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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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Boilerplate provisions in public sector contracts This Practice Note examines key clauses on payment of subcontractors within public sector contracts. For further guidance on what contracting authorities (and other interested parties) should understand when deploying boilerplate terms in public sector agreements, consult Practice Note: Boilerplate provisions in public sector agreements: general considerations. Public procurement reform Procurement Act 2023 ( Commencement No 3 and Transitional and Saving Provisions) ( Amendment) Regulations 2024 ( SI 2024/959). The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 ( PA 2023). See: Procurement Bill [ HL]— LNB News 12/05/2022 14, and Procurement Bill receives Royal Assent— LNB News 26/10/2023 81. From 24 February 2025, the principal provisions of the PA 2023 are now operative. Accordingly, procurements started on or after that date must proceed in accordance with PA 2023. The pre-existing public procurement regime...
Privilege—the basic principles This Practice Note sets out several of the issues that general privilege principles create for IP practitioners, together with specific statutory IP privilege provisions to keep in view. For broader guidance on privilege as a whole, see: Privilege and without prejudice communications—overview. Privilege exists because a client and a lawyer need to communicate frankly about protecting the client’s interests, without those conversations being disclosable to an opposing party or to the court. Although the following are not the only species of privilege, the two principal forms to focus on in the IP sphere are ‘legal advice privilege’ and ‘litigation privilege’. The rules governing each, as developed through case law, can operate with very different practical effects, and their consequences may diverge considerably. These two forms are sometimes grouped together as ‘legal professional privilege’, yet that phrasing is confusingly close to ‘legal advice...
Precedent Summary Letter of claim—patent infringement This Precedent provides an outline letter of claim, the expression presently used in the Civil Procedure Rules, and is often described as a letter before action or a cease and desist letter. It concerns alleged patent infringement. The accompanying Drafting Notes set out how to strike a balance between the Practice Direction Pre- Action Conduct and Protocols obligations for a letter of claim and the unjustified threats provisions in section 70 of the Patents Act 1977. They also include suggested draft undertakings. Particulars of Claim—patent infringement claim This is a Precedent Particulars of Claim intended for use in a patent infringement action......
Norwich Pharmacal applications against online service providers This Practice Note examines particular issues that can emerge when pursuing Norwich Pharmacal applications against online service providers. For guidance on the general principles governing Norwich Pharmacal Orders ( NPOs), see Practice Note: Norwich Pharmacal orders ( NPOs). Online anonymity is often used to facilitate unlawful conduct, including infringing intellectual property rights or posting defamatory statements. Nevertheless, each click or swipe typically leaves a digital trail, even where someone intends to conceal their identity. Connecting that digital footprint to an alleged wrongdoer frequently necessitates disclosure of identifying information held by online service providers. For example: defamatory material posted on a website—operators commonly require users to register details (eg name, address, email) before allowing them to publish content, and the site may record the internet protocol ( IP) address from which the user first registered and/or posted...
This Practice Note seeks to clarify what is meant by ‘jurisdiction’ in the context of cross-border disputes arising in litigation before the courts and related procedural matters. It sets out why identifying the proper forum matters and how the courts of England and Wales (the English courts) assess whether they have authority to hear a given claim or determine a specific dispute. Several jurisdictional regimes may govern, and pinpointing the correct one can be challenging in practice from the outset. Even after selecting the relevant regime, working through its scope and operation is not always straightforward, both procedurally and substantively, in application and practice. This Practice Note assists by identifying the principal regimes and addresses related matters, including jurisdiction agreements, a defendant’s domicile, staying proceedings in favour of a competent court, or seeking a declaration that a court lacks...
ARCHIVED: This Practice Note is archived and no longer maintained. It was originally prepared for Lexis Advance® Practical Guidance Hong Kong. Existence. Under section 2 of the Copyright Ordinance ( Cap 528) ( CO), copyright subsists in: original literary, dramatic, musical and artistic works sound recordings, films, broadcasts or cable programmes, and typographical arrangements of published editions Multiple copyrights may arise in the same work, for example in a book, and in a play or film derived from the book. Copyright arises in works only: once fixed, in writing or otherwise if they meet the subsistence tests, and if they are original Writing includes any notation or code, such as material stored on computer drives or discs. Copyright protects the work as a whole, not its separate parts, though copying substantial parts may still...
