexit. The untraced driver Where the motorist who causes a crash cannot be identified, for example after a hit-and-run, the claimant should apply straight to the MIB. Under the terms of the applicable agreement, the MIB will compensate a victim of an accident involving an untraced driver for: injuries death property damage The Untraced Drivers’ Agreement 2017 covers accidents on or after 1 March 2017. For accidents on or after 14 February 2003 and before 1 March 2017, the Untraced Drivers’ Agreement 2003 applies. Before that, claims concerning untraced drivers fell under the...
This Practice Note outlines the standards the states use when assessing an insurer’s duty-to-defend. It sets out the criteria those states apply when determining such obligations. For more detail on the insurer’s duty-to-defend, see Practice Note: US— Duty to defend and duty to indemnify and US—duty to defend and duty to indemnify—checklist. Overview If coverage questions were shares, the duty-to-defend would be a Blue Chip. As investors buy such shares for reliable and steady returns, the principles governing an insurer’s duty-to-defend have remained steadfast. Hence, no one is startled when a court pronounces that the duty-to-defend is wider than the duty to indemnify. That has been true for decades. See: Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 77 N. E.2d 131, 133 ( N. Y. 1948)—‘ The courts have frequently remarked that the duty to defend is broader than the duty to pay.’...
State Choice of Law for Coverage Disputes Alabama This survey examines governing law issues in insurance coverage disputes, spanning all 50 U. S. states and the District of Columbia. For a complementary overview, see Choice of Law for Coverage Disputes. When a policyholder based in one state faces litigation or a claim in another, a recurring question is which state’s law governs interpretation of the insurance contract. If the jurisdictions diverge on policy wording or approach to conflicts rules, either the insurer or the policyholder may need to commence proceedings to resolve the controlling law. The survey outlines each state’s choice of law framework, which may draw on: Statutory provisions Lex loci contractus Second Restatement Case law Alabama: By statute, “ All contracts of insurance, the application for which is taken within this state, shall be deemed to have been made within this state and...
By Jeffrey A. Goldwater and George J. Manos, Lewis Brisbois Bisgaard & Smith LLP, (updated by the Practical Guidance attorney team) This survey sets out the benchmarks for the imposition of punitive damages across all 50 states and the District of Columbia. It gathers the pertinent statutes in every jurisdiction and provides an analysis of each legislative measure. The review further considers whether punitive damages can be insured in each state and examines the relevant statutes and judicial authorities that confront the insurability question in each jurisdiction. Distinct from compensatory awards, punitive damages are not intended to make a claimant whole; they exist to chastise the offender and to act as a deterrent. Liability for such damages is triggered by conduct of an extreme, egregious character, where the impugned behaviour is wilful, wanton, and deliberate. In the vast majority of...
Insurers prepare specialised contracts, known as insurance policies, which set out specified elements of cover for insureds and the insurers’ obligations when a covered loss occurs. The meaning of a covered loss is defined within each policy and will differ according to the type of policy purchased. This Practice Note examines the two core duties an insurer owes to an insured—the duty to defend and the duty to indemnify. The duty to defend refers to the insurer’s obligation to provide the insured with a defence to claims brought under the policy. The duty to indemnify concerns the insurer’s obligation to pay a claim for loss or damage asserted against the insured. For additional insight into these concepts, see: —checklist. Basics of an insurance policy The duty to defend and the duty to indemnify mainly arise under liability...
This Practice Note offers a high-level summary of insurance bad faith claims, covering the policyholder’s entitlements under an insurance policy, the events that trigger a claim, and the advantages of issuing a claim. Where a jurisdiction’s statutory regime sets out acts, omissions, delays, or commercial practices that may underpin a bad faith action, or obliges a complainant to meet conditions precedent before bringing one, these are identified. Save for any state-specific illustrations, this Practice Note is non-jurisdictional. For further detail on common bases for insurance bad faith claims and issues arising in bad faith disputes, see Practice Note: US—insurance bad faith coverage litigation. What is an insurance bad faith claim? Under an insurance contract or policy, insurers owe numerous obligations to those they insure (the policyholder or insured) and to individuals pursuing claims against their insureds (claimants). In meeting those...
