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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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ARCHIVED: This Practice Note outlines the earlier legal framework introduced by the Pension Schemes Act 2015 that allowed the formation of defined ambition arrangements, such as collective defined contribution ( CDC) schemes. It is not kept up to date and is provided for background reference only. For the current legal position on CDC schemes, see Practice Notes: Collective defined contribution ( CDC) schemes—an introduction and Collective defined contribution ( CDC) schemes under the Pension Schemes Act 2021. What is a defined ambition scheme? A central principle of defined ambition is ‘risk sharing’, meaning responsibility for risk is not placed wholly or largely on either the employer or members. A defined ambition pension blends elements typically seen in traditional defined benefit ( DB) schemes with aspects commonly found in traditional defined contribution ( DC) schemes. The Department of Work and Pensions ( DWP), in its 2012...
From 6 April 2018, the Occupational Pension Schemes ( Employer Debt and Miscellaneous Amendments) Regulations 2018 ( SI 2018/237) revised the Occupational Pension Schemes ( Employer Debt) Regulations ( SI 2005/678) by introducing regulation 6F, adding a further easement to the section 75 debt framework known as the ‘deferred debt arrangement’. The move followed a March 2015 call for evidence and a second consultation on draft regulations launched in April 2017 For more on these consultations and the responses, see: News Analysis: DWP consultation on further potential easements to the employer debt regime ( March 2015) News Analysis: DWP consultation—progress at last on the employer debt front ( April 2017) News Analysis: DWP consultation response on Employer Debt Regs—introducing the deferred debt arrangement ( February 2018) For a precedent establishing a deferred debt arrangement, see Precedent: Deferred Debt...
Ways of providing death-in-service benefits Employers commonly provide their staff with death-in-service benefits (often referred to as 'life assurance' or 'life cover' benefits). This protection is ordinarily limited to employees (hence the term 'death in service', reflecting the label itself), although in certain situations an employer may decide to extend the benefit beyond retirement. Employers can deliver these benefits in three ways: via a dedicated trust-based arrangement that, while registered as a pension scheme for the purposes of Part 4 of the Finance Act 2004 ( FA 2004), provides only death-in-service benefits—such arrangements are frequently known as 'life cover only schemes', 'death-in-service schemes' or 'standalone life assurance schemes', and no other benefits through a registered pension scheme (usually an occupational pension scheme) in which the death-in-service benefits form part of the broader benefit structure of the scheme as a whole. In this type of...
Overview of the types of death in service benefits and their tax treatment Employers can provide three common kinds of death in service protection, often described as ‘life assurance’ or ‘life cover’, by arranging a life policy for their staff who are eligible: the registered group life policy the relevant life policy the excepted group life policy These arrangements share the following common features and conditions: employees eligible for cover must be aged from 16 to 74 inclusive using a discretionary trust will normally prevent any inheritance tax (‘ IHT’) charge arising on an employee’s death premiums paid by the employer are usually deductible for tax premiums are not treated as a taxable benefit in kind for employees The registered group life policy This is a group arrangement that is registered with HMRC under Part 4 of the Finance Act 2004 ( FA...
FORTHCOMING CHANGE: Under the Finance Bill 2025–26, unused pension pots and death benefits will also be treated as part of a deceased member’s estate, bringing them into the inheritance tax ( IHT) net from 6 April 2027. These rules will not cover death-in-service payouts to active employees in relevant employment, nor a dependant’s scheme pension (that is, a DB scheme spouse’s or dependant’s pension). Existing exemptions, including those for spouses and civil partners, will continue to apply unchanged. Responsibility for settling any IHT will rest chiefly with the personal representatives in the first instance. For more detail, consult Practice Note: Inheritance tax and pensions; News Analyses: HMRC— Reforming inheritance tax—unused pension funds and death benefits; HMRC confirms new IHT rules on unused pension funds to apply from 6 April 2027; and HMRC policy paper: Inheritance Tax: unused pension funds and death benefits ( November...
