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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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This Practice Note outlines the lawyer’s role in mediation, emphasising the routine requirement to assess and discuss alternative dispute resolution ( ADR) with the client. Where all parties choose to mediate, or the court orders it, it addresses the lawyer’s responsibilities for selecting the mediator, organising the mediation, advising and supporting throughout the process, and drafting the settlement agreement. Basis of lawyer’s obligations ADR should be regarded as part of the dispute resolution framework, and your involvement with ADR begins at the very start of a matter when you review with your client the available routes to resolve the dispute. A party’s legal representative must advise their client on the duty to consider ADR both before and during litigation, and on the courts’ powers to order or encourage ADR. The client should also be informed of the potential costs implications where a party...
This Practice Note explains when and why delivery of a bill is required, how to seek delivery, and the types of orders the court may grant. It also highlights examples of instances where the court has, and has not, exercised its discretion under section 68 of the Solicitors Act 1974 ( SA 1974), together with the effect of delivery of a statute bill and delivery up of the client’s papers. Note, the Solicitors Act 1974 ( SA 1974) is referred to as SA 1974 in this Practice Note... Delivery of a bill When and why this is sought Delivery of a bill is commonly pursued by a client or other chargeable party in two situations: the solicitor wishes to retain monies on account without providing an adequate bill the client believes the solicitor’s request for an interim payment on account is unduly...
Part 2 of the Children and Social Work Act 2017 ( CASWA 2017) created Social Work England ( SWE) as the regulator for social workers in England, replacing the Health and Care Professions Council ( HCPC). The regulation of social workers was formally transferred to SWE from the Health and Social Care Professions Council in December 2019. SWE operates under the auspices and oversight of the Professional Standards Authority. As a result, the Professional Standards Agency is, in specified circumstances, able to refer a case to the High Court. See Practice Note: Professional Standards Authority. SWE was established to deliver a new and different approach to regulation. Accordingly, some variation can reasonably be expected between the approach of more established regulators and that of SWE. SWE aims to set the tone as a collaborative regulator, emphasising that it shares and reflects the values of those it...
This Practice Note on strategic lawsuits against public participation ( SLAPPs) explains what they are, outlines proposed procedural responses, and sketches their evolution... SLAPPs—what are they? The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) now contains a statutory definition of a SLAPP claim ( ECCTA 2023, s 195); however, that definition is confined to matters linked to economic crime... Preceding this ECCTA 2023 definition, the government issued a policy paper in June 2023 (updated 1 March 2024), Factsheet: strategic lawsuits against public participation ( SLAPPs). It described SLAPPs as legal proceedings commonly brought by corporations or individuals to harass, intimidate, and wear down opponents financially or psychologically through misuse of the legal system. They are often presented as defamation claims by wealthy individuals (including Russian oligarchs) or companies to avoid public‑interest scrutiny. SLAPPs arise across a wide range of areas,...
ARCHIVED: This Practice Note is no longer maintained and is provided for background information only. In addition, some links may not point to the provisions as they stood at the date the guidance in this Practice Note was issued. Introduction of the single County Court On 22 April 2014, section 17 of the Crime and Courts Act 2013 created a single, national County Court and amended the County Courts Act 1984 ( CCA 1984). The principal effects of the reform were: References to ‘a county court’ or ‘county courts’ were replaced with ‘the County Court’. Mentions of a particular county court became a County Court hearing centre. Sittings of the County Court, and any other business of the County Court, may take place anywhere in England and Wales and are not confined to any particular district. Judges of the County Court...
This Practice Note outlines the possible causes of action in sexual abuse cases. It examines how responsibility may fall not only on the individual abuser but also, vicariously, on employers and agencies involved in the care of children. It further considers the typical procedural questions that may arise in non-recent abuse (also known as historical abuse) claims. Procedural issues Civil claims stemming from abuse frequently present complex and sometimes novel questions concerning fact, law and procedure. Limitation Abuse claims are commonly issued many years after the events in question. In cases alleging sexual abuse, it is standard for the limitation issue to be heard alongside liability and causation to prevent the claimant from giving evidence twice. In many instances, the outcome turns on the credibility of the witnesses and, in particular, the claimant. For further guidance, see Practice Note: The court’s power to extend the time...
Introduction Settlement sits at the heart of clinical negligence litigation. The timing and design of any offer can materially influence both outcome and costs. Under CPR 1.3 and 1.4, parties must help the court to advance the overriding objective, including by making suitable use of alternative dispute resolution ( ADR). The court’s case management powers extend to encouraging or directing ADR. See Practice Note: Case management of civil claims under the CPR— Case management and the overriding objective ( CPR 1). Even if an offer does not conclude the case, it can still confer significant costs protection. This Practice Note chiefly addresses settlement via Part 36 of the CPR. For further guidance, see also Practice Note: Part 36 offers in PI and clinical negligence claims. Settlement may likewise be pursued through non- Part 36 offers or ADR. See: Settlement and settling...
