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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 sets out whether the claim form must be sealed before service within the jurisdiction of England and Wales. Does the claim form need to be sealed prior to service? Proceedings begin when the court issues the claim form ( CPR 7.2(1)), which is evidenced by the application of the court seal. The CPR glossary explains that a seal is the mark placed on a document to show it has been issued by the court. When considering the seal on a claim form, note that: the court may apply the seal by hand or by printing a facsimile on the document, including by electronic means a document that appears to bear the court’s seal is admissible in evidence without further proof (section 132, Senior Courts Act 1981) General requirement—service of the original sealed claim form A claim form cannot be validly served unless the seal has been...
This note explores the pivotal contribution of an expert witness in civil proceedings, examining why parties retain them and the practical questions that arise when choosing, instructing and collaborating with them, from initial selection through continued engagement. It underscores the need to support an expert in preserving independence before and throughout the hearing and trial. It also draws a clear line between the respective functions of expert advisers and expert witnesses. The purpose of an expert witness In civil litigation, an expert witness may perform one or two core tasks as required. Sometimes both are required; on other occasions, only a single task is needed. The simpler duty is to clarify a technical process or decode terminology from a specialised field that is relevant to the court’s determination of issues between the parties to litigation. Illustrations include describing how a building is...
Importance of establishing indemnity In personal injury claims, it is essential, and ideally done early, to verify whether the would-be defendant held, at the moment of the accident or event, an indemnity covering any damages and costs that might be ordered. Such cover is most commonly provided under a policy of insurance. The central reason for confirming indemnity is to give claimants confidence that the defendant is ‘good for the money’ and can meet any judgment. This Practice Note is not limited to a narrow, technical meaning of indemnity. In some personal injury matters, notably road traffic cases, payment of damages and costs may instead be obtained from an insurer or a body such as the Motor Insurers’ Bureau ( MIB) through the operation of statute or regulations. Road accident claims Statutory background To safeguard those injured in road collisions, section 143 of the Road Traffic Act 1988...
This Practice Note reviews the jurisdictional service gateways, or bases for service, set out in CPR PD 6B at paras 3.1(12)–3.1(12D) concerning claims about trusts, and CPR PD 6B at para 3.1(15)–3.1(15D) covering claims against constructive trustees or for breach of trust or fiduciary duty. It outlines the gateways and offers insight into how the courts have interpreted them, or may do so. This Practice Note should be read alongside Practice Note: Cross border service—jurisdictional gateways (principles). Claims about trusts—gateways 12–12E Gateways 12–12E ( CPR PD 6B, para 3.1(12)–3.1(12E)) state that, for trust-related claims, several gateways may justify permission to serve a claim form out of the jurisdiction of England and Wales: (12) A claim concerns a trust established by statute, by a written instrument, or created orally and recorded in writing, and governed by the law of England and Wales. (12A) A claim...
There are several circumstances in which a party to a conditional fee agreement ( CFA) may wish to have the rights and obligations under that CFA assigned to a third party (typically a new firm of solicitors). These situations include: a client has a CFA with a firm of solicitors for a specific matter, the fee-earner handling it moves to another practice, and the client wants them to continue the case at the new firm a client has a CFA with a firm for a particular issue, then loses confidence in that firm and wants a different firm to take over the matter a CFA is in place with a firm that subsequently ceases trading or otherwise alters its status a CFA exists with a firm that later stops undertaking work of the relevant kind, or wishes to...
FORTHCOMING CHANGE: This Practice Note sets out the law as it currently stands, though elements could be affected by the Digital Omnibus proposals released on 19 November 2025 under the European Commission’s ‘simplification’ agenda. For details, see Practice Note: EU Digital Omnibus—tracker. It introduces the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). The UK data protection law collection and the EU data protection law collection compile further core guidance on these regimes and are recommended starting points for research. In brief, data protection law across the EEA (the EU together with Iceland, Norway and Liechtenstein) and the UK aims to ensure that information about living individuals (‘personal data’) is treated fairly and responsibly. To that end, both EEA and UK data protection laws impose...
Overview On 27 August 2024, a fresh Clinical Negligence Claims Agreement (the Agreement) was entered into by NHS Resolution, the Society of Clinical Injury Lawyers ( SCIL), and the patient safety charity Action against Medical Accidents ( Av MA) together. The Agreement took immediate effect upon signature on that day, when it was finalised. It superseded and replaced the earlier Covid-19 Clinical Negligence Protocol 2020 (the Protocol), which had allowed claims to progress efficiently during the coronavirus pandemic. The Agreement applies to civil claims under English domestic law (including claims under the Human Rights Act 1998) and to claims under the European Convention on Human Rights. It develops the success of the earlier Protocol in refining working practices in clinical negligence litigation and seeks to continue fostering constructive behaviours and positive cooperation by claimant and defendant solicitors, and to promote a...
