Featured documents
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:
Most recent Practice notes
ARCHIVED: This Practice Note is archived and for historical reference only. What we have learnt—detailed assessment Some of the most notable rulings are those where the courts have grappled with how separate CPR provisions operate together. They underline the importance of looking beyond the rule that appears obvious and checking others that may bear upon it. This approach featured in Baker, which examined how CPR 47.9(3), CPR PD 47, para 8.1, CPR 3.1(2)(a), CPR 2.11 and CPR 3.9 interrelate. The theme is a reminder to practitioners to survey the procedural landscape rather than focus narrowly on a single rule. Context within the CPR can alter outcomes quite markedly. Under CPR 47.9, points of dispute must be served within 21 days of service of the notice commencing detailed assessment. CPR PD 47, para 8.1 states that this 21‑day window can be extended or curtailed by...
This Practice Note reflects the position as at 1 October 2020. For background on amendments made before that date, see Practice Note: Tracker—costs management and costs budgeting review and future changes— Significant changes to costs budget rules (1 October 2020). It explains the actions a party must take once a judge has approved a cost budget and also considers whether an approved costs budget can be challenged on appeal. After a budget is approved Once the costs budgets have been approved, the following steps should be taken: re-filing and re-serving the costs budget—if the court revises the figures during a costs management conference, the party is required to re-file and re-serve the costs budget in the approved form showing the amended figures, which must be annexed to the approving court order ( CPR 3.15(7)) inform the client—the client should be notified of the...
This Practice Note summarises the following information for different types of claim funded by way of a conditional fee agreement: the highest success uplift you may levy, expressed as a percentage of base costs whether a damages-based ceiling, if any, applies to the success fee whether the success fee is recoverable from the opposing party and, if so, any cap on inter partes recovery whether any costs insurance premium is recoverable The tabulated material has been fully in force since 1 April 2013 under the Conditional Fee Agreements Order 2013, SI 2013/689. It also takes account of the removal......
PI & Clinical Negligence horizon scanner— January 2024 [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note provides a summary of the key legal developments of relevance to personal injury and clinical negligence practitioners as at 31 January 2024. For developments that pre-date this horizon scanner, please refer to PI and Clinical Negligence horizon scanning—overview. Key PI & Clinical Negligence developments Annual survey for hours and earnings figures released for 2023 The Office for National Statistics ( ONS) issued the provisional 2023 earnings outcomes from the annual survey of hours and earnings. The results constitute annual estimates of paid hours worked and remuneration for UK employees, categorised by sex and broken down into full-time and part-time work. See: LNB News 01/11/2023 66. Mo J opens consultation into increasing selected court and tribunal fees The Ministry of...
PI & Clinical Negligence horizon scanner— June 2020 [ Archived] ARCHIVED: This Practice Note is archived and not maintained. It provides a snapshot of the principal legal developments pertinent to personal injury and clinical negligence practitioners as at June 2020. For practitioners seeking the most recent horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning—overview. New special account rate The Ministry of Justice has confirmed and announced that, with effect from 1 June 2020, interest rates payable on Court Funds Office special and basic accounts have been reduced. The special account rate falls from 0.5% to 0.1%, and the basic account rate decreases from 0.1% to 0.05%. The Lord Chancellor will undertake a further review of the interest payable to clients in the event the Bank of England base rate rises in future. See News Analysis: Changes to interest rates for Court Funds...
PI & Clinical Negligence horizon scanner— October 2020 [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. It distils the principal legal developments of interest to personal injury and clinical negligence practitioners as at 20 October 2020. For the most recent horizon scanner, refer to PI and Clinical Negligence horizon scanning—overview. Accommodation claims— Swift v Carpenter On 9 October 2020, the Court of Appeal delivered the long‑anticipated judgment in Swift v Carpenter, reconsidering the approach to valuing the loss suffered where a claimant must fund the purchase of suitable alternative accommodation. The prior methodology, originating in Roberts v Johnstone, was criticised as ‘unfit for purpose’, both because the prevailing negative discount rate produced a nil valuation in every instance, and more broadly. The Court of Appeal concluded that Roberts v Johnstone does not provide full and fair...
What does IP completion day mean for PI & Clinical Negligence claims? [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note considers the consequences of the UK’s departure from the EU at the close of the implementation/transition period ( IP completion day). Under the European Union ( Withdrawal Agreement) Act 2020, IP completion day is 31 December 2020 at 11 pm. It examines how EU law and international conventions apply within the UK and highlights key issues concerning applicable law, jurisdiction, service of documents, and the recognition and enforcement of judgments. The ramifications are not confined to EU Member States, but also extend to the Lugano Convention 2007 contracting states ( Iceland, Norway and Switzerland). Further, it identifies principal practical points for PI practitioners handling cross-border road traffic accidents, product liability matters, package holiday claims, and rail incidents in...
