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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:
Most recent Practice notes
This Practice Note This Practice Note offers a summary of the categories of parties that may take part in litigation in England and Wales, whether as claimants or defendants, together with the principal procedural matters and practical points their legal advisers should consider. It outlines who may sue or be sued and the implications for case management and strategy. Corporations Partnerships Sole traders Unincorporated associations Children Insolvent individuals or companies Groups The estate of a deceased party Litigants in person It is crucial that party status aligns with the issues to be determined. In Haque (representative/member of Muttahida Quami Movement Pakistan unincorporated association) v Hussain, the defendants were sued as trustees but advanced a defence which the court held could be pursued only in their capacity as members of an...
ARCHIVED: This Practice Note is archived and is not being maintained any longer. It serves purely as a historical record, outlining the changes to Part 36 that occurred in 2013. Those changes were later replaced by further Part 36 amendments that took effect on 6 April 2015. What are the reforms? A Part 36 working party, led by David Di Mambro, formally introduced revisions to Part 36 in April 2013. Their scope was confined only to measures necessary to mesh with the costs reforms commencing on 1 April 2013. The new rules address the 10% enhancement where general damages are awarded after 1 April 2013. The CPR Committee duly agreed: that the new provisions would only apply to offers made on or after 1 April 2013......
ARCHIVED: This Practice Note is archived and not maintained. It outlines how the April 2015 re-write of CPR 36 impacts the acceptance and disclosure of Part 36 offers in split trial cases. It forms part of a series produced for the joint Lexis Nexis and St Philips Commercial seminars on the CPR 36 revisions held in Leeds, Birmingham and London in January 2015. To access all materials and the recorded London Part 36 event, please visit our Lexis Nexis Dispute Resolution blog and sign-up. For other Practice Notes in this revised CPR 36 series, see the related content links on the right. The new split trial provisions The rules had not previously addressed the interaction between Part 36 and split trials. Here we consider how the new CPR 36 provisions work in practice. Split trials are covered in: CPR 36.3:...
This Practice Note This Practice Note sets out rules in force from 6 April 2015 for matters progressed under the Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ( RTA Protocol) or the Pre- Action Protocol for Low Value Personal Injury ( Employers’ Liability and Public Liability) Claims ( EL/ PL Protocol), and from 7 May 2018 for claims under the Pre- Action Protocol for Resolution of Package Travel Claims ( Package Travel Protocol). The Civil Procedure Rules were revised on 1 October 2023 to widen the reach of fixed recoverable costs. Accordingly, Part 36 was updated to encompass fast track and intermediate track cases, and noise-induced hearing loss claims allocated to the fast track, with fixed costs applying where: the cause of action arises on or after 1 October 2023, or in disease claims, no letter of claim was...
The lawyer’s role in organising a mediation Where the parties conclude that mediation is a suitable route to settle their disagreement, or they are bound by a contract requiring them to consider mediation if a dispute arises, or the court directs the parties to consider mediation, responsibility for arranging the mediation at the outset of the process rests with the parties’ legal representatives in practice. This Practice Note looks at the lawyer’s role in setting up a mediation, including selecting a mediator, arranging the venue, drafting the mediation agreement and determining who will attend, and settling other practicalities as required. For information about the parties’ duties to consider alternative dispute resolution ( ADR) and the courts’ powers to order or encourage ADR, both before and during litigation, see Practice Note: Court powers to order or encourage ADR in civil...
This Practice Note highlights the main considerations to bear in mind where the other side in civil proceedings is a litigant in person ( LIP), rather than being legally represented. It sets out who falls within that definition and points the LIP to helpful sources that may support the efficient progress of the case and the smooth administration of the proceedings where reasonably appropriate. For further guidance relating to litigants in person, see: Parties and their representatives—overview. What is a litigant in person? A litigant in person is an individual who conducts legal proceedings on their own behalf, without the benefit of professional representation. In March 2013, the then Master of the Rolls, Lord Dyson, issued Practice Guidance entitled ' Terminology for Litigants in Person' to clarify the correct terminology to be used when referring to individuals who conduct legal proceedings on their own behalf. That...
From 1 January 2026, the Commercial Court and the London Commercial Court are running a pilot under CPR PD 51ZH, under which materials used at public hearings (including witness statements and skeleton arguments and similar hearing materials) will, by default, be available to members of the public. Practitioners issuing applications in these courts should promptly acquaint themselves with the pilot and ensure that suitable measures are taken to safeguard their clients when drafting affected documents and materials prepared for hearings. For further guidance, see Practice Note: Non-party access to court documents and information in civil proceedings. Applications in the Commercial Courts If your case proceeds in the Commercial Court, the provisions of the Commercial Court Guide govern any application you bring. If you are in one of the Circuit Commercial Courts, the Commercial Court Guide applies as adapted by the Circuit Commercial Court Guide (...
