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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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FORTHCOMING CHANGE: On 24 May 2024, the Digital Markets, Competition and Consumers Bill secured Royal Assent, was enacted as the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024), with some provisions commencing immediately. The unfair commercial practices regime in DMCCA 2024, Part 4, Chapter 1 took effect on 6 April 2025, disapplying and substituting the equivalent rules in the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 ( CPUTR 2008) from that date. However, sections 232, 234 and 235, which concern consumers’ rights to redress, have not commenced; until they do, Part 4A of CPUTR 2008 continues to regulate redress. The strengthened consumer protection enforcement powers likewise began on 6 April 2025. Measures still pending include the repeal of the Alternative Dispute Resolution for Consumer Disputes ( Competent Authorities and Information) Regulations 2015 ( Consumer ADR...
Intellectual Property Rights ( IPRs) give proprietors the practical ability to bar others from exploiting the protected subject matter. Blocking, or even threatening to block, third parties in this manner usually raises no issues under competition rules. Yet, in the relatively rare scenario where the IPR holder occupies a ‘dominant position’—that is, economic strength allowing it to operate, to a large degree, without effective competitive constraints—use of such exclusionary powers can sit uneasily with competition law. IPRs appear in several guises (eg trade marks, copyright, patents) and frictions may surface in multiple settings. Flashpoints most often involve patents and software copyright. Abuse of dominance under Article 102 TFEU EU case law recognises that dominance carries a special responsibility for the dominant undertaking. That responsibility obliges it to avoid forms of rivalry that are not ‘on the merits’. Because the contours of this notion are...
This Practice Note provides guidance on legal issues arising from the commercial use of photographs This Practice Note sets out guidance on legal matters that arise when photographs are used commercially. As photographs sit at the heart of many commercial ventures, businesses should adopt a cautious approach to securing and exploiting the necessary rights. It covers: photography and copyright law sourcing photographs key considerations when negotiating licence agreements special categories of photographs The Note is written on the basis that a business directly commissions a professional photographer. In many instances, an external agency will be instructed and will then engage a photographer; the same considerations will usually apply. See also the government’s Copyright notice: digital images, photographs and the internet. Alongside the intellectual property issues discussed in this Note, photographers and others using or otherwise processing photographs must also ensure...
This Practice Note was initially prepared for Lexis Advance® Practical Guidance Hong Kong. A patent is a statutory grant that affords its proprietor a bundle of exclusive rights. When exercised, those rights operate to exclude others from practising what lies within the patent’s ambit. The Patents Ordinance ( Cap 514) ( PO) is the legislation that regulates the creation of a Hong Kong patent, the exclusive rights it confers, their scope, and the manner of their use. The exclusive rights and the patent’s scope are prescribed in PO, Pt X. The scope is described as the extent of protection ( PO, s 76). Acts of infringement The exclusive rights granted to the proprietor are set out in PO, ss 73 and 74. By relying on these provisions, the proprietor may prevent third parties from both direct and indirect exploitation of the invention; these...
Practice Note This Practice Note sets out the principal issues in research services contracts from the standpoints of both the provider and the commissioning party. It assesses matters concerning the project scope and key staff, who secures regulatory permissions or approvals, any required third-party licences, available resources, the agreed reporting arrangements and process, fees, confidentiality, background and foreground intellectual property rights ( IPRs), handling of research outputs, trade marks, warranties, indemnities, limitations on liability and termination. These agreements are needed where a business is outsourcing research to a third party with specialist knowledge and skills. In practice, the research services provider might be a university or other academic institution, or a contract research organisation whose sole activity is delivering research services. For example, such arrangements are particularly prevalent in the pharmaceutical and biotechnology sectors, though they may equally be adopted in other areas. They are...
ARCHIVED This Practice Note is archived and is no longer maintained. It addresses the position where the UK and the EU fail to conclude arrangements on jurisdiction after the UK’s departure. Throughout the implementation period commencing on exit day, that is, the day the UK leaves the EU, the provisions of the withdrawal agreement will apply. For commentary on that period and its effect on jurisdiction, refer to Practice Note: Brexit implementation period—jurisdiction [ Archived]. This Note evaluates the consequences of the UK exiting the EU without a deal when addressing jurisdictional issues before courts in EU Member States, with particular focus on how the Brussels regime would be applied. It considers practical implications for proceedings and the treatment of jurisdictional rules accordingly in practice......
