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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 new starter guide introduces copyright law and signposts further Lexis+® UK materials offering fuller coverage. It is for trainee solicitors and anyone new to copyright. Information on other intellectual property ( IP) rights, including additional starter guides, appears in Practice Note: Intellectual property ( IP)—new starter guide. Where topics fall outside this guide, consult the two Copyright subtopics: Copyright & associated rights transactions and management Copyright disputes For summaries of these areas, see: Copyright & associated rights—overview and Copyright disputes—overview. The guide also explains how to subscribe to the IP daily and weekly news alerts and how to contact the Lexis Ask team. Introductory materials For an introduction to copyright law, see Practice Notes: Copyright—subsistence and qualification Copyright—protectable works Copyright—authorship and ownership Duration of copyright Copyright infringement ...
This Practice Note This Practice Note is aimed at commercial lawyers who are not specialists in intellectual property ( IP). It introduces copyright and related rights in the UK, outlining what copyright is, how it comes to exist, and how to protect, transact, manage and exploit it. If you are a specialist IP lawyer, refer instead to the Copyright & associated rights—overview and Copyright disputes—overview, together with the documents they reference. Using this Practice Note This Practice Note is broadly arranged into five principal sections covering: Subsistence of copyright (copyright is not a registered right): eligibility of works, qualifying categories and qualification generally Maintaining copyright: the term of protection, copyright notices and policies Dealing with copyright in agreements: assignments, licences and collective licensing Asserting copyright: disputes, exceptions (permitted acts), defences and remedies for infringement Rights associated with copyright: moral rights and...
Issues to consider This Practice Note will be valuable for advisers to the publishing sector and providers of news aggregation services concerned with the spread of online information. It presumes familiarity with, and should be consulted alongside, the following Practice Notes: Copyright—subsistence and qualification Copyright infringement Linking on the web Copyright empowers the owner to restrain others from undertaking specified acts in relation to the protected work, including reproducing it and communicating it to the public. Online news aggregation and linking now represent major commercial activity, with copyright determining who may do what with particular content. When assessing the dissemination of information online, the key questions to address are: whether the material benefits from copyright protection whether there has been copyright infringement whether any exceptions to infringement apply the position regarding consent to reproduce material or to perform other...
ARCHIVED: This Practice Note is archived and no longer updated. At 11 pm ( GMT) on 31 December 2020, the implementation period ended, which had been designed to help the UK move away from the EU’s rules and bodies. From that moment (described here as ‘ IP completion day’), the UK’s legal framework shifted immediately and materially. This Practice Note outlines what that shift means for consumer protection. How does Brexit impact consumer protection? UK consumer protection rules originate partly in EU legislation and partly in domestic law. In several respects, Brexit produced a more muted short-term effect for consumer protection because EU Member States were already unevenly regulated, and businesses selling to EU consumers were used to addressing particular cross-border obligations. That said, if EU consumer protection rules depart from the approach taken in the UK, or if the UK pursues further...
This Practice Note This Practice Note monitors how retained EU competition law is being superseded in the UK. It specifically addresses: the retained Vertical Block Exemption Regulation, Retained Regulation ( EU) 330/2010 (retained VBER), which has been replaced by The Competition Act 1998 ( Vertical Agreements Block Exemption) Order 2022, SI 2022/516 ( UK VABEO); the retained Motor Vehicle Block Exemption Regulation, Retained Regulation ( EU) 461/2010 (retained MVBER), now replaced by The Competition Act 1998 ( Motor Vehicle Agreements Block Exemption) Order 2023 SI 2023/586 ( MVBEO); the assimilated Technology Transfer Block Exemption Regulation, Assimilated Regulation 316/2014 (assimilated TTBER); the retained Research and Development Block Exemption Regulation, Retained Regulation ( EU) 1217/2010 (retained R& D BER), replaced by the Competition Act 1998 ( Research and Development Agreements Block Exemption) Order 2022, SI 2022/1271 (the UK R& D BEO); and the...
This Practice Note offers a concise guide to UK competition law for commercial contracts. It summarises the principal elements of the legal regime, with opening sections on the main categories of commercial agreements relevant to competition law and a sketch of the rules that govern each. It aims to set context and flag what may warrant deeper consideration. It also signposts other Practice Notes and Checklists so readers can locate more detail on specific subjects. This Practice Note centres on anti-competitive agreements under Chapter I of the Competition Act 1998 ( CA 1998). It does not address other areas of UK competition law, such as abuse of dominance under Chapter II of the CA 1998, or merger control. Note that Chapter I of the CA 1998 covers not only written contracts but also far looser arrangements. It is assumed here that the reader is...
