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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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Collecting societies This Practice Note explores collecting societies-often described as licensing bodies and/or Collective Management Organisations ( CMOs)-and also considers Independent Management Entities ( IMEs). It covers collective licensing, the legal and organisational status of a collecting society, an outline of UK societies, the benefits for copyright owners, disadvantages for right holders and users, the pros and cons for licensees, legal constraints on how societies operate, regulation of collecting societies, and the Collective Management of Copyright ( EU Directive) Regulations 2016, SI 2016/221, also referred to as the Collective Rights Management Regulations or the CRM Regulations. These frameworks give right holders a collective route to licence and enforce their IP where individual permissions and monitoring would be impractical. Although several societies may function within the same creative field (such as music), separate bodies will generally represent different categories of right holders. In essence, a...
This Practice Note sets out the function of a notary, the process for notarising a document, and the concept of legalisation. For further detailed guidance, consult the following Practice Notes: notaries notarisation legalisation We have assembled a comprehensive, interactive collection to assist users in identifying and navigating concepts and recurring issues arising on the execution of documents. Each stage includes Practical Guidance, Precedent Clauses and Q& As tailored to that phase. For more details, see: Execution collection. Notaries A notary is a qualified lawyer whose principal role is to authenticate and certify signatures and documents, whether intended for use overseas or as certified copies. Notaries also administer and take oaths and affirmations, and may undertake certain reserved activities under the Legal Services Act 2007, including commercial and property matters, as well as family and private client work (but not...
This Practice Note This Practice Note outlines the different methods by which a patent proprietor may alter its patent. There are numerous avenues to amend a patent at various points in its lifetime, and this depends on whether the application for the patent started at the UK Intellectual Property Office ( UK IPO), the European Patent Office ( EPO) or under the international Patent Co-operation Treaty ( PCT) system, from the outset and onwards. Amendment without restriction is not permitted, as this would shift the goalposts for where the limits of the patent owner’s monopoly rights lie. This is unacceptable in a patent system granting exclusive, or so‑called ‘monopoly’, rights, because people consulting the register of those rights must be able to work out whether they might infringe the patent, without the scope of the patent changing over time. However, at the time of making a patent...
Introduction This document provides swift links to the Precedents pertinent to copyright litigation. These include the principal statements of case used to commence and manage copyright proceedings. Precedents Letter of claim—copyright infringement Refer to Precedent: Letter of claim—copyright infringement. This Precedent letter of claim (also known as a letter before action or a cease and desist letter) is intended for situations where copyright infringement is alleged. Such a letter alerts the alleged infringer that court proceedings might be brought against them. The courts consider litigation a last resort; accordingly, parties are encouraged to settle disputes at an early stage by communicating and exchanging information and documentation. A letter of claim opens a route for dialogue between the parties and can often resolve the dispute without issuing proceedings. After an exchange of correspondence, the infringement may cease, and the copyright owner......
ARCHIVED: This Practice Note has been archived and is not maintained. Originally prepared for Lexis Practice Advisor®, in the US, this Practice Note sets out an introduction to the Leahy- Smith America Invents Act ( AIA), the first significant overhaul of the US patent system since the Patent Act of 1952. The AIA moves the US system from first-to-invent to first-to-file for patents with an effective filing date on or after 16 March 2013. In a first-to-file regime, the patent is awarded to the inventor who files earliest, rather than the inventor who first reduces the invention to practice. This encourages timely filings and, in most instances, removes the need to resolve who invented first. The change to first-to-file also harmonises the US patent framework with foreign systems, which are largely...
This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...
This Practice Note explores the Hague Convention on Choice of Court Agreements and how it operates when enforcing a court judgment or a judicial settlement. It addresses what counts as a judgment and a judicial settlement, the criteria for recognition and enforcement of a court judgment, including severability, together with enforcement of non-monetary orders and judicial settlements. The Practice Note also outlines the steps for recognition and enforcement, the supporting documents needed, and points specific to England and Wales. Finally, it considers the bases for refusing recognition or enforcement under the convention. For practitioners using the Convention, an explanatory report by Trevor Hartley and Masato Dogauchi offers detailed commentary on each article. It further signposts severability within judgments and the treatment of non-monetary relief and settlements under the convention. Does the Convention...
