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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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Practice Note This Practice Note offers practical guidance on the current border controls between the United Kingdom and the European Union, along with the changes scheduled to commence on 1 January 2022. It covers customs declarations, the payment of customs duty and VAT, and sanitary and phytosanitary checks. Introduction In November 2021, the UK released its updated border operating model, explaining how the UK border functions in relation to the EU. The model was originally brought in on 1 January 2021 following the UK’s departure from the EU customs union. From that date, certain border controls were introduced. These were phased in to allow time to build and prepare the necessary infrastructure to support those controls. In December 2021, the UK further updated the border operating model to temporarily prolong staged customs controls for goods moving from the island of Ireland into Great Britain. This interim step was taken...
This Practice Note examines music collecting societies, which may operate as ‘licensing bodies’, and/or ‘ Collective Management Organisations’ ( CMOs). It outlines: the rationale for music collecting societies; how collecting societies work; and the regulation applicable to music collecting societies. It then supplies details on PRS for Music ( PRS) and Phonographic Performance Limited ( PPL) (covering their members and the rights they administer), as well as the joint venture PPL PRS Ltd and The Music Licence. This Practice Note sets out practical matters to bear in mind when dealing with music collecting societies. The need for music collecting societies and the legal framework The proprietor of copyright in a creation such as a musical work or a sound recording is entitled to authorise or prevent certain restricted acts. In the UK, those acts are listed in Chapter II of the Copyright, Designs and Patents Act 1988 (...
Database right Database right is a proprietary entitlement in the UK, arising from the transposition of Directive 96/9/ EC (the EU Database Directive), and applies to a database where there has been substantial investment in acquiring, checking, or presenting its contents. Illustrations of what may amount to a database include: a hard copy or electronic encyclopaedia; collections of data hosted on websites; the intranet; a spreadsheet recording a database and a PDF version of that spreadsheet (see the Forensic Telecommunications Services Limited case); and a document management system. The EU Database Directive was put into effect in the UK by the Copyright and Rights in Databases Regulations 1997 ( CRD 1997, also called the Database Regulations 1997), SI 1997/3032. Database right is infringed by the extraction or re-utilisation of the whole or a substantial part of the database’s contents without the permission of the rights holder. Not every database benefits from database right....
This resource kit This resource kit brings together the principal practical guidance available across Lexis+® UK on artificial intelligence ( AI). Organised by practice area, it is refreshed as new material appears. The rapid growth of AI technologies has led lawmakers, businesses and the public to focus more closely on the potential advantages and the risks that accompany AI use. AI gives rise to a range of legal and regulatory considerations across numerous disciplines, including: intellectual property ( IP) data protection and cybersecurity transactional work such as corporate and commercial employment healthcare and life sciences finance The UK government is developing an AI regulatory strategy that will determine how AI is governed here in future. In the EU, a legislative framework is being built to regulate AI, primarily via Regulation ( EU) 2024/1689 laying down harmonised rules on...
The opening part of this Practice Note identifies criminal offences linked to content posted on social media platforms, such as: trolling cyberbullying virtual mobbing cyberstalking flaming creating fake social media accounts It further covers communications offences, CPS Guidance, substantive offences that may involve social media, and certain offences under the Online Safety Act 2023 ( OSA 2023). The second part addresses civil causes of action that might arise, including: defamation misuse of private information civil harassment data protection infringement of intellectual property ( IP) rights consumer protection and advertising regulations disinformation practical ways to bring an action the ‘right to be forgotten’ and to ‘erasure’ Brexit This Practice Note concentrates on UK social media offences and claims, while indicating where the European position is relevant for UK-based...
IP and online retail Building a digital shopfront—either alongside, or in place of, physical stores—opens access to a wider audience and makes services more convenient for customers. This Practice Note offers guidance on protecting IP in an online retail business, obtaining essential third-party rights, avoiding infringement of others’ rights, and enforcing IP against infringers. It addresses choosing a brand, creating an online retail website, running promotional activity, and dealing with suppliers, and also considers emerging technologies such as artificial intelligence ( AI) and the Metaverse. The key issues to consider include: Protecting IP used for retail services and planning effective enforcement. Securing the necessary third-party IP rights and permissions. Reducing the risk of infringing competitors’ rights and responding to infringements. Choosing a brand name When defining an online retail strategy, ensure you select a brand that serves as a clear badge of origin,...
