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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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ARCHIVED: This Practice Note has been archived and is no longer maintained. It records certain significant hearing dates either scheduled or appearing in the High Court, Insolvency and Companies Court ( Chancery Division) daily cause list from 1 January 2025 onwards (with the latest first) for: Part VII transfer schemes: transfers pursuant to Part VII of the Financial Services and Markets Act 2000 (see Practice Notes: Part VII Transfer of Banking Business and Insurance business transfer schemes) For hearing dates in 2026, please consult the Practice Note: Tracker of Part VII transfer schemes hearing dates 2026, and for 2024 hearings, please see Practice Note: Tracker of Part 26 scheme/ Part 26A......
Potential for liability of insurance representatives to third parties This Practice Note considers when insurance representatives may face liability to third parties, where a claimant alleges a failure to arrange cover, or to obtain sufficient limits or the correct class of insurance for a tortfeasor. Ordinarily, a person or entity harmed by another’s negligence sues the wrongdoer for damages, most often in negligence, though sometimes on a contractual basis. Subjects addressed include: situations in which a representative may owe duties to a third party common defences available to a representative facing a third-party claim matters concerning policy limits A third party is a person or entity with whom the representative has no direct contract to place insurance. This does not include someone to whom the representative seeks to sell insurance for an insurer. Some jurisdictions have direct action statutes enabling a claimant to proceed...
This Practice Note reviews the principal features of the 2010 Act, which superseded the Third Parties ( Rights Against Insurers) Act 1930 (the 1930 Act) with effect from 1 August 2016. The framework can assist where the insured is insolvent, as it permits a third party that has suffered loss to pursue a direct claim against the other party’s insurer in defined situations (the claimant is the third party because they are not a party to the insurance contract). This offers a marked advantage to the third party, who may recover 100% of their claim from the insurer’s substantial funds, rather than proving in the insured’s insolvency as an unsecured creditor and receiving only a fraction. In short, the law enables the intended beneficiaries of an insurance policy to access the cover. It extends to all categories of liability insurance (for a...
Purpose of the TP( RAI) A 2010 The Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) revoked and superseded the Third Parties ( Rights Against Insurers) Act 1930 ( TP( RAI) A 1930). The aim of the 1930 Act was to make sure that, where an insured person had incurred an insured liability to a third party and later became insolvent, the insurance proceeds were paid to that third party rather than forming part of the insolvent estate to be divided amongst all creditors of the insured. In much the same vein as the earlier regime, TP( RAI) A 2010 assigns to the third party certain of the insolvent insured’s rights under the policy and permits the third party to issue proceedings straight against the insurer. The principal development under TP( RAI) A 2010 is that a third party may now sue the...
Takaful is a form of risk protection arranged in accordance with Islamic principles. To appreciate how takaful operates and how its documentation works, it is vital to note: the basis of takaful lies in Shari’ah ( Islamic law) its core is the sharing of risk among participants (policyholders), rather than transferring risk to the takaful operator (insurance company) at all times the risk sits with the fund into which participants pay contributions and from which claims are settled as needed (the Participants Solidarity Fund) Tabaru’, Qard Hasan and Shari’ah supervision as key underlying mechanics of takaful Tabaru’ Tabaru’ is an Arabic term signifying a ‘donation’ or a ‘voluntary and gratuitous contribution’. In Islamic legal terms, tabaru’ is a distinctive form of contract: instead of a bilateral exchange, it is a unilateral declaration to transfer ownership without seeking any return. As with the...
The Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents This Practice Note sets out a concise overview of the main elements of the Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA protocol), alongside practical guidance on how to use the claims portal... Note: The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) applies to incidents on or after 31 May 2021 where the injury damages sought do not exceed £5,000 and the total value of the claim does not exceed £10,000. The small claims track limit for personal injury arising from an RTA is £5,000 for damages for pain, suffering and loss of amenity, subject to specified exceptions. For more on the RTA Small Claims Protocol, including when it does not...
This Practice Note forms one of a carefully curated trio that sets out the prudential regulatory landscape for UK life and general insurers and reinsurers falling under the Solvency UK regime, which traces its origin to the Solvency II Directive ( Directive 2009/138/ EC) ( Solvency II). This Practice Note addresses and explains the Pillar 2 and Pillar 3 obligations applicable to insurers. For an introduction to the prudential requirements affecting UK insurers, see: Prudential requirements for UK insurers—introduction. For details on Pillar 1 (quantitative capital and solvency standards), see Practice Note: Prudential requirements for UK insurers— Pillar 1 requirements. Pillar 2 overview— Risk management, governance and supervision Risk management underpins prudent operation and sound governance for insurers and is therefore also a core element of prudential regulation within this context, in this regard. Solvency UK obliges insurers to evaluate the risks inherent in their...