ARCHIVED : This Practice Note is archived and is for historical purposes only. On 1 April 2013, wide-ranging changes to litigation funding took effect; but how has this played out in day-to-day terms? The reforms introduced a redistribution of risk among several actors, including solicitors’ practices, clients, third-party funders and insurers. Central to the regime is the manner in which these participants collaborate to equip parties with the means to finance proceedings they intend to pursue. In this Practice Note, we review each available funding route and assess the consequences of the reforms, particularly given their arrival coincided with reductions to legal aid; that contemporaneous curtailment of legal aid was not anticipated by Lord Jackson when compiling his Final Costs Report. We also outline how stakeholders share exposure under the framework. This Practice Note evaluates the ramifications of the funding overhaul from a range of...
NOTE : On 2 December 2024, the Lord Chancellor confirmed a change to a positive 0.5% discount rate. That positive 0.5% rate takes effect from 11 January 2025. Schedule A1 to the Damages Act 1996 stipulates that subsequent reviews must take place within five years of the conclusion of the preceding review, which means the next review is required to commence on or before 2 December 2029......
ARCHIVED: This archived Practice Note is no longer maintained and is provided for background only. In addition, certain links may not take you to the provisions as they stood on the date of publication. For information on earlier or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. The source for this Practice Note is SI 2012/2208 ( L8), which sets out the Civil Procedure ( Amendment No 2) Rules 2012, placed before parliament on 29 August and commenced on 1 October 2012, together with the 59th Update—practice directions amendment... Changes to case management ( Part 26) New provisions are inserted after CPR 26.3(7) describing the directions a court may issue where a party fails to lodge an allocation questionnaire, and the resulting costs consequences for the party in default. They also state what is to occur where the...
This Practice Note outlines how disease claims are investigated in practice. It offers direction on gathering proof, seeking medical records, and drafting witness statements and paperwork and documents, together with an overview of the limitation points frequently arising in such matters. Obtaining evidence Occupational disease cases concern exposure to, eg asbestos, excessive vibration, noise, or workplace irritants, for example in a factory setting and similar workplaces. For claimant solicitors, as with any personal injury matter, the prospective claimant (claimant) is central to progressing the investigation at every stage. If the claimant still lives near the location of their former/current workplace, they may supply valuable details and knowledge. In any event, however, instructions should be sought on: employment roles and periods in which possible exposure arose credible, detailed work histories, as the most practical and informative gauge of exposure over time the precise mechanism and source of...
Practice Note This Practice Note explores the principal considerations when pursuing a claim arising from work-related asthma. It offers practical direction on key steps in such cases, including the legal framework governing liability, evidential hurdles, and valuation of damages... Identifying whether a duty of care in law is owed The statutory regime under the Control of Substances Hazardous to Health Regulations 2002 ( COSHH Regs 2002), SI 2002/2677 Causation questions Assessing the worth of these claims The Note addresses how civil liability may arise where an individual—most commonly, though not solely, an employee—develops asthma following exposure to substances hazardous to health... For injuries occurring before 1 October 2013, the COSHH Regs 2002, SI 2002/2677 (as amended) applied. For injuries on or after 1 October 2013, section 69(3) of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) recasts section 47 of the...
What is a warrant of delivery? When a claimant succeeds in a claim to recover goods, the County Court can make an order requiring the defendant to hand those items back to the claimant. If the defendant does not comply, a warrant of delivery is the mechanism used to enforce that order. It is a County Court document instructing bailiffs to ensure the goods are delivered by the defendant. When can I apply for a warrant of delivery? In order to apply for a warrant of delivery there are a number of requirements: Requirement Guidance A judgment or order requiring the delivery of goods, with or without the alternative of paying the assessed value of those goods. Where you have a judgment or order for the delivery of any goods, it will be enforceable by a warrant of delivery in accordance with CPR 83.23, unless any other rule or act...
Norwich Pharmacal Orders ( NPOs) This Practice Note sets out what Norwich Pharmacal Orders are, explaining their nature and when they may properly be used in practice. In particular, it details the prerequisites that must be satisfied: a wrong has been committed, or is arguably committed, by an ultimate wrongdoer the applicant has a genuine intention to seek redress for those arguable wrongs the person targeted by the order is mixed up in the wrongdoing and is not a mere witness an NPO is a necessary and proportionate step in all the circumstances it is fitting for the court to exercise its discretion The Note also considers the consequences of non-compliance, the use of information obtained under an NPO in other proceedings, and the availability of Norwich Pharmacal relief in relation to disclosure required for foreign proceedings. It additionally addresses applications to discharge or set aside an NPO. For...
