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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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Why use a QROPS? In reality, numerous Qualifying Recognised Overseas Pension Schemes ( QROPSs) are primarily personal pensions or retirement annuities, often promoted to individuals living outside the UK. A defining feature is that a QROPS is the sole overseas vehicle permitted to receive a ‘recognised transfer’ from a UK-registered pension arrangement. This restriction is set out in the Finance Act 2004 ( FA 2004) itself; section 169 expressly defines a ‘recognised transfer’ as moving sums or assets from one registered pension scheme to another, or to a QROPS. For more detail, refer to Practice Note: International pension transfers. Consolidating and moving pension rights and accrued benefits is a principal reason to choose a QROPS rather than other overseas pension options. As a result, they are frequently selected to facilitate recognised transfers and to consolidate benefits. This makes them a practical choice for non- UK...
ARCHIVED: This archived tracker compiles the key documents and announcements for the main public service pension schemes up to October 2018, reaching back to the establishment of Lord Hutton’s Independent Public Service Pensions Commission ( IPSPC) in 2010. It is not maintained and is provided purely for background reference. Reproduced with the kind permission of Eversheds Sutherland ( International) LLP. With schemes diverging and negotiations differing, following the reform of public service pensions is far from straightforward. This tracker brings the essential materials into one place, making it your first port of call whether you seek historic records or the latest developments as they arose. For information purposes only and not a replacement for legal advice. Eversheds Sutherland ( International) LLP makes no representation as to the content or accuracy of third-party websites or materials. Each Eversheds Sutherland ( International) LLP speedbrief was correct only at the date of...
This Practice Note This Practice Note reviews the range of public sector pension arrangements and the particular matters to consider when addressing them within family proceedings, including principal features, benefits, valuation, and the effect of steps taken to eliminate unlawful discrimination arising from the 2015 reforms (the Mc Cloud remedy). It also sets out key practical pointers when dealing with a public sector pension... Public sector pensions are occupational arrangements for staff employed by central or local government, a nationalised industry, or other statutory bodies. They include schemes for: armed forces police firefighters civil service teachers local government National Health Service ( NHS) Public sector schemes, especially those for uniformed services, are often intricate, so in many instances it is vital to obtain advice from a pensions on divorce expert ( PODE). See also the Pension Advisory Group: A Guide to the...
FORTHCOMING CHANGE : On 13 October 2025, the Ministry of Housing, Communities and Local Government ( MHCLG) opened a consultation on planned enhancements to the Local Government Pension Scheme ( LGPS) across England and Wales. Among its proposals, the paper sets out a sweeping reform of Fair Deal protections, bringing the scheme into line with the 2013 Fair Deal guidance and phasing out ‘broadly comparable’ pension arrangements for future outsourcing, save in exceptional circumstances. Instead, staff compulsorily transferred under TUPE would keep continuous LGPS membership through a new ‘deemed employer’ model, with the original Fair Deal employer remaining fully responsible for pensions, rather than relying on admission bodies alone. These safeguards would apply across re-tenders and subsequent transfers, protecting access for ‘protected transferees’ and, at the employer’s discretion, for new joiners on the contract. For individuals presently in broadly comparable schemes, the plans anticipate bulk transfers into the LGPS that...
Public sector pension schemes Public sector pension schemes deliver retirement benefits to public servants, including civil servants, teachers and NHS staff. Many operate on a defined benefit basis. While certain public sector employers provide defined contribution options, this Practice Note considers defined benefit arrangements only. These schemes are grouped into local government and central government arrangements. Local government schemes are funded, whereas those in central government are unfunded. The local government family includes all Local Government Pension Schemes ( LGPS). The principal central government schemes are: the Principal Civil Service Pension Scheme ( PCSPS) the National Health Service Pension Scheme ( NHSPS) the Teachers’ Pension Scheme ( TPS) Central government schemes also cover: the Firefighters’ Pension Schemes the Police Pension Schemes the Armed Forces Pension Schemes the Judicial Pension Schemes There are also areas with ‘quasi’ public sector pension...
‘ Protected rights’ were the benefits that schemes contracted-out on a money purchase basis had to deliver, before 6 April 2012, to members who had contracted-out, replacing the state benefits foregone as a result of doing so. For further details on contracting-out, see Practice Note: What does ‘contracting-out’ mean for pension lawyers? Contracting-out on a money purchase basis ( DC contracting-out) first became available in April 1988, but it was abolished on 6 April 2012. From that date, it was no longer possible to build up protected rights and the statutory restrictions that had applied to protected rights accrued before then ceased to operate. In practice, this means former protected rights can be treated as ordinary scheme benefits, except where the scheme rules provide otherwise. For more information, see Practice Note: Abolition of DC contracting-out [...
