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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 the principal routes for tackling the UK trade in counterfeit goods, weighing the benefits and drawbacks of each, and providing practical pointers for brand owners. It addresses action by the authorities—customs, Trading Standards ( TS) and the police—as well as civil proceedings and private criminal prosecutions pursued by right holders. While some jurisdictions permit administrative action against infringers, that avenue is not considered here. The focus is counterfeiting (trade mark-related offences), with brief reference to piracy (copyright-related offences) and offences concerning registered designs. Anti-counterfeiting measures are discussed across both online and offline channels. For broader guidance on online brand protection, see Practice Note: Brand protection online—strategy and Brand protection online—checklist. For tackling counterfeit goods at EU-level, see Practice Note: IP enforcement and the EU customs regime. Further reading is available from the UK Intellectual Property Office ( IPO): IP crime and...
Intellectual property ( IP) protection for plant-related inventions Protection for plant-focused inventions is available through the patent system and through plant variety protection. Plant variety rights ( PVRs) are an IP right granting the owner exclusive control over commercialisation of propagation material and permitting the collection of royalties, for example by granting licences to propagate and market the variety. This Practice Note sets out the IP protection for specific plant varieties, referred to as plant variety rights ( PVRs) or plant breeders’ rights. It covers the EU framework for the Community plant variety right ( CPVR). It details the validity criteria for PVR protection, the standards for infringement, and the compulsory licensing of PVRs. This Practice Note also considers patent protection for plant-related inventions, including groups of plants exhibiting a shared characteristic and plant protection products such as pesticides. For guidance...
Universities and other academic institutions Universities and other academic bodies carry out extensive research and consequently create significant volumes of protectable IP. Safeguarding and exploiting this IP is both costly and time‑consuming, and frequently the university is better placed to manage this than individual academics. Many larger institutions operate IP policies requiring academics to assign all IP rights arising from their research to the university. In return, incentives such as a share of the income generated by the IP are provided. After a university secures ownership of IP, it can be commercialised in several ways, including: donation for the wider benefit of the public licensing to established third parties or start‑ups selling or assigning the IP to third parties creating spin‑offs to exploit the IP A university ‘spin‑off’ or ‘spin‑out’ is a new company established to capitalise on research...
In contrast with numerous jurisdictions, the UK lacks a general unfair competition regime of its own. Brand owners aiming to stop rivals from selling lookalike goods or deploying deceptive adverts must depend on a mix of intellectual property rights, used together in practice rather than relying on a lone, overarching rule. Among these is also the common law action of passing off. Such claims proceed, in essence, on the basis that nobody may present their goods or services as those of another party. A frequent pattern involves a defendant reproducing the claimant’s packaging, get-up or branding so as to misstate the origin of its offerings. Set out below are the essential elements to prove passing off, together with an outline of potential defences, available remedies and pragmatic considerations to bear in mind. Passing off is regularly pleaded alongside trade mark...
CASE HUB ARCHIVED This case hub, now archived, records the position as at the decision dated 29 July 2021; it is no longer being maintained. NOTE— appeals were lodged before the CAT by Hg Capital LLP (1419/1/12/21), Cinven ( Luxo 1) S.a.r.l (1421/1/12/21) and Mercury Pharmaceuticals Limited (1422/1/12/21). See further, timeline, commentary and related cases. Case facts Outline CMA Article 102 TFEU/ Chapter II inquiry into Advanz Pharma (formerly Concordia) concerning abuse of dominance by levying excessive and unfair prices for liothyronine tablets. Latest developments On 29 July 2021, the CMA issued an infringement decision finding that Advanz Pharma had abused a dominant position by charging excessive and unfair prices for liothyronine tablets. The CMA imposed penalties exceeding £101.4m, allocated as follows: Advanz Pharma—£40.9m Hg Capital (£8.6m) and Cinven (£51.9m)—two private equity firms that had previously owned businesses now forming part of Advanz Pharma......
This Practice Note sets out the purpose and importance of time of the essence clauses in commercial contracts. It outlines the general rule and its exceptions, and considers practical points for both supplier and customer when evaluating time of the essence provisions in supply of goods or services agreements. For a Precedent time of the essence clause with detailed drafting notes, see Precedent: clause. See also: Drafting and negotiating a time of the essence clause—checklist. For discussion of time of the essence clauses in the context of: construction contracts, see Practice Note: —construction contracts rent reviews, see Practice Note: A guide to rent review for property lawyers— When is time of the essence? Consequence of a time of the essence clause Where a contract stipulates that ‘time is of the essence’ for the performance of an obligation, there is a...
