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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 explores the jurisdictional service gateway, or basis for service, in CPR PD 6B, para 3.1(3), which concerns pursuing claims against a necessary or proper party to a dispute between the claimant and the defendant that it is reasonable for the court to determine. For direction on additional claims under Part 20, and on assessing whether the person to be served is a necessary or proper party to the main or additional claim, see Practice Note: Cross-border service—jurisdiction gateways 1, 1A, 2, 4 and 4A (general grounds)— Gateway 4—additional claims. Read this Practice Note alongside Practice Note: Cross-border service—jurisdictional gateways (principles). This Practice Note refers to: the Privy Council decision in AK Investment CJSC v Kyrgyz Mobil Tel (2011), also reported as Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel in some law reports the courts of England and...
Clinical Negligence Claims Agreement 2024 The Clinical Negligence Claims Agreement 2024 replaces the COVID-19 Clinical Negligence Protocol (2020) (last revised in June 2021), which was first introduced as an emergency step to modify clinical negligence claims handling and litigation procedures during the coronavirus ( COVID-19) pandemic. The 2024 Agreement develops the earlier Protocol, with several practices now embedded in day-to-day claims management. The Agreement is not contractually binding, but it prioritises collaborative working between the parties. Introduction This Practice Note outlines the procedure for clinical negligence claims after service of the initial statements of case. It applies only to matters allocated to the multi-track. General principles of personal injury law remain relevant, yet practitioners must recognise the particular considerations that arise in clinical negligence claims. Practitioners should be familiar with the Pre- Action Protocol for the Resolution of Clinical Disputes. See Practice Note: The Pre- Action...
Coronavirus ( COVID-19) : The COVID-19 Clinical Negligence Protocol (2020) (last updated in June 2021) The Protocol was introduced to modify the way clinical negligence claims were managed and litigated during the coronavirus ( COVID-19) pandemic. It addressed a range of procedural and practical issues including: Limitation and extensions of time Communication Service Medical examinations Exchange of evidence Interim payments Settlement meetings and mediations BACS payments Costs budgeting Hearings, including adjournments In August 2024, it was replaced by the Clinical Negligence Claims Agreement 2024, which develops the earlier Protocol and embeds many of its approaches into routine claims handling. Although not contractually binding, the new Agreement promotes collaborative working between the parties. Limitation generally Section 2 of the Limitation Act 1980 ( LA 1980) sets the default rule that actions in tort must not be brought more than six...
Overview This Practice Note offers high level guidance on drafting a letter of claim in clinical negligence proceedings in England and Wales. A letter of claim in such matters is the formal pre-action document formally issued under the Pre- Action Protocol for the Resolution of Clinical Disputes (the Protocol). In clinical negligence litigation, the letter of claim: outlines the claimant’s position on breach of duty and causation starts the defendant’s four-month investigation window defines the questions likely to feature in any later proceedings may open the door to early resolution or an admission A letter of claim should not be sent out without proper investigation and supportive expert evidence. The Protocol is available here: Pre- Action Protocol for the Resolution of Clinical Disputes. Scope and application The Protocol applies to all claims against hospitals, GPs, dentists and other healthcare providers ( NHS and...
A clinician must obtain a patient’s consent before providing care for it to be lawful. That remains the case whether the intervention is a straightforward test or a major and invasive procedure. In practice, disputes about consent tend to surface after more serious and risky forms of treatment, such as surgery. For discussion of issues including self‑determination, valid consent, implied consent, adequate information in accordance with Montgomery, and causation, see Practice Note: Consent in clinical negligence claims—treatment and causation. The emergency treatment defence—unconscious patients What if the patient was unconscious on arrival at the hospital? The general principle is that, where treatment is needed to protect the patient’s life or health, and goes no further than is reasonably required in the patient’s best interests before recovery of consciousness, consent is taken to be implied or assumed. In Wilson, the Court of Appeal reasoned that, rather than...
Funding Typical routes to finance a clinical negligence claim are: legal aid/public funding conditional fee agreement ( CFA) after the event ( ATE) insurance before the event ( BTE) insurance damages-based agreement ( DBA) Courts have examined whether moving from legal aid to a CFA was sensible. In Surrey v Barnet and Chase Farm Hospitals, the Court of Appeal found the switch was unjustified because the advice overstated the drawbacks of staying on legal aid and did not refer to losing the Simmons v Castle 10% increase on general damages. In XDE, the Court of Appeal confirmed Surrey was not confined to situations involving the Simmons uplift; assessing the reasons for changing funding is a generally applicable exercise. Where a solicitor’s decision to change funding is questioned, they must provide a detailed witness statement setting out the...
