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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 sets out the judicial review ground commonly termed unreasonableness, also referred to as irrationality. Unreasonableness as a Ground of Judicial Review ‘ Irrationality’ is the second of the three judicial review grounds identified by Lord Diplock in the landmark Civil Service Unions v Minister for the Civil Service ( GCHQ). He portrayed it as a decision so affronting logic or accepted moral standards that no reasonable person, having properly applied his mind to the matter, could have reached it. Courts now often prefer the term ‘unreasonableness’ to ‘irrationality’, though the labels are used interchangeably. This Practice Note will consider the core elements of reasonableness as a ground of judicial review: the evolution of reasonableness review, the Wednesbury benchmark of reasonableness, the two limbs of unreasonableness, unreasonable...
This practical overview sets out, at a high level, the procedural actions a claimant ought to take when bringing a judicial review claim. It addresses the process up to the court’s decision on whether to give permission to pursue judicial review. Only the stage up to the court’s determination on whether to grant permission to apply for judicial review is covered. For the potential grounds and available remedies, see the Practice Notes on this topic: Grounds of judicial review—illegality, Grounds of judicial review—unreasonableness, Grounds of judicial review—procedural impropriety, Grounds of judicial review—breach of legitimate expectation and Remedies in judicial review. Those notes address the bases relied upon and the remedies available therein. Send a letter before claim and comply with the pre-action protocol Where a person considers that a body exercising a public function has taken a potentially unlawful decision, one should, if the relevant...
Contract Where an agreement is entered into by two or more parties, it may include a promise or obligation undertaken by two or more of them. Any such promise may be: joint several joint and several Whether an undertaking in contract is joint, several, or joint and several is a matter of construction, depending on the parties’ intention as revealed by the terms of the contract. For example, in Rhinegold Publishing v Apex Business Development, statutory demands were issued against Rhinegold Ltd and a related company, Tannhauser Ltd, for approximately £22,000 and £31,000 respectively. A settlement agreement followed under which the parties agreed to pay the sums due, but Tannhauser did not fully comply. Although the agreement was silent on liability, the High Court decided that, on a proper reading, the parties were jointly and severally liable. As a result, Rhinegold had to meet the...
Duration of an individual voluntary arrangement An individual voluntary arrangement ( IVA) is a formal arrangement between a person and their creditors under the Insolvency Act 1986 ( IA 1986). It functions as a contract between the parties, prepared by the individual and put before creditors for a decision. The debtor proposes how long the IVA should run, and the length will often be shaped by the planned source of funds. Where contributions come from ongoing trading income, a longer term is typically required, whereas a sizeable lump sum can shorten the timetable. An insolvency practitioner ( IP) will advise and guide the debtor, seek appointment as nominee, and, if approved, would usually act as supervisor, though the final proposal remains the debtor’s choice. Creditors then consider the terms and decide whether to accept them. An IVA may span anything from a few weeks or...
ARCHIVED: This Practice Note is archived and is no longer maintained The offence of the sale of intoxicating substances and butane cigarette lighter refills to persons aged under 18 Section 1(1) of the Intoxicating Substances ( Supply) Act 1985 makes it an offence to supply, or offer to supply, any substance other than a controlled drug—“controlled drug” having the same meaning as in the Misuse of Drugs Act 1971—where the supplier knows, or has reasonable cause to believe, that the substance or its fumes are likely to be inhaled by a person under 18 to cause intoxication. Supplying directly to someone under eighteen whom the supplier knows, or has reasonable grounds to believe, is under that age; or Supplying to a person known, or reasonably believed, to be acting on behalf of someone under eighteen. The Cigarette Lighter Refill ( Safety)...
This Practice Note examines the American Cyanamid test used by the courts to determine whether to grant temporary injunctive relief. It sets out the sources of the court’s authority and the principles that inform a judge’s discretion when considering an interim injunction application under those guidelines. For wider guidance on injunctive relief, including the distinction between interim and final, and between prohibitory and mandatory orders, see Practice Note: Injunctions—guiding principles. For interim remedies focused on preserving assets and/or evidence, see: Freezing injunctions—guiding principles Proprietary freezing injunctions Search and imaging orders—guiding principles Interim delivery up orders and preservation of property This content should also be read in conjunction with: Interim injunctions—on notice applications Interim injunctions—without notice applications Interim injunctions—drafting the order Guiding principles for interim injunctions The jurisdiction to grant interim injunctions arises from section 37(1) of the Senior Courts Act 1981 and CPR...
