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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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Definitive deed and rules—the enabling power The trustees should first confirm that the scheme’s current definitive deed and rules include authority to replace the principal employer in the required way. If no such authority exists, or the present power does not sufficiently allow the proposed substitution, the parties should consider whether the scheme can be amended to introduce an appropriate power. Trustees’ considerations Trustees, in particular, should not simply exercise any power vested in them (or give consent, where relevant) to admit a new principal employer in place of the departing principal employer. Where the scheme is a defined benefit arrangement, further matters will need to be assessed. Trust law and employer covenant issues Trustees must have regard to their duties under trust law and should first review all relevant circumstances, including: the employer covenant of the proposed principal employer. Specifically, will the incoming employer offer a...
THIS PRACTICE NOTE APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES Where a defined benefit occupational pension scheme is underfunded and proceeds to wind up, trustees are required to secure members’ entitlements by allocating the scheme’s assets to its liabilities in line with the statutory priority order in section 73 of the Pensions Act 1995. That statutory order takes precedence over any priority provisions in the scheme’s own rules. Since its introduction on 6 April 1997, the priority framework has been revised several times and depends on the date winding up commenced. The version currently in force, as set out in section 73 of the Pensions Act 1995, applies to schemes whose winding up started on or after 6 April 2005. Schemes that began winding up before 6 April 2005 must refer to earlier legislative versions to ensure the correct order is followed. A...
THIS PRACTICE NOTE APPLIES IN RELATION TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES A scheme’s statutory employer is the employer legally accountable for: achieving the scheme‑specific funding target settling any section 75 liability arising in connection with the scheme initiating entry to a Pension Protection Fund ( PPF) assessment period In certain situations there can be uncertainty about whether an employer is, or is not, a statutory employer, and in cases there is a risk a scheme could be left without any statutory employers: where the principal employer of a defined benefit ( DB) arrangement is replaced by a new principal employer during a scheme amalgamation where a scheme’s employer is a defined contribution ( DC) employer with responsibility solely for DC members This Practice Note explores these three topics in depth, considering each in...
Automatic enrolment duties The auto-enrolment framework, created under Part 1 of the Pensions Act 2008 ( Pen A 2008), places three principal enrolment obligations on employers: automatically enrol every ‘eligible jobholder’ into an ‘automatic enrolment scheme’ (the auto-enrolment duty) enrol ‘non-eligible jobholders’ into an ‘automatic enrolment scheme’ when they opt in enrol ‘entitled workers’ who ask to join a scheme into a registered pension scheme In broad terms, from 2017 the enrolment duties take effect for an employer on the date their first worker starts employment. The minimum quality criteria an automatic enrolment scheme must meet depend on the type of arrangement, for example whether it is a defined benefit ( DB) or defined contribution ( DC) scheme. To assist employers in meeting the auto-enrolment duty, the government set up a low-cost pension scheme — the National Employment Savings Trust ( NEST) — which was fully...
ARCHIVED : This Practice Note has been archived and is not maintained. From 8 October 2001, the Welfare Reform and Pensions Act 1999 ( WRPA 1999) placed a duty on employers with five or more staff to nominate and enable access to a stakeholder pension arrangement for their workforce as required by applicable law. That designation and access duty, as provided for in WRPA 1999, s 3, was superseded on 1 October 2012, when automatic enrolment into a qualifying scheme, introduced by the Pensions Act 2008, came into legal force. Nonetheless, save where a relevant exception applies, employers remain obliged, for relevant employees, to deduct member contributions to a stakeholder scheme from remuneration and remit them promptly to the trustees or managers. In addition, any existing or newly established stakeholder pension schemes must still be administered in accordance with the statutory rules for such...
From 1 October 2012, the duty on employers to nominate and facilitate access to a stakeholder pension scheme (as set out in section 3 of the Welfare Reform and Pensions Act 1999 ( WRPA 1999)) ceased, as the new requirement by employers to enrol workers automatically into an automatic enrolment scheme (introduced by the Pensions Act 2008) took effect thereafter. However, unless a relevant exception applies (eg where an employer is notified that a designated stakeholder pension scheme has begun winding up), employers remain under an ongoing obligation, as applicable, in respect of relevant employees, to deduct employee contributions to any existing stakeholder scheme from pay, as appropriate, and forward them to the trustees or managers of the schemes. In addition, both existing and newly created stakeholder pension schemes must continue to be run in line with the statutory...