This Practice Note forms part of a trio outlining the prudential regulatory regime applying to UK life and general insurers and reinsurers within the scope of the Solvency UK regime, which originates from the Solvency II Directive ( Directive 2009/138/ EC) ( Solvency II). It introduces the prudential obligations for UK insurers operating under Solvency UK. For detail on requirements across the three Pillars— Pillar 1 (quantitative capital and solvency standards), Pillar 2 (governance and supervision) and Pillar 3 (reporting and disclosure)—see Practice Notes: Prudential requirements for UK insurers— Pillar 1 requirements and Prudential requirements for UK insurers— Pillar 2 and Pillar 3 requirements. For a step-by-step tracker of the evolution and roll-out of Solvency UK, with links to UK legislation, rules and guidance, see: Solvency UK—timeline. For material on the EU Solvency II framework, consult Practice Notes: EU Solvency...
This Practice Note outlines the architecture and statutory underpinnings of Solvency UK. It sets out how the United Kingdom has implemented Directive 2009/138/ EC (the Solvency II Directive), considers the consequences of leaving the EU, and charts the emergence of the post‑ Brexit Solvency UK regime, with pointers to pertinent UK legislation, Prudential Regulatory Authority ( PRA) rules, and associated PRA policy materials. For further detail on the Solvency UK framework, see Practice Notes: Prudential requirements for UK insurers—introduction, Prudential requirements for UK insurers— Pillar 1 requirements, and Prudential requirements for UK insurers— Pillar 2 and Pillar 3 requirements. For a dated record of how the Solvency UK framework has been developed and rolled out, see: Solvency UK—timeline, for ease of reference in UK, as applicable to firms. The requirement for transposition and...
This Practice Note is one of three that outline the prudential regulatory architecture for UK life and general insurers and reinsurers within Solvency UK, the regime stemming from the Solvency II Directive ( Directive 2009/138/ EC) ( Solvency II). It explains how the principal Pillar 1 quantitative standards are embedded in the Prudential Regulation Authority ( PRA) Rulebook, covering: valuation of assets and liabilities, including technical provisions for insurance liabilities regulatory capital requirements, including the solvency capital requirement ( SCR), the minimum capital requirement ( MCR) and technical provisions for insurance liabilities own funds requirements, comprising basic own funds and ancillary own funds investment requirements, including the prudent person principles ( PPP) For a primer on the prudential requirements affecting UK insurers, see: Prudential requirements for UK insurers—introduction. For detail on Pillar 2 (governance and supervision) and Pillar 3 (reporting and disclosure), see Practice Note:...
Silent (or non-affirmative) cyber coverage, and the systemic risk it presents to the insurance market, have been of significant regulatory concern in recent years. This Practice Note explores silent cyber within professional indemnity insurance ( PII), the regulatory concerns it has prompted, and how the market has responded so far. It also reviews the contrasting approaches taken by the International Underwriting Association ( IUA) and the London Market Association ( LMA), and what those positions mean for underwriting practice and minimum terms for regulated professions. Cyber risks cover any exposure to financial loss, operational disruption or reputational harm suffered by an organisation resulting from the failure, unauthorised use or mistaken operation of its IT systems. Such exposures may arise from malicious conduct (including cyberattacks) and from non-malicious events (for example, system outages or accidental data loss). The frequency and visibility of cyber...
In a share purchase agreement ( SPA), it is standard for the seller to grant the buyer warranties and indemnities. Why warranties and indemnities are needed For any share acquisition, the buyer starts from the maxim caveat emptor (let the buyer beware). As they cannot know with certainty exactly what they are acquiring when buying a company, the purchaser seeks protection from the default common law position by building suitable contractual terms into the SPA in the shape of warranties and indemnities. Taken together, these provisions protect the purchaser against the uncertainties inherent in the target and address the caveat emptor rule. The buyer will also undertake due diligence on the target company (or target group) to learn as much as possible before proceeding. For additional detail on the diligence process, see Practice Note: Due diligence—share and asset purchases. Without warranties or...
The Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents This Practice Note provides a hands-on summary of the key elements of Stage 2 and 3 of the Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, together with an examination of leading case law and the practical consequences for those operating within the online portal. Note: The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) applies to accidents occurring on or after 31 May 2021 where the sum claimed for injuries is not more than £5,000 and the total value of the claim is not more than £10,000. The small claims track limit for personal injury claims arising from a road traffic accident is £5,000 for damages for pain, suffering and loss of...
This Practice Note Use this Practice Note when identifying the governing law where a contract was concluded between 17 December 2009 and 31 December 2020. For agreements made on other dates, the UK courts will apply a different governing law regime. Which regime is engaged depends on the date on which the agreement was made. The temporal scope is critical to the analysis. It is intended for use in relation to that period. For guidance on the various regimes and their interrelationship, see Practice Note: Applicable law regimes. This Practice Note reviews the 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), addressing parties’ autonomy to choose the governing law for their contract. Even where a law is chosen, the parties remain subject to...