This Practice Note outlines the approach to the responsibility of providers of intermediary services for unlawful and illegal content circulated or conveyed through their services, together with the conditional liability exemptions in the Electronic Commerce ( EC Directive) Regulations 2002 (the E- Commerce Regulations 2002), SI 2002/2013. Those Regulations gave effect to Directive 2000/31/ EC (the EU E- Commerce Directive), so the exemptions originate in EU law and, from the end of 2023, are treated as assimilated law. The Practice Note also considers how the UK approach to these exemptions has, or may, depart from the E- Commerce Directive. The E- Commerce Regulations 2002 set out liability shields for unlawful or illegal content applying to information society service providers ( ISSPs) that offer intermediary services. This Practice Note does not explore in depth the EU regulatory framework for ISSPs. For the EU...
IP rights must be actively safeguarded and enforced to preserve their value. This Practice Note explores the enforcement of your IP rights. It outlines why prevention, surveillance and the gathering of infringement evidence matter, before setting out practical options for responding to an infringement. For guidance on protecting IP, see Practice Note: How to protect your IP. For fuller guidance on disputes, see Practice Note: How to run an IP dispute. What is IP infringement? When IP rights are breached, this is commonly called IP infringement. It arises where protected products, works or inventions are exploited, copied or otherwise used without the right holder’s permission or consent. Most infringements are civil matters; however, some conduct can amount to a criminal offence. Criminal IP offences usually involve dealing in fake branded (ie counterfeit) or pirated products. For more detail, see Practice Notes: Trade mark offences and...
This Practice Note is a horizon scanner, tracking key future developments in UK IP law. This note looks ahead to forthcoming shifts in UK IP law, outlining key dates for your diary (including estimated dates where the precise timing is not yet confirmed) and providing commentary on: Legislation and consultations: Acts not in force, partially in force or subject to staged introduction Statutory Instruments in progress, partially in force or subject to staged introduction International treaty implementation instruments Open consultations and consultations pending a response Case appeals: Supreme Court European Patent Office ( EPO) Enlarged Board of Appeal ( EBA) ...
What is the ‘ One IPO’ transformation programme? This Practice Note tracks progress on the UK Intellectual Property Office’s ( IPO) ‘ One IPO’ transformation programme. It outlines the programme’s background, the principal actions proposed, and the schedule for delivering each phase, indicating the timing for every stage. It also explains the consultations that support the initiative and the feedback they generated, and records the responses received. The ‘ One IPO’ transformation programme aims to modernise and enhance the IPO’s services. The IPO intends to replace its current procedures with a single digital platform for all registered IP rights—patents, trade marks and designs. Planned amendments to the existing legal framework—which presumes processes centred on paper forms and correspondence—will lift legal obstacles to the IPO’s digital transformation and resolve inconsistencies across the various IP rights. Further information on the principal steps and expected timetable appears in the Key...
Introduction to the Intellectual Property Enterprise Court The Intellectual Property Enterprise Court ( IPEC) sits as a sub-list within the general Intellectual Property List ( Chancery Division). It is designed to open up access to justice in IP disputes for small- and medium-sized enterprises ( SMEs) that might otherwise struggle to bring or defend a claim. IPEC also serves as a venue for lower-value IP cases to be resolved at proportionate cost, ensuring litigation remains manageable for parties with modest resources. The Intellectual Property List comprises two sub-lists: the Patents Court and the IPEC. It forms part of the Business and Property Courts of the High Court, which were established on 2 October 2017. For further details about the Business and Property Courts, see Practice Note: Business and Property Courts, and for commentary on their introduction in IP matters, see News Analysis: Framework of...
This Practice Note monitors the development of UK legislation brought forward under the legislative programme linked to the UK’s departure from the EU. It also features a Brexit SI database that compiles details of both draft and made secondary legislation related to Brexit. Quick links Use the links below to go directly to the relevant section or tracker. Practice area trackers Follow the links below for trackers focused on Brexit legislation across specific practice areas: Commercial Corporate Crime Dispute Resolution Employment Energy Environment Financial Services Information Law Intellectual Property Life Sciences Local Government Pensions Property R& I Tax For further updates and guidance tailored to individual practice areas, see: Brexit collection......
Under English law, binding agreements may arise orally, in writing, or by deed. This Practice Notice explores when a deed is required or preferable, and the formalities that must be observed to ensure validity. What is a deed? When a deed is required Formalities (1): in writing Formalities (2): face value Formalities (3): execution Formalities (4): delivery Escrow Witnessing Variation Failure to comply with formalities and other defects Reform For details on executing deeds in jurisdictions outside England and Wales, see Practice Note: Execution of deeds—jurisdictional guide. We have created a comprehensive, interactive collection to help users identify and navigate concepts and common issues in executing documents, including deeds. Each phase includes practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution...
