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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. Proposals from the UK and the EU on transitional arrangements for applicable law will be a pivotal concern for UK litigators. This Practice Note examines in detail how Brexit will influence the process of identifying the applicable law once the UK departs the EU. At present, that choice is governed by Regulation ( EC) 593/2008 ( Rome I) and Regulation ( EC) 864/2007 ( Rome II). The Note distils the respective positions of the UK and the EU and assesses the likely potential outcomes as the UK leaves the EU. It also flags issues that may surface on exit and considers potential alternative regimes that could support the determination of the applicable law. Finally, it addresses the drafting of an applicable law clause. Applicable law is sometimes described as the governing law. For...
ARCHIVED This Practice Note is archived and no longer updated. It brings together closed legislative proposals, issued judgments and concluded consultations from 2017–2022, which are omitted from the current Trade marks tracker— UK and Trade marks tracker— EU as they do not relate to the present year. To follow live legislative proposals, pertinent judgments, consultations, guidance and reports on trade marks, consult Practice Notes: Trade marks tracker— UK and Trade marks tracker— EU. For archived UK trade marks material from 2023–2024, see Practice Note: Trade marks tracker— UK 2023–2024 [ Archived]. Legislation For up-to-date legislation, see Practice Notes: Trade marks tracker— UK— Legislation, consultations, guidance and reports and Trade marks tracker— EU— Legislation, consultations, guidance and reports. For archived UK legislation, consultations, guidance and reports from 2023–2024, see Practice Note: Trade marks tracker— UK 2023–2024 [ Archived]— Legislation, consultations, guidance and...
General Throughout the duration of an agreement (and sometimes afterwards), one or more of the parties may wish to notify third parties about particular matters relating to the existence of the agreement, its subject matter, or developments arising from the operation of the agreement. The kind of information envisaged is that typically found in public announcements or press releases issued by one or more of the parties (eg to brief investors, prospective investors, the media, potential customers, or regulatory authorities). Such announcements are usually distinct from information generated through the performance of the agreement itself (eg in a consultancy arrangement, the consultant might produce routine reports on the tasks undertaken and supply that information to its client and, in some cases, to third parties). Nevertheless, the parties will not wish to permit each other to disclose information to third parties without restraint and will...
This Practice Note outlines the key alternatives to litigation for resolving IP disputes. Alongside conciliation, mediation, arbitration and expert determination, it assesses the pros and cons of ADR against court action and offers practical guidance. Litigation is frequently costly, slow and uncertain; hence, when informal negotiation has failed, ADR is an attractive means of settling disputes, including IP matters. ADR denotes processes outside the courts through which parties resolve their differences with the assistance of neutral intermediaries. Types of ADR include: conciliation expert determination arbitration mediation ADR can address issues across all categories of IP, from patents to domain names. It is relevant to any dispute, including alleged infringements, disagreements over licensing, and disputes concerning development or even settlement agreements. See Practice Note: Which form of...
Introduction Once a security interest has been properly created, it binds the security provider and the secured party. That said, it does not automatically bind others, such as a liquidator or administrator of the provider. In many situations, additional steps are needed to 'perfect' the security. Perfection is the process by which a security becomes enforceable against certain third parties (though not necessarily all). For guidance on which third parties may remain unaffected even after perfection, see The difference between perfection and priority below. There are several methods of perfection, and the appropriate approach for any given security interest depends on: the nature of the security interest granted the nature of the entity granting the security, and the nature of the asset which is secured For further explanation of the purpose of perfection and the available methods, see Practice Note: Perfecting...
This Practice Note reviews service of the claim form where a contract between the parties sets out an agreed method for serving court documents. It explains the requirements for service of the claim form under CPR 6.11. For guidance on: contractually agreed methods of service, see Practice Note: Contractually agreed methods of service methods of service in the jurisdiction, see Practice Note: Service in England and Wales—a guide for dispute resolution practitioners methods of service out of the jurisdiction, see Practice Note: Cross-border service—methods of effecting service The claim form— CPR 6.11 requirements CPR 6.11 addresses situations where the parties have contractually agreed a method of service or a place for service of the claim form. The following must be observed: Requirement: the claim must be solely in respect of that contract. Judgment: this was considered in Taberna Europe CDO II PLC v...
