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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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In England and Wales, non-consensual care and treatment for individuals with a mental disorder sit within two parallel legal frameworks: the Mental Health Act 1983 ( Me HA 1983) and the Mental Capacity Act 2005 ( MCA 2005). Their provisions frequently intersect, and navigating their interplay can be highly intricate. This Practice Note considers four key points at which the Acts meet: inpatient care and treatment informal admission deprivation of liberty in hospital community powers of Me HA 1983 While Me HA 1983 has no lower age threshold, MCA 2005 applies only from age 16. Accordingly, the interface arises solely for those aged 16 and above. This Note does not cover the position of children under 16. For guidance on deprivation of liberty concerning children, see Practice Notes: Children, deprivation of liberty and the inherent...
This Practice Note provides a practical overview of the impact that criminal investigations, prosecutions and convictions may have on healthcare practitioners, and on the integrity of the register that regulators have a statutory duty to maintain. It should be considered alongside the Practice Note: Common principles in fitness to practise proceedings and the relevant Practice Note for each regulator below: General Dental Council—fitness to practise proceedings General Medical Council—fitness to practise proceedings General Optical Council—fitness to practise proceedings General Pharmaceutical Council—fitness to practise proceedings Health and Care Professions Council—fitness to practise proceedings Nursing and Midwifery Council Proceedings—fitness to practise proceedings Social Work England—fitness to practise proceedings Function of criminal courts v fitness to practise proceedings The distinct purposes of the criminal courts and professional regulators, and how they interact, were analysed in Bawa- Garba v GMC. The appeal...
Bankruptcy in England and Wales Bankruptcy in England and Wales refers to the position where an individual is adjudged insolvent and required to enter a formal procedure by which the assets forming their bankruptcy estate are realised for the benefit of creditors. A prescribed process must be followed before either the court (for creditors’ bankruptcy petitions) or the adjudicator (for debtors’ bankruptcy applications) can make a bankruptcy order. Failure to adhere to the correct process may lead the court or adjudicator to refuse to make the bankruptcy order. For further reading on the bankruptcy process, see: Bankruptcy—overview Practice Note: Creditors' bankruptcy petitions—grounds and documents required for presentation Practice Note: How to effect service of a creditor’s bankruptcy petition on the debtor and what happens if service cannot be effected Practice Note: Bankruptcy...
ARCHIVED: This Practice Note is archived and is no longer maintained. It addresses the amendments to Part 52 that took effect in October 2016, and outlines the transitional arrangements operating thereafter and applicable beyond that point. It also signposts material which deals with the provisions in force before October 2012......
This Archived Practice Note This archived guidance reviews the effect and implications of section 78 of the Coronavirus Act 2020 ( CA 2020), operative from 25 March 2020 until 7 May 2021. Intended as a short-term measure, these provisions supported streamlined, effective and efficient local authority meetings during the coronavirus outbreak, and were widely regarded in practice as a successful way to ensure councils could continue to hold formal council and committee sessions, enabling remote access for members of the public where appropriate. This Practice Note is for information only and is not maintained. As part of the nationwide response to coronavirus ( COVID-19), local authorities delivered a broad spectrum of essential and supplementary duties, while also playing a key role in local resilience planning and the ongoing provision of local services during this period. Together with measures allowing the deferral of elections and...
ARCHIVED: This Practice Note is archived and no longer maintained. Introduction We are confronted with a new life‑threatening virus, spreading rapidly across the globe, for which there is currently no effective therapy or vaccine. Encouragingly, this emergency has prompted a surge of innovation and product development, buoyed by remarkable generosity from pharmaceutical and medical device businesses that are combining resources, opening access to relevant intellectual property ( IP) and providing products free of charge or at cost. While such unprecedented IP sharing is highly praiseworthy in addressing the pandemic, organisations should carefully consider how their IP is protected and disseminated to avoid harmful repercussions for their IP rights and for sustainable product development over the longer term. Companies should also note that some governments are contemplating drastic steps, including compulsory licensing, to permit third parties to use new technologies without infringing patents. This is...
This Practice Note is archived and not maintained. This Practice Note sets out the changes and disapplications brought in by the: Early Years Foundation Stage ( Learning and Development and Welfare Requirements) ( Coronavirus) ( Amendment) Regulations 2020, SI 2020/444 Early Years Foundation Stage ( Learning and Development and Welfare Requirements) ( Coronavirus) ( Amendment) ( No 2) Regulations 2020, SI 2020/939 Early Years Foundation Stage ( Learning and Development Requirements) ( Coronavirus) ( Amendment) Order 2021, SI 2021/234 to the: Early Years Foundation Stage ( Learning and Development Requirements) Order 2007, SI 2007/1772 Early Years Foundation Stage ( Welfare Requirements) Regulations 2012, SI 2012/938 The Early Years Foundation Stage ( EYFS) statutory framework sets the standards all early years providers must meet so children aged 0 to 5 learn and develop well, while staying healthy and safe. As part of the...