Introduction GPs working in the NHS typically practise in partnerships, or within NHS out-of-hours or walk-in centres. Private GPs can be self-employed or employed by larger organisations, such as health insurance providers. Until 1 April 2019, GPs were required to secure their own professional indemnity insurance. Historically, cover came from one of the three principal Medical Defence Organisations ( MDOs): the Medical Defence Union ( MDU), the Medical Protection Society ( MPS) and the Medical and Dental Defence Union of Scotland ( MDDUS), each ensuring the legal obligation was satisfied. In 2019 and 2020, two new government schemes were launched to deliver state-backed indemnity for GPs and practice staff, removing the need for them to arrange and pay for their own cover in respect of liability for clinical negligence linked to the provision of NHS services. The National Health Service ()...
This Practice Note reviews jurisdictional gateway 16 concerning restitution claims, as contained in CPR PD 6B, para 3.1(16). It should be considered alongside Practice Note: Cross-border service—jurisdictional gateways (principles). The gateway was effectively repealed in October 2015 and replaced with new terms. This is relevant when consulting older authorities analysing the gateway. The former wording indicated that a restitution claim could be made where the defendant’s purported liability arose from acts within the jurisdiction. Restitution claims—gateway 16 The current form provides that a claim for restitution is made where: (a) the defendant’s alleged liability stems from acts carried out within the jurisdiction; or (b) the enrichment is obtained within the jurisdiction; or (c) the claim is governed by the law of England and Wales. For those handling restitution matters, meeting any single limb of gateway 16 is sufficient: gateway 16(a)—wide in scope, as it centres on the...
ARCHIVED : This Practice Note has been archived as it pre-dates 1 April 2013 and is retained solely to aid understanding of the consultation on reforming conditional fee agreements and other elements of funding and costs in civil litigation. It covers: the Government’s response CFAs After the Event ( ATE) insurance Damages-based agreements ( DBAs/contingency fees) CPR 36 assessment of costs, including the new proportionality test increased hourly rates for litigants in person The consultation Following Lord Justice Jackson’s report on costs, the Ministry of Justice announced a consultation on reforming conditional fee agreements and other aspects of funding and costs in civil litigation. The consultation closed on Monday 14 February 2011. For further details, see: Reform of civil litigation funding: consultation launched ( News, 16 November 2010). The Government's response The Ministry of Justice issued its response in May 2011. In broad...
ARCHIVED : Practice Direction 51V ( CPR PD 51V) establishes a pilot under which applications to set aside default judgments made pursuant to CPR 12 are heard by video. This mechanism is distinct from the coronavirus pandemic arrangements that facilitated remote hearings. For further guidance, see Practice Note: Remote and hybrid hearings in civil proceedings. The pilot operates in the Birmingham or Manchester Civil Justice Centres and applies automatically unless a party objects or chooses to opt out. The scheme is described in the schedule to the 115th Update— Practice Direction amendments. It has been extended, with the 122nd Update— Practice Direction Amendments confirming it will continue until 31 March 2021. This Practice Notice addresses the second video hearings pilot scheme. Note that both the original pilot and this successor bear the same title and share the same practice direction reference. For the rationale behind...
ARCHIVED : Warning: this is for historical purposes only. This pilot scheme has now ended. Where and when did it apply? The Automatic Pilot Scheme (the Scheme) applied to all claims started on or after 1 October 2009 and continued until 30 September 2012. What was it? Under the Scheme, if a party defaulted by failing to file key documents during the proceedings, their claim was automatically struck out without any further order from the court. In addition, where parties wished to obtain a stay of proceedings to explore settlement, there was no automatic strike out; instead, an automatic order was made granting a stay. It was therefore important to recognise the situations in which the Scheme operated, namely: all parties requested a stay of the proceedings for a one‑month period any party failed to file an allocation...
This Practice Note sets out information on schemes overseen or sanctioned by the court that support or encourage parties to resolve disputes through alternative dispute resolution ( ADR), such as mediation. It further lists other ADR organisations that users may find helpful and relevant for their needs. Under the overriding objective in CPR 1, the court holds a range of powers to direct or prompt parties to contemplate ADR as a means of resolving their case when appropriate. For further information on this, refer to Practice Note: Court powers to order or encourage ADR in civil proceedings. To advance that aim, several court-run or court-endorsed ADR schemes exist which parties may, and in some circumstances must, use, including those described here for parties. For additional updates on ADR, see Practice Note: Tracker— ADR...