Practice Note This Practice Note explains the requirements governing interim orders in public law children court cases, setting out the tests and character of such orders, together with their length, impact and discharge. It further offers direction on assessments and medical or other examinations within interim stages. Interim orders comprise interim care orders ( ICOs) and interim supervision orders ( ISOs)......
The definition In some situations, a local housing authority ( LHA) is obliged to secure accommodation for people who are homeless. A central question, when identifying the scope of any duty owed, is whether the person’s homelessness is intentional. This Practice Note sets out the factors that must be weighed, including if a deliberate act or failure to act by the applicant brought about their homelessness. These considerations must be applied when the authority assesses a case. Intentional homelessness forms part of the statutory tests in homelessness matters under Part 7 of the Housing Act 1996 ( HA 1996) and, in Wales, the Housing ( Wales) Act 2014 ( H( W) A 2014), and dictates which obligations may arise in a particular case for a homeless applicant. It addresses deliberate conduct or omissions by an applicant that lead to the loss of...
STOP PRESS From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) now apply. Any procurement launched on or after that date must proceed under PA 2023, while procurements started under earlier regimes must continue to be run and administered under those rules, including: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has refreshed its standard contract suites, templates and guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract, issued alongside the PA 2023 ‘go-live’ on 24 February 2025. This Practice Note will be updated shortly to capture these changes. In the interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, Government model contracts updated for Procurement Act 2023 ‘go-live’— LNB News 24/02/2025 29, and Cabinet Office updates PPN 013: Using standard...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note provides general guidance for public procurement activities launched before the Procurement Act 2023 ( PA 2023) came into force and effect on 24 February 2025. Procurements within scope that commence on or after that date are governed by PA 2023. Under PA 2023’s transitional and savings provisions, the earlier procurement regimes continue to operate as appropriate insofar as necessary for contracting authorities to finalise and oversee procurements initiated prior to commencement (ie procurements still ongoing). This Practice Note ought to be read on that footing. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Further practical guidance concerning PA 2023 is provided elsewhere in a separate subtopic: Procurement Act 2023—overview. Public procurement under the Public Contracts Regulations 2015 A contracting authority is required to apply one of the five...
Nature of an individual voluntary arrangement An individual voluntary arrangement ( IVA) is a deal made between a person and their creditors (and potentially third parties) for a composition of that person’s liabilities or to implement a scheme of arrangement (scheme) for managing their affairs. The governing provisions sit in Part VIII of the Insolvency Act 1986 ( IA 1986). The form and substance of any compromise or scheme are unrestricted and open-ended, being determined by the debtor and their creditors with the support of an insolvency practitioner ( IP) (called the ‘nominee’ before approval of the IVA, and typically the ‘supervisor’ afterwards). An IVA operates in a manner akin to a contract, its conditions being set out in the IVA proposal. By contrast, a purely private contract would require the consent of every creditor of the individual to achieve a...
Please note, this Practice Note is confined to English law alone. Since devolution, a range of divergences has emerged between England and Wales concerning numerous elements of the legal rules governing the appointment of independent mental capacity advocates. IMCAs were established under the Mental Capacity Act 2005 ( MCA 2005). Their role is to support local authorities and the National Health Service ( NHS) in relation to people aged over 16 who lack mental capacity, where a choice is needed that will substantially affect their health and wellbeing, or their long-term care and accommodation. The independent mental capacity advocate service The service delivered by an IMCA is intended solely for situations in which the individual has nobody else available to assist them or to articulate their preferences, entitlements and requirements on their behalf......
Income payments order ( IPO) Under section 310 of the Insolvency Act 1986 ( IA 1986), the court may order that a bankrupt’s income, in whole or in part, be paid to the appointed trustee in bankruptcy (the trustee). An IPO obliges the bankrupt, or a third party—most commonly the employer—to pay the trustee the sum specified in the order. The amount is determined individually, and payments generally run for three years; they cannot extend past that term. Either the trustee or the bankrupt may apply to the court to vary the order, whether before or after the bankrupt’s discharge. On appeal in Official Receiver v Baker, it was decided that income received after the bankruptcy order but before the IPO is made can still be brought within the IPO. An IPO can also continue after discharge. In Azuonye v Kent, the court...
