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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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Guide to executing simple contracts across jurisdictions This guide explains the requirements for signing simple contracts in a range of international jurisdictions. A table gives a quick-reference snapshot of the execution formalities for companies, individuals and partnerships in different countries. Fuller commentary for each overseas jurisdiction listed in the table appears in the sections below. For guidance on the execution of deeds in various jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For electronic signatures, see Practice Note: E-signatures—jurisdictional guide. For the formation of contracts, see Practice Note: Contract formation—jurisdictional guide. For executing documents under Scots law, see: Execution— Scotland—overview. Please note: this is an introductory resource only, and local advice from suitably qualified legal professionals in the relevant country should be obtained where appropriate. Summary table What are the requirements for companies when executing contracts? What are the requirements for...
This guide outlines the rules and requirements for the execution of deeds across multiple international jurisdictions. A table offers a quick-reference overview and summary of the execution formalities for companies, individuals and partnerships in a range of countries. Further detail on each overseas jurisdiction listed in the table appears in the sections that follow, including any variations in limitation periods for claims under contracts made as a deed. Each section corresponds to the overseas jurisdictions shown in the table for reference. For the execution of contracts across jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For electronic signatures in different jurisdictions, consult Practice Note: E-signatures—jurisdictional guide. For the formation of contracts across jurisdictions, refer to Practice Note: Contract formation—jurisdictional guide. For the execution of documents under Scots law, see Execution— Scotland—overview. Note that this is an introductory resource only; seek local advice from...
Real estate finance ( REF) transactions Real estate finance arrangements fall into two categories: investment finance and development finance. The dividing line is whether the property is bought as an investment (that is, already producing income) or acquired for development. Although encountered less frequently, development finance is generally more complex than investment finance. For a broad primer on development facilities within real estate finance, see the following Practice Notes: Introduction to real estate finance—the lending structure Real estate finance—development facilities—key features The Loan Market Association ( LMA) has issued a recommended facility agreement for use in real estate finance development transactions, together with a user guide, both available to LMA members—see the Single Currency Term Facility Agreement for Real Estate Finance Single Property Development Transactions (the LMA REF Development Facility Agreement) and the accompanying user guide on the LMA website. As real estate finance...
Scope of this Practice Note This Practice Note examines the UK regulatory considerations encountered by crowdfunding platforms from a financial services standpoint. It ought to be read in conjunction with the Financial Services and Markets Act 2000 ( FSMA 2000), together with relevant secondary legislation, and regulatory rules and guidance, including, in particular, provisions within the Financial Conduct Authority ( FCA) Handbook and the FCA’s webpage devoted to crowdfunding. This Note briefly outlines initiatives at EU level in relation to regulating crowdfunding, which are discussed in detail in Practice Note EU Regulation of crowdfunding—the ECSP Regulation and the Mi FID II Crowdfunding Directive. Crowdfunding (sometimes referred to as 'crowd sourcing' or 'crowd financing') operates on the basis that individuals seeking capital, such as entrepreneurs, present ventures or businesses on an online platform, and members of the public contribute funds through that platform. There is no...
What is credit support? Credit support allows a party to lessen the credit risk of its counterparty. It functions as a protective mechanism against non-performance. Such arrangements are also described as 'financial collateral arrangements', 'margin arrangements', 'collateralisation' and 'credit enhancement'. One party (or both) will transfer, or otherwise make available, assets (termed collateral or margin) to the other party (the collateral taker) to secure or back its present or future obligations. If the credit support provider defaults, the collateral taker may rely on the collateral furnished by the defaulting party to secure any outstanding debt. Collateral might be posted by one party only (for example, where one party is rated more highly than the other, it may require collateral) or by both parties, as the particular arrangement requires. In this context, collateral denotes the assets delivered under a credit support...
How does an in-house lawyer measure the performance of their external law firms? Paul Gilbert sets out some objectives, metrics and examples of incentives. Paul Gilbert outlines objectives, metrics, plus illustrative examples of incentives also......
