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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 archived Practice Note sets out the pensions impact of the General Election 2024, including the pensions pledges and policy statements from the Labour Party, the Conservative Party and the Liberal Democrats in advance of the General Election on 4 July 2024. It is not maintained and is for background information only. Prime Minister, Rishi Sunak, sought and secured the King’s permission to dissolve Parliament, announcing a General Election for 4 July 2024. Parliament was therefore prorogued on 24 May 2024, and dissolved on 30 May 2024. The parliamentary timetable unfolded as follows: 22 May – PM asked the King to exercise the prerogative to dissolve Parliament 22 May – King Charles agreed to the request and the General Election was announced to the country 23 May – ‘ Wash-up’ period commenced 24 May –...
This Practice Note offers additional guidance on the principal definitions found in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 (the UK GDPR). For a high-level overview of UK data protection legislation, see Practice Notes: The UK General Data Protection Regulation ( UK GDPR) and Data protection law—new starter guide. The UK data protection law collection brings together further general guidance and is a recommended first point of reference for research. Scope of this Practice Note Given the significant volume of data moving between the UK and the EEA, corresponding EEA data protection rules remain particularly relevant to UK practitioners. There continues to be substantial similarity between: the EU GDPR (which was applicable under UK laws until the close of the Brexit implementation period at 11 pm UK time on 31 December 2020 and still applies within the EEA) the UK GDPR...
This Practice Note is aimed at private-sector commercial organisations in the UK. It explains the Information Commissioner’s Office ( ICO) expectations for securing, recording and managing consent to process personal data, and mirrors UK General Data Protection Regulation ( UK GDPR) requirements concerning consent... What is consent? Consent is a freely given, specific, informed and unambiguous sign of the data subject’s wishes whereby they, by a statement or a clear positive action, confirm agreement to the processing of personal data. Accordingly, consent must be: freely given specific informed unambiguous There are two levels of consent based on the type of data processed: standard consent, required when relying on consent to process non-sensitive personal data explicit consent, required when relying on consent to process special category (sensitive) personal data—there is no definition of explicit consent but see Practice Note: How to...
This Practice Note responds to frequently asked questions faced by pensions lawyers about the United Kingdom Regulation ( EU) 2016/679 ( UK GDPR), the Data Protection Act 2018 (which sits alongside the UK GDPR) and associated matters. For more on the UK GDPR and Data Protection Act 2018 ( DPA 2018), see these Practice Notes: Data Protection for pensions lawyers Introduction to the EU GDPR and UK GDPR The UK General Data Protection Regulation ( UK GDPR) The Data Protection Act 2018 What was the impact of Brexit? From 25 May 2018 until IP completion day (11 pm on 31 December 2020, when the UK exited the European Union), the UK followed the data protection framework established by the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR). Prior to this, the UK’s data protection regime was found in the Data...
This Practice Note examines the Financial Services Compensation Scheme ( FSCS) in a pensions setting. For more background on the FSCS generally, consult the following Practice Notes: The Financial Services Compensation Scheme The payment or rejection of compensation under the Financial Services Compensation Scheme ( FSCS) Financial Services Compensation Scheme ( FSCS)—the qualifying conditions for compensation Financial Services Compensation Scheme ( FSCS)—funding Financial Services Compensation Scheme ( FSCS)—automatic assignment or subrogation of rights Financial Services Compensation Scheme ( FSCS)—payment or rejection of compensation What is the FSCS? The FSCS is the UK’s statutory compensation fund for customers of most financial services firms authorised under the Financial Services and Markets Act 2000 ( FSMA 2000). It took effect on 1 December 2001. In strict terms, the FSCS is the set of rules that establish it (the Rules). The Rules were originally made by the Financial Services Authority ( FSA) and, from 1 April 2013, have...
ARCHIVED This archived Practice Note reviews the pension reforms introduced by the Finance Act 2011, including changes to the lifetime and annual allowances, pension input periods and Scheme Pays; the easing of the obligation to take benefits at age 75; the lifting of age‑75 limits on lump sums and lump sum death benefits; issues around double taxation; and the disguised remuneration rules. It is not maintained and is supplied for background reference only. The Finance Act 2011 ( FA 2011) received Royal Assent on 27 July 2011. FA 2011 put into law revenue‑raising proposals set out by HM Treasury in July 2010 and confirmed on 14 October 2010, following concern that prior proposals advanced by the previous government singled out higher earners only and added complexity to the tax system as a whole......
