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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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Practice Note This Practice Note outlines activities undertaken by law firms that edge into consumer credit, drawn from Solicitors Regulation Authority ( SRA) case studies. For each activity, it distils and explains when, per SRA guidance, Financial Conduct Authority ( FCA) authorisation is needed. For a general overview, see Practice Note: Consumer credit and law firms... Debt recovery Work type Marketed as one of the firm’s core services Carried out by unqualified staff under a solicitor’s supervision Scenario A financial institution instructs the firm to recover arrears under a credit card agreement. The remit is to: Take steps to pursue the debt Assess commercial viability if the debtor does not respond Refrain from issuing proceedings or starting litigation SRA guidance FCA authorisation is required for the firm’s debt recovery work because: The advocacy or litigation exclusion is inapplicable (as proceedings are expressly ruled out) The...
Law firms might be caught by the consumer credit regime: by acting as a lender under a consumer credit agreement, for example regarding their fees by undertaking ancillary consumer credit activity, such as debt adjusting In light of the Court of Appeal decision in CFL Finance Ltd v Laser Trust, a creditor that enters into a settlement agreement appended as a schedule to a Tomlin Order may fall within the consumer credit regime where the settlement itself amounts to a consumer credit agreement—see also News Analysis: Does a Tomlin order provide ‘credit’ under the Consumer Credit Act 1974? ( Gertner v CFL Finance). The same risk can arise for a law firm’s own settlement document, for instance when compromising a client debt claim, as it can for other parties. This Practice Note addresses your arrangements for charging clients. You may...
STOP PRESS: This document is currently being revised to take account of the Data ( Use and Access) Act 2025 ( DUAA 2025), which updates the UK GDPR and the Data Protection Act 2018. For further detail on DUAA 2025 compliance, see Practice Note: Data ( Use and Access) Act 2025—compliance implications. This Practice Note draws on the UK General Data Protection Regulation ( UK GDPR) and the consent guidance issued by the Information Commissioner’s Office ( ICO). Under the UK GDPR, consent is rarely the default lawful basis for handling personal data, and organisations should assess whether another lawful ground is more suitable from both legal and operational viewpoints—see below: Do you need consent? and Practice Note: How to process personal data lawfully. What is consent? Consent means a freely given, specific, informed and unambiguous expression of the data subject’s wishes, whereby they indicate...
Practice Note This Practice Note is designed for in-house counsel and privacy and compliance specialists in private commercial organisations. It sets out why, when and how to carry out a data protection impact assessment ( DPIA) for a new or existing surveillance camera or CCTV initiative or system. It walks you through the essential elements of a DPIA, drawing on the template and guidance issued by the Biometrics and Surveillance Camera Commissioner ( BSCC) and the Information Commissioner’s Office ( ICO), and reflects the obligations in the UK General Data Protection Regulation ( UK GDPR), Assimilated Regulation ( EU) 2016/679. A DPIA does exactly what its title implies—it provides a method for evaluating the data protection implications of a given project or process for affected individuals. Typically, a DPIA is undertaken at the outset of any project that may raise data...
If your organisation holds a legal aid contract with the Legal Aid Agency ( LAA), you are required to hold either the Specialist Quality Mark ( SQM) or the Lexcel Practice Management Standard ( Lexcel). This Practice Note highlights precedents you may adopt or tailor to meet SQM obligations within the scope of these two modules. A: Access to service A1: Business planning Consumer strategic business plan Commercial strategic business plan Minutes from the biannual review of the business plan and strategy A2: Service promotion Publicity policy—for law firms Publicity materials audit form—for law firms Register of publicity Client care manual A3: Equality and diversity Equality, diversity and inclusion ( EDI) policy—short form Equality, diversity and inclusion ( EDI) policy Harassment and bullying policy A4:...
All solicitors and law firms must put in place and maintain, or take part in, a process for managing complaints about the legal services they provide. This Practice Note mirrors the requirements in the Solicitors Regulation Authority ( SRA) Codes of Conduct concerning complaints, together with other legal and regulatory obligations. It should be read alongside the Practice Notes: How to implement and maintain effective complaints handling procedures—law firms and How to handle a complaint step by step—law firms, which set out how to create and run complaints handling procedures, drawing on best practice guidance from the Legal Ombudsman ( Le O). Regulation of complaints The Legal Services Act 2007 ( LSA 2007) obliges all approved legal services regulators, including the SRA, to include in their rules provisions requiring each relevant authorised person they regulate to: establish and maintain procedures for resolving relevant...