Introduction On 27 February 2023, UK Prime Minister Rishi Sunak and European Commission President Ursula von der Leyen agreed new arrangements governing Northern Ireland’s post‑ Brexit regime. Branded the Windsor Framework, it revises the Northern Ireland Protocol, a component of the Withdrawal Agreement concluded between the UK and the EU when the UK departed the bloc. The UK government has issued a Command Paper detailing the Framework’s measures. The corresponding legal instruments, embodying the political accord, have also been released. Decision No 1/2023 of the Joint Committee gives the Framework legal force, and the Northern Ireland Protocol is now referred to as the Windsor Framework. For practical guidance on Decision No 1/2023 of the Joint Committee, see Practice Note: Joint Decision for Windsor Package to commence. The purpose of the Windsor Framework is to secure the seamless movement of goods between the UK and...
This Practice Note offers practical direction on correctly executing documents when one or more parties to a contract are not physically together, often referred to as virtual signing or a virtual closing. The Law Society has brought together established materials covering: execution of documents by virtual means, use of electronic signatures, its ‘ Tips on how to operate in practice’ concerning virtual execution and the use of e‑signatures, and Q& A on using electronic signatures and completing virtual executions, including ‘ Our position on the use of virtual execution and e‑signature during the coronavirus ( COVID‑19) pandemic’. We have assembled a comprehensive, interactive collection to help users identify and navigate the concepts and common issues involved in executing documents, including by virtual means. Each section or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For more...
ARCHIVED This Practice Note has been archived and is not maintained. It reviews the relevance of the Withdrawal Agreement for the life sciences sector and the respective roles of EU and UK regulators. It provides a brief overview of the importance of EU law to the industry and assesses the Agreement’s effects on: marketing authorisations ( MAs) and the medicinal products regulatory framework medical devices clinical trials research and development data protection import-export Relationship with EU law—the Withdrawal Agreement The life sciences field is one of the most highly regulated and globally harmonised sectors. Much of the regulation originates from EU directives or regulations, complemented by guidance from the European Commission and the European Medicines Agency ( EMA), the EU’s decentralised body responsible for the scientific evaluation, supervision and safety monitoring of medicines in the EU. The...
ARCHIVED: This Practice Note has been archived and is not maintained. It brings together major milestones on cross-border services between the UK and the EU, as well as a chronology of the UK/ EU talks over their future trade relationship from exit day (31 January 2020) through to IP completion day (31 December 2020). For guidance on how IP completion day affects services trade, see the Practice Notes: What does IP completion day mean for Commercial? and What does IP completion day mean for the supply of services? STOP PRESS: On 24 December 2020, the European Commission and the UK government declared an agreement in principle on the legal framework for the future UK– EU relationship. Announced just a week before IP completion day, the EU– UK Trade and Cooperation Agreement ( TCA), together with related agreements, arrived at the last minute, leaving minimal time to...
On 23 June 2016, the United Kingdom held a referendum on its EU membership, with a majority opting for the UK to leave the EU. On 29 March 2017, the Prime Minister sent formal notice of the UK’s intention to withdraw, setting in motion the Article 50 TEU process. At 11 pm on 31 January 2020 (exit day), the UK’s withdrawal took effect in law and the UK ceased to be an EU Member State. Exit day signalled the close of the Article 50 withdrawal phase and the beginning of a time-limited transition/implementation period, during which the interim arrangements in Part 4 of the Withdrawal Agreement applied. These transitional measures created a standstill period while the UK and the EU set about implementing the Withdrawal Agreement and negotiating the legal terms governing their future relationship, to apply after the transition ended. The EU- UK Trade and...
ARCHIVED: This Practice Note is archived and no longer updated. It brings together the principal developments concerning the import and export of goods between the UK and the EU, alongside a chronology of the UK/ EU negotiations on their future trade relationship, covering the period from exit day (31 January 2020) through to IP completion day (31 December 2020). For information on the effect of IP completion day on the trade in goods, see Practice Notes: What does IP completion day mean for Commercial? and What does IP completion day mean for supply of goods? STOP PRESS: On 24 December 2020, the European Commission and UK government confirmed an agreement in principle on the legal basis for the future UK- EU relationship. Announced just a week before IP completion day, the EU- UK Trade and Cooperation Agreement ( TCA), together with associated...
ARCHIVED: This archived Practice Note sets out details of the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2019, SI 2019/419, together with the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2020, SI 2020/1586, plus salient elements of the EU- UK Withdrawal Agreement and the EU- UK Trade and Cooperation Agreement insofar as they concern data protection. It is no longer updated and is provided for background only. For guidance on continuing divergence between data protection requirements under the GDPR frameworks, refer to Practice Note: Introduction to the EU GDPR and UK GDPR. This Practice Note examines how Brexit affects routine processing of personal data under the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which took direct effect in the UK and all other EU Member States on 25 May 2018, and,...
This Practice Note sets out how trade secrets and confidential information are protected in a commercial context, particularly where technical material is concerned. It outlines the Trade Secrets ( Enforcement, etc) Regulations 2018 ( Trade Secrets Regulations), SI 2018/597, and their interaction with the common law action for breach of confidence. This Practice Note also addresses: how breach of confidence intersects with infringement of intellectual property rights and other causes of action the meanings of ‘confidential information’, ‘trade secrets’ and ‘know‑how’, and how these concepts are handled in commercial practice case law on secondary liability, common design and knowledge of breach, together with the position on subconscious use, derivative use and reverse engineering remedies available for breach of confidence, including injunctions, springboard injunctions, damages, account of profits, delivery up and...