Many companies aim to promote their goods or services by drawing comparisons with a rival to secure a commercial edge. For example, a business might present its products as superior in quality or more competitive in price than a competitor’s. The law in this area seeks to balance the various interests affected when comparative advertising is permitted. In short: adverts may point out comparable features of products to consumers, but adverts must not distort competition, harm trade mark proprietors, or negatively impact consumer choice Content This Practice Note examines the following areas: What is comparative advertising? Legal framework What conditions must be satisfied for a comparative advert to be lawful? How does comparative advertising relate to trade mark law? Enforcement in the UK See also: —checklist. What is comparative advertising? It is defined as any advertising which, expressly or by...
Introduction Copyright is an IP right that grants an individual the exclusive control over how their original work is copied, disseminated or otherwise dealt with by third parties. The principal statute regulating and setting out copyright in China is the Copyright Law of the People’s Republic of China (the “ Copyright Law”), first officially enacted in 1990 and subsequently formally revised in 2001, 2010 and 2020. What is copyright? Copyright is an IP entitlement that safeguards a person’s exclusive right to reproduce, publish, distribute or sell their original creation. It protects the expression of an idea rather than the idea itself. For copyright to subsist lawfully, a work must be original and capable of reproduction. Broadly speaking, the categories of works that qualify for protection in Europe will similarly qualify in China. Creative outputs, including books, music, sound recordings, plays, films, paintings, sculptures and...
ARCHIVED This Practice Note is archived and not maintained. It is designed to outline the principal changes introduced by the recast of Brussels I and to describe the transitional arrangements so you can decide whether the new provisions apply to the matter you are handling. It was produced in January 2015 and will not be updated. The links in Related Documents are to maintained documents and give the up to date position. Transitional arrangements Under art 66, Brussels I (recast) applies only where the relevant events occur on or after 10 January 2015. Those events are: legal proceedings have been commenced authentic documents have been prepared or registered court settlements have been approved or concluded Warning Art 80 states that Brussels I (recast) repeals Brussels I. However, art 66 makes clear that, despite that provision, Brussels I continues to apply to judgments in...
Date News Analysis Brief description of News Analysis 9 September 2021 Deadline for filing for UK trade mark or design right approaching LNB News 09/09/2021 100 The cut-off to submit a UK trade mark or design right, while relying on the earlier filing date of EU trade marks and design applications pending before 1 January 2021, is drawing near rapidly. Applicants have until 30 September 2021 to seek registration of the corresponding EU trade mark or design as a UK right, claiming the earlier filing date of the pending right, plus any valid international priority on the pending EU application, together with any recorded UK seniority claims that are attached to that pending EU file. Once submitted, the Intellectual Property Office will regard the pending EU application as a UK filing and assess it in accordance with UK law instead. 6 July 2021 European Commission withholds consent for UK to accede to...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note examines how Brexit affects the service of court papers within the EU when the UK leaves the EU. It reviews the present framework under Regulation ( EC) 1393/2007 (the Service Regulation), outlines the UK and EU stances respectively, and sketches probable scenarios on the basis of information available. It also looks at challenges that could surface on exit and the alternative regimes that might support service of judicial and extra-judicial documents within the EU when seeking to serve parties there. For insight into routes to a deal or no deal outcome, see the House of Commons Exiting the EU Committee report, The progress of the UK’s negotiations on EU withdrawal ( June to September 2018), paragraph [35], which includes a helpful...
ARCHIVED: This Practice Note is archived and is no longer maintained. The transition period created to enable the UK to move away from the EU’s laws and institutions ended at 11 pm ( GMT) on 31 December 2020. That point in time, referred to in this Practice Note as ‘ IP completion day’, resulted in an immediate and significant shift to the UK’s legal framework. This Practice Note outlines the implications of that shift for agency. How does Brexit impact agency? Agency law Agency law in the UK stems from the common law and, for the most part, was unaffected by IP completion day; see Practice Notes: Nature and types of agency and What does IP completion day mean for contract clauses? [ Archived]. Commercial agency arrangements in the UK are governed by the Commercial Agents ( Council Directive) Regulations 1993, SI 1993/3053 (...
ARCHIVED : This Practice Note is archived and no longer maintained. It reviews how the settlement rules apply from the UK’s exit from the EU on 31 January 2020 through to the end of the implementation period, which the EU describes as the transition period. It also examines whether that period can be extended, whether the settlement framework in the Mediation Directive 2008/52/ EC and the European Directive 2013/11/ EU on ADR operates during the implementation period, and the position thereafter. For a quick-reference Brexit research aid answering key Brexit questions and offering useful updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and resources. Definitions This Practice Note uses a number of definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—defined in EU( W) A 2018, s...