Why use artificial intelligence in design? As AI technologies, in particular generative AI, become more widespread and accessible, almost every sector is experiencing changes, opportunities and challenges, and design is indeed no exception. Employed for brainstorming, ideation and early concept development, AI can serve as a powerful aid, helping designers move past creative blocks and investigate a much wider range of visual possibilities. It can also raise efficiency: with generative AI, designers can quickly produce numerous variants and multiple design options at scale. That pace can accelerate the creative process and encourage further experimentation, potentially yielding highly innovative results. Nevertheless, bringing AI into design workflows introduces several legal risks that cannot be ignored. This Practice Note examines how IP practitioners advising design clients should respond to the rising use of AI across the industry by identifying and discussing these risks in detail. It...
Instead of, or alongside, submitting a national patent application to a national patent office (eg a GB application at the UK Intellectual Property Office ( UK IPO)), or a regional application to a regional patent office (eg a European application at the European Patent Office ( EPO)), an applicant may file an international patent application under the Patent Cooperation Treaty ( PCT). This Practice Note outlines the principal provisions of the PCT and summarises the steps for filing an international patent application. For guidance on applying for a GB patent at the UK IPO, see Practice Note: Patent applications—how to obtain patent protection in the UK. For a directory of regional patent offices, see here, and for further details on European patent applications at the EPO, see Practice Note: European patent—application procedure. The Patent Cooperation Treaty (...
This Practice Note explores the principal considerations when preparing a settlement agreement: correctly identifying the parties (including any relevant third parties), expressing obligations with clarity and sufficient compulsion (covering time is of the essence and endeavours provisions), drafting the release (the ‘full and final settlement’ estoppel), and incorporating appropriate boilerplate clauses and execution formalities. For guidance on making a settlement offer and deciding how to record it, see Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling at a mediation For Precedent draft settlement agreements, see: Draft Settlement agreement—pre-action settlement Draft Settlement agreement—for settling disputes post-commencement of proceedings For guidance on disputes arising from a settlement agreement, see Practice Note: Resolving disputes concerning settlement agreements. Key requirements—drafting the settlement contract As with any contract, attention should be given to these core...
This Practice Note sets out the duration of patent protection and the need to keep rights in force through periodic renewals to preserve that term. It further outlines the process for restoring a patent that has lapsed or is about to lapse. Obtaining a patent in the UK In the UK, patents may be secured in two forms, namely: UK national patents—are granted by the UK Patent Office under the Patents Act 1977 ( PA 1977) UK designations of European patents ( EP( UK) patents)— European patents are granted by the European Patent Office ( EPO) under the European Patent Convention ( EPC) but must be validated in the UK to have effect (be valid) here The UK, alongside Norway, Switzerland and Turkey, is a non‑ EU contracting state to the EPC. Accordingly, the UK participates in the European patent system and may be...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by administrative receivers... Quick view The summary below outlines the execution formalities relevant to administrative receivers and points to the location of matching precedent execution clauses. For more detail, navigate to the document type using the links in the first column... Document type: Simple contracts By the company ( Companies Act 2006, s 43(1)(a)): Using the company’s common seal, applied by the administrative receiver under the power in the debenture under which they are appointed — Execution clause—administrative receiver—contract ( Option 2). By the administrative receiver’s signature under the power granted in that debenture, signing in the presence of a witness — Execution...
This Practice Note outlines the nature of waiver and release within commercial contracts, distinguishes between them, and summarises the clauses that address waiver (commonly called a ‘no-waiver’ clause) and release. The waiver clause is widely recognised as a boilerplate provision aimed at preventing unintended waivers of legal rights from taking effect, including the right to terminate after a breach of contract. What does ‘waiver’ mean? In contract law, ‘waiver’ may carry different senses, but most often describes a concession granted by one party whereby it does not demand strict performance by the other of a contractual duty, whether before or after any breach of the term being waived. For discussion of other potential meanings, see: Waiver: Halsbury’s Laws of England [251]. Types of waiver Express Implied from conduct In either case, it must amount to an unequivocal representation arising from a positive and...
ARCHIVED: This Practice Note is archived and not maintained. It was originally prepared for Lexis Practice Advisor®, in the US. It examines joint authorship and ownership of copyrights under US federal law, including the elements of joint authorship, the default rules that apply to joint authors, and drafting points for collaboration agreements. Joint authorship overview Before exploring the subtleties of joint authorship, it is useful to consider some fundamental copyright principles and how they relate to authorship. Basic copyright principles The Copyright Act grants authors of original works of authorship that are fixed in a tangible medium of expression a bundle of exclusive rights (ie a copyright) in their works for a period set by statute (ie the copyright term or duration). For more on exclusive rights, see Practice Note: US—exclusive rights of copyright owners [ Archived]. For more on copyright duration, see Practice Note:...