Statutory Framework The obligations concerning the treatment of ‘ Protected Persons’ are set out in the Electricity ( Protected Persons) ( England and Wales) Pension Regulations 1990, SI 1990/346 (the ‘ Regulations’), made under the Electricity Act 1989, Sch 14. Parallel regulations address the position in Scotland. The purpose of the Regulations is to ensure that pension arrangements within the Electricity Supply Pension Scheme ( ESPS) continue to be available to employees in the electricity industry following the 1990 privatisation. These obligations are overriding and apply despite any conflicting contractual provisions contained, for example, in a business sale agreement. It remains possible, however, for individuals to agree alternative arrangements through their contract of employment. For further information on the ESPS, see Practice Note: The Electricity Supply Pension Scheme... Protected Persons Protected Persons fall into two...
THIS PRACTICE NOTE APPLIES TO ALL PRIVATE SECTOR PENSION SCHEMES Business sales (sometimes called asset sales) involve a seller disposing of part, or all, of its tangible business to a buyer. The buyer then assumes ownership of the contracts and assets set out expressly in the business sale agreement. Those contracts will typically include, for example, commercial agreements and the employment contracts for some, or all, of the seller’s staff (employees transfer by law), together with any plant, machinery, property, goodwill, and similar items. This Practice Note should be read alongside the following Practice Notes: Pension issues on a business sale—acting for the buyer Pension issues on a business sale—acting for the seller TUPE—what pension benefits should the transferee provide? The purpose of due diligence Due diligence is the process by which a buyer obtains information about the seller's business and the accompanying liabilities. Lawyers acting for the buyer are...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES The nature of an outsourcing Outsourcing arises where an organisation contracts with a third party to assume responsibility for delivering services that its own staff presently perform under the organisation’s direction. In almost all cases, employees’ contracts of employment move automatically to the service provider as part of the arrangement. A common illustration is a company (the Customer) handing over its IT function to a specialist firm (the Supplier) under an outsourcing deal. In that scenario, the Supplier undertakes to supply IT services to the Customer, with the Customer’s current IT team transferring to the Supplier. The automatic movement of employment can give rise to pension issues and related matters. This is pertinent on a first-generation outsourcing and when the service provider changes during the arrangement. Pension issues may emerge on...
FORTHCOMING DEVELOPMENT : Section 10 of the Finance Act 2022 is set to lift the normal minimum pension age ( NMPA) from age 55 to age 57, with effect from 6 April 2028, while members of the firefighters, police and armed forces public service pension schemes are excluded from the change. The Act further provides that members of registered pension schemes may draw benefits before 57 where, on or before 4 November 2021, they already held an ‘unqualified right’ to access benefits, or were already in the midst of a substantive transfer to a scheme that, on or before 4 November 2021, conferred an unqualified right to a protected pension age of under 57. To rely upon this protection in 2028, the scheme’s rules must, as at 11 February 2021, have expressly contained an unqualified right to take entitlement to scheme benefits before...
What is the Determinations Panel? The Pensions Regulator’s Determinations Panel (the Panel) is a committee that decides whether the Pensions Regulator (the Regulator) should exercise certain key regulatory functions in appropriate cases. When it concludes a function ought to be exercised, the Panel then carries out that function itself. Establishment and composition Under Section 9(1) of the Pensions Act 2004 ( Pe A 2004), the Regulator must constitute and maintain the Panel. The Panel comprises a Chair plus at least six further individuals. An ‘appointments committee’, created by the Regulator’s chair, nominates the Chair, who is then appointed by the Regulator’s Board. The remaining members are proposed by the Panel’s Chair and appointed by the Regulator’s Board. Panel members are not required to be lawyers. They collectively possess legal, business and/or pensions expertise. They are not permitted to be members of the Regulator or its staff, nor...
THIS PRACTICE NOTE APPLIES IN RELATION TO OCCUPATIONAL AND PERSONAL PENSION SCHEMES Conflicts concerning pension schemes arise in many guises and contexts. The route for pursuing them will vary with the scheme’s nature and the particular circumstances, and may involve several possible forums available for resolution. This Practice Note concentrates on claims that dissatisfied members might bring in connection with their pension entitlements under either occupational or personal pension schemes......
This guide chiefly targets trainees, newly qualified lawyers, and other individuals who are new to, or not yet familiar with, pensions law. This introductory guide explores relevant pensions law and practice matters that may emerge in the event of the insolvency, or potential insolvency, of employers sponsoring defined benefit ( DB) and hybrid occupational pension schemes. Pension Protection Fund ( PPF) The PPF is intended to offer support to members of eligible, underfunded DB pension schemes when sponsoring employers experience qualifying insolvency events......
