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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 has been archived and is not maintained. It examines the impact of Brexit on contractual boilerplate provisions ahead of IP completion day. For information on the effect of IP completion day on boilerplate clauses, see Practice Note: What does IP completion day mean for contract clauses? The United Kingdom’s departure from the European Union on exit day, the implementation period, and the period thereafter each carry implications for the drafting, negotiation, and enforcement of contracts governed by English law. This Practice Note focuses specifically on the effect of Brexit on boilerplate clauses. ‘ Boilerplate’ refers to those provisions within an agreement that govern its operation and address legal points relevant to most transactions. Such terms are typically found at the beginning and the end of an agreement. Although often viewed as standard or...
ARCHIVED: This archived Practice Note sets out links to relevant News Analysis on Brexit published by the Pensions team and available in the Brexit collection. It is not maintained and is for background information only. Pensions Brexit News Analysis 14 July 2020 — A compelling framework for jurisdiction post‑ Brexit. The UK has applied to join the 2007 Lugano Convention ( Lugano Convention), the UK’s favoured system for resolving jurisdictional issues and recognising and enforcing judgments with EU states after Brexit. These provisions will be vital when parties decide which jurisdiction clauses to include in their agreements. Oliver Browne, Sebastian Seelmann‑ Eggebert and Thomas Watret, partners and associate at Latham & Watkins LLP, set out what the Lugano Convention covers, update on progress towards accession, and point out notable differences from the current regime. 13...
ARCHIVED: This archived Practice Note set out details of the various benefit crystallisation events ( BCEs) that applied before they were withdrawn on 6 April 2024. It covered their link to the lifetime allowance (itself abolished on 6 April 2024), the timing of a BCE, the method for valuing crystallised amounts for each BCE, and related reporting duties. This Practice Note is no longer maintained. For more detail, see Practice Note: Abolition of the lifetime allowance What was a benefit crystallisation event? Up to 5 April 2024, an individual’s total pension savings within registered schemes were restricted by the lifetime allowance, which ceased from 6 April 2024 (see Practice Note: Abolition of the lifetime allowance). BCEs were fundamentally tied to that limit, as they were the points at which a lifetime allowance test arose to assess how much of the allowance a BCE consumed and...
THIS PRACTICE NOTE APPLIES IN RELATION TO OCCUPATIONAL PENSION SCHEMES What are additional voluntary contributions? Additional Voluntary Contributions ( AVCs) are contributions that members of occupational pension schemes choose to pay, beyond those required by the scheme rules, which therefore give the member extra benefits on top of the basic benefits of the relevant scheme. The nature of benefits funded by AVCs is determined by the scheme’s rules. They may provide extra defined benefits (often referred to as ‘added years’), but in most instances AVC entitlements build up on a money purchase basis. Why distinguish them from other contributions? For several purposes the contributions, and the benefits purchased with them, are treated as a distinct class separate from normal contributions and benefits. In some areas this produces more restrictive treatment than applies to other benefits; in others, more favourable rules apply. Notably, on a winding up of the...
Jobholders have a statutory right to leave a scheme they’ve been put into by completing a valid opt-out notice and giving it to their employer within a set timeframe. Once a valid opt-out notice is lodged, the jobholder is regarded as though they were never in the scheme. The Pensions Regulator has published guidance setting out how opting out works, including eligibility to opt out, the relevant time limits, and the steps employers must take upon receipt of an opt-out notice. Who can opt out? Eligible jobholders may opt out after they have been automatically enrolled (or re-enrolled) into an automatic enrolment scheme. Non-eligible jobholders who have opted in to an automatic enrolment scheme may opt out after they have been enrolled. Employers cannot opt out on behalf of jobholders. An employer who impersonated temporary workers to opt them out...
FORTHCOMING DEVELOPMENT On 18 September 2023, the Pensions ( Extension of Automatic Enrolment) ( No. 2) Bill gained Royal Assent, becoming the Pensions ( Extension of Automatic Enrolment) Act 2023 (the Act), and it was published on 19 September 2023. The Act enables the Secretary of State for Work and Pensions to make regulations to: lower the minimum age at which otherwise eligible staff must be automatically enrolled and re-enrolled by their employers into a pension scheme, remove the Lower Earnings Limit from the qualifying earnings band so that contributions are calculated from the first pound earned, adjust the requirements for the annual review of the qualifying earnings band. Alterations to eligibility for automatic enrolment will be introduced following a consultation on the exact method and timing of implementation. The commencement of section 1 of the Act is set to be ‘on such day or days as...
The auto-enrolment regime requires employers to provide information to: various categories of workers and the trustees (or managers) of relevant schemes, in accordance with the Occupational and Personal Pension Schemes ( Automatic Enrolment) Regulations 2010, SI 2010/772 (the Auto Enrolment Regs) the Pensions Regulator, in line with the Employers' Duties ( Registration and Compliance) Regulations 2010, SI 2010/5 (the Registration Regs) Following consultation, and arising from the decision to extend the joining window, amendments to the auto-enrolment legislation took effect from 1 April 2014 to: move the deadline for disclosing information from one month to six weeks push back the registration deadline with the Pensions Regulator from four months to five months (see Disclosure obligations towards the Pensions Regulator below) where an employer must automatically re-enrol workers every three years, extend the deadline for...