ARCHIVED: This Practice Note is archived, not maintained, and provided solely for background information. Certain links may no longer point to the provisions as they stood on the date this guidance was issued. For details of earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Copies of both update documents, along with additional materials concerning the bill of costs, are available in the recommended documents section. When do the changes come into force? The two Making documents took effect on the following dates: 92nd update: 21 November 2017 93rd update: 22 November 2017 92nd update— Practice Direction 4 (forms) References to the ‘ Mercantile Court’ are replaced with ‘ Circuit Commercial Court’. Under Writs and Warrants, Form PF 93: Application for permission to issue a writ of possession (rule 83.13) is...
Archived : This Practice Note draws on provisions repealed on 1 April 2013 and is retained solely for historical reference purposes. Who determines the guideline hourly rates The Guideline Hourly Rates ( GHR) are at present set by the Master of the Rolls. From January 2013, this function will pass to the Civil Justice Council, and it is anticipated that a CJC sub-committee will be created to take on that responsibility. For information about the change, see the WMS from the MOJ here. Guideline hourly rates Solicitors may charge any hourly rate they choose for their services, but those amounts might not be recovered in full at a costs assessment. When considering the rates charged, the court will examine them alongside the GHR. The Senior Courts Costs Office publishes the Guide to the Summary Assessment of Costs (the Guide), which includes guideline hourly rates for...
This Practice Note, prepared with Phil Roberts of Clarke Willmott LLP, summarises the enforcement routes available to someone who has just obtained a County Court judgment for £4,000. For a visual overview, see: County Court judgment creditor—flowchart. What are your options to enforce a County Court judgment for £4,000? charging order—(see the Charging Orders Act 1979 ( COA 1979), CPR 73 and CPR PD 73) transfer the judgment to the High Court and obtain a writ of control ( CPR 83 and the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007)) warrant of control ( CPR 83, TCEA 2007, the Taking Control of Goods Regulations 2013, SI 2013/1894) attachment of earnings ( CPR 89 and the Attachment of Earnings Act 1971 ( At EA 1971)) third party debt order ( CPR 72) an order to obtain...
Disagreements in the energy arena can be highly intricate. Owing to project locations, the parties’ nationalities, and the choice of forum or governing law, many matters are inherently international and raise cross-border considerations. A single dispute may spring from multiple contracts and involve more than two participants. Often, governments or state-owned bodies are involved, adding another layer of difficulty. Given the breadth of this field, this Practice Note concentrates on practical considerations when commencing a claim and does not delve into specific substantive issues for any particular case. For an overview of the key points to consider, see: Starting a claim in an energy dispute—checklist. Energy disputes—examples and hypothetical scenario The types of disagreements that fall within the scope of energy disputes are extensive. Typical illustrations include: a dispute between parties to a joint operating agreement for an oil and gas field...
This Practice Note sets out the extent and content of an employer’s common law obligation to exercise reasonable care for employees’ safety, with particular regard to providing safe premises, plant and equipment, systems of work and competent staff. It also considers the effect of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013), namely the removal of civil liability for breach of most workplace health and safety regulations unless the specific regulation expressly provides for it. In practical terms, claims will generally have to be advanced in negligence. To succeed, therefore, the injured employee must prove that the harm was reasonably foreseeable and that the applicable common law standard of care was breached. Overriding duties At common law, an employer owes a duty to take reasonable care of the health and safety of its employees in all the...
This Practice Note addresses the core obligations, covering risk assessments and the prevention of risk, health and safety arrangements, and the supply of information and training. It also considers the duties of employees and outside workers. The Management of Health and Safety at Work Regulations 1999, SI 1999/3242, establish a framework of employer duties aimed at preventing or reducing the likelihood of workplace accidents... Post 1 October 2013 From 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) took effect. For workplace accidents occurring on or after that date, civil liability no longer follows from a breach of a health and safety statutory duty unless the specific regulation provides for it. An exception persists under the Management of Health and Safety at Work Regulations 1999, SI 1999/3242, regs 16 and 17, which continue to impose civil...
This Practice Note examines how civil liability may arise where an individual—most often, though not solely, an employee—develops dermatitis following exposure to substances hazardous to health, and outlines circumstances in which liability is engaged. It further explores whether asymptomatic sensitisation brought about by workplace exposure can amount to actionable harm. Prior to 1 October 2013, claims concerning dermatitis linked to hazardous substances were regulated by the statutory regime contained in the Control of Substances Hazardous to Health Regulations 2002 ( COSHH Regs 2002), SI 2002/2677, as amended. For injuries sustained on or after 1 October 2013, section 69(3) of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) altered section 47 of the Health and Safety at Work etc Act 1974. As a consequence, breach of the COSHH Regulations 2002 no longer gives rise to civil liability. For further guidance on...
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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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