Definitions Fraud In Derry v Peek, fraud is described as the situation where a false statement is made either knowingly, without any belief in its accuracy, or with reckless indifference as to whether it is true or false. Malingering Under DSM- IV V65.2 and the DSM-5, malingering means the deliberate creation or overstatement of physical or psychological signs or symptoms, driven by external incentives. Note: malingering, or deliberate exaggeration, should not be mistaken for unconscious amplification, often labelled by doctors and lawyers as 'functional overlay'. Types of fraudulent claims Terminology and categorisation differ across behaviours linked to road traffic claims that arouse suspicion, but in general the principal types are outlined below. Deliberately staged accidents These incidents arise when drivers and occupants of two, or sometimes more, vehicles intentionally bring about a collision, followed by injury claims from passengers and the supposedly 'innocent' driver. Additional claims can include charges for car hire,...
This Practice Note This Practice Note addresses the duty of care owed by road users to others involved in road traffic incidents, including car drivers or motorists, passengers, pedestrians and cyclists. Road users are obliged to take reasonable care so as to avoid causing harm to those using, or present upon, the highway. The applicable standard is that of the ordinary competent driver, and no indulgence is afforded to inexperienced or learner drivers. A road user should also anticipate that fellow users of the highway, or other persons present, may not demonstrate the requisite level of skill, experience and care. Road traffic accidents generate a significant volume of work for personal injury practitioners, giving rise to claims that span the entire spectrum of severity and complexity. The chief cause of action is negligence; although statutory duties, nuisance or contract can at times be...
This Practice Note outlines the professional indemnity insurance ( PII) obligations for surveyors and valuation specialists, and provides detailed, practical direction on the Royal Institute of Chartered Surveyors ( RICS) Minimum Terms and Conditions ( MTC). Regulatory setting Who is the regulator? In the UK and Ireland, RICS acts as the independent regulator for surveyors and valuers across the profession. Is insurance compulsory for practice/membership? Under the RICS Rules of Conduct, every RICS‑regulated firm must maintain, at all times, ‘adequate and appropriate’ PII that satisfies standards expressly approved by RICS. What is the regulator’s rationale for having MTC? RICS cites three principal and clear grounds for its PII framework: To ensure that, when a firm faces a claim, it is shielded from financial losses it cannot satisfy from its own funds. To safeguard the insured member or practice against liability for damages payable to third parties arising from...
Inspection of records Reinsurance contracts, especially treaty arrangements, commonly contain inspection provisions giving the reinsurer a right to review the cedant’s books and records, to the extent those materials hold particulars of business written by the cedant that falls within the reinsurance. The ability to scrutinise a cedant’s books and records is a valuable mechanism for a reinsurer in a range of situations. For instance, if a reinsurer is uneasy about an account protected by a reinsurance policy, it will usually seek to carry out an inspection of the cedant’s books and records to check whether the cedant has observed every term of the reinsurance, notably concerning the nature and standard of the ceded portfolio. A further illustration is where a reinsurer wishes to keep under review a claim that might give rise to a substantial loss. In addition, a reinsurer (or a direct...
This Practice Note offers a primer on the reinsurance market—what it is, how it operates, and the core ideas that underpin it. What is reinsurance? Reinsurance is cover for insurers. It is an insurance contract bought by an insurer—often via a specialist reinsurance broker—to protect that insurer’s liabilities. In practice, the reinsurance agreement can sometimes be set up before the underlying insurance contract to which it relates. Reinsurance can address a wide range of risks—life, property, third-party liabilities and cyber—in much the same way as insurance. Purpose of reinsurance The reinsurance sector is a vital global business and the backbone of the insurance market. It serves several key purposes, including: enabling insurers to spread the financial risk assumed when writing policies, reducing volatility and smoothing loss experience, and protecting against major catastrophes and events (such as hurricanes, wildfires and...
This Practice Note offers a concise overview of the functions and duties of insurance brokers, outlining their role in arranging and renewing insurance policies. It also gives practical pointers on how brokers can avoid or reduce negligence claims. More focused materials are signposted. For rules and guidance on insurance distribution regulation, see Practice Notes: FCA Handbook—introduction for the insurance and reinsurance sector PRA Rulebook—introduction for the insurance and reinsurance sector Insurance conduct regulation— COBS and ICOBS UK insurance distribution regime—essentials Functions of insurance brokers The broker’s central task is to secure consensus and clarity between the insured and insurers so that suitable cover is effected (or ‘placed’) in line with the client’s instructions. An essential aspect of the role is to bridge the disparity between the client’s understanding of its own operations and the broker’s appreciation of cover available in the market (see...
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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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