This new starter guide is essential reading for claimant and defendant lawyers beginning a career in clinical negligence. It offers a primer on the subject, highlights key considerations, and outlines the principal steps in launching, managing and replying to a claim. It is designed for paralegals, trainee solicitors and anyone new to clinical negligence practice... The Overviews within each clinical negligence subtopic in the PI & Clinical Negligence practice area are an invaluable first port of call. These Overviews introduce each subtopic in the PI & Clinical Negligence module and include links to relevant materials to guide you through the subject matter covered... Notably, the module provides in-depth coverage of all procedural stages that may arise across different categories of clinical negligence claim for both claimant and defendant practitioners. This guide also includes links to help you get the most from the PI &...
This Practice Note outlines a standard schedule for starting civil claims in practice. A vertical comparison likewise offers direction on the steps parties should weigh when considering issuing proceedings in the courts of England and Wales. It highlights usual sequencing and the principal considerations for parties preparing cases. Typical timeline in civil proceedings Notes Note 1 Cause of action When evaluating the strength of the dispute, court litigation is a route to secure a remedy against the other side, and neither statute nor contract compels a different path. Note 2 Pre-action Parties are urged to attempt settlement before issuing, including by using alternative dispute resolution ( ADR). Observance of a pre-action protocol is required (eg sending a letter of claim). Considering pre-action measures, such as freezing injunctions or pre-action disclosure applications, is also available. Note 3 Issuing proceedings The claim form and particulars of claim are commonly issued...
ARCHIVED: This archived Practice Note is no longer updated and is provided solely for background reference. In addition, some links may not lead to the provisions as they stood when this guidance was issued. For information on earlier and/or later CPR amendments, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Note summarises forthcoming CPR changes. The provisions take effect on 1 October 2014 by virtue of The Civil Procedure ( Amendment No 6) Rules 2014, SI 2014/2044, and the 75th Update— Practice Direction Amendments. Note: amendments that do not affect the DR PSL module are not considered here, including: personal injury ‘soft tissue injury claims’ (ie whiplash claims) proceedings under the Presumption of Death Act 2013 applications for injunctions under the Anti-social Behaviour, Crime and Policing Act 2013 For the full set of amendments to the CPR and Practice Directions from 1 October 2014, refer to SI...
ARCHIVED: This Practice Note is no longer maintained and is provided solely for background reference. In addition, some links may not lead to the provisions as they stood when the guidance in this Practice Note was issued. For details on earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Changes to the Civil Procedure Rules ( CPR) take effect on 1 October 2010. This note highlights the key changes. All practice notes affected by these amendments will be updated accordingly in due course. Electronic Disclosure A new Practice Direction 31B will be introduced to set out how practitioners should handle electronic disclosure and to offer guidance to those with limited experience in this field. Its objective is to encourage and assist parties to reach agreement on the disclosure of electronic documents in a...
ARCHIVED This Practice Note is archived, not kept up to date, and provided solely for background reference. Some links may no longer lead to the provisions as they were at the time this guidance was published. For details of earlier and later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Changes to the CPR took effect on 1 October 2009. This note outlines the principal changes. All other practice notes affected by these amendments have been updated. The CPR on service has likewise been revised to reflect and incorporate these changes as at 1 October 2009. Court opening times Court office opening hours are being streamlined across the system. A standard formula will determine when court offices are open during the Christmas and New Year period. Supreme Court Also on 1 October, the new Supreme Court assumed the judicial function previously exercised by the House of...
ARCHIVED : This Practice Note, archived, is no longer maintained and exists for background information only...
ARCHIVED: This Practice Note is archived, not updated, and provided for background information purposes only...
ARCHIVED : This archived Practice Note is not maintained and is for background information purposes only. This Practice Note is archived, not updated, and provided solely for background information purposes only......
ARCHIVED : This Practice Note is archived, not maintained, and is provided solely for background information only. Additionally, certain links might not take you to the provisions as they stood on the date the guidance in this Practice Note was issued......
ARCHIVED : This archived Practice Note is no longer updated and is provided solely for reference. Additionally, some links may not take you to the provisions as they stood on the date the guidance in this Practice Note was originally issued......
ARCHIVED: This archived Practice Note is no longer updated and exists purely for reference only...
ARCHIVED: This Practice Note is an archive, not updated, provided solely for background information purposes...
ARCHIVED: This Practice Note is no longer updated and is provided solely for background reference...
ARCHIVED: This Practice Note is archived, not updated, and is supplied solely for background reference. In addition, some links may no longer point to the provisions as they stood when the guidance in this Practice Note was issued. For details of earlier and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note reviews the Civil Procedure ( Amendment No.2) Rules 2018, SI 2018/479, which introduce amendments to the Civil Procedure Rules ( CPR), setting out changes that come into force on Monday, 7 May 2018. The SI has been approved by the Minister and placed before Parliament. Part 2—jurisdiction of the county court Part 2 is amended to implement new Practice Direction 2E— Jurisdiction of the County Court, which sets out the jurisdiction a legal adviser may exercise in the County Court. The revisions are: in the contents list, after the...
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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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