From 31 January 2020, the UK was no longer an EU Member State, having left the Union. Under the Withdrawal Agreement, an 11-month transition (implementation) period ran until 31 December 2020, during which EU law continued to apply in full. EU legislation made or brought into effect after 31 December 2020 ( IP completion day) does not bind the UK at all. For EU legislation predating 31 December 2020, a new class of domestic law—retained EU law—was created by the European Union ( Withdrawal) Act 2018 and then the European Union ( Withdrawal Agreement) Act 2020; related pre-2021 case law continued to have effect in the UK. For further information and background, see Practice Notes: Brexit—key legislation explained and Retained EU law and assimilated law. The Retained EU Law ( Revocation and Reform) Act 2023 further amended this position from the end of 2023,...
Establishment and function of the Company Names Tribunal The Company Names Tribunal (the Tribunal) was set up under the Companies Act 2006 ( CA 2006). Under CA 2006, s 69, a person may ask the Tribunal to object to a company’s registered name on the grounds that it is the same as, or sufficiently similar to, a name associated with the applicant in which it has goodwill. This Tribunal route operates alongside regulations that prohibit a company from choosing a name that is identical to, or too close to, one already registered by another company. Companies House also enforces a range of other rules that limit the selection of company names. For further information, see Practice Note: Company names and business names. Legislative framework: CA 2006, ss 69–74 create a right for any person to challenge a registered company or limited liability...
ARCHIVED: This Practice Note is archived and is not being maintained. Introduction This Practice Note tracks key Brexit- and commercial law-specific developments and guidance. Where possible, related updates are grouped for readers’ convenience. Jump to: Advertising, marketing and sponsorship Agency and distribution Consumer protection Data protection E-commerce Sale and supply of goods Supply of services International trade—importing and exporting goods and services International trade—customs & excise Brexit—general This Practice Note does not cover general Brexit developments; see Practice Note: Brexit timeline. For progress on UK legislation prepared for the UK’s withdrawal from the EU, see Practice Note: Brexit legislation tracker. On 31 January 2020 ( Exit Day), the UK left EU membership and entered an implementation period, during which EU law still applied. Transitional provisions implementing the Withdrawal Agreement—the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A...
This Practice Note reviews collective trade marks and certification trade marks in the UK. It outlines the purpose of these marks, how they differ from conventional trade marks, and their reach. It further clarifies who may own collective trade marks and certification trade marks, who may use collective trade marks and certification trade marks, and the requirements for registration. Collective marks and certification marks post- Brexit This Practice Note concentrates on the UK frameworks for collective trade marks and certification trade marks. For details on the EU frameworks, see Practice Note: Collective marks and certification marks in the EU. The chief consequence of Brexit for trade marks is that the UK is no longer bound by Regulation ( EU) 2017/1001 and, as a result, EU trade marks ( EUTMs) no longer enjoy protection in the UK. Owners of EUTMs that were registered...
This Practice Note explains the types of intellectual property ( IP) rights which a business might own, including trade marks, designs, copyright, databases, and patented or patentable technology. This introductory guide supports businesses as they review IP portfolios, run audits, or decide which protections to secure for their assets. IP rights are valuable assets that are critical to many businesses’ success, yet often go unrecognised. Many do not realise the breadth of rights they hold or the advantages they offer. Ensuring this IP is captured and utilised is essential. Below are the principal IP rights with details of assets a business may own. Registered trade marks: registered trade marks and pending trade mark applications. Unregistered trade marks: unregistered business and trading names; product or service names in use; plus product shapes, packaging and slogans. Design rights (registered or...
This Practice Note outlines the law governing the use of boilerplate provisions in business-to-consumer ( B2C) contracts. In addition to summarising the Consumer Rights Act 2015 ( CRA 2015), which polices unfair terms in B2C agreements, it also considers the Competition and Markets Authority guidance ‘ Unfair contract terms: CMA37’ ( CMA Guidance). For analysis of particular boilerplate terms used in B2C arrangements—adjudication, alternative dispute resolution ( ADR), arbitration, assignment, definitions and interpretation, entire agreement, force majeure, governing law, jurisdiction, variation and waiver—see Practice Note: Boilerplate clauses in business-to-consumer contracts—specific clauses. For wider material on standard terms and conditions in B2C contracts, see the following Practice Notes: Consumer standard terms and conditions—the business context Consumer standard terms and conditions—the advertising and marketing context Consumer standard terms and...
ARCHIVED : This Practice Note has been archived and is not maintained This Practice Note reviews the rules for identifying the applicable law, also described as governing law, as they operate between the UK’s exit from the EU on 31 January 2020 and the conclusion of the implementation period, which the EU refers to as the transition period. It addresses whether the implementation period can be extended, whether the applicable law frameworks in Regulation ( EC) 593/2008, Rome I, and Regulation ( EC) 864/2007, Rome II, continue to apply during that period, and what is expected at its end. For a quick reference Brexit research aid answering key questions on Brexit and offering useful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and...