Intellectual property ( IP) agreements IP arrangements—such as technology licensing or collaborating on the creation of new technologies—can restrict competition. Yet their pro‑competitive advantages are acknowledged through block exemptions that offer a ‘safe harbour’ from Article 101, TFEU. Where a deal sits squarely within a relevant block exemption, only a brief review of Article 101, TFEU concerns is typically required. In practice, though, multiple block exemptions may seem to apply, and confirming that an agreement truly benefits from a safe harbour can be challenging—so a more pragmatic assessment of everyday commercial deals is often warranted. Most block exemptions share a common framework, and understanding this helps with application of the rules. Recitals: set out the overarching aim and rationale of the instrument. Definitions: clarify key terms that shape how the exemption should operate. Scope of the ‘safe harbour’:...
This Practice Note explains what electronic disclosure means and outlines the core tasks involved when handling electronic, or e‑disclosure, namely planning, collaboration, identification, preservation, collection, review and disclosure. It also addresses the approach to e‑disclosure at trial. ‘ Electronic disclosure’ concerns the management of substantial volumes of electronically stored information ( ESI), arising in a pre‑action or post‑issue setting. A sound grasp of e‑documents, e‑disclosure and your duties under CPR PD 31B (where applicable) is vital. For guidance on these aspects of disclosure, see the following Practice Notes: Disclosure in multi-track cases Case management—compliance Note: This Practice Note does not address the disclosure scheme operating in the Business and Property Courts. For relevant guidance, see: Disclosure Scheme ( Business & Property Courts)—overview. Principal sources of information Key sources on the process are: CPR 31 Practice Direction 31B concerning electronic...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have taken effect. Competitions started on or after that date must proceed under PA 2023, while procurements commenced under the earlier regime ( Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016, and Defence and Security Public Contracts Regulations 2011) must continue to be run and administered under those rules. The Cabinet Office has refreshed its suites of standard contract documents, templates and guidance for the government’s Model Services Contract, Mid‑ Tier Contract and Short Form Contract. These revised materials were released to coincide with the PA 2023 “go‑live” on 24 February 2025. This Practice Note will be revised shortly to take account of these changes. For further detail, see: News Analysis: Procurement Act 2023 “go live”—what happens next?, and Government model contracts updated for...
Boilerplate provisions in public sector contracts This Practice Note examines audit clauses within public sector agreements. For additional insight into what contracting authorities (and other interested parties) should understand when deploying boilerplate terms in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations. Public procurement reform 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 PA 2023 are in force, and procurements initiated on or after that date must proceed under PA 2023. The existing public procurement regime—including the Public Contracts Regulations 2015 ( PCR 2015) and Procurement Practice Notes ( PPNs), the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and...
STOP PRESS As at 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have commenced. Competitions launched on or after that date must proceed under PA 2023, while procurements started under earlier regimes must continue to be run and administered in line with those rules, including: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has also refreshed its standard contract document collections, templates and guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go-live’ on 24 February 2025. This Practice Note will be revised shortly to reflect these developments. In the interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and Government model...
IP licence An IP licence permits a licensee, with the licensor’s consent, to use IP rights that they would not be able to exploit otherwise. An IP licence may stand alone as a dedicated IP licence agreement, or be incorporated within a broader contract, eg where specified IP rights are licensed under a commercial deal, project, or collaboration. This negotiation guide highlights the principal components of an IP licence clause suitable for insertion into a wider agreement. For example IP licence clauses, see Precedents: Intellectual property rights licence clause—pro-licensor and Intellectual property rights licence clause—pro-licensee, for reference as set out here......
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ARCHIVED: This Practice Note is archived and not maintained. The implementation period that allowed the UK to disengage from the EU’s laws and institutions ended at 11 pm ( GMT) on 31 December 2020. At that time (described in this Practice Note as ‘ IP completion day’), the UK’s legal framework altered immediately and markedly. This note outlines the consequences for distribution. How does Brexit impact distribution? The appointment of a distributor in the UK is governed principally by the common law of contract and will, in large part, be unaffected after IP completion day. However, where business is conducted across borders with distributors in other jurisdictions, including EU Member States, those distributors may benefit from local rules that provide stronger protections than those under UK law. For further information see: Lexology Panoramic: Distribution and...