This Practice Note outlines details of the various organisations with responsibilities and interests in legal complaints handling, including the Legal Services Board ( LSB), Office for Legal Complaints ( OLC), Legal Ombudsman ( Le O), SRA and the Legal Services Consumer Panel ( LSCP). The principal focus is Le O, which handles complaints about legal service providers. Legal Services Board The LSB, created under the Legal Services Act 2007 ( LSA 2007), serves as the single, independent oversight regulator for the legal profession. It is charged with ensuring the highest standards of competence, conduct and service across the profession. The LSB has set requirements that the SRA must satisfy in relation to the complaints procedures of authorised persons. It is also responsible for appointing the chair and members of the OLC, which administers the Le O complaints scheme. The LSB does not handle...
This How-to-guide is designed for law firms. It delivers practical advice and best-practice pointers on dealing with complaints, including how to improve the likelihood that a complaint escalated to the Legal Ombudsman ( Le O) is concluded by Le O’s Early Resolution team. Separate How-to-guides also address: How to implement and maintain effective complaints-handling procedures—law firms How to manage complaints involving additional considerations—law firms How to handle a complaint referred to the Legal Ombudsman—law firms Complaints handling procedure stages Keep your procedure as streamlined as possible. It must, at a minimum, cover three core steps: acknowledgement preliminary assessment action See: Complaints handling—flowchart. Make sure complainants can see where they sit within your complaints process and what should occur next. Explain plainly what will happen at each point, how long each phase should take, and clearly state who is...
Poor communication with a client frequently triggers complaints and professional claims. Whether or not a claim has merit, it is crucial to confirm you understand what the client is saying or requesting, ensure they understand the pertinent issues, and manage their expectations. This Practice Note highlights common pitfalls in client communications and provides practical tips to help you get the most from your client relationships and prevent miscommunication and avoid communication problems from arising at all. First impressions The first contact a client has with a firm typically sets the tone for all later communications......
What is BYOD? BYOD describes arrangements allowing an organisation’s employees to connect to the corporate IT network with their own communications devices for specified, work-related purposes. Such arrangements may extend to laptops, tablets and smartphones. This Practice Note focuses on BYOD in the employment relationship. Key risks and benefits of BYOD Cost Cost is a central consideration. Potential benefits Reduced organisational spend by avoiding procurement, replacement and day-to-day management of devices for employees. Depending on how costs are shared, lower outgoings on service charges. Potential downsides and risks The organisation must still invest in technical solutions, training and ongoing support so staff can access BYOD, which in some cases could make the approach more expensive overall. Ending the purchase of employee devices under existing agreements with a communications provider—where products and services are often bundled—may diminish discounts applied to other product or service lines. ...
It is now broadly recognised that human rights are not solely an issue for nation states and international organisations. Companies operate worldwide with increasingly intricate structures and supply chains, and their activities can affect human rights in both beneficial and harmful ways. This has driven the creation of international initiatives designed to heighten business awareness of, and respect for, human rights. This Practice Note highlights the key matters that business organisations should understand about human rights. It summarises the requirements of the UN Guiding Principles on business and human rights, the UN Global Compact, and the obligation on organisations to respect human rights, and it also considers the business case for doing so. Human rights standards and initiatives The UN Global Compact The UN Global Compact ( UNGC) is a voluntary initiative established in 2000 under the auspices of the United Nations. Its purpose is to...
At the very start of the engagement process, there will be numerous criteria, including the initial selection criteria, that matter to you when evaluating a law firm’s performance. Whether there are 3 points or 103, we recommend capturing every one within a 'value matrix' accordingly......
Part 14 of the Companies Act 2006 (the CA 2006) contains provisions which control: political gifts by companies to parties, other political bodies, and independent candidates in elections, and political spending undertaken by companies While only a small number of companies give money directly to politics or bear explicit political costs, the CA 2006 adopts broad definitions that can encompass forms of giving and spend that are not obviously or necessarily political. Accordingly, numerous companies table a standard resolution at each annual general meeting ( AGM) to authorise and confirm political donations and political expenditure. For an illustration of a shareholder resolution authorising such donations and spending, see Precedent: Notice of AGM of a listed public company......
