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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 how to serve a Part 36 offer, and how to serve a notice of acceptance, variation or withdrawal. It also explains when service under Part 36 is effective and the applicable service requirements and timing. How to serve a Part 36 offer A Part 36 offer takes effect when it is served on the offeree ( CPR 36.7(2)). Rather than prescribing standalone service rules within Part 36, CPR 36.7 directs users to the general provisions on service of documents in CPR 6. Accordingly, it is essential to understand the rules for serving documents other than the claim form; see below. Where the offeree has a legal representative, the Part 36 offer must be served on that representative ( CPR PD 36, para 1.2). An illustration of how service problems can undermine a Part 36 offer is found in Kings Security Systems v King...
Glossary This Glossary aids dispute resolution practitioners in grasping the particular terminology used for the service of documents, whether serving within England and Wales or effecting service outside that jurisdiction in another country... Term Explanation Guidance Alternative service When arranging service of a document in proceedings, Part 6 of the CPR prescribes acceptable methods and the places for service. If compliance with those rules is not feasible, a party may apply for a court order permitting service by another method or at a different location... Practice Notes: Principles of alternative service Types of alternative service Serving court documents on persons unknown Cross-border considerations for alternative service Certificate of service A certificate of service evidences to the court that the other party has been served with the relevant documents. The form of proof varies depending on where service occurs... Serving in England and Wales: the...
Medical treatment of those without capacity to consent As a general rule, it is a patient’s ( P’s) consent that renders invasive medical intervention lawful. Where P cannot provide consent, treatment that is necessary and in P’s best interests may lawfully be given. Section 5 of the Mental Capacity Act 2005 ( MCA 2005) supplies a general defence for acts undertaken in connection with a person’s care or treatment, provided the actor has first taken reasonable steps to assess whether the individual lacks capacity in relation to the decision and reasonably believes both that capacity is absent and that the act is in that person’s best interests. In 2018, the Supreme Court in NHS Trust v Y confirmed that, if the MCA 2005 is complied with, relevant professional guidance is observed and the Code of Practice guidance followed, including the conduct of the...
This Practice Note examines the threshold of a ‘serious issue to be tried’, which must be satisfied to found the jurisdiction of the English courts over a dispute. That threshold applies only where permission to serve proceedings out of the jurisdiction is sought (or was granted and the defendant now contests jurisdiction). It does not apply where permission is unnecessary, for instance under CPR 6.32 or CPR 6.33, or under the parallel service regime in the Companies Act 2006, as discussed in Titan Wealth Services Ltd v Tavistock Investments PLC (2025). Although part of that judgment was successfully appealed, the jurisdictional analysis remained intact. In addition to the serious issue limb, a claimant must demonstrate a good arguable case and that England and Wales is the appropriate forum (forum conveniens). For further guidance, see Practice Note: Determining whether the courts of England and Wales have...
NOTE On 2 December 2024, the Lord Chancellor confirmed a shift in the discount rate to +0.5%, coming into force on 11 January 2025. Under Schedule A1 to the Damages Act 1996, further reviews must occur within five years of the last review’s end, so the next review must begin on or before 2 December 2029. For further guidance on serious brain injuries, see the following Practice Notes: Valuing serious brain injury claims Rehabilitation in serious brain injury claims Causes of a serious brain injury Serious brain injuries may arise from numerous causes, including trauma, deprivation of oxygen, infection, hydrocephalus, encephalitis, brain tumours, stroke, toxicity, degenerative disorders, metabolic and endocrine dysfunction, and nutritional deficiencies. The first seven are set out in greater detail below, as they may found a clinical negligence or personal injury compensation claim. Traumatic brain injury (...
This Practice Note distils the Senior Costs Judge’s Practice Notice, ‘ Hearings and Detailed Assessments in the Senior Courts Costs Office’, describing how the SCCO manages hearings and detailed assessments. Owing to the commitment of court staff, together with practitioners’ willingness to adapt, only a very small number of SCCO costs hearings have needed to be adjourned during the current pandemic. The judicial Practice Note provides clear direction on the conduct of hearings and detailed assessments within the SCCO. It also identifies the various issues addressed and signposts helpful underlying guidance. NOTE: CPR PD 51O has been revoked, but this detailed assessment guidance has not yet been updated to reflect that position. CPR PD 5C ( CE- File electronic filing and case management system) came into force on 1 October 2025 and should be referred to for the procedure for use of CE-...
