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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 considers the application of CPR 36 where Part 36 offers are made to settle detailed assessment proceedings commenced under CPR 47. It reviews leading authorities on the 10% enhancement for a receiving party’s costs under CPR 36.17(4)(d), and explores how CPR 36 aligns and interfaces with the statutory cap on the recoverable costs of provisional assessment set out in CPR 47.15(5). It also surveys case law on these issues and their consequences too. For solicitor/own client assessments, the consequences in CPR 36.17(4)(d) do not apply after a successful Part 36 offer, as this has been held inconsistent with section 70(9) of the Solicitors Act 1974, which imposes the one-fifth rule unless special circumstances arise under SA 1974, s 70(10). Nonetheless, a successful Part 36 offer in solicitor/own client assessment proceedings can still be treated as an admissible offer within the court’s...
Basis for valuing the loss How can an injury be expressed as a sum of money? There is no set formula that can price the loss of an arm or the ability to smell. Damages for pain, suffering and loss of amenity ( PSLA) are granted for physical and/or psychiatric harm and cover the past, present and future. A single overall figure is awarded, but it can be viewed in two elements: pain and suffering — the claimant’s subjective experience of pain and distress loss of amenity — the diminished capacity to carry out everyday activities A claimant is compensated for the consequences of the injury, including being unable to enjoy a full life. The level of PSLA is assessed by reference to the Judicial College Guidelines ( JCG) and comparable cases. If a claimant has sustained multiple injuries, the court may set out a...
Background to the Package Travel Regulations From 1 July 2018, packages are now covered by the Package Travel and Linked Travel Arrangements Regulations 2018 (2018 Package Travel Regs), SI 2018/634. These provisions gave effect to Directive ( EU) 2015/2302 (the Package Travel and Linked Travel Arrangements Directive). Post- Brexit transition or implementation, the 2018 Package Travel Regs continue to apply, with limited changes removing references to EU legal sources. The Package Travel and Linked Travel Arrangements Directive may still usefully guide interpretation of the 2018 Package Travel Regs. For further details and guidance, see Practice Note: Assimilated law. This Practice Note centres squarely on the 2018 Package Travel Regs. The earlier Package Travel, Package Holidays and Package Tours Regulations 1992 (the 1992 Package Travel Regs), SI 1992/3288, took effect on 23 December 1992 to transpose an EU Directive on package travel, package holidays and...
General damages General damages encompass non-pecuniary heads of loss, both past and future, which resist exact computation; instead, an appropriate sum is assessed by judgment. In everyday parlance, the expression general damages is often used solely for the award covering pain, suffering and loss of amenity ( PSLA), and although this is the most usual head within general damages, it is not the only category. Accordingly, particular care should be taken to ensure both parties involved fully understand precisely what is meant at any given point, especially during the course of settlement negotiations, where clarity about the precise scope is essential. For a more complete explanation, see Practice Note: Common recoverable losses in personal injury cases— What are general damages and special damages?......
This Practice Note This Practice Note provides guidance on interpreting and applying the relevant CPR provisions. Depending on the court in which your matter proceeds, you should also be mindful of any additional provisions—see: Court specific guidance. In particular, be aware that CPR 26 (which addresses, among other matters, the allocation of claims to a case management track and the requirement to file a directions questionnaire), and substantial parts of CPR 29/ CPR PD 29 (dealing with case management in the multi-track), do not apply in the Commercial Court (see CPR 58.13 and CPR PD 58, para 10.1), the Circuit Commercial Courts (see CPR 59.11 and CPR PD 59, para 7.1) and the Technology and Construction Court (see CPR 60.6 and CPR PD 60, para 10). For information on case management in the Commercial Court and the Technology and Construction Court, see the following Practice...
The right to obtain disclosure Disclosure refers to the stage in which each party makes available documents within their control that are relevant to the matters in dispute. Its central aim is to advance the overriding objective by putting litigants on an equal footing. The notion of ‘documents’ is not confined to paper files; it covers any means of recording information, including electronic databases, microfilm used for archiving, and video or audio tapes and discs. In clinical negligence claims, the claimant’s medical records are usually the most significant documents. They represent the most contemporaneous account of the care provided and will, in almost every case, underpin the expert evidence that shapes the result of the litigation. Prompt, impartial examination of the medical records can avoid unnecessary delay and cost, and is essential from the outset to evaluate the merits, identify strengths, and pinpoint any...
