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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 examines the status and deployment of confidential information in civil proceedings, covering what amounts to confidential information, how it can be safeguarded, and the circumstances in which confidentiality may be lost. It also considers disclosure duties concerning confidential material, methods to protect such material from disclosure, inspection and citation in open court, disclosure for restricted purposes, confidentiality rings, reliance on confidential and covertly obtained information, receipt of confidential material by mistake, and the friction with other jurisdictions’ disclosure rules. What is confidential information? Information regarded as confidential includes: personal (or private) information trade secrets journalistic, artistic or literary confidences government secrets court-ordered settlement agreements requiring non-disclosure information specifically identified by contract as restricted password-protected email accounts documents generated within the solicitor–client relationship ( Anderson v Bank of British Columbia) documents that may be...
Why you need to manage this risk Article 101 of the Treaty on the Functioning of the European Union ( TFEU) concerning EU competition law, and Chapter I of the Competition Act 1998 for UK competition law, each outlaw agreements between undertakings, decisions of associations of undertakings, and concerted practices that may influence trade—between Member States under Article 101 TFEU, or within the UK under the Chapter I prohibition—and whose object or effect is to prevent, restrict, or distort competition. Failure to meet competition law obligations can lead to a range of outcomes: Fines: The European Commission ( Commission) and the UK’s Competition and Markets Authority ( CMA) primarily penalise anti‑competitive conduct by imposing fines on infringing businesses. Every separate breach can attract a fine of up to 10% of your annual worldwide turnover. Void and unenforceable agreements: Agreements infringing Article 101(1) TFEU or Chapter I are void and...
This Practice Note outlines the SRA rules that govern law firms as they advance or handle a client matter. Further obligations feature in the Law Society’s practice management standards, for example Lexcel, and should be treated as mandatory by firms that hold or seek accreditation. Regulatory duties of wider application that are not specific to law firms—such as data protection and the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended—sit beyond the scope of this Practice Note. For further detail, consult the following subtopics: Lawful processing and transfer of personal data and Client due diligence—law firms. In particular, Practice Note: Money Laundering Regulations 2017—client due diligence—law firms— Risk assessing clients and matters—simplified, enhanced and regular CDD sets out the regulatory obligation to risk assess client matters falling within the scope of the MLR...
From a commercial standpoint, it is sensible for your firm to try to curtail the scope of its liability to clients. Yet regulatory and legal barriers exist in practice, and there are limits to what any cap can deliver. This Practice Note outlines the legal and professional obligations that apply when law firms cap their liability to commercial clients, and sets out the constraints on the effectiveness of such caps. Since 1 October 2015, agreements between ‘consumers’ and ‘traders’ fall under the Consumer Rights Act 2015. Excluding or restricting liability in a consumer contract is far more challenging, and certain ‘blacklisted’ terms are automatically unenforceable. This Practice Note does not address limiting liability for consumer clients. See instead Practice Note: Limiting liability—consumer clients—law firms. SRA requirements You must not exclude, or seek to exclude, liability below the minimum professional indemnity insurance ( PII) cover...
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This Practice Note brings together practical illustrations of scenarios where legitimate interests may serve as the lawful basis for processing personal data. The examples are collated from several sources: Information Commissioner’s Office ( ICO) UK GDPR guidance and resources— Legitimate interests European Data Protection Board ( EDPB) Guidelines 1/2024 on processing personal data under Article 6(1)(f) WP29 (now the EDPB) Opinion on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/ EC—predating the EU General Data Protection Regulation ( EU GDPR), with Guidelines 1/2024 stated to build upon that earlier Opinion According to the ICO, EDPB guidelines are no longer directly relevant to the UK regime and are not binding within it. Nonetheless, they may still offer helpful guidance on particular questions. Lawful grounds for processing personal data under UK GDPR You cannot simply process personal data because you wish to. You may only...
There are six principal regulatory bodies focused specifically on the regulation of solicitors’ practices. They are: Legal Services Board ( LSB) Law Society/ Solicitors Regulation Authority ( SRA) Solicitors Disciplinary Tribunal ( SDT) Legal Services Consumer Panel Office for Legal Complaints ( OLC) Legal Ombudsman ( Le O) Some operate solely in relation to solicitors and SRA-authorised law firms, whilst others encompass additional providers of legal services, such as barristers, legal executives and licensed conveyancers. This Practice Note sets out the remit of, and the links between, these six core regulatory bodies. For information on other relevant regulatory and governmental bodies that are not specifically concerned with the legal profession, see Practice Note: Other regulatory bodies—regulation of solicitors. Legal Services Board Before the Legal Services Act 2007 ( LSA 2007), a range of independent legal bodies delivered aspects of...
