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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 outlines Directive ( EU) 2019/633 of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain (the EU UTP Directive). It sets out the background, scope and enforcement of the EU UTP Directive. It also clarifies which practices are permissible where the supplier and buyer have clearly agreed them in advance, and identifies those trading behaviours deemed unfair in all circumstances. The EU UTP Directive was adopted on 17 April 2019, Member States had to transpose it by 1 May 2021 and apply the measures by 1 November 2021. The Directive’s purpose is to protect weaker suppliers in the agriculture and food supply chain from stronger buyers. Background Over the last three decades, the business-to-business ( B2B) food and non-food supply chain across the EU has been shaped by increased...
This Practice Note monitors the ongoing revision of EU block exemption rules and related guidance, including: the Vertical Block Exemption Regulation ( VBER) and its Vertical Guidelines; the Research and Developments Block Exemption Regulation ( R& D Block Exemption Regulation) and the Specialisation Block Exemption Regulation, together known as the Horizontal Block Exemption Regulations ( HBERs), with the accompanying Horizontal Guidelines; the Motor Vehicles Block Exemption Regulation ( MVBER); the Liner Shipping Consortia Block Exemption Regulation ( CBER); and the Technology Transfer Block Exemption Regulation ( TTBER). It does not address block exemption regulations for State aid. For UK legislation on block exemptions and live policy work, see Practice Note: UK block exemptions revision—tracker. For EU competition law legislation, guidance and other policy developments in train, see Practice Note: EU competition horizon scanning—2025 and...
This overview charts the principal steps of EU legislative procedures concerning data across the Union. On 19 February 2020, the European Commission launched its ‘ European Strategy for data’, with the objective of creating a single market for data that will strengthen the EU’s global competitiveness and enable innovative processes, products and services within the European Union. This tracker highlights non-personal data initiatives and features the following key initiatives: EU Data Governance Act EU Data Act EU Open Data Directive European Health Data Space European Mobility Data Space European Tourism Data Space Access to vehicle data Data collection for short-term rentals Please note this tracker does not include the proposal for a Regulation on a framework for Financial Data Access, issued on 28 June 2023, at present. For further details on other elements of the EU digital...
This Practice Note outlines Council Directive 93/13/ EEC of 5 April 1993, known as the EU Unfair Terms in Consumer Contracts Directive ( EU UTCCD). It summarises the background, scope, enforcement, and the latest developments relating to the EU UTCCD, and flags its context and purpose. It describes the overarching ban on unfair terms, the applicable ‘fairness test’, the grey list of terms identified in the directive, and the consequences where a clause is judged unfair. It also covers the transparency obligations set by the EU UTCCD. The Note highlights key features and effects addressed throughout the directive. For more on other key EU measures protecting EU consumers, see Practice Note: Key EU consumer legislation—summary. For more on EU consumer protection jurisprudence, see Practice Note: EU consumer protection cases...
Directive 2019/771: EU Sale of Goods Directive ( EU SGD) This Practice Note sets out a high-level summary of Directive 2019/771 ( OJ L 136/28) on specific aspects of contracts for the sale of goods, the EU Sale of Goods Directive ( EU SGD), adopted under the European Commission’s Digital Single Market agenda. The EU SGD confers a range of consumer rights and remedies in business-to-consumer ( B2C) contracts for the supply of goods and is complemented by Directive ( EU) 2019/770 ( OJ L 136/1) on certain matters relating to contracts for digital content and digital services, the EU Digital Content Directive ( EU DCD), introduced in tandem with the EU SGD. For details on the EU DCD, see Practice Note: The EU Digital Content Directive. The EU SGD repealed Directive 1999/44/ EC ( OJ L 171/12) on aspects of the sale of...
This Practice Note outlines the principal changes made to several EU consumer protection laws by Directive ( EU) 2019/2161 ( OJ L 328/7), known as the EU Omnibus Directive. Background In April 2018, the European Commission unveiled the ‘ New Deal for Consumers’ package, aimed at bolstering consumer safeguards and enforcement throughout the EU. The package comprised two draft Directives, each of which has now passed into law: Directive ( EU) 2019/2161 ( OJ L 328/7) on enhanced enforcement and the modernisation of EU consumer protection rules, the EU Omnibus Directive Directive ( EU) 2020/1828 ( OJ L 409/1) on representative actions to safeguard the collective interests of consumers, the EU Representative Actions Directive The EU Representative Actions Directive repeals and replaces Directive 2009/22/ EC (the EU Injunctions Directive), aiming to strengthen mechanisms to halt unlawful practices and to enable redress for...
Commercial contracts— Australia— Q& A guide This Practice Note offers a jurisdiction-specific Q& A on commercial contracts in Australia, featured in the Lexology Getting the Deal Through series by Law Business Research (published: October 2022). Authors: Baker Mc Kenzie— Adrian J. Lawrence; Caitlin Whale 1. Is there an obligation to use good faith when negotiating a contract? Australian contract law does not recognise a universal duty to act in good faith during negotiations. Courts have nevertheless found that an express agreement to negotiate a particular issue in good faith can be enforceable, provided the clause is drafted with sufficient clarity so it can be given practical effect. In limited contexts, a statutory requirement to negotiate in good faith may arise. For example, the Franchising Code of Conduct obliges the parties to a franchise agreement to act in good faith towards each other, including when...
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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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