This Practice Note explores the operation of the Hague Convention on Choice of Court Agreements when jurisdictional questions arise in practice. It reviews the varieties of jurisdiction clauses and assesses whether they fall within the Convention’s scope. It then explains the duties placed on the court named in an exclusive jurisdiction clause (the chosen court), together with the responsibilities of courts seised where they are not the designated forum (non‑chosen courts). The Practice Note also addresses the availability of anti‑suit injunctions under the Convention and how the Convention is applied in disputes involving multiple parties and interests. It should be read in conjunction with Practice Notes: Hague Convention on Choice of Court Agreements—application by contracting states and Hague Convention on Choice of Court Agreements (jurisdiction and enforcement)— Brexit considerations. An explanatory report on the Hague Convention on Choice of Court...
This Practice Note is a ‘how to’ guide on executing simple contracts which signposts relevant content. It offers an overview of what is needed for effective execution, from initial checks, to signposting the formalities for different types of entity, alongside further legal factors and hands-on tips for signing a contract. While many agreements need not be written, some do; and, as a rule, putting terms into a signed document is advisable to promote certainty, deal with points raised in bargaining, and set out the bargain reached. For broader, introductory help on executing simple contracts, with pointers to related materials, see also Practice Note: Executing documents—deeds and simple contracts. We have assembled a collection that serves as a thorough, interactive tool to support users in spotting and navigating the concepts and recurring issues that arise on document execution. Each stage or step contains...
ARCHIVED: This Practice Note is archived and is not being maintained. It was originally prepared for Lexis Advance® Practical Guidance Hong Kong. Hong Kong recognises protection for registered designs. The principal legislation is the Registered Designs Ordinance ( Cap 522) ( RDO), together with its subsidiary legislation, the Registered Designs Rules ( Cap 522A). Hong Kong does not recognise automatically arising unregistered design rights, although copyright may still subsist in the work under the Copyright Ordinance ( Cap 528) ( CO). See CO, s 87 regarding subsistence of copyright in a corresponding registered design and also a corresponding unregistered design. Why register? A registered design protects the look of a new design. Registration grants design owners exclusive rights, empowering them to prevent third parties from copying the design or from manufacturing, importing, using, selling or hiring out articles embodying the registered design without consent....
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Advance® Practical Guidance Hong Kong. Applicable law In Hong Kong, the Registered Designs Ordinance ( Cap 522) ( RDO) primarily regulates infringement of registered designs. Exclusive right of the registered owner Once a design is registered in Hong Kong, the proprietor alone may import, make, sell, hire, or offer or expose for sale or hire within Hong Kong any article to which the registered design, or one not materially different, has been applied ( RDO, s 31(1)). What are infringing acts? Under RDO, s 31(2), infringement includes: carrying out any act reserved to the registered design owner’s exclusive rights manufacturing items that enable such articles to be produced in Hong Kong or abroad (for example, moulds or dies) undertaking any act in relation to a kit that would...
Historical and policy context arose in response to widespread piracy of government publications in the 19th century—particularly ordnance maps—which highlighted the necessity for copyright safeguards. Statutory began with the Copyright Act 1911, which confirmed in government works. It was recognised that the ordinary taxpayer should be shielded from the narrow commercial interests of a few who might secure private gain through unrestricted reproduction of ‘official matter’. The legend ‘ reserved’ was first applied in 1912. Under the transparency agenda of the 2010–15 Conservative and Liberal Democrat coalition government, there was a clear drive to open up government, in order to: strengthen public accountability support public service improvement by generating more comparative data and increasing user choice stimulate economic growth by helping third parties develop products and services based on public information Given the government’s promotion of open data and...
This Practice Note offers hands-on guidance on correctly signing simple contracts and deeds for limited partnerships established under the Limited Partnerships Act 1907 ( LPA 1907). We have created a collection that serves as a thorough, interactive tool enabling users to pinpoint and navigate the concepts and recurring issues arising on document execution. Each stage or step contains practical guidance, model clauses and Q& As pertinent to that part. For further details, see: Execution collection. Background Limited partnerships are a distinct form of partnership regulated by LPA 1907, which expressly retains the provisions of the Partnership Act 1890 ( PA 1890) and the equitable and common law rules applicable to partnerships, save where they conflict with the express terms of LPA 1907. Limited partnerships are extensively used in private equity and venture funds as investment fund vehicles. For broader background on limited...
How to Guide This Practice Note is a practical ‘how to’ on putting in place a power of attorney for a commercial deal and points readers to related material and supplementary guidance throughout. It flags relevant topics, such as what a power of attorney is, initial considerations, and drafting the instrument (covering the parties, scope of authority, substitution and delegation, duration, revocation, ratification and indemnity), as well as authorisations, cross‑border transactions and day‑to‑day practicalities, among other matters, as appropriate. A power of attorney is a device for conferring authority to act when the authorised individual is unavailable to act or sign a document. It exemplifies an agent’s express actual authority to act for a principal (see Practice Note: Forming enforceable contracts—agent's authority to contract). This ‘ How to Guide’ offers a high‑level primer on preparing powers of attorney for commercial matters and may suit...
