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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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Lexis+® UK is partnering with INSOL Europe on a joint initiative to gather contributions from INSOL Europe’s members and Country Co-ordinators, illustrating how EU Member States have put into effect Directive ( EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to enhance the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive ( EU) 2017/1132 (the EU Directive). This Practice Note offers a high-level snapshot of selected headline features of the ways different EU Member States (together with the UK) have revised or adapted their insolvency and restructuring regimes to transpose the EU Directive. Practitioners should consult the full article for full detail and, in all cases, liaise with lawyers in the relevant jurisdiction to confirm measures in force and any...
This Practice Note has been archived and is no longer maintained. Lexis+® UK are collaborating with INSOL Europe on a joint initiative to source articles from INSOL Europe’s national correspondents across EU Member States to compile a table distilling their findings, also drawing on Lexology Panoramic (see News Analysis: INSOL Europe/ Lexology Panoramic launch Joint Project on ‘ How EU Member States recognise insolvency and restructuring proceedings of a third country’). It examines how EU Member States would recognise insolvency or restructuring proceedings begun in a third country, such as the UK (post Brexit), the US, Japan, Australia or Canada. The table is intended only as a guide to the general principles and you should always consult local lawyers in the relevant jurisdiction to confirm the measures currently in force and the effect of any particular circumstances or nuances on your...
This Practice Note offers a concise outline of Regulation ( EU) 910/2014 (the e IDAS Regulation), as updated by Regulation ( EU) 2024/1183 (the European Digital Identity Regulation, or EUDI Regulation). The updated regime is commonly known as e IDAS 2.0. The revised e IDAS framework establishes the legal basis for electronic signatures, digital identities and other ‘trust services’ across the EU. It clarifies who may rely on electronic signatures and digital identities, and in what circumstances. It also sets specific obligations for providers of ‘trust services’ and brings in a European Digital Identity Wallet ( EUDI Wallet), scheduled to be available in 2026. This Practice Note focuses solely on EU law; for the general position on electronic signatures under the law of England and Wales, see Practice Note: Electronic...
ARCHIVED: This Practice Note has been archived and is not maintained Stop press: On 30 April 2024, Regulation ( EU) 2024/1183, the European Digital Identity Framework ( EUDI Regulation), was published in the Official Journal of the EU (see: LNB News 30/04/2024 39). The Regulation took effect on 20 May 2024 and amended Regulation ( EU) No 910/2014, the EU e IDAS Regulation. This Practice Note has therefore been archived—for further details on the EU e IDAS Regulation as amended by the EUDI Regulation (also called the Revised EU e IDAS Regulation or EU e IDAS 2.0), see Practice Note: The revised EU e IDAS Regulation ( EU e IDAS 2.0). This archived Note summarises Regulation ( EU) 910/2014 (the e IDAS Regulation), which establishes the legal framework for electronic signatures within the EU. It sets out who may use electronic signatures and the contexts in which they are...
ARCHIVED : This Practice Note has been archived and is no longer maintained. Rationale In any cross-border matter that triggers a formal insolvency process, practitioners examine the potential jurisdictions for commencing proceedings, weighing the pros and cons of each option. The doctrine of centre of main interests ( COMI) within Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency], together with the UNCITRAL Model Law on Cross- Border Insolvency (see UNCITRAL Model Laws—overview), means that, where time allows, advisers may engage in forum shopping to shift a company’s COMI (wherever it is incorporated) to a jurisdiction offering a more advantageous restructuring or insolvency framework (see Practice Note: Forum shopping and practical ways to move COMI). European states may accordingly adapt their legislation, in particular to enable stays, cram down and debtor in...
UK status Since 31 January 2020 (exit day), the UK has not been an EU Member State. Under the Withdrawal Agreement there followed an implementation period during which EU law still applied to the UK. From 1 January 2021, however, the key operative elements of Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency, concerning automatic recognition, ceased to apply in the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency [ Archived]). Other Member States nevertheless continue to apply the EU Recast Regulation on Insolvency when its conditions are met, and this note considers how it functions between Member States. EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency introduced substantial changes to the EC Regulation on Insolvency, Regulation ( EC) 1346/2000 ( EC Regulation on Insolvency). For the full text of the EU Recast...
This guide explains the use of e-signatures across a range of international jurisdictions. A comprehensive table provides a quick-reference overview of whether, and in what ways, e-signatures are deployed in different countries. More extensive detail on every overseas jurisdiction listed is provided in the sections that follow. For detailed information on executing contracts in multiple jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For guidance on the execution of deeds in different jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For insight into how contracts are formed across various jurisdictions, see Practice Note: Contract formation—jurisdictional guide. For information concerning the execution of documents under Scots law, see Execution— Scotland—overview. Please note that this is an introductory resource only, and that local advice from suitably qualified legal professionals in the relevant country should be obtained where...