An income payments agreement ( IPA) is a counterpart to an income payments order ( IPO), used where a bankrupt person consents to pay their spare income into the bankruptcy estate. Such contributions are made voluntarily rather than by a court order. To explore IPAs more fully, it helps to revisit the concept of an IPO. What is an IPO and when is it used? Once a bankruptcy order is made against an individual, the bankrupt no longer has to make further direct payments to creditors. Frequently, this means their income exceeds what is required for ordinary household outgoings. While the bankrupt remains undischarged, the court may, under section 310 of the Insolvency Act 1986 ( IA 1986), impose an IPO, specifying the amount of the bankrupt’s income that is to be claimed for the benefit of the estate during the time the order is in...
This Practice Note outlines a straightforward five-step efficiency framework and shows how it works through a case study involving internal complaints about the in-house legal team. It also highlights related guidance and tools available to support each stage of the framework. The five steps framework The five steps in this improving efficiency framework are: define measure analyse improve control Management consultants often refer to this as the DMAIC framework. It is an excellent framework to follow when you are seeking to improve an existing process or resolve an issue or problem. It takes you through each element in turn and ensures you have viewed the process from every angle. What does each step involve? The table below sets out each of the five steps and illustrates them by reference to a hypothetical scenario—the legal team receives too many complaints. It also contains links to related guidance for each step in this...
There are five essential stages to boosting efficiency: Identify (define) which process requires improvement (see Practice Note: Improving efficiency: Step 1—identify and define the problem) Measure the problem (see Practice Note: Improving efficiency: Step 2—measure the problem) Analyse the information (see Practice Note: Improving efficiency: Step 3—analyse what's causing the problem) Improve the process (covered in this Practice Note) Control, ie embed the new process so it becomes business as usual (see Practice Note: Improving efficiency: Step 5—embedding changes) Advisers often describe this as the ‘ DMAIC framework’. This Practice Note leads you through Step 4—improving the issue identified in Practice Note: Improving efficiency: Step 1—identify and define the problem, measured in Practice Note: Improving efficiency: Step 2—measure the problem, and analysed in Practice Note: Improving efficiency: Step 3—analyse what's causing the problem. It also builds on the earlier case...
What does effective governance mean in the public sector? In the public sphere, governance ensures that teams within an organisation, or those working in partnership, deliver their overarching purpose, realise intended results for citizens and service users, and conduct operations in a manner that is effective, efficient and ethical. Effective governance is the dependable process through which an organisation affirms its identity and role, and translates its core mission, strategic plans and values into conduct and practice throughout the organisation or partnership. It also makes certain that everyone understands their roles, responsibilities and lines of accountability. Governance is multifaceted and interpreted differently across contexts, yet most viewpoints converge on three central questions: Who holds authority? How should decisions be taken? Where does ultimate accountability sit? This Practice Note summarises the principal building blocks for putting in place and sustaining effective governance across the public...
Overview of the illegality ground Illegality stands as the first ground of judicial review identified by Lord Diplock in his well-known analysis in Council of Civil Service Unions v Minister for the Civil Service. He described three categories for controlling administrative action by judicial review, the initial category being “illegality”, by which he meant that a decision-maker must correctly apprehend the law governing the scope of his power and act in conformity with it. A challenge on the illegality ground alleges that a public law decision-maker has acted unlawfully by exceeding its powers, or by misunderstanding them, or by otherwise misusing them. Lord Diplock’s term ‘illegality’ is helpful as a label for this ground because such a claim essentially maintains that a decision is unlawful for want of a proper legal foundation, or because its legal basis is inadequate or defective, or is in some other way...
Brexit impact From 31 January 2020 (exit day), the UK ceased to be an EU Member State. However, an implementation period followed, during which the EU continued to treat the UK as a Member State for many purposes. At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period concluded. That moment—termed ‘ IP completion day’ in UK law—brought transitional arrangements to a close and triggered significant changes across the UK’s legal framework. Any changes relevant to this content are noted below. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) established a new class of domestic law—retained EU law ( REUL)—comprising EU‑derived rights and legislation preserved in the UK after Brexit. On 29 June 2023, the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) received Royal Assent. REUL( RR) A 2023...
The matters to be decided within the welfare remit of the Court of Protection are frequently highly intimate, and commonly entail either the court endorsing the use of state authority, or exercising that authority itself, over an individual—such as by imposing limits on contact between the protected person ( P) and their relatives. It is therefore no surprise that human rights run through every facet of the court’s decision-making... The Human Rights Act 1998 and the European Convention on Human Rights The European Convention on Human Rights ( ECHR) was brought into domestic law by the Human Rights Act 1998 ( HRA 1998), which renders it unlawful for any public authority to act in a way that violates a person’s human rights. This binds all local authorities and National Health Service ( NHS) bodies, as well as the courts themselves. The Court of...
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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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