This Practice Note is aimed at in-house counsel. It sets out how to build a legal risk register — a device for gathering all legal risk details in one location — by classifying each legal threat the organisation encounters, assigning a score to each, and then determining the controls or mitigations to apply effectively across the enterprise as appropriate. To craft a robust legal risk register, start by spotting the legal exposures your business confronts. It is also worthwhile to gauge your organisation’s tolerance for risk at this stage. What is risk? Many organisations maintain a written definition, against which their overall risk environment — and the legal component within it — can be recognised and mapped. If your organisation already has a definition, evaluate it and, if it proves practical, you are well placed to consider what amounts to legal risk. If not, you should assist the...
What is legal professional privilege? This Practice Note is aimed at in-house lawyers, including those working within law firms. It explains what legal professional privilege ( LPP) means, how it operates, and who owns it. The Note also sets out how LPP can be lost or waived and summarises privilege issues in selected other jurisdictions. It covers legal advice privilege and litigation privilege, the two distinct limbs of LPP. Where appropriate, it draws on SRA guidance for in-house lawyers. See section: SRA guidance for in-house lawyers. Although parts of the law on privilege remain untested and open to academic discussion, in-house practitioners will typically decide if privilege applies by practically applying core principles and using professional judgement. LPP is an umbrella concept comprising: legal advice privilege ( LAP), and litigation privilege It protects the confidentiality of written and oral...
Even with strong and effective internal complaints handling, a law firm may still find a complaint escalates to the Legal Ombudsman ( Le O). This How-to-guide offers practical guidance on dealing with complaints referred to Le O. When are complaints referred to Le O? See Practice Note: Legal complaints handling—regulatory bodies— Legal Ombudsman for guidance on who can complain to Le O. Typically, a complainant may approach Le O only after using the firm’s internal complaints process—by making a complaint orally or in writing—and they: are dissatisfied with the firm’s final written reply have not received a final written reply from the firm within eight weeks For guidance on establishing and maintaining effective complaints handling procedures, see Practice Notes: How to implement and maintain effective complaints handling procedures—law firms and How to handle a complaint step by step—law firms. Le O also has...
Senior lawyers who report to business managers in other jurisdictions may not welcome functional reporting, particularly if they were in post before you took on the role as head of the function. Your first task is to create a relationship they perceive as supportive rather than a licence to interfere, while ensuring the business also recognises the responsibilities you carry. This Practice Note offers practical guidance and tips for in-house lawyers on building and enhancing relationships with remote functional reports. It should be read alongside Practice Note: Building relationships with business people to whom in-house team reports, which underscores the importance of forging a strong relationship with your functional report’s manager... Your functional contribution (listed as examples in the note referred to above) Encourage the recruitment and retention of in-house lawyers who can perform to a high standard ...
Business plans vs business cases Most people know about business plans, even if they have never drafted one. Organisations usually produce them for a clear objective: to show external audiences—such as banks, venture capitalists and private equity firms—why they should commit funds or other backing. These documents often follow a familiar structure, typically covering: the organisation’s aims an overview of competitors a strengths, weaknesses, opportunities and threats ( SWOT) review projected finances Although the phrases ‘business plan’ and ‘business case’ are frequently muddled, they are not the same. Both are created to seek some form of investment and to explain how that investment will be deployed and delivered. Yet they differ in these respects: Business plans – Usually outward-facing documents prepared for independent third parties, for example outside investors or lenders. Business cases – Typically materials presented inside the organisation, for instance a product development team might produce a business case to...
Part 1 of the Transparency of Lobbying, Non- Party Campaigning and Trade Union Administration Act 2014 ( TLNPCTUAA 2014) governs consultant lobbying—the commercial activity of presenting clients’ views to government on their behalf. Those acting as consultant lobbyists must enrol with the Office of the Registrar of Consultant Lobbyists ( ORCL) and list their clients on the public register, disclosing the names of those clients. They must also state whether they adhere to a publicly accessible code of conduct available to the public. Most practices will not be affected, yet you should not presume the statute has no bearing on you. ORCL guidance clearly envisages that legal practices may fall within the lobbying framework. If your firm has any contact or interacts with ministers or permanent secretaries, assess carefully whether registration is required. Who is required to register as a consultant...
This Practice Note reviews the various categories of social media and points to the leading platforms in each. It further sets out how law firms can deploy these channels as marketing tools to publicise their services and reinforce their brand. Social media is now a staple marketing mechanism for many businesses across sectors. If you have yet to examine what other firms in your area, or those sharing your specialism(s), are doing on social platforms and how they use them to promote their practices, you may wish to do so. Insights from that review can inform and refine your own social media approach and priorities. It is equally essential to grasp how your target client base engages with these networks on a daily basis. To advertise in the right places, identify where prospective clients already are before investing time and budget in a social...
