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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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Electronic signatures This Practice Note sets out the legal position on electronic signatures—also called digital signatures, e‑signatures, E‑ Signatures, e Signatures, paperless signing or electronic document signing. It explains the categories of electronic signature and the technology used to generate digital signatures, including public key infrastructure ( PKI). It reviews key UK legislation such as the Electronic Communications Act 2000 ( ECA 2000) and the UK e IDAS Regulation, and outlines best practice for executing documents by electronic means. An electronic signature functions as the digital counterpart to a handwritten signature, connecting an individual with the contents of an electronic document. The Note focuses on the general law in England and Wales for commercial contracts in a business‑to‑business context. Readers should be aware that particular transactions may present distinct issues, for example due to laws applicable to consumers. For practical guidance on signing when one or more...
This Practice Note explores the role, function and significance of defined terms within an agreement context. It outlines those definitions most frequently found in documents relating to transactions, and considers the method that ought properly to be adopted when reviewing or preparing a contract that uses defined terminology. For wider guidance on boilerplate clauses generally, see Practice Note: The role of boilerplate. For general guidance on construing contracts, see Practice Note: Contract interpretation—rules of contract interpretation. The definitions and interpretation clause A common boilerplate provision is the definitions and interpretation clause, often treated as a standard component. It should gather every individual defined term contained in the agreement together with all provisions that govern the overall interpretation of the agreement and, where required, the meaning of particular expressions used in it as well. Typically, the defined terms and the...
This Practice Note examines how the 2005 Hague Convention on Choice of Court Agreements—which provides regimes for allocating court jurisdiction and for the recognition and enforcement of judgments—will operate in the UK after the end of the Brexit implementation period, viewed from the perspectives of both the UK and the EU Member States. The Convention applies solely to exclusive choice of court agreements. Definitions This Practice Note uses the following definitions: Hague Convention— Convention on Choice of Court Agreements concluded on 30 June 2005 at The Hague ECA 1972— European Communities Act 1972 EU( W) A 2018— European Union ( Withdrawal) Act 2018 EU( WA) A 2020— European Union ( Withdrawal Agreement) Act 2020 exit day—is defined in EU( W) A 2018, s 20 implementation period—is defined in EU( WA) A 2020, s 1. ‘...
Background to medical use claims Second (and later) medical use patent claims (called ‘second medical use claims’ below) are unique to the pharmaceutical/biotechnology sectors and serve to delineate an invention’s ambit by specifying a medical use. For a primer on these and other categories of patent claim, see Practice Note: Major types of patent claims. There are two distinct forms of second medical use claim, outlined in greater detail below. Making the medical use an explicit feature of a claim affects both its patentability and the breadth of protection. To place second medical use claims in context, it should be recognised that they originated under the earlier 1973 version of the European Patent Convention ( EPC 1973), which has since been superseded by the EPC 2000. The earliest second medical use claims allowed by the European Patent Office ( EPO) from the...
This Practice Note reviews the application of the Hague Convention on Choice of Court Agreements by contracting states to the convention. It sets out the parties to the convention, as well as those states that have signed the convention but have not yet ratified it. It also outlines how the convention operates for contracting states. For guidance on further elements of the convention, see the following Practice Notes: Hague Convention on Choice of Court Agreements (jurisdiction and enforcement)— Brexit considerations Hague Convention on Choice of Court Agreements—scope Hague Convention on Choice of Court Agreements—jurisdiction Hague Convention on Choice of Court Agreements—enforcement Definitions This Practice Note uses a number of definitions: Hague Convention on Choice of Court Agreements— HCCH Convention on Choice of Court Agreements concluded on 30 June 2005 at The Hague EU( W) A 2018— European Union (...
This Practice Note sets out practical guidance on how unincorporated charities execute documents. For details on execution by incorporated charities, refer to Practice Note: Execution formalities—incorporated charities. We offer a comprehensive, interactive collection that helps users identify and navigate the concepts and common issues in document execution, including deeds. Each stage includes practical guidance, precedent clauses and Q& As tailored to that stage. For further detail, see the Execution collection. Capacity Unincorporated charities lack a separate legal personality; consequently, the entity itself has no rights or duties and cannot own property in its own name. Property that appears to ‘belong’ to an unincorporated charity is vested in the organisation’s leading members, who act as trustees and hold it on trust for the remaining members. Accordingly, the individuals with authority to enter into arrangements and to execute documents are the trustees or members of the...
Practice Note This Practice Note is intended to guide the identification of the applicable law before the courts of England and Wales in relation to events that cause damage, where those events took place on or after 1 January 2021. Where a dispute raises a conflict of laws between different parts of the UK, or between the UK and Gibraltar, UK Rome II applies if the harmful event occurred on or after 11 January 2009. For occurrences falling outside these dates, the UK courts will apply a different applicable law regime, determined by the date of the event. For an overview of the various regimes and how they interrelate, see Practice Note: Applicable law regimes. This Practice Note refers to UK Rome II, Regulation ( EC) 864/2007. UK Rome II reproduces the full text and recitals of Regulation ( EC) 864/2007 (as...
Numerous businesses and public bodies, including HMRC, have faced exposure to or loss of confidential information, as well as other confidentiality failings, yet such events are not always widely publicised given the potential harm to an organisation’s reputation. Duties of confidence may arise by implication—for example, the duty of good faith (often called fidelity) inherent in employment contracts—be set out expressly, such as in a confidentiality agreement, or be imposed through regulation and statute, for instance the client confidentiality obligations on financial services and health professionals. A confidentiality breach can therefore infringe several overlapping legal duties. This Practice Note complements the related Practice Note, How to manage a personal data breach, which reflects guidance from the UK data protection regulator, the Information Commissioner’s Office, addressing loss of personal data within the data protection regime, which may, or may not, also be...