This new starter guide offers a primer on trade mark law, distilling the core principles and signposting numerous Lexis+® UK sources and materials for fuller detail. It is aimed at trainee solicitors and readers new to trade marks. Details of other intellectual property ( IP) rights, including further starter guides, appear in Practice Note: Intellectual property ( IP)—new starter guide. Where topics sit beyond this basic outline, explore the three Trade marks/passing off subtopics: Trade mark transactions and management; Trade mark and passing off disputes; Anti-counterfeiting. For concise summaries of each, see: Trade mark transactions and management—overview; Trade mark and passing off disputes—overview; and Anti-counterfeiting—overview. This guide also explains how to subscribe to the IP daily and weekly news alerts and how to contact Lexis Ask... Introductory materials Absolute and relative grounds for refusal to register a UK trade...
This Practice Note offers a concise primer on trade marks, covering: what is a trade mark? registering a trade mark dealing with trade marks in agreements asserting trade marks unregistered trade marks and the law of passing off trade mark litigation For guidance on the filing and prosecution of trade marks, portfolio management and transactions involving trade marks, see: Trade mark transactions and management—overview. For information on disputes concerning registered and unregistered trade marks, see: Trade mark and passing off disputes—overview. What is a trade mark? A trade mark is a sign that differentiates one undertaking’s goods or services from those of another. Put simply, it allows consumers to recognise products or services as originating from a particular business or associated with a specific offering. While trade marks are often words or logos, protection can extend to less...
CASE HUB ARCHIVED — this archived case hub reflects the position at the date of the judgment of 1 November 2020; it is no longer maintained. See further, timeline and related cases. Case facts An appeal was made to the Supreme Court by Servier Laboratories Ltd and others, contesting the Court of Appeal’s ruling of 27 June 2019. That decision held that certain factual findings in the General Court’s judgment in Case C-691/14 Servier and Others v Commission are not binding on national courts, in the context of a stand‑alone damages action arising from the European Commission’s decision of 9 July 2014. The Commission had found Servier’s ‘pay for delay’ settlement agreements with generic companies concerning perindopril to be anti‑competitive ( AT.39612). Latest developments On 6 November 2020, the Supreme Court delivered its judgment, unanimously dismissing the appeal. It determined that the General Court findings relied upon by...
This Practice Note introduces supplementary protection certificates ( SPCs) and paediatric extensions ( PEs) in the UK. It outlines the reasons for their creation, when and how to apply, and how long they run. It also reviews leading rulings on SPCs from the courts of England and Wales, together with UK Intellectual Property Office ( IPO) guidance on SPC procedure... It further surveys numerous references to the Court of Justice on the interpretation of Regulation ( EC) 469/2009 and Regulation ( EC) 1610/96, which regulate SPCs for medicinal products and plant protection products within the EU (and, before Brexit, in the UK). The resulting Court of Justice decisions have defined the scope of SPC protection across the EU and the UK. For guidance on whether Court of Justice rulings bind UK courts, see Practice Note: Assimilated law— Assimilated case law. For a...
Introduction to the medicines advertising enforcement landscape Directive 2001/83/ EC, the Community code for medicinal products for human use (the Pharmaceutical Code), sets the standards for the advertising and promotion of medicinal products across the EU. It obliges Member States to ensure there are adequate and effective arrangements to supervise medicines advertising. These arrangements must include legal routes enabling persons or organisations considered to have a legitimate interest in stopping any advertisement that breaches the Pharmaceutical Code to: bring legal proceedings against the advertisement, or submit the advertisement to an administrative authority empowered either to determine complaints or to start appropriate legal proceedings In the UK, Part 14 of the Human Medicines Regulations 2012 ( HMR 2012), SI 2012/1916 implements the Pharmaceutical Code’s rules on the advertising of medicinal products. Notably, HMR 2012, Part 14, Chapter 3 sets out the...
This Practice Note deals with key issues that affect marketing authorisations ( MAs) for medicinal products and supply of medicines following the end of the Brexit transition period (11 pm ( GMT) on 31 December 2020, referred to in UK law as ‘ IP completion day’). It also provides detail on how the Ireland/ Northern Ireland Protocol is being implemented. Further aspects of the regulation of medicinal products after IP completion day are addressed in the following Practice Notes: Orphan medicinal products The regulation of advanced therapy medicinal products Biosimilars Paediatric medicines Pharmacovigilance Falsified medicines Manufacturing of medicinal products for human use EU variations to marketing authorisations of medicinal products and UK marketing authorisations for medicinal products — MA variations For an assessment of the principal life sciences provisions within the EU‑ UK Trade and...
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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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