This Practice Note carefully reviews both the Civil Procedure Rules ( CPR) and relevant associated practice directions that offer orders for security for costs which mirror those obtainable under CPR 25. Further information and comprehensive guidance on security for costs can be found within a suite of Practice Notes, see: Security for costs—overview. What provisions are available to seek security for costs? When addressing an application for security for costs, the starting point is usually whether CPR 25 ( Interim Remedies and Security for Costs) provides assistance. That said, beyond CPR 25 there are also further additional Parts of the CPR and practice directions that permit orders equivalent to a security for costs order. As confirmed by the Court of Appeal in Olatawura v Abiloye (2002), such measures are in effect ‘tantamount’ to security for costs orders. They include: CPR...
The power to disapply the primary limitation period Where personal injury claims fall within section 11 of the Limitation Act 1980 ( LA 1980), the court retains a discretion to set aside the primary limitation period even if the claim is out of time (that is, to permit proceedings to continue although more than three years passed before issue). This power covers all personal injury actions founded on negligence, nuisance or breach of duty. It likewise extends to claims about defective products brought under the Consumer Protection Act 1987; however, those claims are subject to a separate ten-year long-stop that cannot be displaced. In an appropriate case, the court may disapply limitation and allow a case to proceed where it would be equitable to do so. The equitable test In deciding whether it is in fact equitable (fair) to let an action go ahead, the court must, under LA...
The introduction of the Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents, referred to as the RTA Small Claims Protocol, took effect on 31 May 2021. It delivered reforms first trailed by the government in 2015, aimed at cutting both the volume and expense of low-value RTA cases. The initial policy sought to abolish compensation for pain, suffering and loss of amenity ( PSLA) on low-value whiplash claims entirely. This was subsequently revised so that only the level of damages recoverable was reduced. Legal costs, other than disbursements, cannot be recovered from the defendant. A digital claims portal was created (see: Official Injury Claim), designed to provide a simple, user-friendly online route enabling claimants to pursue their own cases...
The Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents This Practice Note provides a hands-on summary of the key elements of Stage 2 and 3 of the Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, together with an examination of leading case law and the practical consequences for those operating within the online portal. Note: The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) applies to accidents occurring on or after 31 May 2021 where the sum claimed for injuries is not more than £5,000 and the total value of the claim is not more than £10,000. The small claims track limit for personal injury claims arising from a road traffic accident is £5,000 for damages for pain, suffering and loss of...
This Practice Note offers an overview of injuries that arise or worsen due to powerful, repeated or awkward motions when rest and recovery are inadequate. These conditions go by various umbrella terms, most often labelled repetitive strain injuries ( RSI), work‑related upper limb disorders, or musculoskeletal disorders. It addresses optimal strategies for bringing or resisting claims involving such harm. RSI typically denotes pain or damage linked to repeated actions. Most frequently, repetition leads to persistent forearm pain or functional impairment. The label has effectively become interchangeable with work‑related arm pain. Within the spectrum are both clearly diagnosable disorders and non‑specific symptoms such as pain and fatigue. The principal specifically recognisable conditions are listed below. For direction on applicable statutory duties and leading authorities—covering the effect of section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013), the...
This Practice Note This Practice Note assists with identifying the applicable law before the courts of England and Wales for loss-causing events that took place between 11 January 2009 and 31 December 2020, in respect of matters giving rise to damage. Where events fell outside those dates, the UK courts will apply an alternative applicable law regime appropriate to the relevant timeframe. The governing regime turns entirely on the date the event happened in question. For help on the various regimes and how they interrelate, see Practice Note: Applicable law regimes. It also explains when and why Regulation ( EC) 864/2007 on the law applicable to non-contractual obligations, Rome II, was introduced. Further, it outlines the situations in which it applies and those in which it does not, as appropriate. In this Practice Note, the Regulation is referred to as Rome II. For...
Definitions Fraud In Derry v Peek, fraud is described as the situation where a false statement is made either knowingly, without any belief in its accuracy, or with reckless indifference as to whether it is true or false. Malingering Under DSM- IV V65.2 and the DSM-5, malingering means the deliberate creation or overstatement of physical or psychological signs or symptoms, driven by external incentives. Note: malingering, or deliberate exaggeration, should not be mistaken for unconscious amplification, often labelled by doctors and lawyers as 'functional overlay'. Types of fraudulent claims Terminology and categorisation differ across behaviours linked to road traffic claims that arouse suspicion, but in general the principal types are outlined below. Deliberately staged accidents These incidents arise when drivers and occupants of two, or sometimes more, vehicles intentionally bring about a collision, followed by injury claims from passengers and the supposedly 'innocent' driver. Additional claims can include charges for car hire,...
