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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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In real estate finance transactions, the borrower’s principal asset is the property, and the lender’s security package is structured around obtaining adequate security over that property. Because the property is paramount, the lender will wish to be comfortable that the insurance arranged for the property is sufficient, and will also seek security over the borrower’s entitlement to any insurance proceeds (see Practice Note: Security in real estate finance transactions). The financing documentation will set out comprehensive insurance obligations on the borrower, typically contained in the facility agreement or the security documents. The Loan Market Association ( LMA) includes provisions addressing these matters in its: single currency term facility agreement for real estate finance multi-property investment transactions ( LMA Investment REF Facility Agreement), and single currency term facility agreement for real estate finance single property development transactions ( LMA...
This Practice Note considers insurance issues that may arise when construction works, including refurbishment and fit-out, are undertaken to an existing building. It identifies who typically arranges buildings insurance and which parties it may cover. It also outlines the position where a tenant carries out works, and the approach under the JCT and NEC standard form construction contracts. Who maintains and is covered by buildings insurance? Freeholders An existing property should be protected by appropriate buildings insurance, usually placed by the freeholder. Cover ought to meet the cost of making good, replacing or reinstating damage to the building fabric, for example roof, walls, ceilings, floors, doors and windows. It should also extend to the landlord’s fixtures and fittings and to underground tanks, pipes and cables. The full rebuilding or reinstatement cost should be insured where damage is caused by an insured risk (as defined in the...
What is insurance law? Insurance law divides into three strands: insurance contract law, setting the rules of the bargain between policyholders and insurers the law of intermediaries, governing insurance arranged via agents (as with the majority of placements) insurance company law, addressing prudential soundness, integrity and the supervision of insurers This Practice Note focuses chiefly on insurance contract law. For wider regulatory material, see our ‘regulation of insurance’ subtopic, including Insurance & Reinsurance—regulatory framework—overview and Insurance & Reinsurance— Regulated activities—overview. Reform of the insurance sector In January 2006, the Law Commission and the Scottish Law Commission (together, the Law Commissions) began consulting on modernising insurance contract law. Their programme was then separated into three streams: consumer insurance law reform: pre-contract disclosure and misrepresentation insurance contract law reform: business disclosure, warranties, insurers’ remedies for fraudulent claims, and late payment insurance contract law...
Insurance & Reinsurance case tracker—2021 [ Archived] ARCHIVED: The 2021 Insurance & Reinsurance case tracker has been archived and is no longer maintained. It summarises court decisions and litigation concerning insurance and reinsurance. The tracker records the progress of cases reported from January 2021, including listed appeals, and was updated every fortnight. Abbreviations European Court of Justice/ Court of Justice of the European Union — ECJ Supreme Court — SC Court of Appeal — CA High Court — HC Queen's Bench Division — QBD Technology and Construction Court — TCC Previous years Insurance & Reinsurance case tracker—2020 [ Archived] Insurance & Reinsurance case tracker—2019 [ Archived] Appeals tracker Court: QBD Case name: R (on the application of Aviva Insurance Ltd) v Secretary of State for Work and Pensions [2021] EWHC 30 ( Admin) Details: The High Court...
Insurance & Reinsurance case tracker—2023 [ Archived] ARCHIVED: The Insurance & Reinsurance case tracker—2023 has been archived and is not maintained. This tracker centres on insurance and reinsurance court matters and rulings. It shows the progress of cases reported from January 2023, with updates made fortnightly. Abbreviations used European Court of Justice/ Court of Justice of the European Union— ECJ Supreme Court— SC Court of Appeal— CA High Court— HC King's Bench Division— KB Technology and Construction Court— TCC For previous years, see Insurance & Reinsurance case tracker—2022 [ Archived] Insurance & Reinsurance case tracker—2021 [ Archived] Insurance & Reinsurance case tracker—2020 [ Archived] Decided cases 2023 December CA — The University of Exeter v Allianz Insurance Plc [2023] EWCA Civ 1484 Property insurance—war...
Arbitrations stemming from insurance and reinsurance disputes resemble other commercial arbitrations broadly in many material respects, yet they also carry particular characteristics. This Practice Note outlines those distinguishing aspects and offers direction on arbitral procedure and tactics and strategy within an insurance and reinsurance setting. For details on the varieties of insurance arbitration, including ad hoc arbitration, institutional arbitration and Bermuda Form arbitrations, see: Understanding institutional and ad hoc arbitration—overview and Practice Note: Insurance and reinsurance arbitration—an introduction. Distinctive features of insurance arbitrations Common distinguishing features of insurance arbitration, explored in greater depth below, include: multiple arbitrations on similar facts, which can raise issues concerning, for example: appointment of arbitrators consolidation of proceedings disclosure of information obtained in one set of...