This Practice Note reviews the Hague Convention on Choice of Court Agreements, which governs both jurisdiction and the recognition and enforcement of judgments. It outlines the scope of the Hague Convention on Choice of Court Agreements and the need for an international case anchored by an exclusive choice of court agreement. It also examines issues lying outside the Convention’s reach, whether by specific exclusions within the text or through declarations made by contracting states. The Practice Note considers how the Hague Convention on Choice of Court Agreements applies in the UK. An explanatory report on the Hague Convention on Choice of Court Agreements by Trevor Hartley and Masato Dogauchi supplies detailed commentary on each article. When did the Convention come into force? The Hague Convention on Choice of Court Agreements was concluded on 30 June 2005 and was first ratified by Mexico, followed by the EU. In...
Aims of PSD2 The Second Payment Services Directive ( PSD2) took effect in January 2016, with application from 13 January 2018. Since then, various delegated acts and regulatory technical standards have been issued and adopted. PSD2 folded in, repealed and replaced the original Payment Services Directive 2007/64/ EC ( PSD1). Its core objectives are to foster competition, bolster consumer protection and build a single payments market across the European Economic Area ( EEA). It also captures a broader array of payment systems, with far‑reaching consequences for market participants. Changes introduced by PSD2 PSD2 scope extended to all currencies and one-leg transactions PSD2 widens conduct of business and transparency rules to consumer transactions with one leg in the EU—payments to or from third countries where at least one payment services provider ( PSP) is in the EU. PSPs may still disapply certain information and conduct duties when serving...
What does the EU Taxonomy Regulation do? The EU Taxonomy Regulation ( Regulation ( EU) 2020/852) appeared in the Official Journal of the EU on 22 June 2020 and took effect on 12 July 2020. It creates a classification framework across the EU, or ‘taxonomy’, designed to give businesses, investors, financial institutions, companies and issuers a shared vocabulary for judging the extent to which economic activities are environmentally sustainable. This shared language helps determine how far activities are environmentally sustainable, using terminology provided by the Regulation and understood by businesses, investors and issuers. As a transparency instrument, the Regulation’s overarching purpose is to inform decision-making and channel investment effectively towards economic activities fundamental to the transition to net zero. The EU Taxonomy Regulation also amends, and borrows definitions from, Regulation ( EU) 2019/2088—the EU Sustainable Finance Disclosures Regulation ( EU SFDR)—and is...
This Practice Note sets out a summary of the scope and obligations arising under the EU Sustainable Finance Disclosure Regulation ( Regulation ( EU) 2019/2088) together with Commission Delegated Regulation ( EU) 2022/1288. Overview of EU SFDR and related regimes Regulation ( EU) 2019/2088 ( EU SFDR) on sustainability‑related disclosures for the financial services industry creates a disclosure and transparency framework for the EU financial sector as a whole. The EU SFDR sits within a wider EU sustainable finance rulebook of measures, most notably the EU’s Sustainable Finance Action Plan adopted in March 2018 ( Action Plan). For further details on the Action Plan (including a concise overview of the EU legislation that falls within it, such as the EU SFDR, the EU Taxonomy Regulation ( Regulation ( EU) 2020/852 ( EU TR)), and requirements on integrating...
Guarantees are commonly deployed in banking arrangements as a type of security for a debt obligation. In these situations, they comprise a contractual commitment by which one party (the guarantor) undertakes to be responsible for the obligations of another (the principal) that are owed to a third party. They do not confer proprietary rights over property. In this sense, guarantees are regarded as quasi-security. This Practice Note considers: the core legal features of guarantees how guarantees operate in financing transactions why lenders favour documents that combine a guarantee with an indemnity which obligations are typically covered-duties under a particular deal or on an ‘all monies’ basis? whose liabilities are usually supported in finance transactions the application and scope of limited guarantees, and why lenders must understand guarantor rights and available guarantor protections This Practice Note does not address on demand...
What is a certificate of title? A certificate of title is a distinct form of title report produced by a solicitor for a party other than their own client. Within commercial property deals, solicitors are commonly asked to examine the title (for example, where land is being bought or put forward as security) on behalf of their client. They then provide a report to the client on the overall character and/or soundness of the title, setting out in detail what their enquiries uncovered, eg any defects or encumbrances affecting the title (such as charges or easements), together with any rights that materially benefit the property. In some situations, the client instructs the solicitor to prepare this report for a person other than the client, for instance a mortgagee or a buyer of shares in a company that holds the land. This specific variant of a title...
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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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