This Practice Note primarily addresses the civil remedies available for infringement of trade marks, design rights and copyright in the UK, drawing on statute and the common law. The remedies include injunctions; damages or an account of profits; erasure, delivery up or destruction of infringing goods and the tools or materials used to produce them; dissemination of judgments; and recovery of costs. It also considers declaratory relief and interim measures, together with contempt of court for non-compliance with orders, and civil restraint orders. In addition, it reviews the relief obtainable in claims or counterclaims alleging invalidity, revocation or making unjustified threats, and deals with practicalities such as drafting the order, addressing new technologies and evaluating settlement. The Note also touches on remedies concerning criminal offences related to trade marks, designs and copyright. Matters relating to patents are not covered. For guidance focused on...
This Practice Note This Practice Note outlines the IP and competition law considerations that can surface around character merchandising (that is, licensing a character’s name or image for promoting goods or services, typically involving licences of trade marks and/or copyright) in the UK. It reviews matters arising under the Competition Act 1998 ( CA 1998). It discusses potential block exemptions and individual exemptions that could be relevant. It also explores how competition law intersects with the tort of passing off. Conceptually, linking a product or service with a character enhances its appeal in the marketplace. For licensors, beyond the royalties received, exploiting such character rights can be an essential tool for marketing and sponsorship. For a concrete illustration where IP rights were licensed for character merchandising, together with an examination of the strategic considerations, see News Analysis: What does the Barbie film mean for IP...
This Practice Note examines infringement of UK registered and unregistered designs, encompassing re-registered designs, continuing unregistered designs ( CUDs) and supplementary unregistered designs ( SUDs) introduced when the UK exited the EU. It addresses both primary and secondary infringement, sets out defences and exemptions from liability, and outlines relevant criminal provisions. The UK’s designs system is relatively intricate, particularly in the wake of Brexit, and spans several distinct rights. Because these rights can overlap, a single product may fall within multiple design protections at once. The UK designs framework and relationship with EU designs Before IP completion day (11 pm GMT on 31 December 2020), four design rights were available in the UK: UK registered designs, the UK unregistered design right (often called ‘design right’), registered Community designs ( RCDs) and unregistered Community designs ( UCDs). On IP completion day, the EU design regime under EU...
Patents can be revoked (ie struck from the patents register) if, in any respect, they are found invalid. Once revoked, a patent is treated as though it never existed. The statutory grounds are prescribed in section 72 of the Patents Act 1977 ( PA 1977). One such ground is that the invention is not patentable. Under PA 1977, s 1, an invention is patentable only if it: is novel (ie not ‘anticipated’) entails an inventive step (ie not ‘obvious’) can be applied industrially is not excluded under PA 1977, s 1(2)–(3) or s 4A This Practice Note focuses on invalidity arising from a lack of inventive step, often called patent obviousness. For guidance on other revocation grounds, see the Practice Notes: Patent invalidity—grounds of revocation Patent...
Across today’s interconnected economy, patent holders may find it necessary or advantageous to enforce their rights in several countries. This Practice Note sets out the key legal and practical factors for designing and carrying out a global patent litigation strategy, including selecting countries of interest, identifying likely defendants, and determining relevant patents, then reviewing the legal landscape in each chosen country in light of the patent proprietor’s overall litigation aims. Identify countries of interest and potential defendants When developing a worldwide patent litigation plan, a patent proprietor (and/or its legal advisers) should first pinpoint jurisdictions where it intends to secure its rights, whether by sustaining product exclusivity, pursuing patent licensing, or a mixture of both. Patentees should consider countries where: they use or plan to use their patented technology (i.e. technology protected by one or more of their patents in a particular country) ...
What is passing off? Passing off is a common law tort that safeguards rights which cannot be, or are hard to, register as trade marks, as well as unregistered rights that have built up goodwill. Examples include: colours get-up packaging Through the law of passing off, a trader may stop others from exploiting its goodwill unfairly. It is unlawful to suggest that goods or services have an affiliation or link with another trader when no such connection exists. Passing off is a strict liability tort, so the trader’s intention is immaterial. Claims in tort, including passing off, must be issued within six years from the date the cause of action arose. For further details, see the Q& A on the limitation period for a passing off claim. This Practice Note examines, in depth, the three essential elements of a passing off claim,...
Practice Note This Practice Note examines the intellectual property issues tied to creating new and emerging technology, offers practical guidance for parties collaborating, and outlines key points for safeguarding and enforcing their IP. IP in new technology is a valuable business asset and, as with any asset a company owns, it should be secured. A range of IP rights exist in the UK, including, but not limited to: trade marks design rights copyright patents Ultimately, the appropriate IP and level of protection depend on the technology’s characteristics. For further detail, see Practice Note: What IP assets a business may own and how best to protect them. The World Intellectual Property Organisation has also produced a diagnostics tool to help businesses identify their IP assets and decide how to protect, manage and leverage them. New technology is no different, as it...
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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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