THIS PRACTICE NOTE APPLIES IN RELATION TO OCCUPATIONAL PENSION SCHEMES For schemes that offer money purchase benefits, the chair must sign an annual governance statement, widely termed the ‘ DC chair’s statement’ (though statute gives it the rather lengthy label ‘annual statement regarding governance’). The legislative and regulatory framework This duty took effect on 6 April 2015 via the Occupational Pension Schemes ( Charges and Governance) Regulations 2015, SI 2015/879 (the Charge and Governance Regulations 2015), inserting the requirement into the Occupational Pension Schemes ( Scheme Administration) Regulations 1996, SI 1996/1715, regs 23 and 26. Sanctions for failing to comply appear in reg 28 of the Charge and Governance Regulations 2015, SI 2015/879—for more detail, see Penalties for non-compliance below. The Pensions Regulator ( TPR) provides guidance on this requirement in the following materials: its General Code of Practice, with emphasis on the section covering the chair’s...
In this Practice Note, the expressions ‘defined benefit’ or ‘ DB benefits’ denote safeguarded benefits for the purposes of section 48 of the Pension Schemes Act 2015 ( PSA 2015). Likewise, ‘defined contribution benefit’ or ‘ DC benefit’ is used for flexible benefits under PSA 2015, s 74. For further detail on safeguarded and flexible benefits, see Practice Note: Flexible benefits vs safeguarded benefits. Relevant trustee considerations When handling DB to DC transfer requests (or DB to DC conversion requests), trustees of DB occupational pension schemes should take account of the following: Compliance with the cash equivalent transfer value regime Trustees must adhere to the statutory rules of the cash equivalent transfer value ( CETV) regime. Those requirements are found in: sections 93–101 of the Pension Schemes Act 1993 ( PSA 1993), which set out the eligibility conditions and the steps to follow the...
The statutory framework The Pensions Act 2004 ( Pe A 2004) brought in a ‘scheme‑specific’ funding approach applying to occupational pension schemes on a defined benefit ( DB) basis. Certain schemes fall outside this regime—for more detail, see: Schemes exempt from the scheme‑specific funding regime, below. The regime took effect on 30 December 2005 and replaced the Minimum Funding Requirement ( MFR), which had proved unreliable as a test of individual schemes’ financial positions. It also implemented in UK law the scheme funding requirements of the IORP Directive 2003/41/ EC on the activities and supervision of institutions for occupational retirement provision (the 2003 IORP Directive, later repealed and recast as Archived Directive ( EU) 2016/2341, Archived IORP II). Note that neither the 2003 IORP Directive nor Archived IORP II form part of UK domestic law, although the UK measures enacting them do. The relevant UK...
FORTHCOMING DEVELOPMENT: At a roundtable in the City of London on 28 January 2025 with leaders of the UK’s largest companies, Prime Minister Keir Starmer and Chancellor Rachel Reeves set out proposals to ease constraints on defined benefit ( DB) pension schemes that have strong surpluses, to release capital for investment in UK firms as part of the Labour government’s broader drive to spur economic growth. The government envisages that, where trustees consent to share a slice of the scheme’s surplus with the employer, the employer could channel these monies into its core operations and/or offer extra benefits to members. The reforms seek to unlock an estimated £160 billion presently sitting in surplus across roughly 75% of schemes. Legislation is proposed to permit all DB schemes to amend their rules to allow surplus extraction, subject to...
The March 2018 White Paper on defined benefit ( DB) pension schemes The March 2018 White Paper highlighted insufficient accountability and uncertainty over what constitutes an effective funding strategy, prompting worries that this might result in weak scheme funding and short-termist investment decisions. In response, the government introduced a package of actions to sharpen clarity, strengthen security and improve the sustainability of DB scheme funding, while keeping the advantages of a flexible, scheme-specific model. The headline reform is to align the scheme funding objective with a long-term funding objective. In keeping with this, the Pensions Regulator’s ( TPR) March 2019 annual funding statement set out TPR’s expectation that DB trustees and employers should agree a long-term funding target. The announced package includes: making legislative reforms through changes to: primary legislation, namely the Pension Schemes Act 2021 ( PSA...