This Practice Note This Practice Note addresses the duty of care owed by road users to others involved in road traffic incidents, including car drivers or motorists, passengers, pedestrians and cyclists. Road users are obliged to take reasonable care so as to avoid causing harm to those using, or present upon, the highway. The applicable standard is that of the ordinary competent driver, and no indulgence is afforded to inexperienced or learner drivers. A road user should also anticipate that fellow users of the highway, or other persons present, may not demonstrate the requisite level of skill, experience and care. Road traffic accidents generate a significant volume of work for personal injury practitioners, giving rise to claims that span the entire spectrum of severity and complexity. The chief cause of action is negligence; although statutory duties, nuisance or contract can at times be...
This Practice Note has been archived and is not maintained. For the up-to-date position, refer to Practice Note: Costs budgets—revision and variation. This note explores the process of reviewing and updating a costs budget. It addresses the obligation to keep budgets under regular review and the reasons behind that discipline. It then explains why a party might seek to revise a costs budget and whether those grounds are sufficient to obtain an order permitting revision. It outlines the principles the court applies when deciding an application to amend a costs budget and illustrates how the courts have applied those principles. This includes interpreting CPR PD 3E, para 7.6 and the defined expressions ‘future costs’ and ‘significant requirements’. It also looks at reaching agreement with other parties about proposed amendments to the costs budget and, if agreement cannot be reached, when and in what manner an...
This Practice Note considers how to respond to a letter of claim of misuse of private information (a privacy claim). It covers: Early checks on receipt of a claim letter: whether a tenable claim exists, any available defences, and CPR compliance Any jurisdictional questions that could necessitate input from foreign lawyers Immediate actions: readiness for any interim injunction, steps to avert further alleged harm, and gathering and preserving documents Points to weigh before issuing a response The content and form of the letter of response Making a prompt offer to settle Settlement and alternative dispute resolution ( ADR) in general Initial case management considerations For guidance when advising your client on bringing a privacy claim, see Practice Note: Starting a claim for misuse of private information—a practical guide. For general guidance on replying to a letter of claim, see...
Overview This Practice Note offers high-level guidance on replying to a letter of claim in clinical negligence matters in England and Wales. A letter of response is the formal pre-action document issued under the Pre- Action Protocol for the Resolution of Clinical Disputes (the Protocol). In clinical negligence litigation, the letter of response: sets out the defendant’s reasoned stance on breach of duty and causation identifies which issues are admitted and which are contested clarifies the expert disciplines to be relied upon assists in narrowing the issues before proceedings commence The defendant should acknowledge the letter of claim within 14 days and indicate who will manage the matter. The letter of response must be served within four months of receipt of the letter of claim. See Practice Note: The Pre- Action Protocol for the Resolution of Clinical Disputes—6 April 2015...
This Practice Note offers a concise overview of the points to bear in mind once you receive a letter of claim and must provide a response. For fuller detail, together with links to underlying materials, see Practice Note: Responding to a letter of claim—a practical guide. For high-level advice on preparing a letter of claim, see Practice Note: How to prepare a letter of claim. Initial considerations Read the letter carefully to gauge whether the other party appears to have a valid claim—can you swiftly evaluate their legal reasoning and whether you may have a potential defence (for example, might they be outside a relevant limitation period)? Identify the remedies sought—for instance, if an interim injunction (or any other form of urgent interim relief) is threatened, you will need to act more quickly. The likely value of the alleged claim will usually shape what...
This Practice Note offers practical direction on locating defendants and insurers in noise-induced hearing loss ( NIHL) proceedings. In most NIHL matters, the exposure to noise that produced the auditory injury happened decades earlier. Workplaces may have shut, transferred ownership, businesses dissolved or been absorbed by other organisations, and at times even an online search reveals nothing about the claimant’s previous employer. In truth, finding the employer is frequently only the crucial opening step. If that entity has ceased trading, the insurer on risk during the claimant’s employment must then be identified and notified accordingly. A number of practical tools and resources can help when tracking defendants and insurers. HMRC schedule In virtually all NIHL cases, it is vital to secure the claimant’s employment history from HMRC. A request should be submitted using the HMRC employment history form. HMRC will supply the name of the...
This Practice Note sets out the aim of a reserved judgment and the constraints attached to receipt of a draft judgment. It also covers what a party ought to do upon receipt of a draft judgment and the limited situations in which it might be possible to prevent a draft judgment being handed down altogether. What is a reserved judgment? A court may reserve judgment by postponing delivery of its reasons for the decision to a later date in writing, rather than pronouncing judgment orally immediately after the hearing or trial ends. At the close of the hearing the judge will usually confirm that judgment is reserved and will later circulate a draft written judgment to the parties. The practice started in the Court of Appeal and was extended to the High Court. Where judgment is to be reserved, the judge may, at 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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