Declaration of a director's interests Any director who, whether directly or indirectly, has an interest in either of the following must, subject to limited exceptions, disclose to the other directors the nature and extent of that interest in line with the Companies Act 2006 ( CA 2006): a proposed transaction or arrangement with the company of which they are a director; or a transaction or arrangement already entered into by the company of which they are a director. For more detail, refer to the comprehensive Practice Note: Declaration of a director's interests—the statutory provisions. For practical help in determining precisely when an interest requires disclosure, see Flowcharts: Declaration of a director's interests—proposed transaction or arrangement and Declaration of a director's interests—existing transaction or arrangement. Some or all of the statutory rules on declaring a director's interests could also potentially extend to other companies and entities of various types;...
This Practice Note explores Directive ( EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the EU Digital Single Market ( EU DSM Copyright Directive). It provides a concise high level outline of the background to, and the individual detailed articles of, the EU DSM Copyright Directive, and highlights debate over the wording of particular provisions, such as Article 15 on rights in press publications and Article 17 on use of protected content by online content sharing service providers ( OCSSPs). The Practice Note also considers the status of the EU DSM Copyright Directive in the UK and points of divergence between the UK and the EU on key provisions. The EU DSM Copyright Directive amended Directive 96/9/ EC on the legal protection of databases ( EU Database Directive) and...
ARCHIVED This archived Practice Note outlines information on the Digital Economy Act 2010 and the early use of s 97A website blocking. It is provided purely for background reference and is not being maintained. For guidance on website blocking, see Practice Note: Website blocking orders. The Digital Economy Act 2010 ( DEA 2010) obtained Royal Assent on 8 April 2010. Many measures aimed at tackling online copyright infringement, to curb unlawful file-sharing, were intended to commence on that date or in June 2010. DEA 2010 inserts new sections 124A to 124N into the Communications Act 2003 ( CA 2003). Once a supporting code, approved or made by Ofcom, is in place, qualifying Internet service providers ( ISPs) will be required to meet duties set out in that code. Those obligations will be underpinned by a code approved by Ofcom or, if no industry code is...
Introduction This guide provides swift access to Precedents relevant to design infringement, including a letter of claim and the principal statements of case needed to commence and conduct design infringement proceedings... Precedents Cease and desist letter— IP infringement See Precedent: Cease and desist letter— IP infringement. This Precedent is a concise cease and desist letter used as an opening move in disputes involving infringement of IP rights. It is drafted broadly so it can address breaches of any core IP rights, and is intended for use where the rights holder seeks a prompt resolution without progressing to further action. It is not a formal ‘letter of claim’; rather, it is an informal approach that omits proposed undertakings and aims to secure the recipient’s co-operation... Short-form first step in IP disputes Broadly framed for key IP rights Designed to resolve matters swiftly Not a formal letter of...
This Practice Note This Practice Note offers hands-on advice on how the UK film and photography sectors have evolved to meet data protection requirements, grounded chiefly in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), and the Data Protection Act 2018. It further provides targeted guidance on the Information Commissioner’s Office’s ( ICO) Data protection and journalism code (the Code), as well as how data protection rules affect release agreements. This Practice Note presumes a basic understanding of UK data protection law. For an introduction to the overarching principles, see the following Practice Notes: Introduction to the EU GDPR and UK GDPR The Data Protection Act 2018 and the UK GDPR The UK media and creative industries, which generate and publish visual material depicting people, have confronted awkward choices in interpreting data protection...
This Practice Note offers an introduction to cybersquatting. It involves registering a domain name that incorporates another business’s trade mark with the purpose (or consequence) of taking unfair advantage of that mark. It also encompasses typosquatting, being the registration of a domain name featuring a misspelt version of another party’s trade mark. There are several avenues to pursue action against cybersquatters, including Nominet’s Dispute Resolution Service ( DRS) and the Uniform Domain Name Dispute Resolution Policy ( UDRP)... What is cybersquatting? Also referred to as domain name squatting, it is the bad-faith registration of a domain name that matches or is confusingly similar to a trade mark or name, with the intention of profiting from the goodwill attached to that mark or name. The practice exploits the trade marks of businesses, individuals, or other entities, aiming to secure commercial benefit for 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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