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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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Control of money recovered by a protected party Key terms in CPR 21 include: ‘lacks capacity’ means lacks capacity within the meaning of the Mental Capacity Act 2005 ( MCA 2005) a ‘protected party’ is a party, or intended party, who lacks capacity to conduct the proceedings ‘protected beneficiary’ describes a protected party who lacks capacity to manage and control the money recovered When damages are recovered for a protected party, whether after a settlement or at trial, the funds are not released to the protected party or their legal representatives immediately. Instead, they are dealt with in line with directions issued by the court. The fundamental position is that the court must determine what is to be done with the money. Before making any directions about control of the funds recovered on behalf of a protected party, the court must first decide...
ARCHIVED: This Practice Note has been archived, is not maintained and is supplied for background reference only. Additionally, certain links may not lead to the provisions as they existed on the date this guidance was published. For information on prior and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note outlines the CPR amendments taking effect on 10 January 2015 as provided in SI 2014/2948. These revisions are introduced so that the CPR account for the provisions of the Brussels I (recast) regulation, which will apply, subject to transitional arrangements, from 10 January 2015. Note: content within Lexis+® UK DR refers to the recast regulation as Brussels I (recast). The CPR provisions describe the same regulation as the Judgments...
ARCHIVED: This Practice Note is archived and is no longer maintained... This Practice Note examines the implications for PI and clinical negligence practitioners arising from temporary rules and guidance introduced following the coronavirus ( COVID-19) pandemic. It should be read alongside the following archived Practice Notes: Coronavirus ( COVID-19) implications for dispute resolution [ Archived] Coronavirus ( COVID-19) civil court specific guidance—dispute resolution [ Archived] Case management of personal injury claims See also Practice Note: Coronavirus ( COVID-19) implications for dispute resolution [ Archived]— Case progression and management. The Association of Personal Injury Lawyers ( APIL) and the Forum for Insurance Lawyers ( FOIL) issued best practice guidance to assist claimant and defendant representatives managing personal injury claims during the coronavirus pandemic. The agreement commenced on 31 March 2020 and, subject to periodic review, continues to operate. Compliance with the CPR remains...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explores how temporary COVID-19 measures affect dispute resolution. It is intended to help dispute resolution practitioners grasp changes to civil court procedures and processes during the pandemic, and how those shifts, and the pandemic, may influence their practice and individual cases. It addresses the practical impact of coronavirus on key litigation steps and concepts. Read alongside: Coronavirus ( COVID-19) civil court specific guidance—dispute resolution [ Archived], giving further guidance for particular courts SCCO guidance for detailed assessment from 1 August 2020 This Practice Note provides ‘matter-neutral’ guidance on the procedural effects of the coronavirus for dispute resolution in England and Wales. For substantive and ‘matter-specific’ consequences of the coronavirus, see: Contract breach and termination— Coronavirus ( COVID-19) and contractual...
ARCHIVED: This archived Practice Note is designed to support dispute resolution practitioners in staying up to date and understanding the effects of the fast-moving developments associated with the coronavirus ( COVID-19) outbreak on processes and procedures in the civil courts of England and Wales. It brings together a series of frequently asked questions, organised by relevant topics. This Practice Note should be read alongside the following Practice Notes: Coronavirus ( COVID-19) implications for dispute resolution [ Archived] Coronavirus ( COVID-19) civil court specific guidance—dispute resolution [ Archived] Attending court during coronavirus See Practice Note: Coronavirus ( COVID-19) implications for dispute resolution [ Archived]— Attending court. Q& As Coronavirus ( COVID-19)—how do we contact courts that are now ‘temporarily suspended’ but were handling ongoing and/or urgent applications? A key witness (factual and/or expert), counsel, or instructing solicitor is unable or unwilling to travel to,...
This Practice Note outlines significant and illustrative rulings in which the court has promoted or compelled the parties to contemplate or participate in alternative dispute resolution ( ADR), such as mediation, with a view to settling their civil dispute. It should be read alongside Practice Note: Court powers to order or encourage ADR in civil proceedings, which explains parties’ duties to consider ADR and the courts’ powers to direct or promote consideration of ADR, both pre-action and during proceedings. Note that, from 1 October 2024, the Civil Procedure Rules ( CPR) were revised to confer further powers enabling the court to require parties to use ADR, and to give added guidance on costs where parties breach an ADR order or unreasonably refuse to engage in ADR. The amendments appear in The Civil Procedure ( Amendment No 3) Rules 2024, SI 2024/839, together with...
ARCHIVED This Practice Note relies on provisions revoked on 1 April 2013 and is provided for historical reference. Introduction The court enjoys a very broad discretion to decide if costs are payable, the figure to be paid, and the point at which payment is due. The court must also determine whether to: conduct a summary assessment of the costs; or order a detailed assessment of the costs by a costs officer......
