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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 reviews the general jurisdiction gateways that may apply irrespective of the nature of the claim (the general grounds). They include: claims seeking relief against a person domiciled in England and Wales (gateway 1) claims against a person over disputes arising from the operations of a branch, agency or other establishment (gateway 1A) applications for an injunction to compel or restrain conduct in England and Wales (gateway 2) additional claims under Part 20 where the person to be served is a necessary or proper party to the original or additional claim (gateway 4) ancillary claims founded on the same or closely related facts as the principal claim (gateway 4A) This Practice Note should be read alongside Practice Note: Cross-border service—jurisdictional gateways (principles). Gateway 1—the remedy is against a person domiciled in England and Wales Gateway 1 ( CPR PD 6B, para 3.1(1)) provides that the claimant may serve a claim form out of...
This Practice Note explores concerns faced by legal advisers when seeking to secure evidence and documents from an unco-operative former employee while representing their previous employer in a dispute. It focuses on practical steps and procedural options available in such circumstances for employers and their representatives alike. Normal practice requires a witness statement The standard method of presenting oral testimony from a factual witness at trial is to serve a witness statement, expressing in the witness’s own language the evidence they can provide on the issues to be proved or challenged by the party intending to call them. Guidance on the purpose and preparation of such statements is set out in Practice Note: How to write a credible witness statement. Where an ex-employee declines to supply a witness statement before trial, a party may apply for the court’s permission to serve a witness summary of that...
NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) covers collisions taking place on or after 31 May 2021, in circumstances where the sum claimed for the injuries does not exceed £5,000, and the overall claim value is capped at £10,000 in total. The small claims track threshold for personal injury arising from a road traffic accident has been lifted to £5,000 in respect of damages relating to pain, suffering and loss of amenity, subject to certain exceptions. For comprehensive information on the RTA Small Claims Protocol, including situations in which it does not apply, see Practice Note: The road traffic accident small claims protocol and Checklist: The RTA small claims protocol—key features checklist......
Although every litigation funding agreement ( LFA) and its related papers will differ based on the funder and the nuances of the case being backed, there are core matters that must be tackled during the stages of negotiation. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to give those negotiating or evaluating LFAs and their accompanying documents a clearer grasp of the considerations involved and the factors at play... Priorities agreements A priorities agreement (often also called the waterfall) is the instrument that expressly determines the order in which the returns from the funded claim are distributed if the case succeeds. Though it only bites upon a positive result, differing models adopted by funders and bargained for by funded parties over time have created fertile ground for...
Background At its inception, the clinical disputes protocol was shaped by Lord Woolf’s concerns about the adversarial character of clinical negligence litigation. The original version contained substantial explanatory text on the reforms’ aims and objectives, much of which was later judged superfluous and removed to streamline the document and underline its role as a procedural framework. The protocol continues to place clear emphasis on open communication between the parties, prompt investigation, and resolution before proceedings begin. It also recognises the distinctive complexities of clinical disputes, including the patient–clinician relationship and the deployment of expert evidence. The protocol now expressly refers to the statutory duty of candour on healthcare providers under the Health and Social Care Act 2008 ( Regulated Activities) Regulations 2014, SI 2014/2936, and treats an apology as a distinct, specific objective. See Practice Note: The duty of...
This Practice Note This Practice Note surveys the statutory framework governing musculoskeletal disorders, sometimes described as repetitive strain injury ( RSI) claims or work-related upper limb conditions. For workplace accidents occurring on or after 1 October 2013, civil liability no longer stems from breach of statutory duty unless the particular regulation so provides, with such actions therefore to be pursued in negligence. The Note also reviews significant authorities, with the principal emphasis on whether the claimant’s symptoms meet the threshold for actionability. In addition, it considers the leading authority on limitation where musculoskeletal disorders are in issue. The Note addresses a category of injuries caused or exacerbated by forceful, repetitive, and awkward movements undertaken without adequate rest or recovery. These conditions, which are known under various umbrella labels, are commonly called RSI, work-related upper limb disorders, or...
This Practice Note reviews the status of the Workplace ( Health, Safety and Welfare) Regulations 1992, SI 1992/3004 before and after 1 October 2013, alongside section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013). These regulations define employers’ obligations concerning premises and amenities, addressing matters such as equipment, illumination, floor surfaces and hygiene. It includes guidance identifying provisions that are qualified—for instance where terms like 'suitable' appear—together with advice relating to construction site incidents. Lastly, the Practice Note explores the statutory defences open to defendants. Post-1 October 2013 From 1 October 2013, ERRA 2013, s 69 amended and recast section 47 of the Health and Safety at Work etc Act 1974 ( HSWA 1974). For workplace accidents on or after that date, a breach of statutory duty does not of itself give rise to civil liability unless expressly provided for by the...
