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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 guide is chiefly for trainees, newly qualified lawyers and anyone unfamiliar with pensions law. A key area is the legislation on section 75 debts (also referred to as employer debts or statutory debts), which is found mainly in: sections 75–75A of the Pensions Act 1995; and supporting regulations, in particular the Occupational Pension Schemes ( Employer Debt) Regulations 2005, SI 2005/678 (the Employer Debt Regulations) The employer debt regime primarily concerns employers participating in defined benefit ( DB) occupational pension schemes. In very limited cases it can extend to defined contribution ( DC) schemes, although those scenarios are not covered in this note. Broadly, the rules allow a non‑priority liability to arise, owed by an employer (or multiple employers) to an underfunded DB scheme, when a ‘section 75 triggering event’ occurs. Triggering events There are three triggering events: when an employer participating in a DB scheme...
Section 75A of the Pensions Act 1995 ( PA 1995), alongside the Occupational Pension Scheme ( Employer Debt) Regulations 2005, SI 2005/678, and their revoked predecessors, prescribe how the section 75 debt framework operates for multi-employer occupational pension schemes. This Practice Note examines the legal questions around identifying a former employer for the purposes of the section 75 regime. Why is the former employer regime relevant? Any company that participates, or has previously participated, in a defined benefit scheme must understand its liabilities to that scheme. This is especially critical during a corporate reorganisation or deal, where the steps taken may alter the company’s obligations to the scheme. The Pensions Regulator’s December 2013 statement requires schemes to pinpoint their statutory employers and record them on the scheme return. For these purposes, a statutory employer includes any employer meeting specified criteria, such as being liable for a...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL DEFINED BENEFIT PENSION SCHEMES IN ENGLAND AND WALES THAT ARE SUBJECT TO THE EMPLOYER DEBT REQUIREMENTS ARCHIVED: This archived Practice Note reviews the employer debt/section 75 debt regimes that applied before 6 April 2008, including the Occupational Pension Schemes ( Employer Debt) Regulations 2005, the Occupational Pension Schemes ( Deficiency on Winding Up etc) Regulations 1996, the Occupational Pension Schemes ( Deficiency on Winding Up etc) Regulations 1994 and the Occupational Pension Schemes ( Deficiency on Winding Up etc) Regulations 1992. It is not maintained. For up-to-date information on the current employer debt regime, see Practice Note: When is a section 75 debt triggered? The Occupational Pension Schemes ( Employer Debt) Regulations 2005, SI 2005/678 (the 2005 Employer Debt Regulations) set out how an ‘employer debt’ under section 75 of the Pensions Act 1995 ( PA 1995) (or section 75A for...
THIS PRACTICE NOTE APPLIES TO DEFINED BENEFIT ( DB) OCCUPATIONAL PENSION SCHEMES A contingent debt is an obligation that depends on a future event occurring. It is not payable straightaway but may fall due later and is capable of proof in insolvency proceedings. Trustees’ unilateral powers Under a scheme’s trust deed and rules, DB trustees may hold certain powers that they can exercise unilaterally where the scheme is underfunded. These include: setting the scheme’s contribution rates (however, owing to overriding provisions in the Pensions Act 2004 concerning DB funding, trustees will ordinarily need the employer’s consent when agreeing the schedule of contributions, save in specific prescribed situations where consulting the employer suffices). For more information, see Practice Note: Statutory funding regime and the interaction with scheme rules) commissioning an early valuation, or winding up the scheme In particular, the trust deed and rules may...
Over recent years, the secretary to pension trustees has seen a marked shift in responsibilities and is now central to keeping a scheme operating efficiently. This Practice Note sets out the legal and governance points that those taking on the position should understand, and clarifies what the appointment involves from a legal and governance perspective. Change in the role of secretary The operation of trust-based pension schemes has evolved markedly over the last ten years, elevating the secretary's significance. Previously, with fewer anxieties around funding and a softer regulatory regime, the secretary often served quietly as a recorder of minutes. Now, because trustees face heavier workloads and heightened expectations, the secretary's contribution must be broader. Typically, the secretary takes an active hand in managing the scheme, participating fully in trustee meetings and co-ordinating actions in the periods between them. At times, the secretary to the...