From 6 April 2015, when the pension freedoms took effect, legislation and the Financial Conduct Authority ( FCA) Handbook introduced measures requiring trustees, managers and providers of both contract-based and trust-based schemes to give members holding flexible benefits (that is, money purchase or cash balance benefits) information on their retirement choices, for example via a ‘wake-up pack’. For further detail, see the following Practice Notes: Retirement communications in FCA-regulated pension schemes Retirement communications in occupational DC schemes To offer a ‘second line of defence’ for individuals who choose not to use Pension Wise guidance when selecting a retirement route, the FCA and the Department for Work and Pensions ( DWP) have put in place provisions requiring pension providers and trustees of occupational schemes offering flexible benefits to issue suitable retirement risk warnings to members wishing to access their pension pot. This Practice Note...
Ways of accruing pension benefits Employees have several pension arrangements through which they can accumulate benefits. The principal options are: occupational pension schemes personal pension schemes employer-financed retirement benefits schemes ( EFRBS) master trusts (including the National Employment Savings Trust ( NEST) since October 2012) the state pension Employees may belong to, and pay into, more than one pension arrangement at the same time, for example the employer’s occupational pension scheme together with the employee’s own personal pension scheme......
This Practice Note sets out the principal features of Assimilated Regulation ( EU) 648/2012 ( UK EMIR), namely: (1) the clearing obligation, (2) the duty to report trades, (3) margin rules for non‑centrally cleared over‑the‑counter ( OTC) derivatives, and (4) further risk mitigation for uncleared transactions, including timely confirmation, portfolio reconciliation, portfolio compression, and dispute resolution. Section 1(1) and Schedule 1 Part 1 of the Financial Services and Markets Act 2023 ( FSMA 2023) empower the revocation of UK EMIR on a date, or dates, to be set by HM Treasury; no such date has been set to date. UK EMIR— Introduction Key requirements of UK EMIR UK EMIR is the leading UK instrument regulating the OTC derivatives market. Its core elements are: a mandate for certain standardised OTC derivatives, traded by specified counterparties, to be cleared through a central counterparty ( CCP)—see Clearing...
This Practice Note This Practice Note examines the European Market Infrastructure Regulation ( EMIR), Assimilated Regulation ( EU) 648/2012 ( UK EMIR) as it has operated in the UK since IP completion day (11 pm on 31 December 2020) and the duties it places on pension schemes. For details on how UK EMIR departs from EMIR ( EU) 648/2012 ( OJ L 201, 27.7.2012, p. 1) ( EU EMIR) and the circumstances in which EU EMIR applies, see Practice Note: UK EMIR—essentials. EU EMIR is the key EU instrument governing the over the counter ( OTC) derivatives market. It extends to counterparties to derivatives transactions, including EU pension arrangements and common investment funds, central counterparties ( CCPs) and trade repositories, although the range of obligations in EU EMIR has been introduced on a staged basis. EU EMIR took effect on 16 August 2012, with most...
What is disguised remuneration? For many years, HMRC has worked to ensure that rewards arising from employment are correctly brought within income tax and National Insurance contributions ( NICs), deducted by employers through the pay as you earn ( PAYE) regime. To support this objective, the Finance Act 2011 introduced the disguised remuneration rules, designed to address the use of Employer Financed Retirement Benefit Schemes ( EFRBS), Employee Benefits Trusts and other forms of ‘disguised remuneration’, so that receiving benefits is no more advantageous than taking a wage. The legislation places a PAYE duty on the employer and/or trustees of pension arrangements to collect income tax and the related National Insurance Contribution ( NIC) charges. It also serves as a clear warning to employers and the promoters of tax avoidance schemes that contrived pay structures intended to avoid, defer or lessen income tax...
FORTHCOMING DEVELOPMENT 1 : Under section 10 of the Finance Act 2022, the normal minimum pension age ( NMPA) is scheduled to increase from 55 to 57 on 6 April 2028 (excluding members of the public service pension schemes for the firefighters, the police and the armed forces). The Act will also confer on members of registered pension schemes an explicit right to take benefits before age 57 where, on or before 4 November 2021, they either held an ‘unqualified right’ to take benefits, or were already in the process 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 relevant scheme’s rules must have included (on 11 February 2021) an unqualified right to take entitlement to scheme benefits before age 57. For...
FORTHCOMING DEVELOPMENT : On 8 September 2021, the Department for Work and Pensions ( DWP) issued a consultation on draft regulations that would (i) revise the notifiable events within the primary notifiable events regime (section 69, Pensions Act 2004 ( PA 2004)), and (ii) set out the categories of events to be caught by the secondary notifiable events regime (section 69A, PA 2004). In relation to the primary regime, the draft regulations propose two additional notifiable events where a decision in principle has been taken by the employer: the planned disposal by the employer of a material share of its business or assets; and the proposed granting or extension of relevant security over its assets, such that, on an employer insolvency, the secured creditor would take priority over the scheme for debt recovery. The draft regulations also provide for the removal of the...