Post 1 October 2013 On 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) took effect. From that day, civil liability for workplace injuries no longer flows automatically from breach of a statutory duty unless the specific regulation expressly creates it. The Personal Protective Equipment at Work Regulations 1992, SI 1992/2966, contain no such route to civil liability. Accordingly, claimant representatives must instead frame claims in negligence, using any regulatory breach as evidential support. Although it is no longer proper to found a cause of action solely on contravention of a regulation, claimant practitioners will still cite, and often quote, the relevant statutory provisions as articulating the expected standard of care. Accordingly, regulatory duties still play a significant role, operating as benchmarks of expected care within negligence claims rather than as independent grounds of civil...
This Practice Note offers a concise outline of the main health and safety regulations currently operating in England and Wales, with references to related Practice Notes. With effect from 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) came into force. From that date, a breach of a health and safety statutory duty no longer, by itself, gives rise to civil liability unless the specific regulation so provides. For injuries occurring on or after 1 October 2013, a breach may found a negligence claim. Claims should therefore be advanced in negligence, using any regulatory breach as evidential support. The regulations in this Practice Note made under the Health and Safety at Work etc Act 1974 to implement EU Directives continue to apply as assimilated EU law after the Brexit...
Scope of this Practice Note This Practice Note sets out a collection of worked illustrations for drafting pleadings in a straightforward contractual debt setting, namely: the particulars of claim defence a reply grounded on a hypothetical simple contractual debt claim to which the Late Payment of Commercial Debts ( Interest) Act 1998 applies For guidance on debt claims, refer to the following Practice Notes, together with the associated Checklists and Flowchart: Debt claims Discharging a contractual debt Starting a contractual debt claim—a practical guide Starting a contractual debt claim—checklist Responding to a contractual debt claim—checklist Starting proceedings under the Pre- Action Protocol for Debt Claims—flowchart The worked examples below are not drafted as Precedents. They are illustrative only, do not attempt to capture every conceivable claim or defence that could be raised on the assumed facts, and are not presented as ‘the perfect pleading’......
This Practice Note sets out the particular rules governing VAT on costs that fall to be the subject of either summary or detailed assessment before the High Court. The applicable provisions are contained in CPR PD 44. Entitlement to This is addressed at CPR PD 44, para 2.3 through to CPR PD 44, para 2.6. The party seeking recovery of costs bears responsibility for ensuring that VAT is claimed only if, and only to the extent that, it cannot recover from HMRC the VAT it has incurred ( CPR PD 44, para 2.4). if the VAT is recoverable from HMRC, it should not be included in a claim for costs if only a proportion of the VAT is recoverable from HMRC, include only that proportion which is not recoverable from HMRC in the claim for costs The legal adviser’s VAT registration number must appear in a...
ARCHIVED : This Practice Note is archived and no longer updated. It illustrates the CPR 36 provisions on varying Part 36 offers following the April 2015 re‑writing of CPR 36. It forms part of a series of Practice Notes prepared for the joint Lexis Nexis and St Philips Commercial series of seminars on the revisions to Part 36, held in Leeds, Birmingham and London in January 2015. To access all the materials and the recorded version of the April 2015 London Part 36 event, please visit our Lexis Nexis Dispute Resolution blog and sign‑up. For other Practice Notes in this series on the revised CPR 36, see our related content links on the right hand side. What happens when a Part 36 offer is altered to render it more advantageous to the offeree? Under CPR 36.9(5), where a Part 36 offer is made more...
Fixed or variable orders The court can stipulate fixed adjustments to take place at set future dates without the need for a further order. It can also allow for changes to the level of payments to be revisited on a subsequent application. Only the second category is termed a variable order; with the first, it is the payments that alter, not the order itself. NOTE: The Explanatory Notes to the Ogden tables give an illustration of when fixed adjustments may be suitable, for example where assumed future wage growth should be taken into account, or where residual earning capacity is expected to shift. Nothing alters that is directly pertinent to the variable order. A variable order may be granted when, at judgment, it is shown that the claimant might later suffer an additional serious illness or marked deterioration (for instance epilepsy or a syrinx)...
