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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 This Practice Note supplies links to UK Intellectual Property Office ( IPO) resources covering intellectual property ( IP) rights across a range of key markets. These are available via the IPO’s International IP service page. The IPO has issued the following country guides, which provide advice on managing IP in specific overseas markets: IP ......
Introduction Valuation is needed at multiple stages in an IP asset’s life for diverse aims, including business or IP disposals, joint ventures, litigation outcomes, insolvency, financial reporting and tax matters (such as transfers between connected parties and transfer pricing). In every instance, a market value or arm’s length figure—or an arm’s length royalty for a licence—must be derived for a hypothetical transaction, ignoring owner‑specific synergies. There is no universal method; the chosen approach should reflect the putative deal and the level of robustness required, which depends on the asset’s significance, the nature of the transaction and the reason for valuing (eg loan security or a critical patent transfer). Comparison approach: references prices, bids or offers for comparable IP, often via specialist databases; typically a corroborative check due to scarce, non‑identical data and undisclosed...
Intra-group reorganisation In essence, an intra-group reorganisation entails transferring assets among entities that sit within the same corporate family. Such reshaping can require forming new group companies and winding up legacy companies where necessary. This Practice Note explores the principal IP and IT points to assess during an intra-group reorganisation, including pertinent licensing matters. Although these projects are, by definition, internal exercises, they must be executed with proper care. Insufficient diligence can imperil asset value, hinder later restructurings or prospective dealings with external parties, and trigger unwelcome tax exposures. Intra-group changes may take a wide variety of shapes, from simple adjustments to highly intricate programmes. Ultimately, the chosen structure will be driven chiefly by the underlying commercial rationale, together with the reasons for the exercise, the broader internal context in which it sits, and its aims......
This starter guide offers a primer on IP law. It is designed for trainee solicitors and anyone new to IP as a practice area. Inside you’ll find links to key IP materials on Lexis+® UK, alongside other Lexis+® UK resources that expand on the subjects discussed. Guidance is included on subscribing to the daily and weekly IP news alerts from Lexis+® UK. Newcomers will also find the Overviews within each IP subtopic helpful. These summaries outline the law for a specific right or issue and signpost relevant content within that subtopic to aid navigation. For example: Copyright & associated rights—overview and Copyright disputes—overview. If this guide does not address a point, you can explore additional Lexis+® UK material within the IP practice area. What do IP lawyers do? IP deals with intangible rights—copyright, database right, designs, trade marks and patents—and the legal frameworks that protect them. The field...
This Practice Note This Practice Note sets side-by-side patents, supplementary protection certificates ( SPCs), trade secrets, copyright, database rights, design rights, trade marks and the tort of passing off, measured against: how protection comes about, what is covered (including, e.g. originality/novelty thresholds), length of protection, geographic scope, ownership, infringement, available defences, and threats provisions. It then weighs the principal pros and cons of each form of IP. The emphasis is on rights operating in the UK. After Brexit, the UK ceased to participate in the EU trade mark ( EUTM) and EU designs regimes. Those regimes confer unitary rights spanning the EU Member States. Nonetheless, as outlined in greater detail below, arrangements exist for comparable UK rights to be established. This Practice Note does not examine the EUTM and EU designs regimes in depth. For further reading, see: Trade marks ( EU...
ARCHIVED: This Practice Note has been archived and is not maintained. IP law is among the most deeply harmonised branches of law within the EU, with much of the framework stemming from the EU through directives or regulations. For instance, EU rules allow applicants to obtain EU trade mark ( EUTM) and design registrations that deliver unitary protection across every EU Member State, as well as safeguarding unregistered designs on an equally extensive basis. Significant efforts have aimed to create uniform systems for the protection and enforcement of such rights throughout the EU, and many businesses have capitalised on the harmonised system to secure broad and cost-effective protection for their trade mark, design and other rights. Accordingly, the UK’s choice to depart the EU carries, potentially, a substantial impact for right holders. At 11 pm on 31 December 2020, the...
ARCHIVED: This Practice Note is archived and not maintained. How does Brexit affect franchising? With no EU-derived laws targeted specifically at franchising, the consequences of Brexit for franchisors and franchisees are chiefly practical: revisit how franchise agreements are drafted and negotiated, review intellectual property rights protection, and assess any competition law ramifications for the arrangement. See News Analysis: What will Brexit mean for franchisors and franchisees, and how to prepare? Franchise agreements Examine franchise agreements and related arrangements to confirm they remain appropriate post‑ IP completion day, both for the commercial terms they capture and the contractual wording used. Decide whether particular contracts or general standard terms should be amended or adapted. Areas to scrutinise include territorial scope, pricing, tax, intellectual property, data protection, applicable law, jurisdiction and dispute resolution. See Practice...