Practice Note: quick guide to key cyber threats and defences This Practice Note provides a concise overview of the main cyber threats facing commercial organisations and highlights top tips to help them protect themselves. It should be read alongside Practice Notes: Cybercrime prevention and Cybercrime incident management, and the Cybersecurity subtopic generally. Advanced persistent threat ( APT) What is it? Attackers obtain unauthorised access to a system and stay hidden for a lengthy period. They may transfer sensitive information without permission, and even after discovery can leave several backdoors to return later. Best defence/top tips Raise user awareness of the risk and basic account security—see Precedent: Cybercrime awareness campaign. Deploy firewalls to examine and filter traffic. Use antivirus software. Keep protective software updated frequently to match the latest techniques used by cyber...
UNDER REVIEW: This Practice Note is currently under review following the publication of the SRA Anti- Money Laundering Training - Thematic Review, issued on 30 October 2024. The Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended, set out staff training and awareness obligations that are compulsory for firms within scope of MLR 2017 (relevant persons). Even where MLR 2017 does not apply to your firm, the Proceeds of Crime Act 2002 ( POCA 2002) and the Terrorism Act 2000 ( TA 2000) still apply to partners and staff as private individuals; eg if they become involved in matters they know or suspect are linked to money laundering, they have a legal duty to report it. The SRA also requires you to ensure managers and staff are competent to perform their role, and that...
The Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended These regulations, as amended, require firms to put in place and maintain policies, controls and procedures that effectively manage and reduce the risks of money laundering, terrorist financing and proliferation financing identified through their firm-wide risk assessment ( FWRA). be reviewed and updated on a regular basis include the oversight and management of compliance with, and the internal communication of, those policies, controls and procedures This Practice Note is a how-to guide that explores how firms can monitor and assess the effectiveness of, and compliance with, the anti-money laundering ( AML), counter-terrorist financing ( CTF) and counter-proliferation financing policies, controls and procedures they have implemented. It reflects the requirements of the MLR 2017, as amended......
This Practice Note outlines the SRA Accounts Rules requirements for using suspense ledgers. It also draws on supporting SRA guidance on Planning for and completing an accountant’s report, which gives helpful insight into the SRA’s stance on the unjustified use of a client suspense account. What is a suspense ledger account? A suspense ledger account is a general ledger heading that is not assigned to any specific client or the firm. It should be used only as a short-term measure to record unallocated funds—ideally for no more than five working days and, if possible, no longer than 30 working days. It is uncommon to use a suspense ledger account to post an unknown debit, i.e. a payment from client account (as opposed to a receipt). This is because adequate funds and proper authority must exist before any payment is made from a client account. For this...
Client and matter inception Client and matter inception is a vital step in safeguarding your practice, learning who your client is and what they expect from you, and meeting a range of regulatory requirements. Where you are acting for a new client, inception typically happens in two parts: stage 1—client inception (covered by this Practice Note) stage 2—matter inception (see Practice Note: Matter inception—law firms) In practice, you will often complete both stages concurrently. If you are opening a fresh matter for an existing client, stage 1 should already be in place, allowing you to focus on stage 2. You may still need to refresh your client due diligence—see Practice Note: Matter inception—law firms. This Practice Note explains what is required for client inception and outlines the procedures to follow when taking on a new client. It aligns with the SRA Standards and...
This Practice Note brings together client due diligence ( CDD) resources for the USA in a single, convenient place, cutting the time and effort by linking directly to the appropriate company registries across the various individual American States. Formation of companies in the USA sits with State authorities, and the breadth of information available differs under each State’s laws. A business entity in the USA is most commonly referred to as a corporation. Publicly traded corporations are recorded with the Securities and Exchange Commission ( SEC) in Washington, which keeps an online register. Client Due Diligence ( CDD) CDD is a central pillar of the anti-money laundering ( AML) and counter-terrorist financing ( CTF) framework. CDD obligations underpin the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, ( MLR 2017), SI 2017/692, as amended. Where the MLR 2017 apply,...
Client due diligence ( CDD) This Practice Note sets out guidance on client due diligence ( CDD), a core foundation of the anti-money laundering ( AML) and counter-terrorist financing ( CTF) framework. The CDD obligations form the bedrock of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. Counter-proliferation financing is the newest strand within the long-standing AML and CTF regime. Amendments to the MLR 2017 introduced CPF-related requirements, covering areas such as systems and controls, risk assessment, etc. However, no bespoke CPF obligations were added to CDD, and the existing CDD rules in the MLR 2017 were left unchanged, with no express reference to proliferation financing. Accordingly, at present this Practice Note does not address CPF. For further detail, see Practice Note:...
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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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