This Practice Note examines, in particular, the following rules and practice in relation to County Court judgments: CPR 40.9A County Court judgments and orders—variation of payment CPR 40.13A County Court set-off of cross-judgments CPR 40.14A County Court certificate of judgment When can you vary a payment ordered under a County Court judgment? CPR 40.9A provides that where a judgment creditor has obtained a County Court order or judgment for the payment of money, either the judgment creditor or the judgment debtor may apply to the court to seek a variation to the date or the rate of payment. Under section 71 of the County Courts Act 1984 ( CCA 1984), the County Court has power to direct that the money be paid in a single lump sum or by instalments. The Court of Appeal’s decision in Loson v Stack offered guidance on the test to be applied when the court is...
This Practice Note addresses the recovery of costs in proceedings within the Business & Property Courts where the Disclosure Scheme, applicable to most matters under CPR PD 57AD, operates. The Scheme can materially influence costs recoverability, notably where costs management applies. Its impact is heightened because the provisions of CPR PD 57AD override any inconsistent rules or practice directions, including the costs management and budgeting regime. This Practice Note also outlines a timetable for supplying costs information in advance of the case management conference ( CMC). For general guidance on the Scheme, see: Disclosure Scheme ( Business & Property Courts)—overview. Requirement to provide costs estimates at an early stage Under CPR PD 57AD, parties must provide an early estimate of the anticipated costs of undertaking Extended Disclosure: Disclosure Review Document ( DRD)—parties must set out the projected cost of collection,...
ARCHIVED: This Practice Note is retained solely for historical reference and should not be treated as current guidance herein. CPR provisions The rules dealing with general costs continue to sit within CPR 44. The Part has been reorganised and reordered to make it simpler and more intuitive to navigate through. The principal changes affecting Part 44 are as follows: Re-numbering—the CPR Committee has taken the opportunity to re-number the rules so they follow a single continuous sequence, removing any need for suffix letters to differentiate provisions such as CPR 44.3A New provisions—there are several wholly new rules, together with material moved in from other Parts: the court’s discretion as to costs is set out at CPR 44.2; Rules 44.3A and 44.3B are now obsolete, and CPR 44.3C has been transferred to CPR 46.7 the basis of assessment at CPR 44.3 now contains additional provisions on...
This Practice Note sets out clear and practical guidance on the purpose of a costs order, what items it may encompass, the obligation to notify the client about any costs order that may arise, and the importance of making proper submissions on costs. It also outlines the various forms of costs orders, common terms relating to costs, and how the Boxall principles operate in the context of general civil litigation. Purpose of costs orders The overarching aim of a costs order is to allow a party to recover a reasonable and proportionate sum of costs. It is not intended to compensate, nor to place the receiving party in the position they would have occupied had it not been necessary to litigate to vindicate their rights. These core propositions were discussed at length by the Supreme Court in the leading authority case of Process &...
This Practice Note explores the position on costs following an application for an interim injunction, the courts’ usual approach, and when the court may depart from that stance. It also addresses how the court deals with recovery of costs on freezing injunction applications and the making of costs orders on anti-suit injunctions. Costs orders following applications for interim injunctions An applicant who secures an interim injunction might reasonably expect the court to direct the respondent to pay the application costs. However, in Desquenne et Giral v Richardson (1999), the Court of Appeal determined that where relief is granted (or agreed by consent) on the balance of convenience, costs will ordinarily be reserved until trial of the substantive issues. The reason is that, at the interim stage, there is no clear successful or unsuccessful party, so the general rule that the losing party pays the winner’s costs ( CPR...
This Practice Note outlines the position on costs where proceedings are brought to an end against a defendant. It also highlights practical considerations for the parties, bearing in mind their likely competing interests in relation to costs. It is intended as a starting point and should be read alongside Practice Notes: Costs of discontinuing a claim—the general rule and Costs of discontinuing a claim—displacing the presumption. Discontinuance—what does it mean? Discontinuance refers to a claimant ending all or part of their claim against one or more defendants. This arises only where court proceedings have been issued. If no proceedings have been issued, there is no formal claim to discontinue. For example, where a claimant sends a letter before action but then elects not to take the matter further, that will not amount to discontinuance. The governing rules on...