This Practice Note outlines some standard IP definitions and clauses intended for use within agreements. IP definitions Set out below is a set of Precedents IP definitions for inclusion in the definitions and interpretation clause of an agreement......
ARCHIVED: This Practice Note is archived and is not being maintained or updated. It explains the law on unjustified threats of patent infringement as it stood immediately before amendment by the Intellectual Property ( Unjustified Threats) Act 2017 ( IP( UT) A 2017). Communications issued before 1 October 2017 continue to be governed by the previous regime for patents, trade marks and designs, as applicable, and not by the later reforms. All references here to the Patents Act 1977 ( PA 1977) are to that legislation as it existed prior to its amendment by the Intellectual Property ( Unjustified Threats) Act 2017 ( IP( UT) A 2017) effected on 1 October 2017. For guidance on the current threats regime, which applies to communications from 1 October 2017 onwards, see the maintained Practice Note: Unjustified threats of intellectual property right...
Trade mark rights before and after Brexit The aim of this Practice Note is to set out, at a glance, a summary of the various trade mark rights available in the UK before and after Brexit. From IP completion day (11.00 pm on 31 December 2020), the UK stopped participating in the EU trade mark ( EUTM) regime. Accordingly, the UK is no longer within the territory covered by an EUTM and is no longer subject to Regulation ( EU) 2017/1001, which was revoked on IP completion day by the Trade Marks ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/269. In consequence, the UK introduced a system under which holders of EUTMs on IP completion day automatically became proprietors of comparable UK trade marks. The same position applies to international trade mark registrations designating the EU. For further information about EUTMs, see: Trade marks ( EU...
This Practice Note offers an overview of the application and purpose of the UK law on unjustified threats. Anyone issuing a letter or other communication that alleges, or even suggests, infringement of an IP right in the UK should be mindful of the possibility of a threats claim (or counterclaim) being made against them. Outline of the threats regime From 1 October 2017, the UK threats regime has been governed by the reforms brought in by the Intellectual Property ( Unjustified Threats) Act 2017 ( IP( UT) A 2017). Under IP( UT) A 2017, a communication constitutes a ‘threat of infringement proceedings’ if a reasonable person in the recipient’s position would understand that: an IP right exists (a patent, a registered trade mark, a registered or unregistered design, or a published application for any of these), and someone intends to commence proceedings (in a UK court or...
For many companies, intellectual property rights ( IPRs) constitute an increasingly important and significant asset class. Although contemporary technology firms, pharmaceutical businesses and industrial players are most closely and very commonly linked with holding portfolios rich in IPRs, even the least likely organisations may own rights that are fundamental to them and, without which, they simply could not operate (or do so as effectively or profitably) or would suffer significant loss of value. As a broad category, IPRs are wide-ranging and inherently diverse indeed. According to context, there are, in particular, rights beyond the best known (patents, trade marks and copyright) that may—or may not—be generally regarded strictly as IPRs, such as database rights, websites with their associated domain names, goodwill and contractual rights allied to IPRs. For further detail on the principal types of intellectual property rights an insolvency...
This Practice Note This ‘how to’ resource on executing deeds directs you to the pertinent materials and guidance. It outlines what constitutes a deed, the criteria for validly executing one, signposts the execution rules for various bodies, notes further legal factors, and highlights practical tips for carrying out execution in practice. A deed is a particular type of written instrument required for specified dealings. To be valid and enforceable, deeds must be executed in line with statutory and common law formalities that demand more than a mere autograph. For wider, general guidance on executing deeds, with links to connected materials and in-depth commentary on deeds, see also Practice Note: Executing documents—deeds and simple contracts. We have created a collection that serves as an extensive, interactive tool to help users recognise and navigate the concepts and recurring issues when executing documents. Each stage or phase provides...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note sets out how to assess and adjust key contractual provisions so they are fit for use after 11 pm on 31 December 2020, the moment (known as IP completion day) when the implementation period for the UK’s departure from the EU concluded. It is primarily designed to support organisations updating their standard form contracts for post‑ IP completion day use, rather than revising live agreements, though it may assist with those too. While the underlying legal landscape has shifted considerably, most contracts are largely unaffected and English contract law itself remains unchanged. The Trade and Cooperation Agreement ( TCA) between the EU and the UK concerning their future relationship does not materially alter the consequences of the end of transition. For more detail, see: LNB News 24/12/2020 76 and LNB News...
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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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