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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 examines the Bank of England ( Bo E) and the Prudential Regulation Authority ( PRA)’s supervisory expectations for banks and insurers in managing climate‑related financial risks, as articulated in supervisory statement SS3/19 (updated November 2024), alongside the related policy statement PS11/19. Background and introduction On 15 April 2019, the PRA issued PS11/19: Enhancing banks’ and insurers’ approaches to managing the financial risks from climate change, which summarised responses to consultation paper CP23/18 and included the final SS3/19 setting out the PRA’s expectations. The PRA observed that climate change, and society’s response to it, generate financial risks relevant to its objectives and, although such risks may fully emerge over longer horizons, they are already starting to be seen. SS3/19 set the expectation that firms take a strategic approach to climate‑related risk management, identifying present exposures and plausible future risks, and...
This Practice Note considers the different legal bases for bringing a professional negligence claim This Practice Note examines the alternative legal foundations for pursuing a professional negligence claim, namely establishing that the professional owed the claimant a duty. At certain times, whether such a duty arises is intertwined with the nature of the loss claimed, which in turn defines the scope of the duty and related matters; for authoritative direction on these points, see: Professional negligence claim—scope of duty, causation and remoteness—checklist and related content. For guidance on starting a professional negligence claim, consult the following Practice Notes set out below: Starting a professional negligence claim—a practical guide Pleading professional negligence claims—worked hypothetical examples and related precedents For the required standard of care in professional negligence matters, refer to these key Practice Notes: Standard of care in professional negligence claims Standard of...
This Practice Note reviews the current Pre- Action Protocol for Professional Negligence claims, now in force. Note: proceedings commenced on or after 1 October 2015 in the Business and Property Courts may fall within, or be appropriate for, either the shorter trials scheme or the flexible trials scheme. See Practice Notes as set out below: Business and Property Courts—shorter trials scheme Business and Property Courts—flexible trials scheme Scope of this Practice Note This Practice Note explores certain issues a claimant may encounter when seeking to pursue professional negligence claims so as to comply with the Pre- Action Protocol for Professional Negligence claims (the ‘ Protocol’). See also: Professional negligence claims—claimant steps—checklist. For guidance for defendants, see the following resources: Practice Note: Professional negligence claims—pre-action protocol—defendant issues Professional negligence claims—defendant...
There are several commonly encountered hazards on the highway: animals poorly maintained roads ice and snow flooding vegetation other obstructions Animals straying onto the highway The majority of claims about animals on the highway are determined under negligence, though some have succeeded under the Animals Act 1971 ( AA 1971). Collisions between vehicles and farm animals can be severe, given the animal’s size and unpredictability. At common law, an owner or keeper will be liable where, through their negligence, the animal causes damage. Farmers grazing cattle in fields adjacent to roads must take all reasonable steps to prevent escape and thus avoid endangering road users; ordinary negligence principles apply. In assessing what precautions are reasonable, the court balances the likelihood and potential seriousness of an accident against the cost of prevention, decided case by case. A defence may exist where the...
Scope of this Practice Note This Practice Note summarises the provisions set out in section 21, together with associated sections, of the Financial Services and Markets Act 2000 ( FSMA 2000); the Financial Services and Markets Act 2000 ( Financial Promotion) Order 2005, SI 2005/1529 ( FPO); and the Financial Services and Markets Act 2000 ( Promotion of Collective Investment Schemes) ( Exemptions) Order 2001, SI 2001/1060 (the Promotion of CIS Order). These instruments, as amended periodically and read collectively, comprise the UK’s financial promotion regime, and the Note also draws on relevant materials issued by the Financial Conduct Authority ( FCA). What is the financial promotion regime? The expression ‘financial promotion’ does not appear within the text of the Financial Services and Markets Act 2000 ( FSMA 2000) other than in the heading to section 21. Pursuant to FSMA 2000, s 21(1), a person ( A) must not, in...