Prescription The first step for any legal adviser contemplating raising an action is to identify the period within which any claim must be commenced. In Scotland, this is governed by the Prescription and Limitation ( Scotland) Act 1973, which addresses the ‘prescription of obligations’ (as distinct from the ‘limitation of actions’ in England and Wales). General principles Before settling on any timeframe within which a claim about an obligation should be brought, it is necessary to identify the nature of the obligation and, in consequence, the part of the 1973 Act that applies. In broad terms, disputes concerning the administration of pension schemes may fall within the Prescription and Limitation ( Scotland) Act 1973, s 6, although issues can extend from professional negligence claims against scheme administrators to liability for contingent debt. The obligations covered by section 6 are set out in Schedule 1 to the...
THIS PRACTICE NOTE APPLIES ONLY TO PENSION SCHEMES IN ENGLAND AND WALES Scheme Pays, brought in under Schedule 17 to the Finance Act 2011 ( FA 2011), permits a member, in defined circumstances, to direct their pension scheme to settle their annual allowance charge. The scheme may subsequently recover the outlay by adjusting the member’s pension benefits accordingly. As the standard annual allowance available to a member has been curtailed over time (it peaked at £255,000 and, from 6 April 2023, stands at £60,000), a greater number of members are expected to face an annual allowance charge and, in turn, more pension schemes are likely to need to deploy Scheme Pays. Crucially, for a member to compel their scheme to operate Scheme Pays, one condition is that the aggregate pension savings in that scheme for the same tax year (ie the pension input amount) must...
STOP PRESS: On 19 June 2025 the Data ( Use and Access) Bill secured Royal Assent, was enacted as the Data ( Use and Access) Act 2025 ( DUAA 2025), and took partial effect immediately. Provisions dealing with, among other things, handling data subject access requests and granting powers to make further regulations commenced on 19 June 2025. Measures relating to Information Commissioner notices and elements of law enforcement processing started on 19 August 2025, two months after Royal Assent. Most of the Act still awaits commencement via additional statutory instruments. Parts 5 and 6 update elements of UK data protection and e Privacy law, touching the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), the Data Protection Act 2018, and the Privacy and Electronic Communications ( EC Directive) Regulations 2003, SI 2003/2426. Most Part 5 measures are...
Is there a duty to manage risks? While trustees do not have a specific duty to manage risks, risk management supports the duty to maintain an effective system of governance ( ESOG), including internal controls, in two ways: The Pensions Regulator ( TPR) sees internal controls as covering the identification, recording, monitoring and evaluation of risks. Assessing risks enables trustees to decide which ones need controls to cut both how often they arise and the impact of their effects. For further details, see Practice Note: Pension requirement for an effective system of governance, including internal controls ( ESOG)— Internal controls. The ESOG duty also requires an own risk assessment ( ORA), documenting how well the ESOG operates and how potential risks are managed. However, TPR treats the risk management function as separate from the trustees’ duty to carry out an ORA. For more on the...
FORTHCOMING CHANGE 1: Under section 10 of the Finance Act 2022, the normal minimum pension age ( NMPA) is set to rise from 55 to 57 on 6 April 2028, excluding members of the firefighters, police and armed forces public service pension schemes. The Act will also grant members of registered pension schemes a right to take benefits before 57 if, on or before 4 November 2021, they either possessed an ‘unqualified right’ to take benefits, or were in the course of a substantive transfer to a scheme that, by 4 November 2021, offered an unqualified right to a protected pension age below 57. To make use of this 2028 protection, the scheme’s rules must have included, as at 11 February 2021, an unqualified right to draw scheme benefits before age 57. For further detail, see Practice Note: Increasing the normal minimum pension age ( NMPA) to...
