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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 addresses the recovery of success fees and after-the-event ( ATE) insurance premiums from the losing party where a conditional fee agreement ( CFA) was entered into and the insurance policy arranged on or after 1 April 2013. For general guidance on CFAs, see Practice Notes: Conditional fee agreements after 1 April 2013—personal injury and clinical negligence Clinical negligence claims—funding and costs— Conditional fee agreements ( CFAs) CFAs and ATE insurance policies—entered into before 1 April 2013 Success fees and ATE insurance premiums remain recoverable where the CFA or policy was agreed before 1 April 2013. It is also important to note the Court of Appeal’s decision in Simmons v Castle (2012), which brought in a 10% uplift to general damages, intended to compensate CFA claimants for the post-2013 loss of recoverable success fees. However, because success fees are still...
The medical specialty focused on diagnosing and treating cancer is oncology. Handling oncology clinical negligence claims requires an understanding of cancer’s nature, its many forms, symptoms and treatments, diagnostic methods, and the limits of what diagnosis and intervention can achieve. The timing of both actual care and the hypothetical non‑negligent treatment in the counter‑factual scenario is crucial to causation and injury. Choosing an expert is not always straightforward. These cases also demand careful management of a claimant’s expectations from the outset. Sometimes a decision is needed between seeking damages for a living claimant or for the estate or dependants of someone who has died. This Practice Note therefore outlines the essentials: what cancer is, how and when it is identified and treated, the limitations on treatments, and the applicable case law. What is cancer? Cancer develops when cells in the body divide faster than they...
This Practice Note reviews the common law duty of care in asbestos-related personal injury claims. It sets out the legal principles on duty and breach, highlights key authorities concerning low-level exposure, and considers whether the risk of injury was reasonably foreseeable. It also clarifies disclosure obligations. Frequently, the most challenging issues are demonstrating that a claimant was exposed to asbestos and by whom. The duty of care In most instances, establishing a duty of care will not be problematic. Employers plainly owe a common law duty of care to their employees. That duty includes an obligation not to negligently expose employees to the risk of developing an asbestos-related disease. Since 1931, an ever-increasing range of statutory duties has been imposed on employers in relation to the risks created by asbestos exposure. These are addressed in...
Archived This Practice Note is archived and retained solely for historical reference purposes. Lord Rupert Jackson and Lord Neuberger are delivering a series of lectures titled the Civil Litigation Costs Review Implementation Programme......
ARCHIVED This Practice Note is archived, not updated, and offered purely for background information only...
ARCHIVED: This archived Practice Note is not updated and exists for background information purposes only...
ARCHIVED This Practice Note is archived, not maintained, and provided solely for background information purposes...
ARCHIVED : This Practice Note is archived, not updated, and provided for background information purposes only...
ARCHIVED This Practice Note is archived, not updated, and provided solely for background information purposes...
ARCHIVED This archived Practice Note is no longer maintained and is provided solely for background information. In addition, certain links may not lead to provisions as they existed on the date guidance in this Practice Note was originally released......
THIS PROTOCOL ONLY APPLIES TO LOW VALUE RTA CASES WHERE THE CLAIM NOTIFICATION FORM IS SUBMITTED TO THE DEFENDANT' S INSURERS BEFORE 30 APRIL 2013. The Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA protocol) covers claims worth up to £10,000 in value. It aims to accelerate decision-making by imposing fixed response periods and fixed costs on the parties involved. The protocol applies to all road traffic accident ( RTA) claims: with a value that is between £1,000 and £10,000 where the accident occurred in England or Wales where the accident occurred on or after 30 April 2010 Excluded cases The protocol does not apply in the following circumstances: where pain, suffering and loss of amenity are assessed at under £1,000 to employer and to public liability claims to Motor Insurers' Bureau ( MIB)...
ARCHIVED: This Practice Note is archived and is no longer maintained. This Practice Note examines the effects on dispute resolution arising from temporary measures brought in due to coronavirus ( COVID-19), and related procedures too. It should be read alongside Practice Note: Coronavirus ( COVID-19) implications for dispute resolution [ Archived], and considered in parallel. It is intended to help dispute resolution practitioners grasp the rapid developments to civil court processes and procedures during this period, and how those shifts and the pandemic could affect their practice and particular matters in practice and day-to-day work. It includes civil court-specific guidance issued in response to the coronavirus outbreak, all of which is readily available for quick and consistent access via the ‘jump-links’ in the expandable contents table on the left-hand side of this Practice Note. As most court and tribunal buildings have reopened in...
Introduction There are several bodies dedicated to reshaping how claimants and defendants collaborate on serious injury matters, improving behaviours and expectations through agreed ways of working. The not-for-profit campaign organisation, the Association of Personal Injury Lawyers ( APIL), stands as a prominent advocate for injured people. The Forum of Insurance Lawyers ( FOIL) speaks for defendants, partnering with APIL in a joint endeavour to streamline litigation in catastrophic injury cases. Together with leading insurers, APIL and FOIL have authored the ‘ Guide to the Conduct of Cases Involving Serious Injury’, more widely known as the Serious Injury Guide. To access the Guide, see here: Serious Injury Guide. The Guide was created to foster cooperative working between claimant and defendant representatives in cases where damages exceed £250,000 and are expected to include claims for ongoing future loss (clinical negligence and...