How the fashion industry works The fashion sector is a globalised, multi-billion, high-velocity field, with apparel and accessories frequently conceived in one nation, produced in a second, and distributed worldwide through bricks-and-mortar retailers or via the internet to consumers around the globe. Annually, fashion houses create, make, present and market at least a spring/summer and autumn/winter line. Each develops hundreds of styles that must appeal to customers and eclipse competitors’ offerings in the eyes of the market. However striking those designs are, their commercial lifespan is often brief—a piece that tops this season can seem passé by the next year. These dynamics generate particular difficulties for makers of fashion goods, especially around shielding their designs from imitation by rivals or counterfeiters. The pace and perishability of trends amplify these commercial realities significantly. The fleeting character of fashion articles gives rise to questions...
ARCHIVED: This Practice Note is archived, not maintained, and will not receive updates. The transition period created to help the UK move away from the EU’s laws and institutions ended at 11 pm ( GMT) on 31 December 2020. That point—described in this Practice Note as ‘ IP completion day’—triggered an immediate and significant alteration to the UK’s legal landscape. This Practice Note sets out the effects of that change for e-commerce. How does Brexit impact E-commerce? Although EU legislation on e-commerce is largely kept in the UK as retained EU law, Brexit still has major implications for UK businesses operating in the EU. If EU law diverges from the approach taken in the UK, or vice versa, or there is further deregulation in future, the compliance load on UK organisations engaged in cross-border e-commerce will increase. E-commerce encompasses a wide array of laws,...
This Practice Note offers hands-on guidance to help design proprietors secure the available protection, including strategic factors to weigh when defining the scope of a design portfolio. It addresses issues for registered and unregistered designs separately. Matters pertinent to both registered and unregistered designs are considered in the sections: Other considerations and Conclusion—top tips for effective protection of design rights below. Design protection in the UK In the UK, designs can be protected through several mechanisms. These rights are cumulative—multiple rights may exist concurrently in a design for the same product or article. UK registered designs (including re-registered designs and re-registered international designs) UK unregistered design right (also known as ‘design right’) supplementary unregistered design right ( SUD) Each right varies in qualifying criteria, scope, and length of protection. For further detail, see Practice Notes: UK registered and...
This tracker is designed to monitor the development of UK design judgments, legislative proposals and ongoing UK consultations, guidance and reports concerning designs. For details on EU design judgments, legislative initiatives and current EU consultations, guidance and reports on designs, see Practice Note: Designs tracker— EU. For archived material on designs, see Practice Notes: 2023–2024 [ Archived] and Designs tracker 2017–2022 [ Archived]. Legislation, consultations, guidance and reports For archived design legislation, see Practice Notes: 2023–2024 [ Archived]— Legislation, consultations, guidance and reports and Designs tracker 2017–2022 [ Archived]— Legislation. For archived design consultations, see Practice Notes: 2023–2024 [ Archived]— Legislation, consultations, guidance and reports and Designs tracker 2017–2022 [ Archived]— Consultations. To learn more about the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023), see Practice Note: Brexit legislation tracker, in particular the section: Retained EU Law (...
This Practice Note introduces design law and outlines the range of UK design rights, both registered and unregistered, that right holders may invoke. For further details on registering designs and on dealings in designs, see: Design transactions and management—overview. For guidance on disputes, see: Design disputes—overview. What are design rights? Design rights safeguard the shape, configuration, or visual appearance of all or part of a product/article, as distinct from how it functions. The purpose of design law is to prevent others from producing items made to the design or generating the same overall impression as the original. This Practice Note summarises the different registered and unregistered design rights available to right holders in the UK. Design rights currently available in the UK The design rights currently available in the UK include: UK registered designs (including re-registered designs and re-registered international designs) UK...
What design protection is available in the UK? Design rights safeguard the shape, configuration or appearance of the whole or any part of a product or article, rather than its functional features. The purpose of design law is to specifically deter others from making products that closely follow the design or otherwise produce the very same overall impression as the original design. The design rights currently available in the UK are as follows: namely UK registered designs (including re-registered designs and re-registered international designs) UK unregistered design right (also known as design right) Supplementary unregistered design right ( SUD) Each of these rights differs in qualifying criteria, scope and the duration of protection. For more information, see Practice Note: Comparison tables for design protection available in the UK. Before Brexit, the UK designs regime was substantially harmonised with the EU regime then. The Designs Directive ( Directive 98/71/ EC)...