Inheritance tax and personal injury trusts Many advisers mistakenly assume that choosing one form of personal injury trust over another delivers an inheritance tax ( IHT) benefit, with discretionary trusts often singled out. In truth, for a self-settled personal injury trust, the structure chosen makes no difference. The gift with reservation of benefit rules bite, so the trust fund’s value is treated as part of the settlor’s estate for IHT purposes, whether or not it actually falls back into the estate on death. This remains the position even for disabled trusts... From an IHT perspective, a poorly planned personal injury trust can be positively harmful. If an amount exceeding the nil rate band (£325,000 for England and Wales 2025–26) is placed into a relevant property trust—such as a discretionary or life interest trust—that does not qualify as a disabled persons trust, there is an...
Types of personal injury trust How to choose between the different types of trust Consideration of the various personal injury trust options commonly proceeds on the basis that the injured individual has full capacity and acts as settlor. Yet a trust may equally be created by court order, whether during the litigation or once a personal injury claim concludes. In those circumstances, the trust is put in place for the injured person, irrespective of whether their capacity is impaired. Watt v ABC (see Practice Note: The Court of Protection versus personal injury trusts) indicates that such orders can be made either by the court determining the claim and granting the award, or by the Court of Protection, whilst acknowledging that some jurisdictional questions remain unresolved. Although these notes proceed on the footing that the injured person is capable of setting up the trust, the...
Security Where compensation is paid as a lump sum only, once damages and costs have been settled, the claimant need not be concerned about future payment security. Conversely, if a periodical payments order is made, the claimant will depend on that security for the rest of their life. The court treats security of payment as essential and will not make a periodical payments order unless satisfied that the ongoing payments are reasonably secure. Payments are automatically treated as reasonably secure where: the payer is a government or health service body the insurer benefits from protection under the Financial Services Compensation Scheme ( FSCS) a ministerial guarantee applies The first two situations are commonplace, while the third is relatively rare. Government or health service body There are many government or health service bodies listed in the Damages ( Government and Health Service Bodies) Order 2005, SI...
Assessing the limitation date When you are instructed on a personal injury matter, the question of limitation ought to be among your earliest checks and priorities. The default position is fairly simple in principle — there is a three-year period, starting from the date on which the cause of action arises or, if later, when the claimant becomes aware of it — yet numerous exceptions set different time limits, and, in many instances, the deadline is markedly shorter than the three years provided by the Limitation Act 1980 ( LA 1980). At the outset, when addressing limitation, ask yourself: does the case involve a claim for damages for personal injury suffered by an individual? if it does, what is the date of the incident (or the date on which the cause of action arose)?......
This Practice Note This Practice Note examines the Limitation Act 1980 ( LA 1980) and sets out the periods within which claimants are permitted to start different kinds of claims. As a rule, any proceedings begun after the relevant limitation window has ended will be statute-barred, affording the defendant a complete defence. It further describes, for personal injury matters, the general principles on when time begins to run, the notion of date of knowledge, and when a court may lift the limitation bar. It also contains a practical checklist of personal injury actions that sit outside the standard three-year time limit. LA 1980 prescribes the statutory deadlines within which claimants may pursue various categories of claims. Those limits define the period within which such claims must properly be started. Broadly, a defendant will enjoy a full defence to any proceedings issued (see further below: ‘ When is a...
In cross-border proceedings, parties can disagree about the proper forum – that is, the jurisdiction in which their case ought to be tried. Accordingly, advisers must recognise that particular rules govern the allocation of jurisdiction to a court when determining where a dispute should be heard. The UK’s departure from the EU also affects which jurisdictional rules the courts of England and Wales will apply when deciding forum in cases concerning the question of which courts have jurisdiction. For claims commenced on or after 1 January 2021, EU jurisdiction rules do not apply. Nonetheless, mapping the applicable regimes remains useful, both because EU rules continue to govern any claim started on or before 31 December 2020 and because they provide context for the shift and assist in understanding the developments in this area. Relevant jurisdiction regimes For personal injury...
PI & Clinical Negligence horizon scanner— August 2023 [ Archived] ARCHIVED: This Practice Note has been archived and is no longer maintained or updated. It summarises the principal legal developments of particular relevance to personal injury and clinical negligence practitioners, current as at 7 August 2023. For developments that pre-date this horizon scanner, readers should refer to the PI and Clinical Negligence horizon scanning—overview for background and earlier context. Key PI & Clinical Negligence developments The key highlights include: UK Supreme Court allows appeal in whiplash test case. On 7 June 2023, the UK’s highest court confirmed it had permitted an appeal by insurers in a test case addressing valuation of ‘hybrid’ personal injury claims. See News Analysis: Permission to appeal to UKSC granted in whiplash test case. Mo D issues Armed Forces Compensation Scheme and Veterans Welfare Reviews. The Ministry of Defence...