This Practice Note considers the impact of Part 1 of the Automated and Electric Vehicles Act 2018 ( AEVA 2018), and the recommendations made in the Law Commissions’ Automated Vehicles: joint report, on the UK’s motor insurance framework, looking at: The current structure of motor insurance How AEVA 2018 and the Law Commissions’ joint report evolved Which categories of automation fall within AEVA 2018 Duties of the relevant legal stakeholders The present approach to primary and secondary liability under AEVA 2018 The extent of liability envisaged by AEVA 2018 Applicable limitation periods Retention and disclosure of data Continuing reform This Practice Note excludes AEVA 2018, Pt 2, which deals with provisions for charging electric vehicles. For an overview of key milestones and details on the evolution of the autonomous vehicles regime, see Practice Note: UK...
Introduction to the Insurance Act 2015 The Insurance Act 2015 ( IA 2015) was granted Royal Assent on 12 February 2015 and, save for Part 6, commenced on 12 August 2016. It marks the most far-reaching overhaul of the statutory framework of English insurance contract law since the Marine Insurance Act 1906 ( MIA 1906). This Practice Note examines the principal provisions of IA 2015 and the ways in which they reform the law. It also reviews reforms introduced by the Enterprise Act 2016 ( EA 2016), with relevant sections taking effect in May 2017. This Practice Note addresses IA 2015 provisions relating to: the duty of fair presentation remedies for a breach of that duty warranties and other terms fraudulent claims amendments to the Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) ...
The Insurance Act 2015 ( IA 2015) obtained Royal Assent on 12 February 2015 and, save for Part 6 of the Act, took effect on 12 August 2016. It marks the widest overhaul of the statutory regime governing English insurance contracts since the Marine Insurance Act 1906 ( MIA 1906). For fuller commentary on IA 2015, refer to Practice Note: Insurance Act 2015 ( IA 2015)—essentials. Below we address some frequently asked questions ( FAQs) concerning IA 2015... What is the IA 2015 and when did it come into force? IA 2015 is the most far-reaching reform of English insurance contract law since MIA 1906. It secured Royal Assent on 12 February 2015 and, except for Part 6, commenced on 12 August 2016. The Act reshaped rules on fair presentation, remedies for non-disclosure and...
What is insurable interest? This Practice Note examines insurable interest, including its role in construction and liability insurance. It also addresses insurable interest in subrogation, co-insurance and double insurance, and the Insurable Interest Bill. It is a doctrine of insurance contract law that requires the insured to have a legally recognised relationship with the insured subject-matter. Broadly, only those who have some connection to the subject-matter of the insurance contract, by which they would be prejudiced by its loss, or may incur liability in respect of it, can insure that subject-matter. Conversely, a person who lacks such a relationship has no insurable interest and therefore cannot take out insurance on that subject-matter. The burden lies on the insured to establish that an insurable interest exists. The rationales for requiring an insurable interest are that: it is the characteristic of an insurable interest that...
Applicable legislation Insolvency legislation typically includes bespoke measures for insurers, reflecting the sector’s regulated nature and the significance of insurance to the wider economy. The Financial Services and Markets Act 2023 ( FSMA 2023) revises the UK framework for insurer insolvency, clarifying certain aspects and broadening safeguards for insurers and their policyholders undergoing insolvency or write-down processes—the government consulted on these reforms in 2021 and issued its response in April 2022 (refer to News Analysis: Financial Services Markets Bill sets out post- Brexit framework for UK financial services, HM Treasury publishes response to consultation on insolvency arrangements for insurers— LNB News 07/04/2022 78 and Practice Note: The Financial Services and Markets Act 2023—essentials). The Prudential Regulation Authority ( PRA) released consultation paper CP3/23, Dealing with insurers in financial difficulties, outlining proposed rules and policy in light of the FSMA 2023 changes (see: LNB News...
This Practice Note outlines the principal provisions of the Financial Conduct Authority’s ( FCA) Insurance: Conduct of Business sourcebook ( ICOBS) concerning advice and product information, with particular emphasis on ICOBS 5 and ICOBS 6... Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) On 6 January 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), brought ICOBS into effect, replacing the former Insurance: Conduct of Business sourcebook ( ICOB). The major development was a shift from detailed, prescriptive rules to a more principles-led, outcomes-focused approach to supervising firms. Consequently, existing ICOB requirements were simplified where the FSA judged that specific consumer protection was not essential. ICOBS has been updated on a number of occasions, most significantly to implement the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), which was transposed into UK law on 1 October 2018. Although the UK has since...
This Practice Note outlines the professional indemnity insurance ( PII) obligations for accountants and auditors, together with detailed guidance on the Institute of Chartered Accountants in England and Wales ( ICAEW) Minimum Terms and Conditions ( MTC). Regulatory setting Who is the regulator? The Financial Reporting Council ( FRC) provides non-statutory oversight of how the six chartered accountancy bodies regulate their members. Each of these bodies sets its own professional indemnity insurance requirements. This Practice Note concentrates on the ICAEW, one of those bodies. As an improvement regulator, the ICAEW safeguards the public by ensuring members uphold the highest levels of professional competence and conduct. Is insurance compulsory for practice/membership? Professional indemnity insurance is mandatory for all ICAEW members who hold a practising certificate and operate in public practice. Members must follow the ICAEW PII Regulations, which specify the required level of cover, the...
