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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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TUPE and pensions When a public service moves from central government to a contractor in the private sector, particular safeguards typically apply to the pension entitlements of staff who transfer. Those safeguards were first set out in Annex A to HM Treasury’s guidance ‘ Staff Transfers From Central Government: A Fair Deal for Staff Pensions’ (the old Fair Deal). The old Fair Deal extended protections beyond the minimum required under the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE), SI 2006/246, the Pensions Act 2004, ss 257–258, and the Transfer of Employment ( Pension Protection) Regulations 2005, SI 2005/649. For added detail on TUPE, see TUPE—what pension benefits should the transferee provide? and TUPE and Beckmann—the pensions exception. Old Fair Deal—interaction with Fair Deal 2013 and when it applies The old Fair Deal was published in June 1999 and applies solely to central...
The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 On a relevant transfer, TUPE 2006 effects a statutory novation of transferring employees’ contracts: the transferee steps into the transferor’s shoes. This Practice Note outlines the rights, powers, duties and liabilities that pass, and treats the transferor’s acts or omissions as those of the transferee in relation to transferring staff. For fuller guidance on: what amounts to a relevant transfer under TUPE 2006, see Practice Notes: TUPE—business transfers and TUPE—service provision changes who counts as transferring employees, see Practice Note: TUPE—transfer of employees the duty to inform and consult about a relevant transfer, see Practice Note: TUPE—information and consultation how TUPE 2006 protects transferring staff against contractual variations and dismissal, see Practice Notes: TUPE—variation of contract terms and...
FORTHCOMING CHANGE: A government consultation held from 16 May 2024 to 11 July 2024 invited feedback on several proposals, notably: (1) to ‘reaffirm’ that protection under TUPE 2006 applies only to employees and not to ‘limb (b)’ workers, in order to dispel ‘uncertainty’ arising from the 2019 employment tribunal ruling in Dewhurst v (1) Revisecatch Ltd t/a Ecourier (2) City Sprint ( UK); and (2) to remove the requirement to divide employees’ contracts between different employers when an undertaking is split between more than one incoming business. For added detail, see: Employees defined, below, under the heading ‘ Proposals for reform’, and Two or more transferees, or transfer of only part of a business, below, under the heading ‘ Proposals for reform’. In October 2024, the Labour government’s policy paper Next Steps to Make Work Pay confirmed it would open a call for evidence to take a...
THIS PRACTICE NOTE APPLIES TO TRUST- BASED OCCUPATIONAL PENSION SCHEMES Trustees can face personal liability if a breach of trust leads to loss for the pension scheme. This may arise where trustees: operate beyond the powers set out in the scheme’s trust deed and rules, or fail to comply with legislation or the law of trusts. Trustees should ensure that sufficient safeguards exist to protect them against personal liability. With pensions legislation becoming increasingly complex, trustees who do not seek appropriate advice and who lack the necessary knowledge and skills are liable to make errors when administering pension schemes. Directors of a corporate trustee are generally considered to have stronger protection from personal liability than individual trustees. In the absence of dishonesty, the court is unlikely to permit a claim against those directors for a breach of trust by the trustee company, mainly because of the...
ARCHIVED : This case tracker has been archived and is no longer maintained. It provides a list of significant pensions judgments handed down in 2020, arranged by topic. The individual items in this tracker are grouped by subject. Those subjects are listed in the Table of Contents (on the left of the page). This Practice Note contains references to case law from the Court of Justice of the European Union. In broad terms, EU judgments issued on or before 31 December 2020 remain binding on UK courts and tribunals (even if the EU courts subsequently take a different approach) until the UK courts choose to exercise their powers to depart. For the most part, EU case law created after that date is not binding in the UK, though UK courts and tribunals may still ‘have regard to’ EU judgments where relevant. For more...
The Pensions Regulator possesses a range of powers under the Pensions Act 1995 ( PA 1995) in relation to the winding up of occupational pension schemes......
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL DEFINED BENEFIT PENSION SCHEMES THAT ARE SUBJECT TO THE EMPLOYER DEBT REQUIREMENTS Corporate reorganisations frequently lead to an employment cessation event, for instance when employees move between group companies or when redundancies occur as part of the exercise. An employer debt under section 75 of the Pensions Act 1995 can accordingly be triggered, potentially frustrating the objective of the group reorganisation (usually to reduce expenditure for the group and/or strengthen its financial sustainability). For further information on ‘employment cessation events’, see Practice Note: When is a section 75 debt triggered? — An employment cessation event occurs in a multi-employer scheme. Two easements to the employer debt regime were introduced in April 2010 under the Occupational Pension Schemes ( Employer Debt and Miscellaneous Amendments) Regulations 2010, SI 2010/725: the general easement the de minimis...