Note: For collisions after 1 March 2017, the Motor Insurers’ Bureau ( MIB) will meet claims for damage to an uninsured motorist’s car where another untraced driver caused it. The government said this amendment was required to comply with the EU Motor Insurance Directive and that the changes would be revoked following Brexit. The untraced driver Where the motorist who causes a crash cannot be identified, for example after a hit-and-run, the claimant should apply straight to the MIB. Under the terms of the applicable agreement, the MIB will compensate a victim of an accident involving an untraced driver for: injuries death property damage The Untraced Drivers’ Agreement 2017 covers accidents on or after 1 March 2017. For accidents on or after 14 February 2003 and before 1 March 2017, the Untraced Drivers’ Agreement 2003 applies. Before that, claims concerning untraced drivers fell under the...
This Practice Note offers insight into how the relevant parts of the CPR should be read and applied. Depending on the forum in which your case is heard, you may have to take account of further provisions—see below. This Practice Note focuses on a distinct form of order called an ‘unless order’. The immediate effect of defaulting on an unless order is that a sanction takes effect (most commonly the striking out of a claim or defence), requiring an application for relief from sanctions—see: What are the consequences of breaching an unless order? This Practice Note should therefore be used alongside the following Practice Notes: Case management—compliance Strike out for failure to comply with a rule, practice direction or order ( CPR 3.4(2)(c)) Relief from sanctions—making or opposing an application Relief from sanctions—the courts’ approach What is an ‘unless order’? An ‘unless order’ is an order by which a...
This Practice Note looks at circumstances in which the conduct of a trial can render it unfair at common law, concentrating on judicial behaviour and procedural irregularity in particular. Claims that a trial was unfair are commonly pursued on appeal on the footing that the outcome is unjust due to a serious procedural or other irregularity in the lower court proceedings under CPR 52.21(3)(b). For further material on appeals, see: Civil appeals: general and preliminary considerations—overview and Practice Note: Grounds for appealing and preliminary considerations. This Practice Note does not address the notion of a fair hearing under Article 6 of the European Convention on Human Rights (the ‘ ECHR’). The common law rules sit alongside, yet continue to operate independently of, Article 6 of the ECHR. For guidance on that topic, see Practice Note: Article 6— Right to a fair...
ARCHIVED: This archived Practice Note sets out details of the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2019, SI 2019/419, together with the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2020, SI 2020/1586, plus salient elements of the EU- UK Withdrawal Agreement and the EU- UK Trade and Cooperation Agreement insofar as they concern data protection. It is no longer updated and is provided for background only. For guidance on continuing divergence between data protection requirements under the GDPR frameworks, refer to Practice Note: Introduction to the EU GDPR and UK GDPR. This Practice Note examines how Brexit affects routine processing of personal data under the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which took direct effect in the UK and all other EU Member States on 25 May 2018, and,...
Appeals before 2 December 2024 This Practice Note governs appeals to the Supreme Court in which either an application for permission to appeal, or a notice of appeal, was lodged on or after 2 December 2024, being the date on which the SCR formally came into force ( SCR 1). The SCR 2009 (described in this Practice Note as the ‘old SCR’) are revoked on that day ( SCR 62(2)). However, the old SCR will continue to apply to the following matters: appeals already underway before 2 December 2024 rule 11 permission applications under the old SCR (filing of application for permission to appeal) lodged before 2 December 2024, and rule 19 notices of appeal under the old SCR (filing of notice where permission not required) lodged before 2 December 2024 ( SCR...
ARCHIVED: This Practice Note is archived and is no longer maintained. Except where an appeal notice was filed, or permission to appeal obtained, before 1 October 2012, this note is kept for historical reference only. For guidance on the current provisions, see Appeals to the UK Supreme Court—overview, Supreme Court—starting and managing the appeal and Supreme Court—appeal hearing. The rules and practice directions mentioned here will link to the provisions currently in force, not those that applied before 1 October 2012. For the pre- October 2012 position, please refer to the attached pdf documents: CPR 52 (old) CPR PD 52 (old) Where permission has been granted by the Supreme Court When the Supreme Court has granted permission to appeal, the permission application serves as the notice of appeal, and the grounds are confined to those for which permission was given. The appellant then has 14 days from the grant of...
This Practice Note sets out guidance on using the Supreme Court portal and on filing and serving documents for appeals lodged on or after 2 December 2024. Appeals before 2 December 2024 It applies to Supreme Court appeals where an application for permission to appeal or a notice of appeal was submitted on or after 2 December 2024, the date on which the SCR took effect ( SCR 1). The Supreme Court Rules 2009 (described here as the ‘old SCR’) are revoked on that date ( SCR 62(2)). Nonetheless, the old SCR still govern: appeals already on foot before 2 December 2024 applications for permission to appeal under rule 11 of the old SCR (filing of application for permission to appeal) filed before 2 December 2024 notices of appeal under rule 19 of the old SCR (filing of notice where...
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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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