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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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This Practice Note sets out UK law on employee inventions, explaining when and how a worker who devises something in the workplace may either retain ownership of what they created, or, where they do not own it – for example because they are employed to invent – the situations in which they can demand compensation from their employer for developing an invention that delivers substantial value to the company. Many staff involved in research and development ( R& D) generate products and processes that produce significant financial returns for their employers. In defined circumstances, where an employee has devised an invention in the course of their duties, they are entitled to seek compensation from the employer, even if the role means they were ‘employed to invent’ because part of their working time is spent making inventions. This acknowledges the employee’s...
This Practice Note This Practice Note outlines the available routes for recording a settlement, including by correspondence, by contract or deed, and via a Tomlin order or consent order. It examines the pros and cons of each approach, addressing the often tricky question of when an offer to settle is actually accepted, together with the related point about the footing on which negotiations take place (for instance, ' Without prejudice save as to costs' and/or ' Subject to contract'). It also details execution formalities for settlements effected by contracts and deeds, and includes example wording for counterparts. For help with making an offer to settle, see Practice Note: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36). For guidance on drafting the terms of a settlement agreement (whether signed as a contract or a deed), see Practice Note: Settling...
This Practice Note sets out a concise overview of mechanisms for enforcing copyright across borders. An international system of copyright enforcement Copyright is a territorial intellectual property right, safeguarding a work only within the bounds of a single country. As early as the nineteenth century, this limitation was acknowledged as a challenge for rights holders. Copying abroad became simpler, yet owners had no recourse, since their rights were recognised solely in their home jurisdiction and carried no force beyond it. As a result, demands grew for a unified international approach to copyright. Such a framework now operates, built on four conventions. Central to it is the rule of national treatment: a copyright holder is treated as though they are a national of the country where the infringement occurs and may invoke that country’s copyright laws. Those wishing to rely on this...
Copyright theft Unauthorised use of copyright is a criminal matter under the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Trade Marks Act 1994 ( TMA 1994) and the Video Recordings Act 1984 ( VRA 1984). It may alternatively be brought under the Fraud Act 2006 ( Fr A 2006), or pursued as a conspiracy contrary to the Criminal Law Act 1977 ( CLA 1977), or at common law as conspiracy to defraud. See Practice Notes: Conspiracy and Conspiracy to defraud. Cases can be taken by the Crown Prosecution Service or by trading standards. Enquiries may call on HM Revenue and Customs, the UK Border Agency and the National Crime Agency. Most CDPA 1988 offences—namely those in CDPA 1988, s 107(1)(a)–(b), (d)(iv) and (e)—are either-way, meaning trial may occur in the magistrates’ court or the Crown Court. They are treated as the graver...
Practice Note This Practice Note offers practical direction on how companies should execute documents after 6 April 2008 (being the date on which the pertinent provisions of the Companies Act 2006 ( CA 2006) took effect). It addresses the execution of deeds by companies, and the execution of simple contracts by and on behalf of companies. If advising on documents signed before 6 April 2008 (for instance, in a dispute), practitioners should consider the relevant provisions of the Companies Act 1985. Throughout, it is assumed the executing company is a private company subject to CA 2006 and that the document is in writing. For execution points relevant to other legal entities, see: Execution—overview. We have assembled a collection that serves as a comprehensive, interactive resource to help users identify and work through the concepts and common issues that arise when executing...
This Practice Note outlines the role of the B& PCs, which determine specialist business matters and other international dispute resolution and business cases in England and Wales. Procedural guidance applicable in the B& PCs is contained in CPR 57A and CPR PD 57AA. It explains which courts sit within the B& PCs, the steps for starting proceedings in a B& PC—including electronic issue—and how to frame the claim title. It also addresses moving cases to or from a B& PC. This Practice Note should be read alongside Practice Note: Dispute Resolution—judicial practice notes and guidance, which links to further guidance issued by the judiciary from time to time and which is relevant to the B& PCs... What are the ? The B& PCs hear specialist business and other international dispute resolution and business cases in England and Wales, whether domestic or...