This Practice Note surveys the core principles of the costs management regime. The principal documents within the regime are cost budgets and costs management orders ( CMO). It addresses: the purpose of costs management and how it operates through costs budgeting and CMOs the key sources governing the regime ( CPR 3 and CPR PD 3D) exceptions to the regime and the court’s discretion to apply (order) or disapply costs management what costs budgets are and why they are used electronic filing of bundles for costs management conferences Costs management—introduction The aim of costs management is for the court to control the parties’ future expenditure alongside the procedural steps to be taken (known as case management). In combination, these measures advance the overriding objective ( CPR 3.12(2)). CPR 3.12– CPR 3.18 and CPR PD 3D contain the principal rules and guidance for the costs management regime. The court’s costs...
Costs budgeting light In May 2023, the Civil Justice Council ( CJC) released a report on costs, identifying areas where the appropriate costs management regime might diverge from the norm and from one another across different contexts. Acting on that recommendation, a costs sub‑committee produced two new draft pilots for costs budgeting, adopting a streamlined ‘costs budgeting light’ approach. One pilot will concern Business and Property Court ( B& PC) cases, while the other will apply to ‘certain other cases’ outside the B& PC valued at under £1m. A new Precedent costs form, modelled on the existing Precedent H, has been drafted and was approved in principle at the Civil Procedure Rule Committee ( CPRC) meeting on 4 October 2024. For drafting purposes, this new Precedent is described as ‘ Precedent Z’. A proposed new Precedent RZ (budget discussion report) has also been created for use...
This Practice Note explains when courts may depart from the default position that the winning party recoups costs from the losing party. It gives illustrations of departures from the default and instances where the default has not been applied. It also highlights circumstances where that general position was considered inapplicable. For details on the default rule and the court's discretion, see Practice Notes: Costs orders—the general rule and Costs orders—the court's discretion. Departing from the general rule It was affirmed in Straker v Tudor Rose (2007) that the court should start with the default rule unless particular factors warrant a different outcome. A non-exhaustive set of potential factors was identified: failure to comply with a pre-action protocol whether a party has unreasonably advanced or opposed an allegation or issue the way in which an allegation or issue has been pursued whether the...
ARCHIVED: As at 1 December 2013, this Practice Note was archived and is retained solely for historical reference. It is helpful for readers seeking to understand the costs budgeting pilot schemes that operated before 1 April 2013. Purpose of the costs budgeting pilot schemes Two pilot initiatives were undertaken to test how costs budgeting functioned in real cases. Mercantile court pilot—this took place across all Mercantile and TCC courts as a voluntary programme. Monitoring was undertaken through questionnaires and telephone calls to assess its success in controlling expenditure and keeping clients apprised of the overall costs position. An interim review of its operation was issued in February 2012, albeit only a relatively small number of responses were received. A further report was produced by Fenwick Elliot in October 2012. Defamation pilot—this operated in the RCJ and the Birmingham District Registry and covered claims in...
ARCHIVED: This Practice Note is kept for historical reference only. CPR provisions As a consequence of the Jackson Reforms, the courts are required to conduct both case management and costs management. Costs control is implemented through costs budgeting, which is intended to secure proactive and proportionate management of proceedings. The requirements for costs budgeting are contained in section II of CPR 3 and in CPR PD 3E. As this replaced the earlier rules on costs estimates, we have dealt with it in the same location and retitled the subject: Costs estimates and budgeting. Note: the provisions on costs budgeting originally set out in SI 2013/262 were altered very quickly by SI 2013/515 so that: the Heads of the Chancery and Queen's Bench Divisions may determine classes of cases within their divisions to which costs budgeting will not apply......
This Practice Note explores the cost implications associated with group litigation claims. Such claims involve numerous parties and might proceed with or without a group litigation order ( GLO). Where a GLO is granted, distinct CPR rules govern. In the absence of such an order, authorities provide guidance on the courts’ approach to costs. This Practice Note considers both situations... GLOs—what are they? GLO proceedings bring together a cohort of parties within one action, with their claims entered on a group register. Any party whose claim appears on the register is a group litigant ( CPR 46.6(2)), whether they are a claimant or a defendant. The objective of a GLO is to determine issues common to many claims through a single set of proceedings in a cost effective manner. For wider guidance on GLOs, see Practice Notes: Group litigation...
This Practice Note expands on the core principles of cosmetic surgery claims, with particular attention to claims arising from breast enlargement, reduction or augmentation. As with other cosmetic surgery matters, the surge in social media use has contributed to a higher volume of such procedures. See Practice Note: Cosmetic surgery claims. Definitions Breast enlargement is an operation to increase breast size by placing implants. These are breast-shaped sacs featuring a silicone outer shell, filled with either silicone gel or saline solution. Breast augmentation is surgery aimed at improving breast shape where there is asymmetry or a marked size difference. Misshaping may result from breast trauma, a mastectomy, or a congenital deformity. Breast reduction is a procedure to decrease breast size. It is commonly performed for women with very large breasts that cause neck and back pain, or...
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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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