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...
Use this Practice Note when identifying the applicable law for agreements made on or after 17 December 2009. It outlines when and for what reasons Regulation ( EC) 593/2008, Rome I was brought in. The Note reviews the implementation of Regulation ( EC) 593/2008, Rome I, the states that have signed up and are therefore bound by it, together with any reservations those states have entered. It explains why the regulation governs contractual disputes within the UK. Guidance is given on interpreting Regulation ( EC) 593/2008, Rome I, followed by consideration of the universal application rule (art 2) and the breadth of the applicable law (art 12). It sets out the general principles alongside rules tailored to particular categories of contract. It also identifies matters excluded from Regulation ( EC) 593/2008, Rome I, including arbitration and questions relating to the status and legal...
Rationale In any cross-border matter involving a formal insolvency process, restructuring advisers will consider which jurisdictions are open for proceedings and weigh the respective pros and cons of each (see Practice Note: Table of advantages and disadvantages of restructuring in various jurisdictions worldwide). As the concept of a centre of main interests ( COMI) appears in Regulation ( EU) 2015/848, the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency], and the UNCITRAL Model Law on Cross- Border Insolvency (see: UNCITRAL Model Law and Cross- Border Insolvency Regulations 2006 ( CBIR)—overview), practitioners may, where time allows, explore forum shopping—also called ‘insolvency tourism’ or ‘jurisdictional arbitrage’—to shift a company’s COMI, regardless of its place of incorporation or registered office, to a jurisdiction with a more favourable restructuring or insolvency framework. Ironically, the incidence of forum shopping has grown since these...
This table catalogues all European Commission phase II merger inquiries concluded since 2000, together with other merger-related investigations (eg failure to notify) as well. For details on ongoing Commission merger cases, see EU mergers—ongoing cases tracker. For information on completed Commission phase I merger investigations, consult EU phase I mergers—closed cases tracker. For information on concluded EU merger enforcement actions, see EU mergers enforcement actions—closed cases tracker. For appeals before the General Court, see General Court appeals—ongoing cases tracker; for further details of appeals before the Court of Justice, please consult Court of Justice appeals—ongoing case tracker......
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...
This Practice Note examines the form of the constitution of a private company limited by shares ( LTD), the commencement and application of the Companies Act 2014 ( Ireland) ( CA 2014 ( IRL)), the obligatory and supplemental provisions of the constitution, and the steps involved in adopting and amending a constitution. What is the constitution of a company? The constitution of an LTD is the central legal instrument that sets out the fundamental rules governing the corporate governance of that company. Under CA 2014 ( IRL), s 17, an LTD is required to have a constitution, as it is the principal document through which a company’s registration and incorporation are effected. Commencement of the CA 2014 ( IRL)—changes to the form and structure of the constitution of an LTD—transitional provisions Pursuant to CA 2014 ( IRL), Pt 2, an LTD must have a...
What is a designated activity company? The designated activity company ( DAC) is established under Part 16 of the Companies Act 2014 ( Ireland) ( CA 2014 ( IRL)) and is defined as either: a private company limited by shares whose capacity and powers extend solely to the activities specified in its constitution (memorandum of association) or a private company limited by guarantee with a share capital, whose capacity and powers are confined to the matters stated in its constitution CA 2014 ( IRL) introduced the DAC as a new company form. Like a limited liability company, a DAC is a distinct legal person, separate from its members. Ownership sits with members who hold shares in the company. The company alone is answerable for its obligations and may bring proceedings to enforce its own rights. Its directors manage the company in line with CA 2014 (...
This summarises completed EU merger enforcement actions since 2014 For details on live EU merger enforcement work, see EU mergers—ongoing cases tracker. For concluded Commission phase I merger reviews, see EU phase I mergers—closed cases tracker. For concluded Commission phase II merger reviews, see EU phase II mergers—closed cases tracker. For information on appeals before the General Court, see General Court appeals—ongoing cases tracker; for appeals before the Court of Justice, see Court of Justice appeals—ongoing cases tracker. 2023 Case: Illumina/ GRAIL ( M.10493, M.10483, M.10938 and M.10939) Industry sector: Production of basis pharmaceutical products and pharmaceutical preparations Issues: Gun jumping Decision: Decision withdrawn following Case C- 611/22 Commission adopts restorative measures requiring Illumina to unwind its completed acquisition of...
How do I access it? Subscribers to Lexis+® UK R& I can reach the case register via the How to Guide set out below. INSOL Europe members should have received an email containing their username and password, together with a direct link to the case register. What is the INSOL Europe case register? This case abstract service delivers digests of rulings, from the Court of Justice of the European Union and first‑instance and appellate courts of the EU Member States, where a notable issue concerns Regulation ( EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings ( OJ L141 5.6.2015 p 19), Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency] (or its antecedent, Regulation ( EC) 1346/2000 on......
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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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