This Practice Note outlines prevailing market practice on loss reserves, insurance claims data and loss development triangles within general insurance. It highlights why these datasets matter to insurers and offers guidance to lawyers on the relevance of claims data in insurance disputes. The Note also clarifies key reserving terminology, such as incurred claims, outstanding loss reserves ( OSLR), incurred but not reported ( IBNR) and incurred but not enough reported ( IBNER). Reserving for life and health insurance relies on very large bodies of mortality and morbidity statistics. Setting such reserves is usually a more mathematically driven exercise than for many forms of general insurance. The calculation of life and health reserves falls outside the scope of this Practice Note, which is focused on general insurance. References here to ‘insurers’ should be read as including ‘reinsurers’ unless the context indicates...
Scope of this Practice Note The core purpose of the Financial Services and Markets Act 2000 ( FSMA 2000) was to create and confer powers on the then Financial Services Authority ( FSA), following the government’s decision to introduce a single regulator for financial services in the UK. It serves as an overarching framework for financial services legislation and regulation within the UK. FSMA 2000 took effect on 1 December 2001, at which point the FSA became the sole regulator of the UK financial services industry. As part of government plans to reform the UK’s financial services regulatory architecture, the FSA was abolished on 1 April 2013 and its responsibilities were divided between two new bodies: the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA). FSMA 2000 remained the primary statute for the UK financial services industry, although the...
Awards by the FOS If a complaint made to the Financial Ombudsman Service ( FOS) is upheld, the FOS can require a respondent firm (the respondent) to pay compensation, costs and/or interest to the complainant, and/or can instruct the respondent to take any other steps the FOS deems appropriate in the circumstances. The applicable rules appear in DISP 3.7 of the FCA Handbook and derive directly from the relevant sections 229 and 230 of the Financial Services and Markets Act 2000......
This Practice Note examines the insurance provisions in the 2017 FIDIC Red, Yellow and Silver Books. It addresses liability for the Works, cover for the Works, and the additional policies the Contractor is required to arrange, such as professional indemnity, public liability and employer’s liability insurance. For commentary on the 1999 forms, see Practice Note: FIDIC contracts (pre-2017 editions)—insurance. The 2017 Books set out, for each policy, who must insure, the sums and the scope of cover, and these requirements appear in: the Contract Data the Special Conditions (amendments to the General Conditions) the General Conditions The order above governs which provisions prevail (clause 1.5). The remainder of this Practice Note summarises the requirements in the General Conditions. Liability or risk in the Works The Contractor’s liability for the Works, which establishes its insurable interest, is stated at clause 17.1. From the Commencement Date until the issue of the...
This Practice Note reviews the insurance provisions in the 1999 editions of the FIDIC Red, Yellow and Silver Books. For guidance on the 2017 editions, see Practice Note: FIDIC contracts 2017—insurance. The FIDIC insurance provisions The insurance requirements in the FIDIC contracts—identifying which party arranges cover, the quantum and the nature of insurance—are located in: the letter of acceptance of tender the particular conditions (amendments to the general conditions) the general conditions This sequence sets the order of precedence for deciding which insurance provisions apply. The following summarises the requirements in the general conditions. Liability or risk in the works The Contractor’s risks The Contractor’s liability for the works, which gives it an insurable interest, is stated at clause 17.2. The Contractor must care for the works until take over, and any damage must be made good at the Contractor’s own risk and expense unless caused by an Employer risk......
Part XXIV of the Financial Services and Markets Act 2000 ( FSMA 2000) Part XXIV enables the regulators to take part in insolvency-related proceedings against firms and individuals. These powers extend to authorised firms and recognised investment exchanges, and also to those carrying on regulated activities in breach of the general prohibition ( FSMA 2000, ss 19–20). Each provision in Pt XXIV defines when rights accrue, and in some cases more than one regulator benefits. Seeking insolvency orders is a key regulatory step, particularly where unauthorised business is being conducted. Such proceedings may target insolvent firms and individuals, and those that are not technically insolvent but for which it is just and equitable that the business should stop. The FSMA 2000 provisions should be read with the UK bank recovery and resolution regime, including the special resolution regime under the Banking Act 2009 ( BA...
This Practice Note summarises the Financial Conduct Authority ( FCA) Handbook, which contains the FCA’s legislative and other provisions made under powers conferred by the Financial Services and Markets Act 2000 ( FSMA 2000). It highlights the principal block structure of the Handbook and, while focused on the insurance and reinsurance sector, it also addresses the Handbook’s general features. The structure includes: High Level Standards Prudential Standards Business Standards Regulatory Processes Redress Specialist sourcebooks Listing, Prospectus and Disclosure Rules Handbook Guides Regulatory Guides A Glossary Background On 1 April 2013, the former Financial Services Authority ( FSA) Handbook was divided between the FCA and the Prudential Regulation Authority ( PRA), creating two handbooks, one for each regulator. Consistent with their respective responsibilities and objectives, most FSA provisions were transferred into the PRA’s Handbook...
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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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