THIS BEGINNERS’ GUIDE APPLIES TO DEFINED BENEFIT OCCUPATIONAL PENSION SCHEMES This Beginner’s Guide explores the legal framework in relation to the funding of registered defined benefit occupational pension schemes ( DB schemes), including: the statutory scheme-specific funding regime and how it operates the funding and investment strategy actuarial valuations scheme funding negotiations the Pensions Regulator’s approach to scheme funding, and methods of managing scheme funding deficits The statutory scheme-specific funding regime The Pensions Act 2004 ( Pe A 2004) brought in the current ‘scheme-specific’ funding regime for DB schemes. It took effect on 30 December 2005, superseding the earlier Minimum Funding Requirement ( MFR) and transposing into UK law the scheme funding provisions of the IORP Directive 2003/41/ EC on the activities and supervision of institutions for occupational retirement provision, which was later repealed and recast as the Archived...
The rise of DC governance Driven by automatic enrolment (which obliges employers to provide some pension provision for their staff) and the expense and regulatory burden of defined benefit ( DB) arrangements, workplaces have increasingly shifted towards defined contribution ( DC) benefits. DC schemes deliver money purchase benefits, as set out in the Pension Schemes Act 1993, s 181 (see Practice Note: Money purchase benefits—the statutory definition). In contrast to DB schemes, DC arrangements fix the contributions paid by employers and employees, but the benefits themselves are not predetermined. Outcomes chiefly depend on the level of contributions from both parties, the investment performance of those contributions, and the scheme’s charges. For employers, costs are steadier and more predictable, because employees shoulder the risk that benefits may fall short if investments underperform. However, the DC workplace market’s development did not secure minimum quality...
This practice guidance specifically concerns trust-based workplace pension schemes offering defined benefits Statutory requirement for actuarial funding valuations Trustees of private‑sector defined benefit ( DB) workplace pension schemes that are registered with HMRC must, by law, carry out actuarial funding valuations no less than once every three years. The same obligation extends to any arrangement delivering defined contribution benefits where a DB guarantee underpins them. Moreover, schemes’ trust deeds and rules frequently embed an equivalent statutory requirement for actuarial funding valuations as standard practice......
FORTHCOMING CHANGE: Section 10 of the Finance Act 2022 will raise the normal minimum pension age ( NMPA) from 55 to 57 on 6 April 2028, excluding members of the firefighters, police and armed forces public service pension schemes. The Finance Act 2022 also grants members of registered pension schemes a right to access benefits before age 57 if, on or before 4 November 2021, they satisfied one of the following: they already held an unqualified right to take benefits; or they were in the course of a substantive transfer to a scheme that, on or before 4 November 2021, offered an unqualified right to a protected pension age below 57. To rely on this new protection from 2028, the scheme’s rules must have contained, as at 11 February 2021, an unqualified right to take entitlement to scheme benefits before age 57. For further...
This Practice Note sets out a concise summary of the principal core elements and obligations within the UK data protection regulatory framework and flags matters of particular significance and interest for pension lawyers. For guidance on recurring questions about applying data protection duties in a pensions setting, see Practice Note: Data protection— FAQs for pensions. The UK’s data protection regime Up to 24 May 2018, the United Kingdom’s data protection landscape was regulated by the Data Protection Act 1998 ( DPA 1998). From 25 May 2018 until Implementation Period (or IP) completion day (11pm on 31 December 2020), the point at which the UK exited the European Union, the UK operated under the regime established by the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR). The EU GDPR brought a suite of reforms to the earlier regime, including fresh and...
ARCHIVED: This archived Practice Note outlines and summarises the data protection regime in place before 25 May 2018 and describes the position under the Data Protection Act 1998 ( DPA 1998). It is supplied for background purposes only and therefore is not kept up to date. The Note deals specifically with the DPA 1998’s applicability and territorial reach. When assessing whether the DPA 1998 applies, consider the following key points: the nature of the data being processed—the DPA 1998 strictly applies only to processing of personal data; other information (eg statistical material or data that does not relate to an identifiable person) is outside scope where the data controller is established—the DPA 1998 applies only to data controllers established in the UK who process personal data in the context of that establishment......
This Practice Note’s table sets out and concisely outlines the key exemptions available under the Data Protection Act 1998 ( DPA 1998). It should be read alongside Practice Note: Exemptions under the DPA 1998. The primary exemptions are set out in Part IV and in Schedule 7 of the DPA 1998. Where data or processing falls within a Part IV ( Exemptions) provision, it is not regarded as personal data, or as processing of personal data, for the purposes of the data protection principles ( DPA 1998, Sch 1) and for Parts II ( Rights of data subjects) and III ( Notification). The Information Commissioner’s Office ( ICO) provides overarching guidance on applying the principal DPA 1998 exemptions, explaining how they operate and the circumstances in which they apply in practice. The ICO also offers targeted guidance on specific exemptions or...
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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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