Insurance agreements, like any contract, carry an implied obligation that the parties act with good faith and fair dealing towards one another. This principle has prompted courts and legislatures to develop standards that define the specific duties insurers owe to policyholders. The resulting legal framework enables policyholders, in prescribed circumstances, to seek recovery from insurers for ‘bad faith’. This Practice Note identifies common bases for insurance bad faith claims and addresses litigation issues, including: Jurisdiction-specific bad faith standards Insurer defences Discovery points Considerations regarding available types of damages For additional guidance on insurance bad faith claims, see Practice Note: US—insurance bad faith claims. Bad faith generally Contracts typically imply a duty of good faith and fair dealing, requiring each party not to act in a way that harms the other party’s right to the benefit of the agreement. In the...
By Randy J. Maniloff of White and Williams LLP, and Jeffrey W. Stempel, this survey examines the insurability of punitive damages across the United States. It spans all 50 states and the District of Columbia. The central question is whether a given state's public policy allows a tortfeasor to obtain insurance for punitive damages that they might be legally required to pay. Issues of cover frequently surface in uninsured and underinsured motorist policies. Although this survey notes those contexts, its primary emphasis is liability insurance and it is not intended to be comprehensive. For related guidance, see Practice Note: US—punitive damages standards state law survey. State Insurability of punitive damages Alabama The Supreme Court of Alabama, without addressing public policy considerations, determined that punitive damages qualify as a liability imposed by law. Accordingly, they fell within the scope of an automobile policy's insuring...
Insurance & Reinsurance case tracker—2025 [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. For 2026 matters, please see Practice Note: Insurance & Reinsurance case tracker—2026. This tracker compiles insurance and reinsurance court decisions. It reflects the progress of cases reported between January and December 2025 and was refreshed on a fortnightly cycle. Abbreviations Supreme Court — SC Court of Appeal — CA King’s Bench Division — KB Chancery Division — Ch Central London County Court — CLCC The Technology and Construction Court — TCC The Inner House of the Court of Session ( Scotland) — CSIH The Outer House of the Court of Session ( Scotland) — CSOH Judicial Committee of the Privy Council — JCPC For previous years, see: Insurance & Reinsurance case tracker—2024 [ Archived] Insurance &...
This Practice Note offers an in-depth examination of underinsurance, its principal causes, the remedies available to insurers when policyholders underinsure, and recent case law concerning brokers’ duties. Introduction Underinsurance remains one of the most entrenched problems in UK property and business interruption ( BI) insurance. A majority of policyholders arrange cover for less than the full value of their assets and, as a result, risk significant shortfalls if they need to claim. Despite how common it is, reported decisions on underinsurance are scarce. Much of the applicable law stems from the Insurance Act 2015 ( IA 2015), the Consumer Insurance ( Disclosure and Representations) Act 2012 ( CI( DR) A 2012), and older authorities on materiality and disclosure. For more on IA 2015, see Practice Note: Insurance Act 2015 ( IA 2015)—essentials, and for CI( DR) A 2012, see Practice Note: A guide to the...
STOP PRESS: On 11 June 2025, the High Court delivered its judgment in a test case uniting six claims brought by Aer Cap and other lessors against their insurers. The court determined that: the relevant aircraft and engines were lost in March 2022 the proximate cause of that loss was the coming into force of a Russian Government Resolution ( GR 311), which constituted a “restraint” or “detention” under the Government perils of each claimant’s war risk cover; the loss was not proximately caused by any hull all risks peril each claimant could recover for its lost aircraft and engines under the contingent cover of its policy or policies, save for Genesis’s claim regarding the share of its war risk cover underwritten by TMK Syndicate 510, which failed no claimant had a valid claim under the possessed cover of its policy or policies On 31 March 2026, the Court of...
Warranty and Indemnity ( W& I) insurance in private M& A transactions—guide to the key documents With the marked increase in the uptake of Warranty and Indemnity ( W& I) insurance in private M& A deals, solicitors are ever more involved in specifying and negotiating W& I policy terms. Although each policy is shaped to the particular demands of a given transaction, the underlying approach tends to be comparable across matters. Against that backdrop, this Practice Note sets out guidance for legal practitioners on procuring and negotiating W& I insurance (the Placing Process), with emphasis on the paperwork exchanged between W& I brokers and insurers, which must be signed by the insured before the W& I policy incepts. W& I insurance documents Confidentiality undertakings and non-reliance letters The following are standard requirements: Execution of a confidentiality undertaking or non-disclosure agreement ( NDA). The W& I...
