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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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ARCHIVED : This Practice Note has been archived and is not maintained From 31 January 2020 (exit day), the UK ceased to be an EU Member State and its relationship with the EU is governed by the Withdrawal Agreement, which took effect on 1 February 2020. Under the Withdrawal Agreement, on exit day the UK entered an implementation period, during which it continues to be regarded as a Member State for many purposes, including trade. As a third country, the UK can no longer take part in the EU’s political institutions, agencies, offices, bodies and governance structures (save to the limited extent agreed), but the UK must continue to comply with EU law and remain subject to the continuing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in the Withdrawal...
Background This Practice Note offers an overview of the main comparative themes between the UK and the EU regarding patents and supplementary protection certificates ( SPCs), emerging since the UK’s exit from the EU on 31 December 2020 ( IP completion day). For comparisons of other IP rights across the UK and EU, refer to the following Practice Notes: Copyright and databases— UK/ EU comparison Trade marks— UK/ EU comparison Designs— UK/ EU comparison Across the EU, IP law is extensively harmonised. Before Brexit, numerous elements of UK IP law aligned with the EU framework, and some unitary EU IP rights (including EU trade marks and EU designs) applied and could be enforced in the UK. On 31 January 2020, the UK left EU membership. Under the Withdrawal Agreement, an 11‑month implementation period followed, ending at 11 pm on IP...
Design rights The tables in this Practice Note outline the principal distinctions between the different unregistered and registered design rights in the UK. The design rights presently available in the UK are: UK registered designs (including re-registered designs and re-registered international designs) UK unregistered design right (also referred to as ‘design right’) supplementary unregistered design right ( SUD) Each right varies by eligibility requirements, scope, and the length of protection, as set out in the table below. This Practice Note addresses the UK design rights in force after IP completion day (11.00 pm on 31 December 2020). For details on the position before IP completion day, see Practice Note: Design rights before and after Brexit—comparison table. For information on the EU design framework, see Practice Note: EU designs, and for how the UK and EU regimes are diverging post- Brexit, see...
ARCHIVED: This Practice Note is archived and no longer updated. It examines the impact of Brexit on consumer protection, reflecting developments up to 6 January 2021. For information on the effect of IP completion day on consumer protection, and for developments in this area, see Practice Note: What does IP completion day mean for consumer protection? The Note explores Brexit’s implications for consumer protection, with particular regard to regulating business-to-consumer ( B2C) contracts and trading conduct, as well as enforcement and consumer remedies. It also addresses enforcement mechanisms and the avenues of redress open to consumers. Consumer protection law in the UK stems in part from EU law and in part from domestic UK law. In many respects, the immediate effects of Brexit have been muted in consumer protection, given the EU’s regulatory fragmentation and the fact that EU Member States routinely navigate bespoke...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
Background This Practice Note offers a concise overview of the principal areas of comparison between the UK and the EU on copyright and rights in databases arising since the UK’s departure on 31 December 2020 ( IP completion day). It also considers the effect of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) on UK copyright and database law. For comparisons covering other IP rights between the EU and the UK, see the following Practice Notes: Patents and SPCs— UK/ EU comparison Trade marks— UK/ EU comparison Designs— UK/ EU comparison IP law is extensively harmonised across the EU. Before Brexit, many elements of UK IP law were aligned with the EU regime, and certain unitary EU rights (such as EU trade marks and EU designs) applied and could be enforced in the UK....
Pharmaceutical patents This Practice Note examines pharmaceutical patents and the implications of regulatory regimes governing the authorisation of new medicinal products. Pharmaceutical patents (pharma patents) typically address: chemical compounds that are effective in treating disease therapeutic uses of those compounds in managing illnesses formulations that present the compounds as medicines processes for manufacturing the compounds For detail on patents covering new chemical entities and small molecules, see Practice Note: Patents for new chemical entities and small molecules; for biotechnology-focused protection, see Practice Note: Biotechnology patents. Notwithstanding Brexit, the UK remains within the European patent architecture because the European Patent Office ( EPO) and the European Patent Convention ( EPC)—the treaty that sets out the procedure for granting European patents via the EPO—operate independently of the EU. The UK is now simply another non‑ EU EPC contracting state, alongside Norway,...