Commercial Brexit News Analysis Lexis Nexis® Commercial has issued News Analysis on a range of matters relating to the consequences of Brexit, summarised below. 16 October 2023 — Weekly round-up of HMRC import, export and customs guidance—16 October 2023, LNB News 16/10/2023 19: Details of alterations to HMRC import, export and customs guidance for 10–16 October 2023. 3 October 2023 — Weekly round-up of HMRC import, export and customs guidance—3 October 2023, LNB News 03/10/2023 32: Information on updates to HMRC import, export and customs guidance covering 26 September 2023–3 October 2023. 25 September 2023 — Weekly round-up of HMRC import, export and customs guidance—25 September 2023, LNB News 25/09/2023 32: Notes on changes to HMRC import, export and customs guidance for 20–25 September 2023. 19 September 2023 — Weekly round-up of HMRC import, export and customs...
ARCHIVED : This Practice Note has been archived and is not maintained. It examines the impact of Brexit on contractual boilerplate provisions ahead of IP completion day. For information on the effect of IP completion day on boilerplate clauses, see Practice Note: What does IP completion day mean for contract clauses? The United Kingdom’s departure from the European Union on exit day, the implementation period, and the period thereafter each carry implications for the drafting, negotiation, and enforcement of contracts governed by English law. This Practice Note focuses specifically on the effect of Brexit on boilerplate clauses. ‘ Boilerplate’ refers to those provisions within an agreement that govern its operation and address legal points relevant to most transactions. Such terms are typically found at the beginning and the end of an agreement. Although often viewed as standard or...
ARCHIVED This Practice Note is archived and is not maintained or updated. It examines how Brexit could affect businesses’ contractual rights and duties for a business, and explores what Brexit means for managing contract risk in advance of IP completion day. For further information and guidance on the impact of IP completion day on contracts and, more generally, on commercial law, see Practice Notes: What does IP completion day mean for contract clauses? and What does IP completion day mean for Commercial? The Note evaluates the effects of Brexit on companies’ contractual rights and obligations and addresses the ramifications of Brexit for contract risk management in practice. It offers practical step-by-step guidance on identifying contractual risk to businesses arising from Brexit and on conducting a Brexit risk-management contract audit and contract review process. See also: Brexit risk management: contract...
ARCHIVED: This Practice Note has been archived and is not maintained. The UK and EU’s tailored proposals for allocating jurisdiction in disputes will be a central concern for UK practitioners. This Practice Note examines how Brexit will influence the identification of jurisdiction and the interpretation of choice of court agreements on the UK’s exit from the EU. It first explains the present regime under Regulation ( EU) 1215/2012, Brussels I (recast). It then outlines the respective approaches of the UK and the EU and weighs the likely outcomes, so far as the current information permits. The Practice Note highlights issues that may surface when the UK leaves the EU. It also reviews alternative frameworks that may assist with jurisdiction determinations, namely the Hague Convention on Choice of Court Agreements and the Lugano Convention 2007. Finally, it addresses the drafting of a...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explores how Brexit may affect the determination and settlement of disputes through mediation or other forms of Alternative Dispute Resolution ( ADR) when the UK leaves the EU. It reviews the current position: the Mediation Directive 2008/52/ EC, implemented in England and Wales by the Cross- Border Mediation ( EU Directive) Regulations 2011, SI 2011/1133; and the relevant ADR directive, European Directive 2013/11/ EU on ADR, which amends Regulation ( EC) 2006/2004 and Directive 2009/22/ EC. That latter directive was transposed into the law of England and Wales by the ADR for Consumer Disputes ( Competent Authorities) Regulations 2015, SI 2015/542. The note then summarises the respective positions of the UK and the EU, considers likely potential outcomes arising on the UK’s exit from the EU, and...
ARCHIVED: This Practice Note has been archived and is no longer maintained or updated. It examines the impact of Brexit on the relevant rules for identifying the applicable (governing) law and the competent jurisdiction in the context of consumer contracts and disputes. Background On 31 January 2020 (exit day), the UK left EU membership and forfeited its right to take part in the political institutions and governance structures of the EU itself. Consistent with the transition provisions in Part 4 of the Withdrawal Agreement, exit day triggered an eleven‑month implementation phase in duration, during which the EU continued to regard the UK as a Member State for many purposes. This phase lasted until 11 pm on 31 December 2020, a date and time known as IP completion day. Throughout the implementation period, the UK was required to continue to comply fully with its duties under EU law...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have come into effect. Any procurement launched on or after that date must follow PA 2023, whereas those started under the prior regime must continue to be run and overseen under that framework. Earlier legislation includes: 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 changes. In the meantime, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and...
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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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