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
Parties often wish to stipulate that the entirety of their contractual relationship is governed by the written agreement they have signed. This is known as an ‘entire agreement clause’. This Practice Note examines why such clauses are used and the principal issues relevant to their operation, including the interplay between entire agreement clauses and implied terms, misrepresentation, fraud and exclusion clauses, non-reliance statements, and broader matters of evidential estoppel and contractual estoppel. For further guidance on construing the scope of parties’ contractual obligations, see Practice Notes: The parol evidence rule in interpreting contracts Contract interpretation—admissibility of surrounding documents and related content What is an entire agreement clause? At its simplest, an entire agreement clause provides that the whole of the parties’ contractual dealings is governed exclusively by the terms contained in their written contract. Consequently, when interpreting the contract, the court is...
Practice Note: The duty of fidelity and fiduciary duties As explained in Practice Note: The duty of fidelity and fiduciary duties, an implied duty of fidelity in every contract of employment will ordinarily prevent an employee from revealing to third parties confidential material learned in the course of their work. In addition, highly sensitive business information, commonly described as trade secrets, is protected by the equitable duty of confidence. Taken together, these obligations have historically shaped the implied responsibility owed by employees in relation to confidential information. The classification of business information is therefore pivotal: during employment, an employee is subject to an implied obligation not to disclose trade secrets and/or confidential information to others; after employment ends, only the implied restraint against revealing trade secrets persists. One exception is that a former employee may be stopped from benefiting,...
This Practice Note sets out the core principles for securing injunctions concerning confidential information and privacy. Although other remedies exist for claimants in breach of confidence matters, stopping publication of the material by injunction is frequently the only remedy of real practical worth to the claimant. It also addresses anonymised injunctions, alongside both interim and final injunctions. In recent years, injunctions touching on confidentiality and privacy have provoked debate. So‑called ‘super‑injunctions’ have drawn media criticism for constraining free expression; yet much of this derives from misunderstanding of what a ‘super‑injunction’ actually signifies and from the false sense that such orders are far more common than they are. This Practice Note explains the overarching principles for obtaining relief in this field. For further material on privacy injunctions, see the following Practice Notes: Privacy law—misuse of private...
This Practice Note sets out the principal legal and practical considerations involved in deploying survey evidence and witness evidence in UK trade mark and passing off matters, in both the High Court and the UK Intellectual Property Office ( IPO). It provides targeted guidance on: factors to weigh when deciding whether a survey ought to be undertaken selecting the survey type most suited to the circumstances fundamental requirements to satisfy when running a survey points to address when drafting survey questions and designing methodology using surveys as exercises to collect witnesses and the effect of the Jackson reforms what must be disclosed to the opposing party formalities for expert reports supporting surveys and the expert’s role obtaining permission to carry out a survey use of unsolicited consumer...
This Practice Note This Practice Note provides an overview of the safeguards available for geographical indications ( GIs) and designations of origin, such as appellations of origin, protected designations of origin ( PDOs) and protected GIs ( PGIs) in the UK, and highlights distinctions between the systems in Great Britain and Northern Ireland. It examines the relationship between appellations of origin, PDOs and PGIs and trade mark law. It outlines the international architecture for protection under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade- Related Aspects of Intellectual Property Rights (the TRIPS Agreement). It further reviews the protections afforded by UK legislation, including the UK GI scheme—introduced when the EU regime ceased to apply in Great Britain—as well as the narrower protection available under the Trade Marks Act 1994 ( TMA 1994). Businesses frequently seek to adopt marks that point to the...
This Practice Note outlines the formal requirements for witnesses, covering who may witness another person’s signature on a document connected to a commercial deal, such as a deed or simple contract, as well as witnessing electronic signatures and the current approach to video witnessing in practice. For guidance on witnessing wills, see Practice Note: Validity of Wills—signature. We have created a collection that serves as a comprehensive, interactive resource to help users recognise and navigate the concepts and frequent issues and pitfalls in executing documents, including the witnessing of signatures. Each stage or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For further details, see: Execution collection. Witnessing What is the difference between witnessing and attestation? Witnessing is the act of observing the execution of a document. Attestation adds the further step of noting, on the document itself, that the witness has seen the...