This Practice Note examines the Financial Conduct Authority’s ( FCA) expectations for firms’ treatment of customers in vulnerable circumstances, in line with the FCA’s finalised guidance ( FG21/1) on the fair treatment of vulnerable customers, its supporting guidance Delivering good outcomes for customers in vulnerable circumstances—good practice and areas for improvement, and the standards required under the FCA’s Consumer Duty. It should be read together with the note on the FCA’s Consumer Duty, The FCA Consumer Duty—essentials, and relevant sector‑specific practical guidance; for links see: Consumer protection and FCA Consumer Duty—overview. Key points How firms engage with vulnerable consumers is a primary supervisory and enforcement priority for the FCA. The Consumer Duty obliges firms to act to secure good outcomes for all retail customers; the FCA is especially focused on achieving positive results for vulnerable customers. The FCA’s 2025 review of firms’ approaches to...
What is the financial promotion restriction? Under section 21 of the Financial Services and Markets Act 2000 ( FSMA 2000), a person ( A) must not, in the course of business, issue or cause to be issued any invitation or inducement to engage in investment activity. This covers entering into, or offering to enter into, an agreement where the making or performance by either party amounts to a controlled activity, as well as exercising rights granted by a controlled investment to acquire a controlled investment. For more about the restriction, see Practice Note: The financial promotion regime—essentials. What are the consequences for breaching of the financial promotion restriction? If the restriction is breached, an offence is committed and the person is liable: on summary conviction, to imprisonment of up to six months or a fine up to the statutory maximum, or both, or on conviction on...
This Practice Note explores the key considerations for both a developer landlord and a prospective tenant under an agreement for lease incorporating development obligations (often termed a ‘pre-let’ or ‘pre-letting agreement’), where: (i) the property to be let is yet to be constructed or will be subject to significant refurbishment, (ii) the landlord must complete the specified works by an anticipated target date, and (iii) thereafter the tenant will take a lease of the property. It also addresses related matters such as early access, tenant’s fit out, insurance, and similar issues. Terminology in this Practice Note This Practice Note adopts the following terminology: ‘ Pre-let’ A ‘pre-let’ refers to an agreement for lease involving substantial developer’s works. This arrangement is also sometimes called a ‘pre-letting agreement’ or a ‘development agreement’, though the latter can be ambiguous because it is also used to describe either: a ‘stand alone’...
This Practice Note provides an overview of the Fast Track Rules of the AIDA Reinsurance and Insurance and Arbitration Society of the UK, or the ARIAS Fast Track Rules ( AFTAR Rules), in force from 3 October 2013, which regulate insurance and reinsurance arbitration proceedings. For a general introduction to ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014. AFTAR was devised to address concerns within the insurance and reinsurance markets that conventional arbitration, even under the ARIAS Rules, was slow and not cost-effective owing to reliance on a three-person panel. AFTAR comprises both rules and explanatory notes. Where any explanatory note conflicts with the rules, the rules prevail. Key differences from the ARIAS Rules AFTAR broadly mirrors the framework of the ARIAS Rules, and many elements are materially the same: the procedures for commencing an arbitration and serving notice, the...
This Practice Note outlines the matters a developer ought to weigh up regarding rights of light ( ROL) insurance, together with the usual prerequisites, terms and scope of cover under an ROL indemnity policy. The importance of assessing rights of light The potential encroachment upon rights of light is a pivotal issue for any developer when planning a new build or an extension to an existing structure from the outset. After HKRUK II v Heaney, it is apparent the courts may not merely award damages to those affected and could instead favour an injunction against the developer, even where the scheme has already been completed, rather than purely monetary redress. See Practice Note: Rights of light claims. Although damages can be substantial (frequently calculated by reference to up to 30% of the developer’s profit), they are typically still lower than the expense of an...
