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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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The UK has two approaches to taxing IP transactions: The corporate intangibles tax rules: these cover IP that a company develops or purchases on or after 1 April 2002 (except where the asset was acquired before 1 July 2020 from a related party that owned it before 1 April 2002). This regime broadly follows the accounting treatment and, in particular, enables the company to set the acquisition cost against tax over its useful economic life through amortisation deductions. A mixture of general tax rules, with a few specific IP rules: these apply to IP held by individuals and non‑corporate entities, and to IP created or obtained by a company before 1 April 2002 (or acquired before 1 July 2020 from a related party that owned the asset before 1 April 2002). This framework does not specifically track the...
Successive UK governments have aimed to cement the UK as one of the world’s most appealing settings for innovation and enterprise. To that end, a wide-ranging suite of tax incentives has been rolled out to encourage innovative companies, supporting both investors and trading entities, and assisting businesses at every phase of a business’s life cycle. These incentives include: R& D tax reliefs patent box business asset disposal relief (previously entrepreneurs’ relief) capital allowances for purchases of: knowhow patents, and plant and machinery venture capital trusts the enterprise investment scheme, and the seed enterprise investment scheme This Practice Note outlines the UK position on key tax...
This Practice Note introduces supplementary protection certificates ( SPCs) and paediatric extensions ( PEs) in the UK. It outlines the reasons for their creation, when and how to apply, and how long they run. It also reviews leading rulings on SPCs from the courts of England and Wales, together with UK Intellectual Property Office ( IPO) guidance on SPC procedure... It further surveys numerous references to the Court of Justice on the interpretation of Regulation ( EC) 469/2009 and Regulation ( EC) 1610/96, which regulate SPCs for medicinal products and plant protection products within the EU (and, before Brexit, in the UK). The resulting Court of Justice decisions have defined the scope of SPC protection across the EU and the UK. For guidance on whether Court of Justice rulings bind UK courts, see Practice Note: Assimilated law— Assimilated case law. For a...
Practice Note This Practice Note sets out a practical guide for IP solicitors and practitioners undertaking due diligence on a software business. It helps identify the principal IP rights tied to the company’s software offering, in particular copyright and patents. It also recommends verifying ownership of those rights and assessing any exposure arising from third-party interests or licensing arrangements. In addition, it encourages targeted questioning to reveal how the business deploys and governs its IP in practice, as well as the software-specific risks that may emerge from an IP standpoint. For many software enterprises, IP is a core asset and a significant contributor to valuation for prospective buyers. When running IP due diligence on a contemplated acquisition of a software company, practitioners should apply the standard considerations relevant to diligence on any business. For guidance, see: Practice Notes: IP issues to consider in asset purchase...
This Practice Note This Practice Note is intended for use when identifying the applicable law in proceedings before the courts of England and Wales concerning events that resulted in damage, where those events took place on or after 1 January 2021. Where a dispute involves a conflict of laws between parts of the UK, or between the UK and Gibraltar, UK Rome II applies where the harmful event occurred on or after 11 January 2009. For events falling outside these dates, the UK courts will apply a different applicable law regime, determined by the date of the event. For guidance on those regimes and how they relate to one another, see Practice Note: Applicable law regimes. This Practice Note summarises the special rules that govern particular categories of claim under UK Rome II, Regulation ( EC) 864/2007 on the law applicable to...
Introduction Block exemption rules offer broadly applicable safe harbours for agreements from the UK ban on anti-competitive agreements set out in Chapter I of the Competition Act 1998 (notably section 2), so long as the agreement satisfies the conditions of the relevant block exemption. Each such regime rests on the assumption that any restrictive deal within its ambit meets the four criteria in section 9 of the Competition Act 1998 required to obtain an individual exemption from section 2 (see also, Practice Note: Chapter I prohibition). As a result, a block exemption creates a safe harbour shielding restrictive arrangements from challenge under section 2 of the Competition Act 1998. Before 1 January 2023, research and development ( R& D) agreements were covered by Retained Regulation ( EU) 1217/2010, the Retained Research and Development Block Exemption Regulation ( UK Retained R& D BER), which...
This new starter guide introduces design rights, spotlighting the core principles and supplying numerous links to Lexis+® UK sources and materials for fuller detail. It is intended for trainee solicitors and readers new to the law of design rights. Further information on other intellectual property ( IP) rights, including additional new starter guides, is set out in Practice Note: Intellectual property ( IP)—new starter guide. Where a topic falls outside this basic guide, explore the two Designs subtopics: Designs transactions and management Designs disputes For summaries of these areas, see: Design transactions and management—overview and Design disputes—overview. This guide also outlines how to sign up to the IP daily and weekly news alerts and how to contact Lexis Ask. Introductory materials For an introduction to designs in the UK, see the following Practice Notes: UK registered and unregistered designs ...