The quality requirements for hybrid schemes Hybrid schemes deliver both defined benefits and money purchase benefits. Specific rules govern how such schemes meet the auto-enrolment qualifying standards (the quality requirements). These rules reflect the quality benchmarks for defined benefit and money purchase arrangements. For more detail on those defined benefit and money purchase (also called defined contribution) criteria, see Practice Note: Auto-enrolment—what types of scheme may be used? Where a hybrid scheme is mainly administered in the UK, it will meet the quality requirement for a jobholder if it complies with whichever of the following is appropriate: money purchase scheme quality requirements under the Pensions Act 2008, s 20 ( Pen A 2008), subject to any prescribed modifications; defined benefit scheme quality requirements under Pen A 2008, ss 21–23 (the test scheme standard), subject to any prescribed modifications; or a combination of the above where differing scheme...
FORTHCOMING DEVELOPMENT : Section 10 of the Finance Act 2022 will raise the normal minimum pension age ( NMPA) from 55 to 57 with effect from 6 April 2028, except for members of the firefighters, police and armed forces public service pension schemes. The Act also permits members of registered pension schemes to access benefits before 57 where, on or before 4 November 2021, they: already had an unqualified right to take benefits, or were in the course of a substantive transfer to a scheme that provided an unqualified right to a protected pension age under 57 on or before 4 November 2021. To make use of this 2028 protection, the scheme rules must have included, as at 11 February 2021, an unqualified right to take scheme benefits before reaching age 57. For further information, see Practice Note: Increasing the normal minimum pension age ( NMPA) to...
FORTHCOMING DEVELOPMENT : The Pensions ( Extension of Automatic Enrolment) ( No. 2) Bill secured Royal Assent on 18 September 2023, becoming the Pensions ( Extension of Automatic Enrolment) Act 2023 (the Act), and it was published on 19 September 2023. The Act empowers the Secretary of State for Work and Pensions to make regulations to: lower the minimum age at which otherwise eligible workers must be automatically enrolled and re-enrolled by their employers into a pension scheme; remove the Lower Earnings Limit from the qualifying earnings band so that contributions are calculated from the first pound of pay; adjust the requirements for the annual review of the qualifying earnings band. Changes to eligibility for automatic enrolment will be introduced following consultation on the detailed method of implementation and timing. The commencement of section 1 of the Act will be “on such day or days as the...
This Practice Note This Practice Note examines the range of sanctions applied to employers and other parties for breaches of the pensions auto-enrolment regime, alongside the protections available to workers under that regime. It covers automatic unfair dismissal or detriment arising from pensions issues, whistleblowing, and enforcement action. It also addresses settling relevant claims by COT3 or by settlement agreement (formerly described as a compromise agreement). The auto-enrolment framework, created by Part 1 of the Pensions Act 2008 ( Pen A 2008), imposes a statutory obligation on employers to arrange the auto-enrolment of all ‘eligible jobholders’ into a ‘qualifying scheme’. Employers are likewise required to make contributions to that scheme for eligible jobholders. The regime contains a number of provisions that impose penalties on employers and other parties for non-compliance. For additional detail, see Practice Note:...
An employer may delay, by no more than three months, the point at which auto-enrolment duties would otherwise take effect for an eligible jobholder. The date selected for this delay is referred to as the 'deferral date'. Deferring the auto-enrolment date effectively creates a waiting period for membership. The choice to postpone auto-enrolment remains optional for the employer. Where an employer opts to apply postponement, it must issue a notice to the affected workers, known as a 'postponement notice'. The Pensions Regulator provides guidance to assist employers wishing to use postponement and also supplies a template letter that employers can use for the postponement notice......
FORTHCOMING DEVELOPMENT : The Pensions ( Extension of Automatic Enrolment) ( No. 2) Bill received Royal Assent on 18 September 2023 as the Pensions ( Extension of Automatic Enrolment) Act 2023 (the Act), and was published on 19 September 2023. The Act grants the Secretary of State for Work and Pensions powers to make regulations to: reduce the lower age threshold at which otherwise eligible employees must be automatically enrolled and re‑enrolled by their employers into a pension scheme; remove the Lower Earnings Limit from the qualifying earnings band so that contributions are calculated from the first pound earned; and amend the requirements for the annual review of the qualifying earnings band. Adjustments to automatic enrolment eligibility will follow a consultation on the detailed approach and timing for implementation. The date on which section 1 of the Act comes into force is specified to be “on such day or days as the...
Authorised payments v unauthorised payments A pension scheme that has registered with HMRC enjoys favourable UK tax treatment. In broad terms, investment income and gains arising within a UK registered pension scheme are exempt from UK tax. For members, such a registered arrangement provides a tax-efficient means to secure an income in retirement, subject to the range of pensions allowances (eg the annual allowance) that restrict the extent of pension tax-efficiency. For further information, see: Pensions allowances—overview. A UK registered pension scheme must also meet certain conditions. On registration, the scheme administrator must confirm that the scheme satisfies all the criteria for registration as a pension scheme under the Finance Act 2004 ( FA 2004). Critically, this includes confirming that the instruments or agreements establishing the pension scheme do not give any person an entitlement to unauthorised payments. For information on the...