This Practice Note reviews the effect of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) on pensions law. At a headline level, the immediate effect has been modest, not least because no pensions measures were ‘sunsetted’ as 2023 closed. Looking ahead, however, volatility and doubt are expected, since REUL( RR) A 2023 permits amendment, alteration, and/or replacement or restatement of retained EU law ( REUL). Importantly, the revised methodology for construing REUL, alongside broader judicial latitude to move away from it, suggests that such uncertainty may persist until lengthy litigation applies the new tests and mechanisms. From 1 January 2024, REUL still in force is generally described as ‘assimilated law’, under section 5 of REUL( RR) A 2023 (see: Assimilated law below, and Practice Note: Assimilated law), and is ordinarily to be read by...
Member-borne commissions and consultancy charging The use raised concerns that it: left some members facing charges without realising, or without taking up services made available by an adviser; and posed a barrier to switching, as advisers are unlikely to want to lose the benefit of these charges by recommending a move to a pension arrangement that offers no commission or consultancy charging, even if that arrangement provides better value for money for members. Measures were therefore introduced to prevent certain types of personal pension schemes and occupational pension schemes from applying such charges. Over time, these bans were extended in scope......
This Practice Note considers how 'worker' is defined under the Employment Rights Act 1996 ( ERA 1996), alongside other employment statutes. Key concepts For the purposes of employment law, someone supplying labour or services to another may fall into one of the following: a worker, which brings specific statutory protections under employment law an employee (see Practice Note: Employee status), attracting further employment law entitlements (eg protection from unfair dismissal, maternity leave and redundancy rights) neither a worker nor an employee (ie self-employed, or an independent contractor), in which case employment law affords no rights Everyone with employee status also satisfies the statutory meaning of 'worker' for the purposes of the wider category's protections. However, not every worker falls within the definition of 'employee'. Accordingly, a person who does not achieve employee status may nonetheless be a 'worker'. For a...
THIS PRACTICE NOTE APPLIES TO MULTI- EMPLOYER DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES Withdrawal arrangements give exiting employers of underfunded defined benefit occupational pension schemes an alternative to paying in full the statutory debt arising under the Pensions Act 1995, s 75 (a s 75 debt) when an employment-cessation event occurs. Following such an event, a s 75 debt becomes due from the exiting employer to the scheme. In a multi-employer scheme, the exiting employer’s s 75 debt is its liability share—its portion of the scheme deficit calculated on a buy-out basis. A withdrawal arrangement is a contractual commitment between the exiting employer, the scheme trustees and a guarantor. Under this arrangement, the exiting employer pays less than the full s 75 amount, and a guarantor undertakes to cover the remaining balance at a later time (eg when the scheme winds up). These...
THIS PRACTICE NOTE APPLIES ONLY TO OCCUPATIONAL PENSION SCHEMES When an occupational pension scheme starts winding-up, trustees must establish a winding-up procedure and provide it to the Pensions Regulator (the Regulator) and others. For further information, see Disclosure of winding-up procedure, below. Trustees also have a statutory obligation to issue information to scheme members and beneficiaries: once winding-up has commenced, and when discharging scheme liabilities for particular individuals Prior to 6 April 2014, the relevant statutory disclosure provisions were contained in the Occupational Pension Schemes ( Disclosure) Regulations 1996, SI 1996/1655, which have since been repealed. These requirements are now contained in the Occupation and Personal Pension Schemes ( Disclosure) Regulations 2013, SI 2013/2734. For details of the disclosure obligations that apply on and from 6 April 2014, see Practice Note: Disclosure requirements applicable to occupational and personal pension schemes on and from 6 April...
This Practice Note sets out the principal steps for properly bringing to an end a defined contribution ( DC) occupational pension scheme—also described as a money purchase occupational pension arrangement or a trust-based defined contribution plan. Throughout this Practice Note, this type of arrangement is termed a ‘ DC scheme’. The guidance applies across a range of DC schemes, including trusts that sit outside the authorised master trust framework and small self-administered pension schemes ( SSASs), although the latter may, in certain cases, be excluded from particular statutory obligations or requirements. This Practice Note does not cover the winding-up of any: an ‘authorised master trust’ under the Pension Schemes Act 2017 ( PSA 2017)—for further detailed information, please see Practice Note: The authorisation and supervisory regime for master trusts, contract-based DC arrangements (eg group personal pension...