The Pensions Act 2004 funding regime The Pensions Act 2004 ( Pe A 2004), alongside the Occupational Pension Schemes ( Scheme Funding) Regulations 2005, SI 2005/3377 (the Scheme Funding Regulations), established and introduced a new scheme‑specific funding framework applicable to defined benefit ( DB) occupational pension schemes. This framework replaced the discredited Minimum Funding Requirement ( MFR) and came into force on 30 December 2005. From that date it applies to all actuarial valuations as follows: with an effective date on or after 22 September 2005, and received by the trustees on or after 30 December 2005 A core feature of the scheme‑specific funding regime relates to the statutory funding objective, which applies to all relevant DB schemes unless specifically excluded by the Scheme Funding Regulations. In brief, the statutory funding objective requires all applicable DB schemes to hold ‘sufficient and appropriate assets to cover its...
THIS PRACTICE NOTE APPLIES TO SCHEMES THAT WERE CONTRACTED- OUT SALARY- RELATED ( COSR) SCHEMES BEFORE 6 APRIL 2016 To contract out on a salary-related basis ( DB contracting-out), the sponsoring employer was required to possess a contracting-out certificate for the relevant scheme. Where a scheme involved more than one employer, a certificate could, in certain circumstances, be issued to the holding company, with an accompanying schedule identifying the subsidiaries it covered. This was referred to as a holding company contracting-out certificate. For further details, see Obtaining a DB contracting-out certificate before 6 April 2016 [ Archived]— Types of contracting-out certificates. In due course, it might have become necessary to surrender a certificate, for instance: after deciding to contract back into the additional State pension; or following a group reorganisation where the...
This Practice Note provides an overview of the UK’s Data Protection Act 2018 ( DPA 2018). For a broader primer on data protection law in the UK, see Practice Note: Data protection law—new starter guide. The UK data protection law collection brings together wider guidance and is a suggested first port of call for research. In brief In summary, the DPA 2018 currently governs: the processing of personal data within the UK GDPR framework, complementing the core rules laid down in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), with extra measures covering: lawful basis for processing processing on the basis of relevant international law processing special categories of personal data and criminal offence data ...
What is CPR Part 8? There are broadly two routes to commence proceedings: one follows the process in Part 7 of the Civil Procedure Rules ( CPR); the other adopts the alternative process in CPR Part 8. This Practice Note addresses the latter. It is aimed at securing a clear ruling on a carefully formulated issue, rather than purely testing contested facts. The Part 8 route is adaptable and can accommodate a variety of disputes. Parties may resort to it where they seek the court’s guidance, approval of an agreement or decision, or where there is a dispute on a point of law or on the interpretation of a document or statute. A claimant may, unless an enactment, rule or practice direction provides to the contrary, employ the Part 8 procedure to obtain the court’s determination of a question that is unlikely to involve a...
ARCHIVED: The Coronavirus ( COVID-19) pandemic created significant challenges for employers engaged in pension schemes. This archived Practice Note explains the effects of coronavirus on employers participating in pension schemes, including their automatic enrolment duties and the stance taken by the Pensions Regulator. It also summarises government measures introduced to ease pensions-related pressures (for example, the Coronavirus Job Retention Scheme ( CJRS), the Corporate Insolvency and Governance Act 2020 and the Kickstart Scheme), alongside the pensions implications of emergency volunteering leave ( EVL) and employers’ obligation to initiate claims following the deaths of certain keyworkers under the NHS and Social Care Coronavirus Life Assurance Scheme 2020. It is not maintained. The Pensions Regulator’s general approach The Pensions Regulator ( TPR) adopted a proportionate, risk‑based stance to its enforcement decisions, aiming to help employers restore compliance while protecting both employers and savers. In line with this...