This tracker was designed to monitor key developments, legislation, guidance, parliamentary briefing notes and other materials of interest concerning social housing provision during the coronavirus ( COVID-19) pandemic up to the so‑called ‘freedom day’ of 18 July 2021. For the latest guidance, see Practice Notes: Coronavirus ( COVID-19)—local government tracker—post July 2021 and Coronavirus ( COVID-19)—implications for property [ Archived]. Primary legislation Development Coronavirus Act 2020 ( CA 2020) CA 2020, s 81 (residential tenancies in England and Wales: protection from eviction) CA 2020, Sch 29 (residential tenancies in England and Wales: protection from eviction) When in force Took effect on the day CA 2020 was passed (25 March 2020) Find out more Analysis of the impact of Coronavirus Act 2020 on housing possessions and local authorities. Sarah Cummings, senior associate, and Giles Peaker, partner, at Anthony Gold Solicitors, examine CA 2020 in relation to housing possessions, its...
ARCHIVED This Practice Note has been archived and is not maintained. The Government’s measures to curb the spread of coronavirus ( COVID-19) shifted substantially over the course of the pandemic—from a national lockdown to more nuanced action in areas with higher transmission—so keeping abreast of them can be difficult for practitioners and their clients. This Practice Note is intended as a reference point for the various restrictions that applied in England to licensed premises. For the national restrictions during the initial response to the pandemic, see Practice Note: Impact of coronavirus ( COVID-19) on Licensing [ Archived]. For the current restrictions in force, see Practice Note: Coronavirus ( COVID-19)—keeping up with restrictions for licensed premises in England [ Archived]. National restrictions from 5 November to 2 December With coronavirus cases rising rapidly across the whole of the UK and in other countries, the...
Archived tracker This archived tracker is designed to monitor the principal developments, legislation, guidance and briefing notes linked to the coronavirus ( COVID-19) response, concentrating on updates pertinent to local government from 19 July 2021 through to November 2021. It is set out by month with the latest developments first. For a current tracker, see: Coronavirus ( COVID-19)—local government tracker—post December 2021. This focuses on updates relevant to local government during this period only. November 2021— England Development Date Find out more The Joint Committee on Vaccination and Immunisation announced updated advice, widening eligibility for a booster vaccine to include people aged 18–39. 30 November 2021 Coronavirus ( COVID-19)— JCVI publishes advice on vaccine boosters The Joint Committee on Vaccination and Immunisation ( JCVI) has issued new guidance, expanding the booster offer to those aged 18–39. As set out by JCVI, boosters will be provided in...
ARCHIVED: This Practice Note has been archived and is not maintained This tracker recorded key developments, legislation, guidance and briefing notes relating to the response to coronavirus ( COVID-19) in 2020, concentrating on education-related updates. It provides a historical record of the legislation and guidance that were in place and used during that time. For a navigational list of all local government coronavirus trackers, see: Coronavirus ( COVID-19)—local government tracker up to 18 July 2021 [ Archived]. Primary Legislation Coronavirus Act 2020 ( CA 2020) CA 2020, ss 37–38 (schools, childcare providers etc) CA 2020, Sch 16 Pt 1 (temporary closure of educational institutions and childcare premises) In force: 25 March 2020 Development: Emergency measures in operation and...
ARCHIVED: This Practice Note has been archived and is not maintained. This tracker monitors key developments, legislation, guidance and other materials of interest on coronavirus ( COVID-19) and judicial review. It offers lawyers a straightforward point of reference for relevant content during the COVID-19 outbreak. Practice Directions Practice Direction 51ZA— Extension of time limits and clarification of Practice Direction 51Y Date: 2 April 2020 A new Practice Direction 51ZA on extensions of time took effect on 2 April 2020. On 1 April 2020, the Ministry of Justice issued the 118th update—practice directions amendments—introducing this additional coronavirus-related direction. It also clarifies Practice Direction 51Y, which commenced on 25 March 2020. See News Analysis: Coronavirus ( COVID–19)—new Practice Direction 51ZA (118th update)—2 April 2020. Practice Direction 51Y— Video or audio...
The position of Court of Protection Visitor is longstanding, having operated under the Mental Health Act 1983 as the ‘ Lord Chancellor’s Visitors’, and is also recognised by the Mental Capacity Act 2005 ( MCA 2005). The MCA 2005 Code of Practice explains that a Court of Protection Visitor is appointed to report to the Court of Protection on the way attorneys or deputies are performing their duties. They have been characterised as ‘the eyes and ears of the court’ and are particularly vital where there are no relatives or friends to act as a deputy or to raise issues with the court... Appointment and qualifications Court of Protection Visitors are not officers of the court, although their appointment is made by the court. Under MCA 2005, s 61, there are two categories of Court of Protection Visitor: A Special Visitor, who must be a...