This Practice Note outlines the principal routes for tackling the UK trade in counterfeit goods, weighing the benefits and drawbacks of each, and providing practical pointers for brand owners. It addresses action by the authorities—customs, Trading Standards ( TS) and the police—as well as civil proceedings and private criminal prosecutions pursued by right holders. While some jurisdictions permit administrative action against infringers, that avenue is not considered here. The focus is counterfeiting (trade mark-related offences), with brief reference to piracy (copyright-related offences) and offences concerning registered designs. Anti-counterfeiting measures are discussed across both online and offline channels. For broader guidance on online brand protection, see Practice Note: Brand protection online—strategy and Brand protection online—checklist. For tackling counterfeit goods at EU-level, see Practice Note: IP enforcement and the EU customs regime. Further reading is available from the UK Intellectual Property Office ( IPO): IP crime and...
This Practice Note presents an overview of the key features of the UK‑ EU Trade and Cooperation Agreement ( UK‑ EU TCA) that pertain to trade in services between the UK and the EU. It explains the TCA’s scope for services and the generally applicable principles, including Market Access, National Treatment, Most Favoured Nation ( MFN), Domestic Regulation, performance requirements, recognition of professional qualifications, entry and temporary stay of persons for business purposes, and the nationality of senior management and boards. It also outlines disciplines tailored to delivery services, telecommunications services, financial services, international maritime transport services, and legal services. Introduction to the UK- EU Trade and Cooperation Agreement On 24 December 2020, UK and EU negotiators reached a deal defining their future relationship. The UK‑ EU TCA is a comprehensive accord responding to the UK’s withdrawal from the EU’s internal market ( Brexit)....
The Copyright, Designs and Patents Act 1988 ( CDPA 1988) grants the copyright holder in the UK the sole authority to undertake a variety of acts in relation to any copyright work. Where those specified acts in the CDPA 1988 are carried out by someone other than the owner, without consent, this may amount to an infringement of the owner’s exclusive rights. Status of EU copyright law in the UK As of 31 January 2020, the UK ceased to be a Member State of the EU. In line with the Withdrawal Agreement, an 11‑month transition or implementation period followed, ending on 31 December 2020 ( IP completion day), during which EU law continued to apply across the UK. Thereafter, EU legislation made or brought into force after that date is not binding on the UK. For pre‑existing measures, the legal position...
Background The Intellectual Property Enterprise Court ( IPEC) sits within the general Intellectual Property List ( Chancery Division) and is designed to enable small and medium-sized enterprises ( SMEs) to obtain justice in IP disputes where they might otherwise be unable to bring or resist a claim. It also offers a venue for lower-value IP cases to be resolved with costs kept in proportion. The Intellectual Property List comprises two sub-lists: the Patents Court and the IPEC, and forms part of the Business and Property Courts of the High Court, which were established on 2 October 2017. For further details about the Business and Property Courts, see Practice Note: Business and Property Courts, and for commentary on how their launch affects IP matters, see News Analysis: Framework of Business and Property Courts sets ‘solid groundwork for success’. A central feature is the cap on...
Introduction It is ever more accepted that every enterprise holds and deploys some form of IP. Financiers active in markets with IP-heavy companies are paying closer attention to making sure their collateral captures the worth embodied in that IP. The legal position on taking security over IP remains unsettled, requiring lenders to navigate ambiguity. Moreover, charging IP rights can be expensive to establish and challenging to realise. A funder must begin by pinpointing and assessing the borrower’s IP. It should differentiate categories of IP, for instance rights with proprietary attributes and those arising under contracts. It should also appreciate that a firm’s IP is typically interconnected, such as a patent and the related know-how that gives the patent practical value. Finance lawyers must likewise consider the intrinsic nature of the IP and the setting from which its value derives. A central issue is how the...
ARCHIVED This Practice Note is archived and is no longer maintained. Originally prepared for Lexis Practice Advisor®, in the United States, it outlines the patent litigation pathway and principal considerations when a client elects to sue or is accused of patent infringement. Such disputes are protracted and may run for years, generating substantial legal spend and diverting people and funds from every party involved. They can also imperil the claimant’s patent(s), as accused infringers frequently contest validity and/or enforceability through affirmative defences or counterclaims, or by initiating a parallel administrative case before the Patent Trial and Appeal Board ( PTAB), including an inter partes review ( IPR). Conversely, litigation can be an effective enforcement tool that, if successful, yields sizeable damages and discourages future infringement. Matters to evaluate include: Imposing a litigation hold as soon as proceedings are reasonably...
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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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