This Practice Note outlines the make-up and layout of the Prudential Regulation Authority ( PRA) Rulebook (the Rulebook) for insurers and reinsurers. It sets out the obligations applying to Solvency II firms ( SII firms), Non- Solvency II firms ( Non- SII firms) and persons without authorisation, together with the appropriate links into the Rulebook. The Practice Note also provides tables that itemise the Supervisory Statements ( SSs) and Statements of Policy ( So Ps) issued by the PRA connected to the UK Solvency II regime. Overview of the PRA Rulebook On 29 August 2015, the PRA released the Rulebook. Moving from the PRA Handbook to the Rulebook aimed to deliver clearer, more succinct rules for PRA-authorised firms. Alongside the Rulebook, SSs and So Ps supply a rounded explanation of the PRA’s expectations. In April 2024, the PRA updated the Rulebook to improve its ability to...
The PRA's strategy The PRA and the Bo E Until 1 March 2017, the Prudential Regulation Authority ( PRA) functioned as a subsidiary company of the Bank of England ( Bo E), delivering micro‑prudential oversight and regulation, together with the Financial Policy Committee ( FPC), which handled macro‑prudential obligations. The Bank of England and Financial Services Act 2016 ( Commencement No. 4 and Saving Provision) Regulations 2017, dated 20 January 2017, brought into force selected provisions of the Bank of England and Financial Services Act 2016, including sections 12–15, thereby ending the PRA’s subsidiary status. From 1 March 2017, the PRA began operating through the Bank’s Prudential Regulation Committee ( PRC). HM Treasury issued recommendations to the PRC on aspects of the government’s economic policy that the PRC should consider when carrying out its activities and functions. HM Treasury can also instruct and direct the Bank to take steps to...
Cancellation of permission Cancellation means the withdrawal of a firm’s Part 4A permission. When a Prudential Regulation Authority ( PRA)-authorised firm stops undertaking regulated activities, its Part 4A permission must be cancelled. In defined situations, the PRA may exercise its own-initiative powers to revoke a permission. Any requirements imposed on authorised firms may likewise be lifted, either on the firm’s application or by the PRA using its own-initiative powers. A PRA-authorised firm seeking cancellation must evidence to the PRA that it has ceased, or will cease, carrying on regulated activities. For more detail on firms designated as PRA-authorised, see Practice Note: FCA and PRA authorisation under Part 4A of FSMA 2000. Cancellation at the request of an authorised person The PRA may cancel a PRA-authorised firm’s Part 4A permission on the firm’s request, but only after it has consulted the FCA......
This insurance distribution quick guide explains the present UK legislation and retained EU legislation concerning insurance distribution obligations that were altered and/or repealed by the Insurance Distribution ( Amendment) ( EU Exit) Regulations 2019, SI 2019/663 ( ID Exit Regulations 2019) and by other instruments at the close of the implementation period after the UK’s exit from the EU, together with related updates to the Financial Conduct Authority ( FCA) rules and guidance. Overview of onshored and preserved EU-derived law post- IP completion day The ID Exit Regulations 2019 were laid on 25 March 2019. That SI sits within HM Treasury’s suite of statutory instruments made under the European Union ( Withdrawal) Act 2018, EU( W) A 2018, addressing contingency planning for a potential ‘no deal’ Brexit. It forms part of the wider move to domesticate EU law so that legal continuity was...
This Solvency II quick guide outlines current UK legislation and retained EU law concerning prudential insurance obligations that has been amended and/or revoked by the Solvency 2 and Insurance ( Amendment, etc) ( EU Exit) Regulations 2019, SI 2019/407 (as amended by the Financial Services ( Miscellaneous) ( Amendment) ( EU Exit) ( No 3) Regulations 2019, SI 2019/1390) (the Solvency 2 and Insurance Exit Regulations); the Risk Transformation and Solvency 2 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/1233 (the Risk and Solvency 2 Exit Regulations); the Electronic Commerce and Solvency 2 ( Amendment etc.) ( EU Exit) Regulations 2019, SI 2019/1361 (as amended by the Financial Services ( Miscellaneous) ( Amendment) ( EU Exit) ( No 3) Regulations 2019, SI 2019/1390) (the E- Commerce and Solvency 2 Exit Regulations); and other measures at the end of the...