Most material generated by central government bodies and government ministers in the UK carries Crown copyright. The bulk of this information can be re-used at no charge under the Open Government Licence ( OGL). Re-using existing public sector information enhances its economic and social value, and underpins the government’s commitments to transparency and re-use. The Re-use of Public Sector Information Regulations 2015 ( RPSI 2015), SI 2015/1415, govern such re-use, replacing the Re-use of Public Sector Regulations 2005 in July 2015. The RPSI 2015 Regulations remain in force as retained EU-derived domestic legislation under EU( W) A 2018, s 2. Tailored guidance for the public and cultural sectors, and for re-users, is available on The National Archives website. What is Crown copyright information? Crown copyright is defined in section 163 of the Copyright, Designs and Patents Act 1988 ( CDPA 1988) as works created by officers or...
ARCHIVED: This Practice Note is archived and is not being maintained. How has Brexit affected the supply of services? Brexit influences service provision wherever delivery crosses between the UK and the EU, as fresh trading rules between the UK and EU have applied since 1 January 2021. Careful attention should be paid to service contracts, particularly where they touch on intellectual property, data protection and competition law considerations, the position on access to EEA staff, and adjustments to the VAT framework. Sector-specific factors will also arise. In practice, impacts turn on cross-border elements, reflecting the new UK- EU trading arrangements that took effect on 1 January 2021. Review is therefore advisable for affected services. Contracts for the supply of services The rules governing the supply of services in business-to-business dealings stem from UK law; accordingly, a contract for purely domestic services (ie services exchanged by two...
Commercial Q& As— Brexit collection Commercial Brexit Q& As How far do contract references to UK and EU law change under the European Union ( Withdrawal) Act 2018? Post‑ Brexit, must UK courts and tribunals follow Court of Justice of the European Union decisions? From 1 January 2021, which factors set the correct customs duty rate on imported goods? What do the UKCA and UKNI marks mean, and when are they required? What is an authorised economic operator (trusted trader), and when should a business seek this status? From 1 January 2021, what are commodity and procedure codes, and where can I find them? If no amending SI alters the Commercial Agents ( Council Directive) Regulations 1993 (the Commercial Agents Regulations), SI 1993/3053, after IP completion day, what is the effect of Regulation 1(3)(b) allowing agents in member...
Plant-focused inventions can obtain intellectual property ( IP) safeguards through both the patent route as well as through plant variety protection mechanisms. Plant variety rights ( PVRs) constitute an IP right that grants exclusivity over the commercialisation of propagating material, allowing the owner to earn royalties, for instance by lawfully licensing others to multiply and sell the variety. This Practice Note sets out the IP protection for discrete plant varieties, referred to as plant variety rights ( PVRs) or plant breeders’ rights. It outlines the UK framework, in particular under the Plant Varieties Act 1997 ( PVA 1997), governing UK PVRs. It details the applicable criteria for validity, the infringement assessments, and the circumstances for compulsory licences of PVRs. The Note additionally also addresses patent coverage for plant-related inventions, including groups of plants sharing a common...
The Red Bus case, Temple Island Collections v New English Teas, was determined in what was then the Patents County Court ( PCC) in January 2012, and it engages with the scope and reach of photographic copyright. The judgment has been the focus of considerable discussion, alongside a degree of criticism, in particular, because it appears to call into doubt a cardinal proposition of copyright law: that there is no copyright in an idea. Temple Island therefore squarely addresses the ambit of copyright protection. Although the PCC (now known as the Intellectual Property Enterprise Court) was an 'inferior' forum whose decisions carried no binding force on higher courts, copyright disputes that proceed all the way to a full trial are comparatively uncommon, and for that reason this case has been notably...
Practice Note Patent regimes are designed to encourage innovation rather than obstruct it. Consequently, the patent laws of numerous jurisdictions provide carve-outs from infringement for experimental use of patented inventions. This Practice Note reviews the two principal UK research exemptions to patent infringement, namely: the general experimental use exemption the specific Bolar-type exemption It considers how these provisions have evolved in recent years and how they may develop in the coming period. The Note also addresses the supplementary protection certificate ( SPC) manufacturing waiver, which creates an exception to infringement of SPCs ( SPCs extend patent protection for certain medicinal products). Following Brexit, EU-derived legislation has been preserved and converted into UK domestic law with effect from IP completion day (11 pm on 31 December 2020). Relevant Assimilated EU law and Brexit SIs are considered in the sections on the Bolar-type exemption and the SPC...