Patents for small molecules or ‘new chemical entities’ ( NCEs) This Practice Note explores matters unique to patents covering small molecules, or ‘new chemical entities’ ( NCEs), which are a subset of the materials or methods capable of being protected by pharmaceutical patents. For further detail on pharmaceutical patents, see Practice Note: Pharmaceutical patents. Brexit did not change the patent protection available in the UK at all. The UK remains firmly within the European patent system and can still be designated in European patent applications, since the European Patent Office ( EPO) and the European Patent Convention ( EPC)—the international treaty that sets out the procedure for granting European patents by the EPO—are independent of the EU. The UK has simply become another non- EU contracting state to the EPC, alongside Norway, Switzerland and Turkey. In proceedings before the EPO (eg those...
This Practice Note summarises the principal legislative provisions governing UK trade mark registrations. For comparison, it also highlights the equivalent provisions of EU trade mark ( EUTM) legislation, which applied before Brexit and continue to operate in the EU Member States... Framework The trade mark regime A ‘trade mark’ functions as a sign of origin, distinguishing one undertaking’s goods and services from those of another. For more information, see: Trade mark transactions and management—overview. A UK trade mark is applied for at the UK Intellectual Property Office ( IPO) and, once granted, confers protection throughout the UK. For further detail, see Practice Note: Application to register a UK trade mark. An EUTM is a single, unitary registration that covers all EU Member States. It is obtained via one application filed with the EU Intellectual Property Office ( EUIPO). For more detailed information, see: Trade marks ( EU...
This year’s annual round-up surveys the standout developments of 2017 and signals what lies ahead for 2018. It spans: the new copyright infringement and webmarking provisions in the Digital Economy Act 2017 reforms to the EU Trade Mark Regulation the Supreme Court judgment on patent infringement in Actavis v Eli Lilly the fresh threats provisions brought in by the Intellectual Property ( Unjustified Threats) Act 2017 the launch of the Business and Property Courts, featuring an intellectual property list It also includes updates to Lexis Nexis®’s content, highlighting notable developments from the last year and what is planned over the coming 12 months. Reviewing 2017 Copyright What happened? Certain provisions of the Digital Economy Act 2017 ( DEA 2017) addressing copyright infringement took effect on 1 October 2017. Following the repeal of section 52 of the Copyright, Designs and Patents Act 1988 ( CDPA 1988) on 28...
Design rights before and after Brexit The aim of this Practice Note is to provide a concise overview of the different UK design rights available both before and after Brexit. In brief, the UK’s departure from the EU means that, from IP completion day (11.00 pm on 31 December 2020), the UK stopped being subject to the EU design framework, which at that time covered registered Community designs ( RCDs) and unregistered Community designs ( UCDs). The UK is excluded from the territorial scope of those unitary rights (and from international design registrations designating the EU) and is no longer bound by Regulation ( EC) 6/2002. Consequently, the UK implemented arrangements under which the proprietor of an RCD or a UCD on IP completion day automatically became the owner of an equivalent UK design right. Designs safeguarded as RCDs were cloned into a new UK right...
Background This Practice Note sets out a concise, high-level overview of the principal points of comparison between both the UK and the EU in relation to, and concerning, trade marks that have emerged since the UK left the EU on 31 December 2020 ( IP completion day). It also further considers the effects of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) on trade mark law, and contrasts the respective UK and EU frameworks for protecting geographical indications ( GIs), and exhaustion of rights. For discussion of other IP rights across the UK and EU, see the related Practice Notes: Patents and SPCs— UK/ EU comparison, Designs— UK/ EU comparison, and Copyright and databases— UK/ EU comparison. IP law is significantly harmonised across the EU. Before Brexit, numerous features of UK IP law were aligned with the EU...
Trade mark litigation procedure—framework This Practice Note provides an overview of trade mark litigation procedure. The Intellectual Property List, a specialist list within the Business and Property Courts, includes the Patents Court and the Intellectual Property Enterprise Court ( IPEC) sub-lists. Trade mark disputes are usually heard in the general Intellectual Property List or in the IPEC sub-list. It explains how to commence proceedings, prepare and serve statements of case, and covers case management, disclosure and inspection, evidence and trial. It also addresses costs and the timetable. This Practice Note relates to actions concerning UK trade mark registrations, governed by the Trade Marks Act 1994 ( TMA 1994). For further detail on the legal basis for trade mark infringement and enforcement, see Practice Notes: Trade mark infringement— UK and Intellectual...
Introduction This document offers swift access to Precedents connected to trade mark infringement and passing off. These cover letters of claim and the principal statements of case used to commence and progress trade mark infringement and passing off actions. Precedents Letter of claim—trade mark infringement See Precedent: Letter of claim—trade mark infringement. This Precedent provides a letter of claim (also known as a letter before action or a cease and desist letter) for situations involving an alleged trade mark infringement. A letter of claim alerts the alleged infringer that court proceedings may follow. The courts regard litigation as a measure of last resort, so parties are urged to address disputes early through dialogue and the exchange of information and documents. Issuing a letter of claim facilitates communication between the parties and can lead to settlement without commencing proceedings. After correspondence, the infringement may cease and the trade mark owner may, by...
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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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