PI & Clinical Negligence horizon scanner— May 2024 [ Archived] ARCHIVED: This Practice Note has been archived and is no longer maintained. It distils the principal legal developments relevant to personal injury and clinical negligence practitioners as at 30 April 2024. For matters predating this horizon scanner, please refer to PI and Clinical Negligence horizon scanning—overview. Key PI and clinical negligence developments Judicial College Guidelines, 17th Edition now available on Lexis+ — The 17th Edition of the Judicial College Guidelines is now accessible on Lexis+, via Butterworths Personal Injury Litigation Service ( BPILS), Division IX, Quantum Summaries. See: Butterworths Personal Injury Litigation Service, Division IX, Quantum Summaries. Tenth edition of the King’s Bench guide published — The tenth edition of the King’s Bench Guide was issued on 19 April 2024......
ARCHIVED : This Practice Note is archived and not maintained. This year’s annual round-up reviews some of the most significant developments of 2017 and looks ahead to what 2018 may bring. In personal injury and clinical negligence, a headline change was Liz Truss’s February confirmation that the discount rate would be reduced from 2.5% to –0.75%. There were a number of key cases addressing the issues surrounding fundamental dishonesty and Qualified One Way Costs Shifting, together with the Supreme Court decision in Armes v Nottinghamshire County Council [2017] UKSC 60 on the scope of vicarious liability. This review also provides updates on Lexis Nexis®’s content, including news of exciting developments during the past year and what is coming up over the next twelve months. Reviewing 2017 Damages What happened? The discount rate is the percentage practitioners use to assess future loss in personal injury and clinical...
PI & Clinical Negligence horizon scanner— August 2020 [ Archived] ARCHIVED: This Practice Note has been archived and is no longer maintained. It provides a condensed account of the principal legal developments pertinent to personal injury and clinical negligence practitioners as at August 2020. For the most up-to-date horizon scanner, please refer to PI and Clinical Negligence horizon scanning—overview. Ogden 8 On 17 July 2020, the Government Actuary’s Department issued the eighth edition of the Ogden Tables. In this edition, the explanatory notes have been wholly rewritten and extended to include pension loss claims and periodical payment orders. The actuarial tables have been amended to incorporate updated mortality assumptions and to span a broader range of retirement ages......
PI & Clinical Negligence horizon scanner— May 2023 [ Archived] ARCHIVED: This Practice Note has been archived and is not being maintained at present. It distils the principal legal developments of relevance to personal injury and clinical negligence practitioners as at 19 May 2023. For the most recent horizon scanner, reference should be made to PI and Clinical Negligence horizon scanning—overview. Key PI & Clinical Negligence developments Analysis of the proposed implementation of the extended fixed recoverable costs regime — The Civil Procedure Rule Committee ( CPRC) has issued draft amendments needed to implement the expansion of the fixed recoverable costs regime. Andrew Crisp, an associate at Clarion Solicitors, assesses those changes and their effects. See News Analysis: Analysis of the proposed implementation of the extended fixed recoverable costs regime. Fixed costs for noise induced hearing loss cases — From 1 October 2023, claims for noise induced...
PI & Clinical negligence horizon scanner— July 2025 [ Archived] ARCHIVED: This Practice Note is archived and is not maintained. It summarises the principal legal developments relevant to personal injury and clinical negligence practitioners as at July 2025. For developments predating this horizon scanner, see PI and Clinical Negligence horizon scanning and key cases—overview. Key PI and clinical negligence developments The personal injury discount rate—a review In late 2024, the Lord Chancellor, Shabana Mahmood MP, revealed the outcome of her five‑month review of the discount rate, initiated in July 2024. One month after the new +0.5% discount rate took effect, Thea Wilson (barrister at 12 King’s Bench Walk) assesses its impact on cases, the responses from claimant and defendant representatives, and the consequences of the change for legal practitioners. See News Analysis: The personal injury discount rate—a review. Mo J announces reduction in CFO’s interest rates The Ministry of...
Nearly all maritime accident claims fall under the Athens Convention (the Convention), applied in the UK through section 183 of the Merchant Shipping Act 1995 ( MSA 1995). Notably, the Convention underwent major revision under the 2002 Protocol, the results of which are set out in the ‘ Consolidated Convention’. From 31 December 2012, the EU brought in Regulation ( EC) 392/2009 to give effect to the 2002 Protocol. In the UK this EU instrument was implemented by the Merchant Shipping ( Carriage of Passengers by Sea) Regulations 2012, SI 2012/3152. The Merchant Shipping ( Passengers’ Rights) ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/649, alters the EU Regulation so that references to the EU are replaced with the UK. Separately, the 2002 Protocol entered into force on 23 April 2014. For comprehensive guidance on how the 2002 Protocol has been...
Popular documents
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 ]...
Discover more from LexisNexis