This Practice Note covers two forms of court procedure that arise in deprivation of liberty cases: applications brought where the legality and validity of a person’s detention under the deprivation of liberty authorisation process is called into doubt or dispute applications that a public authority may issue seeking authorisation to deprive a person of liberty beyond the ambit and outside the scope of the regime set out in Schedule A1 to the Mental Capacity Act 2005 ( MCA 2005) Both categories of procedure lie outside allocation to case pathways, as each is governed by their own distinct procedural requirements and rules. Note: at the time this note was prepared, the Court of Protection is reviewing the route for obtaining judicial authorisation of deprivation of liberty......
Introduction The authority of the Court of Protection (the court) derives from the Mental Capacity Act 2005 ( MCA 2005), and the way in which that authority is exercised is directed by the Court of Protection rules, alongside related practice directions. MCA 2005 broadened the court’s remit and, from 1 October 2007, it may determine issues about an individual’s personal welfare and health care, in addition to continuing to address that person’s property and financial affairs as before. The court will usually not intervene unless there is a dispute, or an inability to reach a decision on a particular matter, because in most situations an appointed deputy will be present to make the decision that is required. Nevertheless, even where a deputy has been appointed, there will be occasions when their position needs clarification or when some further practical assistance is sought......
This Practice Note sets out guidance on costs principles and the relevant case law that apply in public law children matters, such as care proceedings and adoption. It explains how the courts approach costs orders against parties, including local authorities, and addresses fact-finding hearings and situations involving an intervener. It also outlines the position on costs and the Legal Aid Agency ( LAA) statutory charge where a claim for damages is pursued under the Human Rights Act 1998 ( HRA 1998). General principles In children proceedings, the usual rule that costs follow the event does not operate; this is pursuant to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 28.2(1), which disapplies CPR 44.2(2)......
What is a Corporate PPA? A corporate power purchase agreement ( PPA) is a contract through which a corporate entity buys electricity—most often renewable power—from an electricity generator for consumption in its own business. For the purposes of this Practice Note, we assume the corporate buyer is not located on the same site as the generator. For arrangements involving co-located buyers supplied via private wire, see: Precedents: Power purchase agreement ( PPA)—exempt power supply and Connection agreement for private wires. Corporate PPAs generally follow two principal structures, outlined below. Both are more intricate than the 'classic' PPA, which is a single agreement under which a generator sells all output from its generating station, plus associated benefits, to a licensed electricity supplier (see Practice Note: Power purchase agreements ( PPAs)—key terms and issues). The extra complexity stems from the need to bring a licensed...
This tracker captured key developments, legislation, guidance and briefing notes from the early coronavirus ( COVID-19) response between March and May 2020, with a particular focus on issues relevant to local government governance. It serves as a historical record of the legislation and guidance that applied during that timeframe. For current developments, see: Coronavirus ( COVID-19)—governance tracker [ Archived]. Use the links below to navigate to the relevant section: Primary legislation National restrictions Local authority governance Financial Support Other legislation Government guidance Other sources of information News Analysis Case law Primary legislation Corporate Insolvency and Governance Act 2020 When in force: comes into force in part on 26 June 2020, and in full on a day appointed by the Secretary of State through...
This tracker centred on education and was intended to monitor key developments, legislation, guidance, parliamentary briefing notes and other sources of interest connected to coronavirus ( COVID-19) and education, where relevant to local government lawyers. It was set up to offer a straightforward reference point for pertinent material for education lawyers working in or with local authorities during the coronavirus outbreak up to 18 July 2021. For a navigational list of all archived local government coronavirus trackers, see: Coronavirus ( COVID-19)—local government tracker up to 18 July 2021 [ Archived]. For the most recent developments post ‘freedom day’ see Practice Note: Coronavirus ( COVID-19)—local government tracker—post July 2021. Primary Legislation Coronavirus Act 2020 ( CA 2020) CA 2020, ss 37–38 (schools, childcare providers etc) CA 2020, Sch 16 Pt 1 (temporary closure of educational institutions and childcare...
ARCHIVED: This Practice Note is archived and no longer updated. This archived tracker captured significant developments, legislation, guidance and briefing notes linked to the coronavirus ( COVID-19) response, with an emphasis on local government updates from December 2021 to February 2023. For pre‑ December 2021 material, see Practice Note: Coronavirus ( COVID-19)—local government tracker— July– November 2021 [ Archived]. Legislation The Coronavirus ( COVID-19)—legislation tracker [ Archived] monitored domestic legislation brought forward as part of the UK government’s response to the pandemic. It also featured a coronavirus SI database compiling details of pertinent draft and made SIs that were laid before Parliament. February 2023— England 15 February 2023 — The UK COVID-19 Inquiry released the recording of the second Preliminary Hearing for Module 1, conducted remotely, via its You Tube page. The hearing agenda included updates from Counsel to the Inquiry, an update on Rule 9...
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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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