Introduction to patent proceedings In England and Wales, patent disputes sit within the civil jurisdiction of the courts, which apply the substantive statutory framework — the Patents Act 1977 ( PA 1977), as amended — together with the common law, and decide cases in accordance with the procedural regime of England and Wales, as set out in the Civil Procedure Rules ( CPR). Actions for patent infringement are brought before the Patents Court or the Intellectual Property Enterprise Court ( IPEC), both of which are part of the Business and Property Courts of the High Court ( Chancery Division). The courts of England and Wales may grant remedies in patent matters at the pre-litigation stage, during proceedings, or on final disposal, and such relief may stem from powers granted by PA 1977, the common law, or by procedural rules. In awarding remedies, the courts must also...
Grounds of patent revocation Patents can be revoked (ie taken off the patents register) where they are found invalid in some respect. A revoked patent is treated as though it never existed. The statutory bases for revocation are contained in section 72 of the Patents Act 1977 ( PA 1977). These include that the invention is not patentable (eg it lacks novelty, inventiveness or industrial applicability) and that the specification fails to disclose the invention with sufficient clarity and completeness for a person skilled in the art to put it into effect. This deficiency is called ‘insufficiency’. This Practice Note focuses on patent invalidity arising from insufficiency. For details on other invalidity grounds, see the following Practice Notes: Patent invalidity—grounds of revocation Patent invalidity—obviousness Patent invalidity—lack of novelty Claim...
The orphan works problem Orphan works are copyright works where the rights holder is unknown or cannot be found. Examples include: books films music photographs The Copyright, Designs and Patents Act 1988 ( CDPA 1988) grants the copyright owner exclusive rights in the UK to perform various acts in relation to a copyright work. Acts set out in CDPA 1988—such as copying and communicating to the public—carried out by anyone other than the owner, without permission, may infringe those exclusive rights. As a result, orphan works cannot be copied or published without the rights holder’s consent without risking copyright infringement. This limits their use in, for example: books TV programmes exhibitions websites For further context on where orphan works sit within copyright and associated rights, see: Copyright & associated rights—overview. The orphan works problem has led to large volumes of...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note is archived and no longer maintained. It addresses the scenario in which the UK and the EU do not conclude an agreement on jurisdiction following the UK’s exit from the EU. Across the implementation period starting on exit day (ie the date the UK leaves the EU), the provisions of the withdrawal agreement will apply. For guidance on the implementation period and the effect of the withdrawal agreement on jurisdiction, see Practice Note: Brexit implementation period—jurisdiction [ Archived]. The Note assesses the impact of the UK departing the EU on exit day without a deal on jurisdictional issues in UK court proceedings that involve EU Member States. Exit day has the meaning assigned by section 20 of the European Union ( Withdrawal) Act 2018, as amended......
ARCHIVED : This Practice Note addresses the scenario where the UK and the EU fail to reach any accord on settlement procedures after the UK’s departure from the EU. Throughout the implementation period commencing on exit day—the date the UK leaves the EU—the provisions of the withdrawal agreement will apply. For guidance on the implementation period and the effect of the withdrawal agreement on taking of evidence, see Practice Note: Brexit implementation period—settlement [ Archived]. This Practice Note examines the implications of the UK leaving the EU without a deal for the mediation of disputes in civil and commercial matters. There are two principal UK instruments relating to a no deal Brexit and mediation. The first is The Cross– Border Mediation ( EU Directive) ( EU Exit) Regulations 2019, SI 2019/469, which sets out the revocation and saving of the Cross Border Mediation ( EU...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note, prepared in collaboration with Guy Pendell, Liz Williams and Kushal Gandhi of CMS, addresses the scenario in which the UK and the EU do not secure an agreement on jurisdiction after the UK’s departure from the EU. Throughout the implementation period beginning on exit day—the day the UK leaves the EU—the provisions of the withdrawal agreement will apply. For guidance on that period and the withdrawal agreement’s effect on jurisdiction, see Practice Note: Brexit implementation period—jurisdiction [ Archived]. This Note considers the implications of the UK leaving the EU on exit day without a deal for jurisdictional issues in UK court proceedings that involve the European Free Trade Association ( EFTA) States that are parties to the Lugano Convention 2007, namely Iceland, Norway and...
ARCHIVED : This Practice Note addresses the position that arises where the UK and the EU fail to reach arrangements for the cross-border enforcement of judgments after the UK’s departure from the EU. During the implementation period that commences on exit day—that is, the day the UK leaves the EU—the provisions of the withdrawal agreement will apply throughout that period for enforcement. For guidance on the implementation period and the effect of the withdrawal agreement on enforcement, see Practice Note: Brexit implementation period—enforcement [ Archived]. This archived note examines, in particular, the implications of a no-deal exit for the enforcement of judgments arising from civil and commercial claims under the following instruments, namely: Brussels Convention, Regulation ( EC) 44/2001 ( Brussels I), Regulation ( EU) 1215/2012 ( Brussels I (recast)), Lugano Convention 2007 and EC- Denmark...