This Practice Note reviews how case law has progressively defined the scope of circumstances in which trustees of a trust, including those operating an occupational pension scheme, may have documents they previously executed set aside where some form of mistake undermined their execution of the instrument. While the discussion concentrates on the principles in a pension scheme context, a number of the authorities arise from the practice of employing trust structures to avoid or save tax. In place of setting aside a document on the basis of mistake, it may in some cases be possible to correct the error retrospectively through the equitable remedy of rectification. For further information on rectification, see Practice Notes: Amending mistakes and rectification in pensions and Rectification—the key cases for pension lawyers. Hastings- Bass The facts The case of Hastings- Bass v Inland Revenue...
Practice Note This Practice Note explains the tests the Pension Protection Fund applies when compensating members of an occupational pension scheme, together with the process and effects of assessment for admission to the scheme in the context of family proceedings. It also outlines the ramifications for divorce or dissolution, the applicable steps within financial remedy proceedings, and the reach of the distinct Financial Assistance Scheme. The Pension Protection Fund ( PPF) was created by the Pensions Act 2004 ( Pe A 2004) as a statutory corporate body. It administers funds to provide compensation to members of specified occupational pension schemes where: the pension scheme qualifies as an eligible scheme a ‘qualifying insolvency event’ has occurred in relation to the employer, or the employer is unlikely to remain a going concern and satisfies the conditions in the Pension Protection Fund ( Entry Rules) Regulations 2005, SI...
At times, pension schemes issue payments to members that do not align with scheme provisions or may infringe wider tax or legal requirements. Given the complexity of pensions, it is unsurprising that mistakes occur, most often as overpayments in practice. Trustees are obliged to reclaim as much of any overpaid sums as is reasonably achievable—for further detail, see Practice Note: Overpayment of pension benefits. Where treated as ‘unauthorised payments’, overpayments may trigger tax implications for members, schemes and employers alike. Are overpayments unauthorised member payments? An unauthorised member payment is, in essence, a member payment that sits outside the authorised member payment framework in section 164 of the Finance Act 2004 ( FA 2004). For general guidance on authorised payments, see Practice Note: Authorised and unauthorised payments. An overpayment is treated as an unauthorised member payment unless it falls within: an exception in the...
Before 2012, employers were under no broad duty to either: pay contributions for their staff, or set up pension arrangements for their staff The arrival of the auto-enrolment regime in 2012 reshaped this landscape, and employers caught by the auto-enrolment rules must pay into employees’ pension arrangements in line with those requirements. For details of the minimum employer contribution rates, see Practice Note: Auto-enrolment—what types of scheme may be used? Requirement to process core financial transactions— DC occupational pension schemes From 6 April 2015, trustees of relevant schemes (essentially defined contribution ( DC) occupational pension schemes, with certain exceptions) must ensure core financial transactions are handled swiftly and correctly. Notably, ‘core financial transactions’ encompass receiving and investing contributions. The Pensions Regulator ( TPR) therefore expects schemes to maintain robust controls to monitor and secure the prompt, accurate payment of employer and member...
What is an assessment period? When a qualifying insolvency event affects the sponsoring employer of an eligible scheme, the scheme moves into a Pension Protection Fund ( PPF) assessment period as a result of that event. This arises on the occurrence of that event. The day on which that period starts is known as the ‘assessment date’ for the scheme. Since 3 January 2012, the assessment period is no longer required to last for at least 12 months. Throughout the assessment period, the PPF considers whether the scheme satisfies the requirements for entry into the PPF. In particular, the PPF will appoint an actuary to carry out a valuation of the scheme as at the assessment date, in order to determine whether the scheme’s assets are less than the protected liabilities—broadly, the benefits the PPF would pay to members if the scheme were to enter the...
FORTHCOMING DEVELOPMENT : From 6 April 2028, section 10 of the Finance Act 2022 raises the normal minimum pension age ( NMPA) from 55 to 57, with the exception of members of the firefighters, police and armed forces public service pension schemes. The Finance Act 2022 also enables members of registered pension schemes to access benefits before age 57 where, on or before 4 November 2021: they already held an ‘unqualified right’ to take benefits; or they were in the course of a substantive transfer to a scheme offering an unqualified right to a protected pension age below 57 on or before 4 November 2021. To rely on this new 2028 protection, the scheme’s rules must have included, on 11 February 2021, an unqualified right to take entitlement to scheme benefits before reaching 57. For further detail, see Practice Note: Increasing the normal minimum pension age (...
ARCHIVED: This archived Practice Note summarises Lifetime ISAs, covering their legislative basis and main characteristics. It is not maintained. What is the Lifetime ISA? The Lifetime ISA launched on 6 April 2017 for adults aged under 40. Individuals may save up to £4,000 each year and receive a government bonus worth 25% of their contributions. Money held in a Lifetime ISA can fund a first home purchase or be taken tax free once over age 60. For more detail, see Key aspects of the Lifetime ISA, below. In Budget 2025, the government signalled its intention to replace the Lifetime ISA with a new product targeted solely at first-time buyers. Opening a Lifetime ISA will still be permitted until the new product goes live, and current holders may continue contributing to their Lifetime ISA...
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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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