This Practice Note explores who should participate in settlement discussions (including team negotiations), together with confidentiality considerations and the position where talks are subject to contract. For guidance on negotiation strategy, see Practice Note: Settling disputes—negotiation strategy. For assisted routes to concluding a settlement, see Practice Note: What is ADR? and related content. For making offers and recording the deal, see: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement and related content Who should be involved in trying to settle a dispute? The legal representative The legal representative (or, at times, another professional adviser) is invaluable in ensuring an objective stance. Where the client is conducting the negotiation, an adviser can still add value in a supporting role. If the adviser leads, they bring a structured, impartial process to the table, distanced from the clients’...
This Practice Note examines how parties to a settlement agreement can seek to head off a post‑settlement dispute after the main dispute has been concluded, and the most effective way to resolve any disagreement about a settlement if one emerges... Defining terms regarding payment under a settlement agreement The party obliged to pay or deliver under a settlement agreement is described in this practice note as the ‘settlement debtor’—the word ‘debtor’ being used broadly to mean the party from whom money or money’s worth is expected under the agreement—while the party receiving money, or benefiting from any other performance under the settlement, is termed the ‘settlement creditor’... Why do disputes about settlement happen? Most parties settle in good faith, intending to fulfil the agreed terms and move on, though not all do so. Sometimes a settlement is reached to ease a pressure point, yet true finality is not...
There are five main types of set-off: independent set-off (sometimes known as legal set-off or statutory set-off) transaction set-off (also known as equitable set-off) contractual set-off insolvency set-off banker’s set-off (sometimes known as current account set-off) This Practice Note looks at the characteristics of these five types of set-off. For information on set-off in general, see Practice Note: What is set-off and when is it available? Independent set-off Independent set-off operates as a procedural defence available for use in court proceedings. It permits mutual, reciprocal claims to be set off against each other where they are separate and not connected, in contrast to transaction set-off. Independent set-off is also described as legal set-off or statutory set-off......
ARCHIVED: This Practice Note is archived and no longer maintained. It outlined permissions relevant during the transition after the UK’s departure from the EU. As that period has concluded, many points it covered are now obsolete. For current guidance on serving a claim form on a defendant outside the jurisdiction, see Practice Note: Cross-border service—is permission required to serve a defendant who is outside England and Wales? Definitions/abbreviations This Practice Note employs the following definitions and abbreviations: CPR 6— Part 6 of the Civil Procedure Rules concerning service of documents implementation period— EU( WA) A 2020, s 1 defines it as the ‘transition or implementation period provided for by Part 4 of the withdrawal agreement and beginning with exit day and ending on IP completion day’. ‘ Implementation period’ is the UK’s preferred term; the EU tends to use ‘transition period’. The terms are used...
Service of the claim form in England and Wales A claim form is issued by the court. After that, the document must be served on the defendant so the claim is made known to them promptly and correctly. This step is fundamental to the proceedings and demands not only that the contents of the claim form reach the defendant’s attention, but also that service complies with the applicable rules to secure effective and valid service. This Practice Note outlines the various factors that apply when serving the claim form within England and Wales (the jurisdiction) and includes links to guidance and precedents. Be aware that the provisions in CPR 6 were repealed, with a new suite of rules commencing on 1 October 2008 under the Civil Procedure ( Amendment) Rules 2008, SI 2008/2178. This needs to be borne in mind when reviewing older...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note addresses the position on serving documents from England and Wales on a defendant located in an EU Member State where the service process began before 31 December 2020. It requires consideration of CPR 6 together with the Withdrawal Agreement and the EU Commission’s Notice to Stakeholders concerning civil justice. If service is initiated after this date, different factors apply. For the approach where service starts on or after 1 January 2021, see Practice Note: Cross-border service—serving in an EU Member State. Any references in this Practice Note to Part 6 and its accompanying practice direction are to the provisions as they stood prior to 11 pm on 31 December 2020... Key documents Withdrawal Agreement—defined in section 39(1) of the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) as the...