ARCHIVED: This Practice Note is archived and not maintained. It addresses the position at the close of the implementation period after the UK’s departure from the EU. Throughout the implementation period, which begins on exit day (ie the day the UK leaves the EU), the provisions of the withdrawal agreement apply. For guidance on the implementation period and the effect of the withdrawal agreement on service, see Practice Note: Brexit implementation period—applicable law [ Archived]. This note considers the consequences of the UK leaving the EU without a deal for deciding which law governs a dispute, ie the applicable law (also referred to as governing law). The principal UK measure addressing a no deal Brexit and applicable law is The Law Applicable to Contractual Obligations and Non- Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834, which modifies two EU...
This Practice Note sets out pragmatic guidance on moving goods among the UK, Northern Ireland and the Republic of Ireland (and between these territories and other EU Member States). It also explains what to do where consignments could be deemed at risk of entering the EU, and outlines how companies can seek authorisation to move goods into Northern Ireland. Introduction During negotiations over the United Kingdom’s withdrawal from the European Union ( Brexit), both sides recognised the need to safeguard the 1998 Northern Ireland peace settlement (the Good Friday Agreement). The challenge was devising a workable answer to the reality that the Republic of Ireland would stay within the EU single market, while Northern Ireland would leave the EU alongside the UK. The initial approach proposed that the UK, including Northern Ireland, would continue within the EU customs union until a...
Meditech scenario on database right and database copyright This training scenario sits alongside Precedent: Rights in databases—training materials, as companion guidance. It is intended to support newcomers in applying what they have learnt, and in developing a fuller, more confident understanding of the topic. Background facts: Meditech delivered a health screening service to Custech through an internet-based analysis and reporting platform. A medical device captured a patient’s reading, and those readings were stored as patient data for later reference. The patient data were then entered into the platform using a web-based processing system, and subsequently reviewed by a qualified professional who chose from a range of menu options. These menus corresponded to variables held within a database system within the platform. The database comprised a series of classifications of relevant physical characteristics, such as resting heart rate, as recorded by the device. For each...
Practice Note This Practice Note outlines how mediation operates in IP disputes, highlighting core practical points and the documents commonly employed. an overview of mediation which disputes are suitable for mediation the appropriate timing for mediation selecting a mediator what a mediation agreement should contain key documentation preparing and planning for mediation how the session is run settlement and costs It also considers the mediation service provided by the UK Intellectual Property Office ( IPO). Mediation is a voluntary, confidential process through which two or more parties seek to reach a negotiated resolution of a dispute. The parties undertake it with the assistance of an impartial third party (the mediator) who facilitates progress towards agreement. There is nothing distinctive about mediating an IP dispute when compared with other disputes. The way any mediation is...
Understanding the IP portfolio Effective stewardship of an IP portfolio is vital to protect and enhance the worth of a business’s intangible assets. A well-structured portfolio enables right holders to pinpoint and safeguard core assets, advance commercial aims, and limit legal and financial risk. This Practice Note offers practical guidance for UK right holders and their advisers on running an IP portfolio efficiently. It spans legal compliance (keeping rights valid, current and accurately recorded) and strategic management (aligning IP protection with business goals). What is an IP portfolio? An IP portfolio is the collective set of registered and unregistered IP rights an organisation owns, holds under licence or otherwise controls. It functions as both a legal architecture and a commercial asset base that can generate income, attract investment and deliver competitive advantage. Portfolio management involves systematically recording, protecting, monitoring and exploiting these rights to ensure they...
This Practice Note This Practice Note provides a concise summary, setting out the procedure for applying for and registering international trade marks ( IRs). It highlights the role of WIPO, the Madrid Agreement 1891 and the related Madrid Protocol. The Madrid System enables trade mark proprietors to obtain protection in numerous countries via a single process. It is founded on two separate treaties: the Madrid Agreement 1891 (the Agreement) the Protocol Relating to the Madrid Agreement (which took effect on 1 April 1996) (the Protocol) Each treaty provides for the international registration of trade marks for goods or services and operates, essentially, as a filing system. Relying on a home registration or application, a trade mark owner can file with WIPO in Geneva for an IR, designating the jurisdictions where protection is required. The mark is then recorded and published by the...
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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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