Financing defined benefit pension schemes, together with the instability and exposure inherent in such schemes, has posed a persistent challenge for numerous employers over a prolonged period. Asset-backed contribution ( ABC) structures offer an option to cut pension scheme shortfalls, serving as a substitute for cash under a conventional contributions schedule framework. That said, ABCs are inherently intricate, and tax remains a critical factor—both to secure the intended fiscal treatment and to lessen the possibility of any adverse tax effects emerging in implementation phases overall. This Practice Note sets out a concise outline of ABCs and then examines the principal tax issues relevant to an ABC framework, including restructuring and unwinding, principally governed by sections 196–196L of the Finance Act 2004 ( FA 2004), as applicable herein. For added detail on the nature of ABCs, their role in addressing pension scheme deficits, and the core points to weigh when...
FORTHCOMING DEVELOPMENT On 3 February 2025, the House of Commons Treasury Committee opened an inquiry into AI within financial services. It seeks to examine how UK providers, including the pensions sector, can seize AI-driven opportunities whilst simultaneously reducing risks to financial stability—such as cyber security threats—and ensuring robust protection for financial consumers, especially vulnerable customers who could be exposed to bias. For further information, see LNB News 04/02/2025 12. What is artificial intelligence ( AI)? Artificial intelligence ( AI) describes software and systems that can display human-like intelligence. Rather than merely following pre-programmed tasks, they are able to learn, plan, reason and handle natural language in real time. With AI anticipated to reshape financial services, it is prudent for pensions professionals, trustees, employers, providers and others involved in running pension schemes to reflect on the possibilities and the hazards that AI may bring, both now and in the...
Statutory framework At present, four principal pension schemes operate in England and Wales for members of the armed forces. These are: Armed Forces Pension Scheme 1975 ( AFPS 1975) — formerly open only to the regular forces; closed to new members from 6 April 2006 and stopped future accrual from 1 April 2022 Armed Forces Pension Scheme 2005 ( AFPS 2005) — likewise for the regular forces only; also closed to future accrual from 1 April 2022 Reserve Forces Pension Scheme 2005 ( RFPS 2005) — open to full time reservists; again closed to future accrual from 1 April 2022 Armed Forces Pension Scheme 2015 ( AFPS 2015) — open to the regular forces and all reservists; effective from 1 April 2015 There are also several other schemes, run by the same manager, that provide pension or other...
THIS PRACTICE NOTE RELATES TO DRAWDOWN PENSIONS COMMENCING BETWEEN 6 APRIL 2011 AND 5 APRIL 2015 ( INCLUSIVE) ARCHIVED: This archived Practice Note outlines the legal framework that applied to drawdown arrangements begun on or after 6 April 2011 and before 6 April 2015, whether by way of income withdrawal or a short-term annuity. It is no longer maintained. For details of the regime for drawdown arrangements starting on or after 6 April 2015, see Practice Notes: Drawdown from 6 April 2015 and Drawdown and death benefits from 6 April 2015. What is a drawdown pension? The term ‘drawdown pension’ replaced the earlier labels ‘unsecured pension’ and ‘alternatively secured pension’ used before 6 April 2011. Up to 5 April 2015, drawdown pension described the process for paying pension which enabled members who were: already receiving benefits from a pension arrangement (either a pension paid by the...
ARCHIVED: This archived Practice Note outlines the Pensions Regulator’s expectations under its 2016 DC Code of Practice and the accompanying DC guides for occupational money purchase schemes, for the period spanning from 28 July 2016 through to 27 March 2024 (the day before the General Code came into force, which replaced the 2016 DC Code of Practice). For further current information on DC governance, please see the Practice Note: Governance requirements applicable to DC workplace pension schemes. There are two kinds of work-based defined contribution ( DC) arrangements: trust-based, ie set up by trust deed (or a declaration of trust) and run by a board of trustees for scheme members—eg a trust-based DC occupational scheme; and contract-based, ie put in place and operated by insurance providers (usually at an employer’s instruction) and founded on a contract between the member and the...
ARCHIVED: This archived Practice Note outlines the data protection framework before 25 May 2018 and sets out the position under the Data Protection Act 1998 ( DPA 1998). It is provided for background purposes only and is not maintained. Background The DPA 1998 regulates the processing of personal data in the UK. It requires those handling such data to observe eight principles and gives individuals the right to know what information is held about them. For details on the principles, see Practice Note: Data protection principles under the DPA 1998. The Information Commissioner’s Office ( ICO) oversees and enforces the DPA 1998. For more information, see the following Practice Notes: The Information Commissioner’s Office ( ICO) Sanctions and enforcement under the DPA 1998 Sections 1 and 2 of the DPA 1998 set out definitions for key terms used throughout the Act and within the...
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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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