Petrol stations in the UK From a high of 39,958 in the late 1960s, the UK now has roughly 8,400 petrol forecourts. When assessing environmental liabilities linked to these sites, attention should cover locations that are: active forecourts forecourts approaching closure and earmarked for redevelopment, and former forecourts that have already been redeveloped Given their (often) central urban positions, redevelopment frequently targets housing. While fuel is branded by the oil majors, many sites are operated by smaller owners. Rising land values linked to redevelopment have prompted numerous closures, particularly where small operators have struggled to remain viable. Potential environmental liabilities associated with petrol stations Petrol stations can create environmental harm through: leaks from underground storage tanks ( USTs) and connecting pipework to pumps failures in drainage, run-off from spills, or poor performance of interceptors, and vapours during tank...
Under common law contract principles, an insurer cannot pass on the burden of its insurance obligations without the policyholder’s consent. As a rule, this requires a novation involving the existing insurer, the policyholder, and the incoming insurer. An exception arises under Part VII of the Financial Services and Markets Act 2000 ( FSMA 2000), which, subject to specified conditions, allows an insurer to transfer the whole or a defined part of its business without securing the consent of each policyholder... The UK has long operated a mechanism for portfolio transfers. Earlier procedures under the Insurance Companies Act 1982 drew a distinction between long-term insurance (broadly life, annuity, permanent health and pension business) and general insurance. For the former, a court application was required, whereas for general insurance, approval by the regulator was sufficient. In both instances, a persistent difficulty was that outwards...
Practice Note This Practice Note sets out high-level information on the principal requirements of the Senior Management Arrangements, Systems and Controls sourcebook ( SYSC), namely SYSC 2, SYSC 3 (together with the related guidance in SYSC 13), SYSC 4, SYSC 5, SYSC 6, SYSC 7, SYSC 8, SYSC 9, SYSC 10, SYSC 15A and SYSC 19. For assistance on the remaining chapters of SYSC, refer to the separate Practice Notes within this Systems and controls—overview. Parallel obligations for dual-regulated firms are contained in the Prudential Regulation Authority ( PRA) Rulebook and in PRA Supervisory Statements ( SSs). In this Practice Note, references to rules in SYSC are paired with links to the equivalent provisions in the PRA Rulebook and in SSs. For high-level guidance on locating the PRA Rulebook and SS materials that correspond to the various Chapters of SYSC, see — FCA and PRA...
Environmental insurance helps control environmental risk, supporting active businesses as well as numerous transactions and development schemes. For general guidance on environmental insurance, refer to the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Gaps in public liability policies Conventional cover, including public liability policies, fails to give businesses sufficient protection against environmental liabilities. Reasons include: protection generally applies only to ‘sudden and accidental’ releases permitted discharges are not treated as ‘accidental’ wear-and-tear is not viewed as ‘sudden’—even where the pollution event occurs abruptly while some liabilities under the Environmental Damage ( Prevention and Remediation) ( England) Regulations 2015, SI 2015/810 ( EDR England) and the Environmental Damage ( Prevention and Remediation) ( Wales) Regulations 2009, SI 2009/995 ( EDR Wales) might be insured,...
This Practice Note offers hands-on guidance on reporting claims or potential matters under liability policies, including professional indemnity cover. For more on liability cover, refer to the Practice Notes: Liability insurance—essentials and Liability insurance—notification of claims and circumstances and defence of claims. Review your policy Most liability policies are written on a ‘claims made’ basis, obliging the policyholder to notify claims or circumstances (as distinct from loss or damage to insured property). Your first task is to examine the policy wording to determine precisely what must be notified and the timing requirements. If more than one policy might respond, evaluate each and check for any other insurance provisions (see Practice Note: Double insurance and contribution). Gather all relevant documents, including the complete wording together with schedules and endorsements. Where only a summary was supplied at placement—as is common—you may need to source the full wording from the broker or...
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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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