Lookalike products and dupes are, by their nature, difficult for brand owners to deal with. They are designed to imitate, or to evoke, a famous or trending product, yet frequently avoid any clear branding cues for which the brand owner might hold registered rights. For example, a lookalike might mirror entirely the colour palette, overall appearance and tactile feel of the packaging of a renowned product, while adopting a different trade mark to sidestep liability. The difficulty in policing such products arises because, under UK law, there is no single, dedicated IP right tailored to address them. Instead, brand owners typically must piece together a mosaic of protections—copyright, passing off, and trade mark and design infringement—to prove the components of a claim against a copycat item. Makers and designers of lookalikes and dupes are, moreover, commonly sophisticated. They take care to steer clear of...
While primary infringement usually involves, in most instances, the act of reproduction, secondary infringement concerns commercially dealing in infringing copyright works. Acts of secondary infringement Secondary infringing conduct comprises: importing; possessing; selling or dealing; providing the means for making copies; permitting the use of premises for an infringing performance; and supplying apparatus for an infringing performance. Unlike primary infringers, who are strictly liable irrespective of what they knew, secondary infringers must have knowledge of the infringement. Secondary acts address those further down the 'chain'. Copyright owners may seek assistance to prevent importation and block entry of infringing copies by writing to HMRC. Where proceedings are in prospect, a claimant should write to the prospective defendant, put them on notice, and allow a reasonable period to assess and evaluate the claims advanced against them. Those in the frame for...
This playbook provides guidance for drafting and negotiating a confidentiality agreement (also known as a non-disclosure agreement or NDA) from a pro-discloser position. It sets out preferred stances and alternative fallback options for the clauses most often contested in these agreements. The template suits solicitors representing the discloser, whether operating in-house or working in private practice. Users should adapt and tailor it as needed to address client-specific issues and safeguard the client’s interests in full. The level of risk referenced throughout may vary depending upon the particular client. Be aware it omits fallbacks for boilerplate clauses, for situations where confidential information comprises personal data, and for detailed intellectual property rights provisions. For a complete index of related confidential information materials, see: Confidential information—overview. For the underlying template agreement, consult: Precedent: Confidentiality...
This Practice Note It sets out guidance on applying the Protocol. It covers: when the Protocol operates its objectives and scope typical outcomes of non-compliance how it relates to limitation The Protocol replaced the Pre- Action Protocol for Defamation Claims. For how it differs from that earlier regime, see News Analysis: Pre- Action Protocol for Media and Communications Claims. In addition to defamation, the Protocol extends to a range of other media and communications claims which, before 2019, were not governed by a dedicated pre-action protocol. It formed part of broader reforms to media and communications procedure commencing on 1 October 2019, which also introduced a new CPR 53 and a new practice direction. For more on these changes, see News Analysis: New rules for media and communications claims from 1 October 2019......
A ‘patent’ is a legal instrument that grants an inventor monopoly rights. It safeguards novel inventions and can extend to elements such as the way things function, their composition, and the methods by which they are produced. A UK national patent, or a European patent designating the UK ( EP( UK)), is infringed by carrying out acts in the UK without the permission of the patent proprietor (the patentee). Those infringing acts are prescribed by section 60 of the Patents Act 1977 ( PA 1977) and include making, using, and importing a patented product or process. For detail on patent infringement, see Practice Note: Patent infringement......
Licensing IP rights—introduction Preparing IP licences often throws up intricate commercial and legal considerations, typically demanding extensive bargaining. This Practice Note highlights the principal, practical matters to weigh up before you draft and while you negotiate an IP licence, seen from both licensor and licensee viewpoints. At its core, an IP licence is the licensor’s consent allowing the licensee to use IP that it would otherwise be barred from exploiting. Owners may exploit and commercialise IP as either a carrot or a stick. Parties might agree terms for a mutually advantageous licence to create new offerings or reach fresh markets. Equally, an owner may take a defensive stance, pressing for settlement licences and recovering settlement payments from those already using its IP without permission. Accordingly, the initial position and broader commercial context will heavily influence both the negotiations and the eventual licence terms......
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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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