Key provisions of the Act On 25 June 2020, after fewer than 40 days in Parliament, the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) obtained Royal Assent. This legislation, which reforms UK insolvency law, largely commenced on 26 June 2020. CIGA 2020 is aimed at assisting companies and other entities to remain solvent where they encounter financial difficulty due to the coronavirus crisis. Among other matters, CIGA 2020 introduces the following: Introduction of a company moratorium — directors of insolvent companies, or those likely to become insolvent, can obtain a 20 business day moratorium to allow viable businesses time to restructure or seek fresh investment without creditor action (that is, to provide breathing space). The moratorium can also be extended. It is supervised by an insolvency practitioner acting as a ‘monitor’, while directors retain control of day-to-day management (a...
A Limited Liability Partnership ( LLP) An LLP is a statutory business vehicle created under the Limited Liability Partnership Act 2000 ( LLPA 2000). From 6 April 2001, LLPs have been capable of being formed in England and Wales. Notable features of an LLP are: It is a corporate body and separate legal entity, with a legal personality independent of its members. It has unrestricted capacity. Its members benefit from limited liability, whereas partners in a general partnership have unlimited liability (although, for tax purposes, an LLP is treated as a general partnership). Members may determine their own arrangements, via an LLP members’ agreement, including: obligations to contribute to the LLP allocation of management responsibilities profit...
ARCHIVED: This archived Practice Note reviews the contribution notice issued by the Pensions Regulator to the overseas parent company of the loss‑making UK employer connected to the Bonas defined benefit pension scheme. Importantly, the contribution notice amount was cut from £5,089,000 to a markedly lower £60,000 when the parties reached a settlement following a summary hearing before the Upper Tribunal. The Pensions Regulator has cautioned that the judge’s remarks at that summary hearing about the appropriate level of a contribution notice are tied to the specific facts and context of the matter, and therefore should not be relied upon in other situations. This archived Practice Note is not maintained and is provided for background purposes only. For additional detail on contribution notices, see Practice Note: Contribution notices ( CNs). Facts Michel Van de Wiele ( VDW) was the Belgian parent company of Bonas Machine Company Ltd (...
THIS PRACTICE NOTE APPLIES ONLY TO PENSION SCHEMES IN ENGLAND AND WALES What is contractual enrolment? Contractual enrolment happens when workers are placed into a pension scheme through the terms of their employment contract and, by incorporation, the scheme rules. By comparison, auto-enrolment brings workers into a qualifying scheme automatically under the statutory framework in the Pensions Act 2008 ( Pen A 2008). The main benefit of contractual enrolment is that if an employer contractually enrols all its workers into a qualifying pension scheme—including those whom it is not required by law to auto-enrol—it does not have to assess every worker under the auto-enrolment regime. For this reason, contractual enrolment is often considered a simpler route than auto-enrolment. However, the interaction between contractual enrolment and the auto-enrolment regime can create administrative complexity or uncertainty. Employers should therefore record which workers have joined...
Interaction with the additional State pension Up to 6 April 2016, State pension provision operated on two tiers: the basic State pension — a flat-rate amount, largely determined by National Insurance contributions ( NICs) actually paid or credited, the additional State pension, called the State Second Pension ( S2P) — as the name suggests, it sat on top of the basic State pension and was linked to a person’s earnings. Before April 2002, the additional element was known as the State Earnings Related Pension Scheme ( SERPS). Prior to 6 April 2016, pension schemes could either contract in to, or contract out of, the additional State pension. Where a scheme was contracted in, members would, subject to their earnings, receive the additional State pension alongside their basic State pension. Where a scheme was contracted out, members would not receive the additional State pension. In...
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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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