ARCHIVED This archived Practice Note reviews an earlier form of personal pension—the retirement annuity contract—and sets out how it contrasts with today’s personal pension arrangements. For further information on personal pension schemes, see Types of personal pension schemes—overview. Personal pension schemes—central role in private pensions sector Personal pensions, in their different guises, occupy a central place in the UK private pensions landscape today. Launched on 1 July 1988, they provide notable flexibility, being open to: employees (with employers allowed to pay in and obtain the tax relief without a tax charge arising for the employee) the self-employed (and, to a degree, individuals with no earnings) Retirement Annuity Contracts—background and aims However, personal pension schemes were preceded by another type—the Retirement Annuity Contract ( RAC). Since the introduction of personal pensions on 1 July 1988, no fresh RACs can be established, but RACs set up before that date may...
Employers may seek to reshape a defined benefit pension scheme for several reasons, including keeping the scheme aligned with recent legislative and case law changes, aiming to harmonise pension provision across the relevant corporate group, and seeking to control or reduce future pension spend. Types of scheme restructuring Typical approaches to restructuring defined benefit arrangements include: adjusting the scheme's accrual rate for future service (eg from 1/60th of final salary per year to 1/80th) shifting from final salary to career average accrual rates running incentive exercises (eg enhanced transfer offers) closing to new joiners ending future accrual (with or without keeping a link to final salary) consolidating schemes buying out members' benefits For more information, see: Pension scheme incentive exercises Changing from final salary to career average accrual rates Scheme...
THIS PRACTICE NOTE ONLY APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES The Pensions Regulator's moral hazard powers The Pensions Act 2004 ( Pe A 2004) granted the then newly established Pensions Regulator (the Regulator) a suite of powers. The most novel and consequential among these were the moral hazard measures in ss 38–56 of the Pe A 2004. These moral hazard powers allow the Regulator to tackle attempts to sidestep responsibility for pension funding commitments and, ultimately, to limit the exposure of the Pension Protection Fund ( PPF). In particular situations, the Regulator may even look beyond corporate structures to attribute pension liabilities to third parties connected to, or associated with, a scheme’s sponsoring employer. The Regulator’s moral hazard powers may take the form of: a contribution notice, requiring a specified sum to be paid into a pension scheme a financial support...
THIS PRACTICE NOTE APPLIES TO SCHEMES THAT WERE CONTRACTED- OUT SALARY- RELATED ( COSR) SCHEMES BEFORE 6 APRIL 2016 This Practice Note sets out the conditions an employer wishing to contract-out on a salary-related basis (also referred to as DB contracting-out) had to meet to secure a contracting-out certificate before DB contracting-out was abolished on 6 April 2016. It sets out the compliance requirements employers had to follow to obtain that certificate. It applies to schemes that were contracted-out salary-related ( COSR) schemes prior to that date. For further detail on the abolition of DB contracting-out, see Practice Note: Abolition of DB contracting-out—an introduction [ Archived]. Types of contracting-out certificates Most contracting-out certificates were granted in respect of a single employer (individual contracting-out certificates). However, where the scheme was a multi-employer scheme, a contracting-out certificate could, in certain...
This Practice Note does not address or cover refunds of contributions where a member has died. For further details on these, please consult Practice Notes: Death benefits—final salary schemes and Death benefits—money purchase schemes. Within this Practice Note, any mention of 'trustees' equally refers to the manager of a registered pension scheme. In what circumstances can a refund of member contributions be made? A scheme can allow repayments of member contributions in a variety of situations. For example, where a defined benefit ( DB) member has under three months' pensionable service, the current legislative framework gives that member no entitlement to have their pension benefits preserved within a DB occupational pension scheme. In such cases, it is also common for the scheme to provide that member with a repayment of their own contributions......