This Practice Note reviews the rules and authorities on serving an injunction and outlines practical issues that may arise. Interim injunctions are a type of court order that include a penal notice. That notice enables the applicant to bring contempt proceedings against a respondent who breaches the order. To rely on the penal notice after any breach, it must be demonstrated that the injunction was validly served. General principles Specific requirements apply to service of an interim injunction, as confirmed by the Court of Appeal in Canada Goose: the defendant must be named: if known and identified—the defendant(s) must be named individually if not identified, the defendant must be identifiable—such defendant(s) should be described as ‘persons unknown’. Note, they must be capable of being identified and served with the order, see...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It addresses service within England and Wales for documents issued by a court or tribunal in an EU Member State under Regulation ( EC) 1393/2007, known as the Service Regulation. The material in this Practice Note applies only where the transitional provisions in the Withdrawal Agreement between the UK and the EU are engaged. For guidance on circumstances where the Service Regulation does not apply, including all proceedings started after 31 December 2020, see Practice Note: Serving in England and Wales—serving documents from a foreign court or tribunal. Key documents Withdrawal Agreement—defined in section 39(1) of the European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) as the agreement between the UK and the EU under Article 50(2) of the Treaty on European Union that sets out the...
This Practice Note examines the rules and procedure for serving legal documents on the defendant’s solicitor in a European Economic Area ( EEA) state, or on a European Lawyer representing the defendant. Be aware that, on 31 December 2020, Part 6 was amended to remove express references to service on solicitors in an EEA state and to service on a European Lawyer. Where notification, given in accordance with the applicable rules, was received before 31 December 2020, transitional provisions apply; without such notification by that date, those provisions do not apply. For guidance on the transitional provisions, see: Transitional provisions for CPR 6.7 and CPR 6.23 after 31 December 2020 below. This Practice Note reflects the position above. Note: This Practice Note refers to the relevant provisions as old rule 6.7 and old rule 6.23. The EEA states comprise the EU Member States...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note sets out how the Service Regulation operates. Service under that regime is only relevant between the UK and EU Member States where service began before 31 December 2020 at 11 pm and the transitional requirements in Article 68 of the UK– EU Withdrawal Agreement were satisfied by that deadline. In those circumstances, service may still be effected in the appropriate EU Member State. For the position on the operation of the Service Regulation between EU Member States, see Practice Note: The Service Regulation (recast). For the transitional rules and their effect on serving documents outside England and Wales, see Practice Notes: Serving outside the jurisdiction—serving in an EU Member State before 31 December 2020 [ Archived] and Cross-border service—serving in an EU Member...
This Practice Note examines the jurisdictional gateway or basis for service set out in CPR PD 6B, para 3.1(16A), which addresses declarations of non-liability. It should be read alongside Practice Note: Cross border service—jurisdictional gateways (principles). Declaration of non-liability Gateway 16A ( CPR PD 6B, para 3.1(16A)) offers a specific route for claims seeking a declaration that the claimant is not liable. It applies where, if proceedings to prove liability were issued against the claimant, that putative claim would fall within another paragraph of the Practice Direction, excluding the following: (1) to (5) (8) (12D) (15D) (17) (22) (24) to (25) When determining whether gateway 16A is engaged, it must be shown that the notional claim against the claimant would be captured by one of these gateways: 6 7 8A–12C 13–15C 15E–21 23......
This Practice Note examines the jurisdictional service gateway, or ground and basis, for service contained in CPR PD 6B, para 3.1(11), which addresses claims concerning property located within the jurisdiction. It should also be read alongside Practice Note: Cross-border service—jurisdictional gateways (principles). Claims about property within the jurisdiction—gateway 11 Gateway 11 ( CPR PD 6B, para 3.1(11)) states expressly that the subject matter of the claim must relate wholly or principally to property within the jurisdiction, and nothing in this paragraph makes justiciable the title to, or the right to possession of, immovable property that is situated outside England and Wales. When construing the language used in gateway 11 and its practical application, helpful guidance can be found both in the Gateways for Service out of the Jurisdiction Final report 4 June 2015 ( Final Report 2015) and in the authorities, as explored...
ARCHIVED : This Practice Note is archived because it addressed transitional arrangements in effect after the UK left the EU on 31 December 2020. Where service of court documents in Iceland, Norway or Switzerland relates to proceedings begun on or before 31 December 2020, the transitional rules in this Practice Note still govern. For proceedings started on or after 1 January 2021, the Lugano Convention 2017 no longer applies between the UK and those states. For guidance on serving in these jurisdictions, consult Practice Note: Cross-border service—is permission required to serve a defendant who is outside England and Wales? The UK participated in the Lugano Convention 2007 through its EU membership, and, as an international agreement, it continued to bind the UK under the Withdrawal Agreement until 31 December 2020. At present, the Lugano Convention 2007 does not apply to service of...
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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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