This Practice Note examines the various claims a claimant may pursue for injuries arising from an animal, such as proceedings under the Animals Act 1971 ( AA 1971), in negligence, under occupiers’ liability, in trespass against the person and in nuisance. It further includes a practical checklist to assist when evaluating which causes of action are likely to apply. Main causes of action The first step in any dispute involving harm caused by an animal is to determine your potential causes of action. The choice is between the following options: AA 1971 negligence occupiers’ liability trespass against the person nuisance Selecting a cause of action The main difference between animal-related injuries and most......
Created in collaboration with 4 Pump Court, this Practice Note examines typical features of adjudication clauses in construction contracts, together with the adjudication processes set out in standard form construction contracts and widely used adjudication rules, such as the Scheme for Construction Contracts (the Scheme) and those issued by industry bodies. Adjudication clauses in construction contracts These clauses most often appear in construction agreements, principally because the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) requires every construction contract to include a compliant adjudication procedure. If a contract omits compliant terms, the provisions of the Scheme for Construction Contracts (the Scheme) are implied (under HGCRA 1996, s 108(5)). Typically, an adjudication clause identifies the process or rules that will govern matters if either party elects to begin an adjudication—see Precedent: Adjudication...
What is third party litigation funding? Third party funding ( TPF) is now a significant element of the UK litigation landscape. This Practice Note addresses TPF obtained by a litigant under a litigation funding agreement ( LFA) with a commercial litigation funder, or another person who finances the case yet is not a party to the proceedings. A commercial funder’s objective is to invest for a prospective return, whereas a litigant typically seeks TPF either to pursue litigation they could not otherwise afford (thereby facilitating access to justice), or to manage their own financial exposure to the costs of bringing a case. Lord Justice Jackson, who led the 2010 Civil Litigation Costs Review, characterised TPF as funding provided by someone with no pre-existing interest in the dispute, commonly arranged on terms that: the funder is paid from any sums recovered as a result of the...
Although frequently seen in the setting of disputes, and thus litigation, set-off is fundamentally a matter of substantive law. This Practice Note identifies the principal factors for assessing whether a right to set-off exists, whether legal or equitable. It does not cover bankers’ set-off, insolvency set-off or the abatement of rent; for those, see: Are there different types of set-off? For guidance on pleading a right to set-off, see Practice Note: Pleading set-off. Are there different types of set-off? At its simplest, set-off may occur where two parties owe monetary sums to one another. There are five main forms of set-off: independent set-off (also called legal set-off or statutory set-off) transaction set-off (also called equitable set-off) contractual set-off insolvency set-off bankers’ set-off (sometimes referred to as current account set-off) Their core distinguishing features are outlined in Practice Note: Types of...
Practice Note This Practice Note consists of two strands created to help dispute resolution practitioners remain up to date with developments in case law that affect their field, or which influence civil litigation procedure more generally: selected forthcoming appeals to the Supreme Court are highlighted below; see Key forthcoming appeals to the Supreme Court—2022 summaries of significant appeal decisions in England and Wales (ie rulings of the Court of Appeal and Supreme Court and, where appropriate, certain judgments of the Competition Appeal Tribunal, Judicial Committee of the Privy Council, Court of Justice of the European Union), and ECt HR, which we have covered; see: Key forthcoming appeal cases—2022 You can navigate this content using the table of contents in the left-hand margin. Alternatively, search this tracker using [ CTRL]+[ F]. This material is not intended to be a...
Court of Appeal—professional negligence ARCHIVED : This Practice Note has been archived and is not maintained. The Court of Appeal upheld an appeal in a claim against solicitors, holding that the loss of a chance head of damage was too remote. At first instance, the judge concluded that Lewis Silkin LLP had fallen below the required standard by not advising their client to include a jurisdiction provision in his employment agreement with a franchisee involved in the Indian Premier League’s Twenty20 competition. Because no jurisdiction clause appeared in the contract, when the client later issued proceedings against the franchisee over a severance entitlement, he faced jurisdictional challenges (ultimately dismissed) brought by the franchisee, which postponed his obtaining judgment for £10 million in severance. The client’s case was that, with proper advice on jurisdiction, the contract would have contained an exclusive...
This Practice Note explains the rules for serving documents—other than the claim form, particulars of claim or the defence—in proceedings in England and Wales. Examples include application notices, witness statements and court orders, eg interim charging orders. It covers permitted methods of service, deemed service, and applications to extend time. The rules are contained in Section III of Part 6, beginning at CPR 6.19. For guidance on service provisions for specific document types, see the following Practice Notes: Service in England and Wales—a guide for dispute resolution practitioners addressing service of the claim form Service of the particulars of claim Serving the defence Part 36 offers—service of an offer, notice of acceptance, variation or withdrawal Civil contempt proceedings—application considerations When serving documents: In Scotland or Northern Ireland, the document must be served by a method...
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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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