Purpose SYSC 12, contained in the Senior Management Arrangements, Systems and Controls sourcebook ( SYSC) of the Financial Conduct Authority ( FCA) Handbook, clarifies how systems and controls obligations apply where a firm belongs to a group, requiring it, as appropriate, to consider the potential impact of risks arising elsewhere in the group as well as from its own operations and activities. Dual-regulated firms should also be mindful of parallel provisions in the following Parts of the Prudential Regulation Authority ( PRA) Rulebook, operating alongside the SYSC 12 framework: Group Risk Systems (applicable to CRR firms), and Conditions Governing Business—3 Risk Management (as applied by Group Supervision—17 Risk Management and Internal Control) (applicable to UK Solvency II firms) In this Practice Note, links to the rules in SYSC 12 are accompanied by links to the corresponding provisions set out in the PRA...
ARCHIVED: This Practice Note was archived and is not maintained. Unlike familiar hazards such as fire or flood, a viral outbreak cannot be neatly tied to a specific place or moment in time. The 2020 coronavirus ( COVID-19) outbreak and the resulting government measures therefore confronted insurers with a novel loss landscape, where the factual intricacies were compounded by a shortage of clear judicial authority on key questions arising in business interruption claims, including: the interpretation of composite insured perils in non-damage business interruption policies (ie, the so-called ‘disease’, ‘prevention of access’ and ‘hybrid’ clauses) the appropriate approach to causation for ‘wide-area’ perils, which tend to cause loss not only to the insured premises but also across the surrounding area identifying the proximate cause of loss amid multiple competing causes, some insured and some not the...
The UK securitisation framework From IP completion day (30 December 2020), the UK applies the following: Assimilated Regulation ( EU) 2017/2402 (the UK Securitisation Regulation) Assimilated Regulation ( EU) 2017/2401 (the UK CRR Amendment Regulation) Assimilated Regulation ( EU) 575/2013 ( UK CRR) Commission Delegated Assimilated Regulation ( EU) 2018/1221 (the UK Solvency II Delegated Act Amendment Regulation) Commission Delegated Assimilated Regulation ( EU) 2015/35 (the UK Solvency II Delegated Act) The UK government has undertaken a significant reform of the securitisation regime. For more on the proposed legal and regulatory framework for UK securitisations, see Practice Note: The new UK securitisation regime. The PRA’s supervisory statement SS10/18— Securitisation: General requirements and capital framework, updated by the PRA’s policy statement PS7/24— Securitisation: General requirements and also effective from 1 November 2024, sets out the PRA’s...
This Practice Note outlines the financial sanctions reporting duties for firms authorised by the Financial Conduct Authority ( FCA) under the Financial Services and Markets Act 2000 ( FSMA 2000), as well as those under the FCA’s broader supervisory remit, including e‑money institutions, payment firms and cryptoasset businesses (together, firms). It explains how firms must notify the FCA of sanctions breaches, suspected breaches, and any deficiencies in their sanctions systems and controls. It also sets out the FCA’s expectations on reporting to the Office of Financial Sanctions Implementation ( OFSI) and on making a Suspicious Activity Report ( SAR) where appropriate, the arrangements for information exchange between OFSI and the FCA, and the FCA’s sanctions‑related financial crime annual return ( REP‑ CRIM). For a summary of the UK legal and regulatory sanctions architecture for firms, see Practice Note:...
NOTE : This Practice Note relates to UK Rome II. The regulation applies when identifying the law governing cases where the harmful event amounting to a tort occurred on or after 1 January 2021. Formerly called Retained Rome II, from 1 January 2024 it has been retitled Assimilated Rome II—the alteration is in name alone; the regulation’s provisions are unchanged. Authorities may use either designation and, for convenience, this Practice Note refers to it as UK Rome II. For further detail on assimilated law, see Practice Note: Assimilated law. This Practice Note outlines the legal framework and the procedure by which a victim brings a claim following a road traffic accident that happens in the UK but is caused by the driver of a foreign-registered vehicle. It is highly probable that insurance cover for that vehicle will have been provided by a foreign...
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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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