ARCHIVED: This archived Practice Note explores the use of mediation‑arbitration (med‑arb) to resolve commercial disputes. It is not maintained and is provided for background purposes only. For general information on alternative dispute resolution ( ADR), see ADR and dispute resolution clauses—overview. For guidance on mediation, see Mediation—overview. Med‑arb is suitable for a wide array of commercial disputes. It is appropriate, for example, for international or cross‑border matters in the construction, energy and infrastructure sectors. What is med-arb? Med‑arb is a hybrid, two‑stage ADR mechanism. Typically, the parties authorise the mediator to convert automatically into an arbitrator and to issue a legally binding arbitral award if the mediation does not achieve a settlement of the dispute. The arbitration stage is legally binding, and the arbitrator’s award is enforceable like one made in standard arbitration proceedings, a feature that is generally...
This Practice Note sets out the proper treatment of limitation in matters involving claimants who fall within the Mental Capacity Act 2005 ( MCA 2005) definition of lacking capacity, or who are under 18. It clarifies the point at which time starts to accrue in these situations, drawing attention to the possible complications for protected parties. It further considers the narrow situations where a defendant’s deliberate concealment may influence the limitation period in personal injury cases. Persons under a disability Claimants under a disability For the purposes of the Limitation Act 1980 ( LA 1980), a claimant is deemed to be under a disability if they: are aged under 18, or do not have capacity (as defined by the MCA 2005) to manage legal proceedings When does someone lack capacity? A person lacks capacity for a particular matter where, at the relevant time, they cannot make the...
This Practice Note This Practice Note reviews the personal exposure of expert witnesses in civil litigation; for instance, experts can be referred to professional bodies and regulators. It examines an expert’s protection from claims by their own client (with reference to the Supreme Court’s ruling in Jones v Kaney) and by the other side (considering Baxendale- Walker v Middleton), together with the rationale and ramifications of the decision in Kaney. It also addresses non-party costs orders against defaulting experts, and the scope for committal and contempt of court proceedings where an expert gives a false statement. Practical guidance on expert witness immunity is included. Experts, and those who may act as experts, must be fully informed of their obligations and adhere to them. Non-compliance can lead to a range of outcomes, including diminishing the weight attached to the expert evidence, adverse costs...
When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines ( JCG)...
NOTE : On 2 December 2024, the Lord Chancellor confirmed a positive 0.5% discount rate, taking effect from 11 January 2025. Schedule A1 to the Damages Act 1996 stipulates that later reviews must occur within five years of the previous review’s conclusion, so the next review is due to commence on or before 2 December 2029. Life expectancy statistics Life expectancy tables are produced and issued by the Office for National Statistics ( ONS). Now known as Life Tables, they are published annually. The results are calculated using population estimates together with birth and death records covering a three‑year period. They present the average number of years a person might expect to live from each age between 0 and 100, with separate series for males and females. Inevitably, these tables do not provide detailed insights for individuals or specific cohorts. They represent averages across the whole...
A personal injury claim founded on a breach of statutory duty can, in principle, be pursued against any body bound by that duty, whether a public authority or a private organisation. However, relatively few statutory provisions actually create a cause of action in private law. The difficulty lies in pinpointing which enactments enable a claimant to bring proceedings for breach of statutory duty... Statutory provision expressly permits claimants to bring a claim for breach of statutory duty At times, the legislation makes it explicit that a failure to discharge the relevant obligation—whether effectively or at all—is intended to give rise to a right to sue for breach of statutory duty. Where a statute either (a) expressly confers a right of action, or (b) adjusts existing common law duties, the position is generally relatively clear. The most familiar example for personal injury...
Availability of a civil remedy under statute Claims alleging breach of statutory duty are widespread, mirroring the breadth of legislation that structures interactions between private persons and public authorities. These claims reflect the volume of statutory regulation designed to manage such relationships. While, in the workplace context, civil liability for breach of statutory duty has largely been abolished for incidents occurring on or after 1 October 2013, many significant fields still permit a civil claim for such breaches. Accordingly, extensive areas remain in which a civil remedy for breach of statutory duty is available, despite that change in the workplace context. However, not every statutory obligation carries a civil remedy. Certain enactments are introduced to adjust or elucidate pre‑existing common law causes of action. Illustrations include statutes regulating occupiers’ civil liability. The common law principles that once governed an occupier’s duty to visitors were...