This Practice Note outlines key aspects of patent law, including applying for and maintaining patents, patent assignment and licensing, and patent infringement. For more information about applying for and maintaining patents and transactions involving patents, see: Patent transactions and management—overview. For more information about disputes involving patents, see: Patent disputes—overview. What is a patent? A patent is a form of property that protects certain types of technical inventions. The invention can be a product or a process for doing something. Patents do not cover information or appearance, which may instead be protected by trade marks, copyright or design rights. To obtain a patent, technical information about the invention must be disclosed to the public in a patent application. Patent applications are filed at the Intellectual Property Office ( IPO) or the designated patent authority within the relevant country. The IPO examines...
This new starter guide offers a primer on patent law, with multiple links to wider Lexis+® UK resources for deeper insight. It is designed for trainee solicitors and anyone new to patents. For guidance on other intellectual property ( IP) rights, including further new starter guides, see Practice Note: Intellectual property ( IP)—new starter guide. If a topic is not addressed here, explore the two Patents subtopics: Patents transactions and management, and Patents disputes. For concise outlines of these areas, see Patent transactions and management—overview and Patent disputes—overview. The guide also sets out how to subscribe to IP daily and weekly news alerts and how to reach the Lexis Ask team. Introductory materials For an introduction to patents, see Practice Notes: Patent applications—how to obtain patent protection in the UK Patentability and exclusions from patentability ...
This Practice Note examines direct, indirect and contributory patent infringement. It outlines how the Patents Act 1977 ( PA 1977) characterises prohibited (ie infringing) conduct, including making a product or operating a process, and describes the way in which the courts assess whether that product or process falls within the claim scope. The Practice Note also considers core issues in infringement actions, including who may bring proceedings, appropriate timing, and the allocation of the burden of proof. Introduction to patent infringement To prove infringement of a patent, it must be shown that a prohibited (ie infringing) act has been carried out in relation to a product or process that lies within the patent’s scope. These components of infringement are explored in Infringing acts and How the courts decide whether a product or process falls within the scope of a patent below. Note too that certain acts are...
The public sector ranks among the UK’s biggest and most consequential repositories of information. Championing the use and re-use of public sector material brings substantial economic gains while also energising democratic participation and openness. Re-using public sector information sits squarely within the government’s transparency programme and its backing for open data. The evolution of open licensing, such as ( OGL), makes re-use simpler and more attractive. This Practice Note explores the growth of open licensing, with particular focus on the UK Government Licensing Framework ( UKGLF) and the OGL. Policy context In the UK, growing attention is being paid to the essential contribution that public sector information makes to society, across both public and private spheres, from economic and social viewpoints across the country and sectors today......
Copyright is a proprietary right that grants the owner the exclusive ability to perform, and to permit others to perform, particular acts in relation to the work. Under UK law, as contained in the Copyright, Designs and Patents Act 1988 ( CDPA 1988), there is a closed list of categories eligible for protection, namely: original literary, dramatic, musical or artistic works sound recordings, films or broadcasts the typographical arrangement of published editions To qualify, a work falling within one of these categories must be fixed in some form. For example, writing down or electronically saving a song’s notes and lyrics creates a record that is protected, provided the work otherwise meets the CDPA 1988’s qualification requirements. For comprehensive guidance on those requirements and on subsistence generally, see Practice Notes:...
This Practice Note outlines the key factors right holders should weigh when safeguarding and asserting their brands in the Metaverse. It addresses how to plan and define, from the outset, the ambit of trade mark or design protection, including spotting and closing protection gaps, and highlights matters to weigh up when licensing a brand for use in the Metaverse. On enforcement, the Practice Note addresses, among other matters: Ongoing monitoring of potential infringements; Tracing and identifying infringers; Assessing potential causes of action and navigating jurisdiction issues; Available remedies and common, general enforcement challenges; It finishes with practical pointers to assist right holders when protecting and enforcing their brands. What is the Metaverse? There is no universally agreed definition of the ‘ Metaverse’; however, it is widely understood to comprise immersive environments, frequently utilising augmented or virtual reality. The immersive...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note examines the rules for deciding which court has jurisdiction for the span between the UK’s departure from the EU on 31 January 2020 and the conclusion of the implementation period, which the EU refers to as the transition period. It considers whether the implementation period can be extended, whether the jurisdictional framework under the Brussels regime, including that set out in Regulation ( EU) 1215/2012, Brussels I (recast), applies during the implementation period, as well as the position after the implementation period. For a quick reference Brexit research aid that answers key questions on Brexit and includes helpful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips 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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