Risk management sits at the heart of a firm’s governance, culture and business strategy. It involves applying principle to particular situations. The issue for law firms is that they must determine their own principles. Many lawyers readily spot weaknesses in day-to-day practice, yet strategic control of risks across the whole practice is less intuitive. This Practice Note presents practical steps and considerations for law firms in handling their risks. What is risk? There is a widely recognised definition: Risk = probability x impact. For any risk facing your business, ask two things: How likely is it that the risk will materialise — what is the probability? If it does materialise, how serious will it be — what is the impact? Where to start Robust risk management begins by identifying the risks your firm faces. It can help to group them into familiar...
Before commencing any outsourcing, you will need to navigate a demanding compliance pathway shaped by: SRA requirements data protection requirements other legislation, eg Equality Act 2010 general risk management best practice We have distilled this in our Outsourcing compliance lifecycle diagram. This Practice Note offers high-level guidance on four core compliance phases, broken into 12 practical stages aligned to our Outsourcing compliance lifecycle diagram: pre-contract (stages 1–6) negotiating and executing the contract (stages 7–9) post-contract record keeping (stage 10) post-contract quality checking and auditing (stages 11–12) Regulatory requirements For sector-specific regulatory guidance, see Practice Note: Outsourcing and offshoring—law firms. For data protection guidance, see Practice Note: Outsourcing and data protection. For general risk management best practice, see the following Practice Notes: Due diligence in outsourcing Limitation of liability in outsourcing Outsourcing...
This Practice Note explains when firms are required to appoint a nominated officer (often called a money laundering reporting officer or MLRO), sets out the nominated officer’s responsibilities, and suggests practical measures to help them carry out their role. It mirrors the requirements of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. This Practice Note also reflects Legal Sector Affinity Group ( LSAG) AML guidance. It further draws on the SRA’s key findings in its reports and publications ( SRA: Research and publications— Money laundering), alongside SRA guidance Money Laundering Governance: Three Pillars of Success. Where the SRA’s Three Pillars guidance refers to ‘ AML officers’, this covers the nominated officer and/or the Money Laundering Compliance Officer ( MLCO). For more on the MLCO, see Practice Note: Money...
This Practice Note outlines the principal statutory and regulatory frameworks for handling and protecting information and data—together termed information management and security. SRA You must preserve the confidentiality of clients’ affairs unless the law requires or permits disclosure, or the client gives consent. The SRA expects you to recognise, monitor and control all material risks to your business. You are also obliged to protect money and assets placed in your care by clients and others. UK General Data Protection Regulation ( UK GDPR) Assimilated Regulation ( EU) 2016/679 ( UK GDPR) imposes wide-ranging duties concerning information security, record-keeping and broader information governance. For further assistance, see Practice Note: How to comply with information security requirements and Precedent: Small business GDPR compliance—self-audit. The UK GDPR security principle Data security is fundamental to the UK GDPR. You must process personal data with appropriate technical and...
This Practice Note outlines the regulatory considerations when devising a plan or procedure to close your firm, alongside practical support for assembling the plan itself. For additional guidance on succession and exit strategies, including retirement planning, reaching the decision to close, valuing your practice, selling your practice and merging with another, see Practice Note: Succession planning in the wider context of your business. Firm closure plan—compulsory? There is no strict obligation to hold a formal firm closure policy; however, SRA Guidance recommends that, where possible, you plan well in advance when bringing your practice to a close. Larger firms may need a detailed plan and should keep a contingency in place for closure, merger or sale if serious difficulties arise. Client interests are paramount, but the SRA also notes that disorderly closure of a law firm can adversely affect the courts and other parties...
This Practice Note outlines the statutory basis for the personal injury ( PI) referral fee ban—namely the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO 2012). Not every PI referral is outlawed. The Note is designed to clarify the statutory scheme. It should be read alongside Practice Note: Personal injury referral arrangements— SRA requirements, which completes the regulatory picture. See also Practice Note: Personal injury referrals— SRA examples, flowchart and guidance, which collates SRA illustrations of forbidden and permissible PI referral models. It is indicative only. Statutory regime LASPO 2012 introduced a high-level statutory framework for the PI referral fee prohibition, brought into force in April 2013. Front-line regulators, including the SRA and the Financial Conduct Authority, give effect to that framework. Certain powers are reserved to the Lord Chancellor to make secondary regulations. To whom does LASPO 2012...
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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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