This Practice Note It sets out what a smart legal contract (often called a smart contract) is, both as a technological tool and as a binding legal device, and summarises the Law Commission’s guidance to the UK government, which found that the existing UK legal framework can enable and underpin the use of smart legal contracts. It outlines the legal concepts relevant to contract formation, form, formalities and interpretation under UK law, and contrasts their conventional application with how, according to the Law Commission, they might apply to the principal categories of smart legal contract. The Practice Note covers: • What is a smart legal contract? • Distributed ledger technology ( DLT) • Enforceability under UK law • The formation of smart legal contracts • Agreement (including offer and acceptance) • Consideration • Certainty and completeness • Intention to create legal relations •...
This Practice Note sets out the core principles, meaning and rationale for privilege. It identifies the main categories and explains how they operate: legal advice privilege and litigation privilege (together, ‘legal professional privilege’ ( LPP)) common interest privilege joint privilege public interest immunity ( PII) closed material procedures ( CMP) It examines the effect of privilege on disclosure and inspection, distinguishes confidential documents from privileged material, and considers who owns the right, how long it lasts, and its impact on case management. Practical tips on handling privilege are also provided. What is privilege? In English law, privilege is a fundamental right enabling a party, or its successors in title, to refuse production of certain documents (see the Court of Appeal decision in Addlesee v Dentons Europe). Where privilege applies, it generally does not remove the duty to disclose that a...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
Practice Note This Practice Note examines how the English courts approach the meaning and effect of a jurisdiction agreement (also referred to as a choice of court agreement) under English common law. It sets out the elements required for a valid jurisdiction agreement and the courts’ general method for construing these provisions. Matters addressed include whether a dispute falls within the clause’s ambit and how the jurisdiction promise interacts with the wider contract, covering separability and the position where the contract is alleged to be void or voidable. The Note also considers the courts’ approach to jurisdiction agreements contained in related contracts, as well as how conflicting jurisdiction provisions are handled. In addition, it reviews the use of jurisdiction clauses in an underlying contract for the purposes of settlement disputes, and the effect of an English law clause where no...
This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...
This Practice Note This Practice Note offers practical guidance on correctly and properly executing simple contracts and deeds for Law of Property Act receivers ( LPA receivers) or fixed charge receivers. Appointing an LPA/fixed charge receiver is a remedy available to the chargee (ie the holder of security over property) and is the remedy of a chargee. LPA/fixed charge receivership is not an insolvency process and does not necessarily, of itself, mean the chargor (ie the person who granted the security) is insolvent. An LPA/fixed charge receiver must be a natural person (ie a company cannot be a receiver) but need not be an insolvency practitioner or hold any other particular qualification. Unlike a liquidator, administrator or trustee in bankruptcy, an LPA/fixed charge receiver does not take control of the company as a whole (and, for an individual, does not control the...
This Practice Note sets out practical steps for arranging the execution of a document by an individual who has an impairment or disability, or where the individual and their adviser do not share the same language. For overarching guidance on executing contracts and deeds, see the following Practice Notes: Deeds Executing documents—deeds and simple contracts We have also created a comprehensive, interactive collection to help users recognise and navigate key concepts and frequent issues in document execution. Each stage includes practical guidance, precedent clauses and Q& As tailored to that phase. For further details, see: Execution collection. Inability to read or comprehend documents in writing An impairment may prevent a signatory from reading a document themselves, for instance where they are partially sighted or blind. It may equally be that the signatory does not read or speak the language used in the...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by limited liability partnerships ( LLPs). See also Precedents: Execution clause—limited liability partnership—contract and Execution clause—limited liability partnership—deed. For commentary on establishing an LLP, see Practice Note: Forming a limited liability partnership. We have created a collection that serves as a comprehensive, interactive tool to help users pinpoint and navigate the concepts and common issues that arise when executing documents. Each stage or phase supplies practical guidance, precedent clauses and Q& As relevant to that part. For further details, see: Execution collection. The law Before 1 October 2009, the execution formalities applicable to LLPs were contained in the Companies Act 1985. From 1 October 2009, LLPs have been governed by the Companies Act 2006 ( CA 2006) by virtue of, and as modified by, the Limited Liability...
On 24 December 2020, the UK Government and the European Commission revealed they had reached agreement in principle on the legal framework for the future UK- EU relationship. Taking provisional effect from 1 January 2021 and entering fully into force on 1 May 2021, the EU- UK Trade and Cooperation Agreement ( TCA) sets out provisions on trade in goods and services, economic and social co-operation, law enforcement and security co-operation, alongside overarching governance rules. A series of related declarations and accords supplement the TCA, among them the Agreement on Security Procedures for Exchanging and Protecting Classified Information ( SIA) and a distinct Nuclear Cooperation Agreement ( NCA). It also features placeholders and commitments anticipating additional agreements to be concluded. Publicised only a week before the Brexit transition ended at 11 pm on 31 December 2020 ( IP completion day), the deal arrived at the...
Practice Note This Practice Note offers practical direction on how companies should execute documents after 6 April 2008 (being the date on which the pertinent provisions of the Companies Act 2006 ( CA 2006) took effect). It addresses the execution of deeds by companies, and the execution of simple contracts by and on behalf of companies. If advising on documents signed before 6 April 2008 (for instance, in a dispute), practitioners should consider the relevant provisions of the Companies Act 1985. Throughout, it is assumed the executing company is a private company subject to CA 2006 and that the document is in writing. For execution points relevant to other legal entities, see: Execution—overview. We have assembled a collection that serves as a comprehensive, interactive resource to help users identify and work through the concepts and common issues that arise when executing...
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
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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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