What is the Teachers’ Pension Scheme? The Teachers’ Pension Scheme ( TPS) is a statutory public service pension arrangement for members of the teaching profession in England and Wales. Since 1 April 2015, the TPS has consisted of two schemes: The reformed TPS (often described in TPS literature as the ‘2015 Scheme’), established on 1 April 2015 under the Public Service Pensions Act 2013 ( PSPA 2013) as a career average revalued earnings ( CARE) scheme. This Practice Note concerns that scheme. The legacy TPS, created by the Superannuation Act 1972 ( SA 1972) as a final salary scheme for those who joined before 1 April 2015. It closed to future accrual on 31 March 2022, while retaining a final salary link within that scheme. For more, see Practice Note: The legacy Teachers’ Pension Scheme. Separate schemes operate in Scotland and Northern Ireland and are outside the scope of this...
What is the National Health Service Pension Scheme? The NHSPS is an unfunded public service occupational pension that delivers salary‑related, defined benefit ( DB) retirement provision for health service staff. The reformed NHSPS (often termed the ‘2015 Scheme’) began on 1 April 2015 as a career average revalued earnings ( CARE) arrangement. New starters since that date have joined this scheme, which is the focus of this Practice Note. The legacy NHSPS (the ‘1995/2008 Scheme’) consists of two separate final salary sections—the 1995 Section and the 2008 Section—both closed to future accrual, while preserving a final salary link within that scheme. For further details, see Practice Note: The legacy National Health Service Pension Scheme. There are distinct schemes in Scotland and Northern Ireland, which are not covered by this Practice Note. When the reformed NHSPS opened, the government acted to close the 1995 and 2008 Sections to future...
THIS PRACTICE NOTE LOOKS AT PENSIONS REDUCTION IN THE CONTEXT OF ONGOING REGISTERED DEFINED BENEFIT PENSION SCHEMES Reducing a member’s pension entitlement (that is, cutting accrued benefits or a pension already in payment) within a continuing defined benefit occupational scheme gives rise to complex questions in modern pensions law, and there are several hurdles to clear—or navigate around—before any reduction can lawfully occur. Key obstacles include: sections 91–93 of the Pensions Act 1995 section 67 of the Pensions Act 1995 the provisions of the scheme’s governing documentation Further, decreasing a pension in payment may create adverse consequences under the pensions tax regime, which must be weighed carefully before proceeding (see Reducing pensions in payment—position under the pensions tax regime below). A reduction might be considered in various contexts, for example scheme restructuring or reclaiming overpayments, and both legal and tax impacts should be...
This Practice Note reviews the principal authorities on correcting pension scheme documentation. An evolving body of case law has set out broadly settled principles, yet judicial approaches may differ in the extent of pragmatic remedies the courts deploy. Decisions outside the pensions sphere can likewise inform rectification questions. Comparable rulings outside the pension context may likewise be pertinent when assessing whether rectification is appropriate. Lansing Linde v Alber This decision was notable in confining rectification to situations where the instrument did not capture the parties’ shared intention. Lansing Linde sponsored two defined benefit schemes. Following Barber, each scheme equalised benefits for male and female members. On their face, the equalisation changes in both schemes granted men and women an unconditional right to retire from age 60. The employer contended it had meant to increase women’s pension age to 65 and to allow an...
Trustees should be alert to circumstances that can trigger a debt under section 75 of the Pensions Act 1995, so they understand: when such a liability crystallises, and when they must act to have it assessed and recovered They have a general obligation to reclaim their scheme’s assets. If they fail to act properly, and without undue delay, to recover an outstanding sum, this may amount to a breach of trust and could expose them to claims for any loss suffered. For more on disputes that members may bring under occupational or personal pension schemes, see Practice Note: Pension disputes—avenues available to scheme members; and for trustee protections, see Practice Note: Trustee liability and protection in pensions. When does a section 75 debt arise? In summary, a section 75 debt becomes payable to an underfunded defined benefit scheme when: the scheme is wound up the employer is insolvent for section 75...
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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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