ARCHIVED: This archived Practice Note reviews the impact of Solvency II (a European risk-based solvency capital regime applying to insurance and reinsurance companies and in force from 1 January 2016) on UK pensions. It is not maintained and is for background information only. What is Solvency II? Solvency II establishes a harmonised prudential framework for insurance and reinsurance companies across Europe. It consists primarily of: The Solvency II Directive 2014/17/ EU ( OJ L 60/34) ( Solvency II). Regulatory technical standards and non-binding guidelines, including Commission Delegated Regulation ( EU) 2015/35 (the Solvency II Delegated Regulation). Developed in response to the 2008 financial crisis, which revealed that risks had been underestimated, the regime requires insurers to measure risk, report it, and hold appropriate capital. The objective of Solvency II is to strengthen protection for consumers of insurance products by embedding risk management and...
ARCHIVED : This archived Practice Note examines the government’s unsuccessful 2015 effort to introduce automatic transfers of small pension pots (commonly termed ‘pot follows member’) via the Pension Act 2014. Work was paused in October 2015 and stayed on hold until July 2023, when the government formally chose to abandon ‘pot follows member’ in favour of a multiple default consolidator model to address the issue of deferred small pension pots. This Practice Note is not maintained and is provided for background information only. FORTHCOMING DEVELOPMENT : On 22 November 2023, the DWP released its response to the consultation on ending the proliferation of deferred small pension pots. The consultation aimed to gather views on an automated consolidation solution to tackle the increase in deferred small pots. The government concluded that the multiple default consolidator model is the most suitable approach to the deferred small pots...
THIS PRACTICE NOTE APPLIES IN RELATION TO PRIVATE SECTOR PENSION SCHEMES A share sale agreement will typically set out warranties granted by the seller for the benefit of the buyer. A warranty is a representation by the seller that a particular fact is correct; for example, the seller might confirm that a specified pension scheme is the only scheme in which the target company participates. Pension warranties may appear alongside warranties on other subjects, such as property and tax, or be set out in a dedicated pensions schedule annexed to the agreement. However, some agreements provide that warranties in one topic cannot be relied upon in another; in practice, this requires their substance (for instance, compliance with laws) to be repeated wherever necessary for pension purposes. This Practice Note explains the rationale for pensions warranties in share sales, their...
THIS PRACTICE NOTE APPLIES IN RELATION TO DEFINED CONTRIBUTION OCCUPATIONAL PENSION SCHEMES This Practice Note sets out the issues a buyer and a seller are required to consider, in the context of a share sale, where the target company, or one of its subsidiaries: is the sole employer under a defined contribution ( DC) occupational pension scheme is the principal employer of a multi-employer DC occupational pension scheme is a participating employer (but not the principal employer) in a multi-employer DC occupational pension scheme has personal pension arrangements in place is the principal employer of a small self-administered scheme ( SSAS) In this Practice Note, references to the target company are to be read as including any such subsidiary......
THIS PRACTICE NOTE APPLIES IN RELATION TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES This Practice Note explores the due diligence points to be mindful of on a share sale where the target company participates in a defined benefit ( DB) pension scheme. In this Practice Note, any mention of the ‘target company’ also covers its subsidiaries (as these will likewise move into the buyer’s group on completion). For a high-level summary of pensions considerations in share sale due diligence, see Practice Note: Pensions due diligence in share sales—an introduction. For a fuller examination of the due diligence topics that arise where the target is involved in, or pays into, a defined contribution ( DC) pension arrangement, see Practice Note: Pensions due diligence in share sales—issues specific to DC schemes. Due diligence and DB schemes—key issues Where the target participates in a DB pension scheme, there is a wide range of...
THIS PRACTICE NOTE APPLIES IN RELATION TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES This Practice Note concentrates on matters that purchasers and vendors must address in a share sale when the target entity, or one of its subsidiaries, acts as the principal employer of a multi-employer defined benefit ( DB) scheme. In this Practice Note, mentions of the target company are to be read as including a subsidiary. For guidance on points that arise where the target (or one of its subsidiaries) participates as an employer in a multi-employer DB scheme, refer to Practice Note: Pension issues in share sales—where target is participating employer of DB multi-employer scheme......
THIS PRACTICE NOTE APPLIES IN RELATION TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES This Practice Note addresses the matters that purchasers and vendors need to assess carefully during a share sale when the target, or any of its subsidiaries, participates as an employer in a multi‑employer defined benefit ( DB) scheme, rather than acting as the principal employer. References to the target company in this Practice Note are also to be read as including any such subsidiary. For discussion of the considerations where the target (or a subsidiary) is the principal employer of a multi‑employer DB scheme, see Practice Note: Pension issues in share sales—where target is principal employer of DB multi‑employer scheme......
FORTHCOMING DEVELOPMENT : Under the Pension Schemes Act 2021, a secondary notifiable events regime is being brought in (pursuant to section 69A of the Pensions Act 2004), focused on specified employer‑related notifiable events connected to a DB scheme. The regime obliges employers to copy the trustees into any notification sent to the Pensions Regulator and to furnish both the trustees and the Pensions Regulator with an accompanying statement (also referred to as a declaration of intent) setting out details of the notifiable event and how any detriment to the scheme will be mitigated. On 8 September 2021, the Department for Work and Pensions ( DWP) issued a consultation on draft regulations which, among other matters, describe the categories of events that will fall within the scope of the secondary notifiable events regime......