This Practice Note outlines the purpose and advantages of seeking a Norwich Pharmacal order, obtained so that an applicant can pursue a claim against an alleged wrongdoer whose identity was not known to it before making the application for the order. In view of the costs likely to arise from applying, including the work involved in assembling evidence, the guidance addresses the questions a prospective applicant ought to be satisfied about before deciding whether to apply. What is a Norwich Pharmacal order? Described by one judge as an exceptional jurisdiction with a narrow ambit, a ‘ Norwich Pharmacal order’ takes its name from Norwich Pharmacal Co v Customs and Excise Commissioners. In that case, the House of Lords, allowing an appeal from a Court of Appeal bench that included Lord Denning, upheld a judge’s order compelling the respondent to the...
This Practice Note outlines the specific time limits for personal injury matters that fall outside the standard three-year limitation period. It addresses a range of atypical accident scenarios, including: accidents abroad accidents on aircraft, boats or international trains Criminal Injuries Compensation Authority claims Motor Insurers’ Bureau claims claims under the Fatal Accidents Act 1976 ( FAA 1976) claims by the armed forces actions under the Human Rights Act 1998 For a useful table comparing the different limitation periods, see Practice Note: Time limits under the Limitation Act 1980—personal injury claims— Exceptions to the general rule. Accidents abroad Under the Foreign Limitation Periods Act 1984 ( FLPA 1984), where a court in England or Wales applies the law of another country, the relevant foreign limitation period will govern unless its application would be contrary to public policy ( FLPA 1984, s...
This Practice Note examines the jurisdictional service gateway, or ground permitting service, contained in CPR PD 6B, para 3.1(18), which concerns applications for costs orders in favour of or against individuals who are not parties to the proceedings (often referred to as third party cost orders). The Note outlines gateway 18 and offers commentary on the approach the courts have taken when construing it. It should be read alongside Practice Note: Cross border service—jurisdictional gateways (principles). For guidance on non-party costs orders generally, see Practice Notes: Non-party costs orders—guidelines and Non-party costs orders—application. Gateway 18 Gateway 18 ( CPR PD 6B, para 3.1(18)) addresses a claim by a party seeking an order that the court exercise its power under section 51 of the Senior Courts Act 1981 to make, as appropriate, a costs order in favour of or against a person who is not a party to...
This Practice Note considers whether a non-party costs order ( NPCO) will be made against a funder of litigation. It reviews how the courts approach NPCOs against litigation funders, distinguishing between pure funders and professional funders, and highlights concerns where orders surpass the amounts contributed and/or where costs are awarded on an indemnity, rather than standard, basis. The Arkin cap is analysed together with Excalibur Ventures v Texas Keystone (2016), which confirmed that the cap can cover sums provided specifically to satisfy security for costs requirements. It also considers Davey v Money (2019), where the High Court regarded the Arkin approach as a means to secure a just outcome in the particular circumstances, not a rigid rule, and imposed an NPCO exceeding the funding advanced under the agreement. Non-party costs orders—application Non-party costs...
STOP PRESS This Practice Note is currently undergoing routine quality control to uphold accuracy and reliability. An audiogram is a chart displaying the sounds an individual can hear and, in noise‑induced hearing loss ( NIHL) claims, it is used to assess a claimant’s hearing capability. It is a key diagnostic tool for identifying hearing loss. Practitioners should also review the claimant’s medical and employment records to consider whether alternative causes, such as medication, hobbies or medical conditions, might account for any loss. Basic pointers on audiograms Competence in reading and interpreting audiograms is vital for both claimant and defendant practitioners in NIHL cases. Where an audiogram does not indicate NIHL, the claimant’s solicitor should make clear that no claim can be pursued. The claimant will usually have had an audiogram conducted by their GP, their employer, or both. An audiogram typically comprises one or two sheets in graph...
Since 1963, when workplace noise was first officially acknowledged as an issue, the law has undergone a series of changes. Being familiar with these developments is vital when evaluating the likelihood of success for an individual claim, and when preparing letters of claim and statements of case. As most NIHL claimants experience noise exposure over many years, it is commonly necessary to plead separate breaches for distinct periods of exposure. Statutory duty Historical versions of legislation can be requested by Lexis+® UK Legal Research subscribers here. Section 29 of the Factories Act 1961 (formerly section 5 of the Factories Act 1959) imposes a duty, so far as is reasonably practicable, to make and keep an employee’s place of work safe......
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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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