This Practice Note sets out the matters a claimant must establish in an asbestos action. It further reviews pleural plaques claims, limitation questions including section 14 of the Limitation Act 1980 ( LA 1980), the Pre- Action Protocol for Disease and Illness Claims, and the special procedural rules for mesothelioma claims. Elements of the claim A claimant who has developed disease through exposure to asbestos must prove the following in order to pursue their claim. A duty of care and/or a statutory duty owed by the individual or company responsible for the asbestos exposure. That duty requires the taking of reasonable care to prevent a person being subjected to a foreseeable risk of asbestos-related harm. In Asmussen v Filtrona, the claim was rejected because, on the then prevailing standards and the general state of knowledge about the dangers of asbestos, it could not be said that...
This Practice Note relates to CPR 21 and addresses claims that involve a child. A person can act as a litigation friend where they are able to conduct the proceedings fairly and competently for the child, have no interests adverse to the child, and agree to satisfy any adverse costs order made against the child. The Practice Note sets out how someone may become a litigation friend and how to end or change the appointment of the litigation friend. It also considers the position where the child reaches 18 during the course of the proceedings. Appointing a litigation friend A child is any person under the age of 18. In civil proceedings, a child must have a litigation friend to carry on the proceedings on their behalf (unless the court directs otherwise), pursuant to CPR 21.2. Commonly the child’s parent will act as...
Timing and procedure Once the period for acknowledging service has expired, a claimant may seek an interim payment order. There is no obligation to re-file or re-serve any evidence already lodged or provided to the relevant party. The application must be made in accordance with, and as set out in, CPR 23, and Form N244 can be used for this purpose. The application notice must be accompanied by supporting evidence. See ‘ Claimant’s evidence’ below. See also Practice Note: How to make an application for a court order ( CPR 23)......
This Practice Note considers allocation (by the court) of defended civil claims to one of the case management tracks: the small claims track, fast track, intermediate track or multi-track. It explains what is meant by 'allocation' and summarises the principal features of each track. The Note focuses on defended civil claims and the court's role in placing them on the appropriate case management path. The framework for allocating civil claims differs by the date proceedings are issued: Issued before 1 October 2023: three case management tracks—the small claims track, fast track and multi-track. Issued on or after 1 October 2023: four case management tracks—the small claims track, fast track, intermediate track and multi-track. For personal injury matters, the applicable rules turn on when the cause of action arises; for disease claims, they depend on when the first letter of claim is sent...
This Practice Note reviews the acknowledgment of service form, outlining what it is, when it must be used, and the consequences of not filing an acknowledgment of service. It also sets out the deadlines for doing so, which depend both on the court in which the matter is proceeding and whether it is a Part 7 or Part 8 claim form. The requirements governing acknowledgment of service are set out in Part 10 for Part 7 proceedings and in Part 8 for Part 8 proceedings. For practical help on completing an acknowledgment of service form, and on problems that may occur where the form has not been completed properly, see Practice Note: Acknowledgment of service—completing the form. Note that: The rules for acknowledgment of service are contained in Part 10 for Part 7 claims and in Part 8 for Part 8 claims. Part 10 was...
Post 1 October 2013 From 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) recast section 47 of the Health and Safety at Work etc. Act 1974 ( HSWA 1974), altering the previous position. For accidents occurring at work on or after that date, civil liability does not arise from a breach of statutory duty unless the particular regulation expressly provides for it. The Workplace ( Health, Safety and Welfare) Regulations 1992 ( W( HSW) Regs 1992), SI 1992/3004, do not provide for civil liability to arise from a breach. In those circumstances, claimant practitioners are left to rely on breaches of workplace regulations as support for a claim in negligence. The regulations have their greatest relevance and utility to claimant practitioners where they prescribe a framework of steps or measures required of an employer to ensure...
This Tracker gathers a range of illustrative rulings that may offer insight into the factors a court may regard as relevant when deciding whether to make or grant an order for alternative service in matters where the defendant/respondent is located in England and Wales ( England), or where a contract provides for service in England even though the defendant is in another jurisdiction. Note that the service provisions in Part 6 underwent major revision in 2008, and any authorities predating that reform are excluded from this tracker as they may not fully reflect the current position. For illustrative decisions with cross-border dimensions, see Practice Note: (cross border). For guidance on different aspects of alternative service, see the following Practice Notes: Alternative service—principles Alternative service—types of alternative service Serving court documents on persons unknown Alternative...
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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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