THIS PRACTICE NOTE APPLIES IN RELATION TO PRIVATE SECTOR DEFINED CONTRIBUTION PENSION ARRANGEMENTS This Practice Note sets out the due diligence matters to identify on a share sale where the target company participates in, or pays into, a defined contribution ( DC) scheme. In this Practice Note, any mention of the 'target company' also covers its subsidiaries, as these transfer to the buyer's group on a share sale. For an overview of the pensions aspects of due diligence in a share sale, see Practice Note: Pensions due diligence in share sales—an introduction. For a detailed review of due diligence issues that arise where the target participates in a defined benefit ( DB) pension scheme, see Practice Note: Pensions due diligence in share sales—issues specific to DB schemes. Due diligence and DC arrangements—key issues Where the target company participates in, or contributes to, a DC pension...
This Practice Note reviews the principal cases concerning sex discrimination within the context of pension schemes. It includes references to decisions of the Court of Justice of the European Union ( CJEU), previously known as the European Court of Justice ( ECJ). For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law. Bilka- Kaufhaus v Weber The decision is notable for: its confirmation that eligibility for an employer-provided pension scheme amounts to an element of pay for the purposes of the right to equal pay under Article 119 of the Treaty of Rome (now replaced by Article 157 of the Treaty on the Functioning of the European Union ( TFEU)). Note that the equal pay right in Article 157 TFEU had direct effect in UK law and constituted retained EU law until 31 December 2023. Since 1 January 2024, it no...
The current position and how we got here As in other parts of discrimination law that govern pension schemes, rules on sex discrimination have been strongly shaped by European law. In this area, three separate strands of European law have informed the development of UK law: case law of the Court of Justice of the EU ( CJEU)—as regards the domestic effect of CJEU judgments, Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023), s 6 introduces new tests and procedures for UK courts when deciding whether to depart from earlier CJEU rulings. Previously, in weighing a departure from retained EU case law, the Supreme Court and the Court of Appeal (together, the Higher Courts) applied the standard of whether it appeared ‘right to do so’. REUL( RR) A 2023 amends s 6 of the European Union (...
Self-invested personal pension schemes ( SIPPs) At their launch in April 1988, personal pensions could only be set up by authorised banks, insurers or unit trust providers. These were the only bodies permitted to establish such arrangements, and this exclusivity influenced how early schemes were initially set up. The prevailing assumption was that products from these organisations would confine investment opportunities to areas closely aligned with their principal activities of banking, long‑term insurance and running unit trusts. Yet still the legislation itself imposed no such limits, and HM Revenue & Customs ( HMRC) issued a statement — Joint Office Memorandum 101 — outlining when it would approve personal pension schemes that offered members a broader range of investments. Under current conditions, these so‑called self‑invested personal pension schemes ( SIPPs) can, in principle, give an individual almost complete discretion over the...
THIS PRACTICE NOTE APPLIES ONLY TO DEFINED BENEFIT ( DB) OCCUPATIONAL PENSION SCHEMES What is clearance? The Pensions Act 2004 ( Pe A 2004) confers on the Pensions Regulator a wide-ranging suite of powers. Among its most weighty and consequential are the moral hazard provisions in Pe A 2004, ss 38–54. These moral hazard powers allow the Pensions Regulator to look through corporate structures and allocate pension funding liabilities to third parties connected to, or associated with, a scheme’s sponsoring employer, including by issuing, among other things, a financial support direction and/or a contribution notice. Clearance is an assurance from the Pensions Regulator that it will not at a later date require the applicants named in a clearance application to provide financial support to an underfunded defined benefit occupational pension scheme by issuing a financial support direction and/or a contribution notice. A clearance statement is binding on the...
Contracting-out on a salary-related basis (also known as defined benefit ( DB) contracting-out) was abolished on 6 April 2016. Before abolition, members of contracted-out salary-related ( COSR) schemes could have built up one of two forms of contracted-out entitlement. In this Practice Note, these are collectively described as ‘contracted-out salary-related rights’ or, in short, ‘ COSR rights’. Guaranteed minimum pensions ( GMPs), being contracted-out rights built up before 6 April 1997 Section 9(2B) rights (also called post-1997 contracted-out salary-related rights or post-1997 COSR rights), being contracted-out rights built up between 6 April 1997 and 5 April 2016 The framework for transferring COSR rights is prescribed by the Contracting-out ( Transfer and Transfer Payment) Regulations 1996, SI 1996/1462 (the Contracting-out Transfer Regulations). HMRC has issued guidance on transferring COSR rights. This Practice Note addresses transfers carried out after the end of DB...
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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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