This Practice Note offers practical direction on correctly executing documents when one or more parties to a contract are not physically together, often referred to as virtual signing or a virtual closing. The Law Society has brought together established materials covering: execution of documents by virtual means, use of electronic signatures, its ‘ Tips on how to operate in practice’ concerning virtual execution and the use of e‑signatures, and Q& A on using electronic signatures and completing virtual executions, including ‘ Our position on the use of virtual execution and e‑signature during the coronavirus ( COVID‑19) pandemic’. We have assembled a comprehensive, interactive collection to help users identify and navigate the concepts and common issues involved in executing documents, including by virtual means. Each section or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For more...
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 (often called DB contracting-out), a sponsoring employer was required to hold a contracting-out certificate for the relevant scheme in respect of that scheme. For multi-employer arrangements, in defined circumstances a certificate could be issued to the holding company, accompanied by a schedule specifying which subsidiaries the certificate covered and, where relevant, applied to. This was termed a holding company contracting-out certificate under those circumstances. For further details and background, see Obtaining a DB contracting-out certificate before 6 April 2016 [ Archived]— Types of contracting-out certificates. Over time, it could have been necessary to alter a contracting-out certificate, for example: to update the particulars of an employer named on the certificate or the scheme’s title to revise the categories of...
THIS PRACTICE NOTE APPLIES IN RELATION TO DEFINED BENEFIT LIABILITIES How defined benefit ( DB) liabilities ought to be assessed depends on a number of factors, in particular: the valuation approach to be adopted. Common exercises undertaken comprise the following: scheme-specific funding valuations as required under Part 3 of the Pensions Act 2004 ( Pe A 2004) solvency (or buy-out) valuations as required by the Occupational Pension Scheme ( Scheme Funding) Regulations 2005, SI 2005/337, reg 7 valuations required by the Pe A 2004, ss 143 and 179 (often described respectively as s 143 valuations and s 179 valuations) neutral estimates to meet the requirements of Technical Actuarial Standard 300 ( Pensions) cash...
This PN ought to be considered together with the following related precedents listed below: Pension schedule: acting for sellers in an asset sale EFP vol 31(1) PENSION SCHEMES [2517]–[2522] Pension schedule: acting for buyers in an asset purchase EFP vol 31(1) PENSION SCHEMES [2512]–[2516] For the purposes of this Practice Note, it is assumed that, at completion, the buyer acquires a business and the employees transfer into the buyer’s employment under the operation of the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE). When can a pension schedule be used on a business sale? In a business sale, a pension schedule can be used where all of the following apply: immediately before any TUPE transfer, at least some employees are active members of a defined benefit ( DB) occupational pension scheme run by the seller the DB scheme remains open to future accrual; and the DB scheme is...
In this Practice Note, 'cohabitant' denotes an unmarried partner (excluding a civil partner) of a member. This Practice Note also references the European Convention on Human Rights ( ECHR) and its relevance. The ECHR is an international treaty ratified by the UK in 1951. It became enforceable domestically through the Human Rights Act 1998, which gives legal effect to the rights guaranteed by the ECHR, giving effect to the rights contained within it. Rulings of the ECt HR are not binding; however, the Human Rights Act 1998 provides that UK courts must take into account any judgment, decision, declaration or advisory opinion of the ECt HR. As the ECHR is incorporated into UK law via the Human Rights Act 1998, neither Brexit nor the Retained EU Law ( Revocation and Reform) Act 2023 alters the UK’s position in respect of the ECHR. For details on the pension...
The USS is a private sector occupational pension arrangement for higher education institutions. It offers benefits on a salary‑linked, defined benefit basis. Set up collectively by universities in the 1970s, it ranks among the largest private sector pension schemes in the UK. Legal framework The USS was first constituted by a declaration of trust dated 2 December 1974, and is now governed by a trust deed and rules dated 19 November 2015, effective from 1 April 2016. It is subject to pensions legislation in the same way as any other UK private sector occupational pension scheme. Administration and governance Universities Superannuation Scheme Limited (the USS Trustee) acts as the sole trustee and is accountable for running and administering the USS. The Trustee Board passes day‑to‑day scheme oversight to the Group Executive Committee, comprising nine individuals. The Trustee’s board of directors is required to consist of ten to twelve...
What is the Pensions Advice Allowance? Following consultation in 2016/17, the government brought in, from 6 April 2017, the Pensions Advice Allowance. It enables eligible pension scheme members to withdraw a fixed sum from their pension pot tax-free to cover holistic retirement advice. At the member’s instruction, the scheme may therefore reduce the value of the member’s pot by the advice fee and pay the funds straight to the member’s adviser. This measure stemmed from the Financial Advice Market Review, which highlighted an advice gap affecting people who require retirement planning support but cannot meet the cost from net-of-tax income or savings. It is available in addition to other existing advice allowances and payment routes for advice. These include adviser charging, which does not permit pension monies to be used to fund holistic retirement advice. For further details, see Other types of pensions advice measures...
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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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