This Practice Note summarises the spectrum of defences available in proceedings alleging infringement of UK registered and/or unregistered designs, together with potential counterclaims. It addresses UK registered designs, UK unregistered design right and supplementary unregistered designs ( SUDs). The discussion spans: Non-infringement Exclusions from infringement Innocent infringement Validity and subsistence Lack of design protection Unjustified threats For fuller guidance on infringement of UK designs, see Practice Notes: Infringement of UK registered and unregistered designs and Design disputes—a practical guide. New actions for infringement of EU designs can no longer be started in the UK for the reasons outlined below. For details on defences to EU design infringement, see: Designs ( EU Law)—overview. Background to designs The UK designs framework is comparatively complex (particularly post‑ Brexit) and comprises several different rights. Because these rights may overlap, a single product may benefit from...
This new starter guide sets out the fundamentals of database right law. It highlights the core principles and directs you to numerous Lexis+ UK sources and materials for fuller guidance. It is designed for trainee solicitors, paralegals, and those beginning to work with database right law. Information on other IP rights, including other new starter guides, is available in Practice Note: Intellectual property ( IP)—new starter guide. Those new to IP will also find the topic Overviews Database transactions and management—overview and Database disputes—overview useful. Where issues fall beyond this basic guide, go to the IP homepage and select Databases under ‘ Topics and Tasks’ to explore the Databases topic’s subtopics: Database transactions and management Database disputes This guide also includes links to help you get the most from the IP practice area’s materials, including how to contact the Lexis Ask...
UK databases—scope, Brexit and assimilated law Over the two decades leading up to Brexit, EU legislative initiatives heavily shaped the UK’s database protection regime. After the UK’s departure, any EU laws created or brought into effect after 31 December 2020 ( IP completion day) no longer bind the UK. Earlier EU measures were carried over into a new category of domestic law—retained EU law—under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), and UK courts continued to apply pre‑2021 case law on that body of law. The European Union ( Withdrawal Agreement) Act 2020 amended the EU( W) A 2018 and established an implementation period commencing on 31 December 2020. During that interval, the legal position was held in place unless the UK Parliament expressly altered it. From that point, UK courts could take into account, but were not obliged to...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note examines how Brexit has influenced UK cybersecurity, with particular emphasis on the network and information systems legislation. It addresses: a snapshot of UK cybersecurity regulation before the end of the implementation period the origins of Directive ( EU) 2016/1148, the Network and Information Systems Directive ( NIS Directive), and how it was implemented in the UK the broad consequences of Brexit for the UK’s application of the NIS Directive what the end of the transition period means for relevant digital service providers ( RDSPs) a summary of effects on qualified trust services under Regulation ( EU) 910/2014 (the e IDAS Regulation) the impact of the transition’s end on UK– EU cooperation on cybersecurity The prominence of cybersecurity has been underlined by recent high-profile incidents affecting companies and public services. These have involved a wide array of attack...
This Practice Note explores the nuanced relationship between copyright and designs. For wider context on designs law and copyright, see: Design transactions and management—overview and Copyright & associated rights—overview. Before the Copyright, Designs and Patents Act 1988 ( CDPA 1988) took effect, copyright was the chief mechanism for safeguarding rights in industrial articles. A key aim of CDPA 1988 was to narrow copyright’s reach over designs exploited industrially and to create a UK unregistered design right (often called ‘design right’). For a visual outline of how the CDPA 1988 copyright provisions operate, see: Application of copyright law to designs—flowchart below. Creators of artistic works applied in industrial production may not be able to rely on copyright and may instead turn to design right or registered design(s). Nevertheless, copyright still protects: original design drawings rights in designs of...
What formalities are required for copyright protection? Copyright recognises the value of an author’s intellectual creation whenever a creative work is brought into existence. The governing rules are primarily set out in the Copyright, Designs and Patents Act 1988 ( CDPA 1988), which came into force on 1 August 1989, in particular. For works made before 1 August 1989, the earlier Copyright Acts of 1911 or 1956 should be examined as the applicable legislation. Copyright is not a registered right; it subsists automatically once the work has been created and the qualifying circumstances have been satisfied. As a result, the question of subsistence is often not analysed closely until the owner wishes to licence or assign the right, or to invoke it as a cause of action when commencing proceedings, eg for infringement. For a creative work to be eligible for copyright protection, certain criteria must be...
Categorisation Copyright grants the proprietor the exclusive ability to carry out, and to authorise others to carry out, particular acts in respect of qualifying works. The Copyright, Designs and Patents Act 1988 ( CDPA 1988) formally sets out categories of protected works, bringing certainty about the types recognised. However, the boundaries between these groupings have since become less distinct, partly because of the digital revolution and the growing intricacy of creative production. This has created uncertainty as to whether the CDPA 1988 categories are exhaustive—so that anything outside them is not protected—or whether copyright may subsist in creations not expressly listed in the statute. Debate therefore persists about the scope of protection available to works that defy neat classification under the statutory scheme. CDPA 1988, s 1(1) identifies the categories: original literary, dramatic, musical or artistic works sound recordings, films or broadcasts,...
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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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