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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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You can prompt business colleagues to engage with the legal team more consistently in four principal ways: boost their legal awareness so they can recognise issues early and request guidance promptly underline the value of right time – right information consultations through steady, routine interaction propose, where suitable, that referrals to the legal team are filtered or put through a screening step urge management to put guidance in place for using the legal team (with your drafting support) and to take responsibility for monitoring any self help, eg contract assembly All four can operate within the same organisation, but 1, 3 and 4 rely on management buy-in. As most organisations are unwilling to keep expanding the in-house head count, managers must accept their role in promoting coherent use of a finite resource. Raise legal...
Updated in November 2023 Introduction This guide sets out the principal matters a new business should consider before beginning operations in Romania. It is not exhaustive and does not amount to specific Romanian legal advice; such guidance must be sought from a Romanian lawyer before establishing and running a venture in the country. Accordingly, independent Romanian legal counsel should always be consulted for tailored advice. Strengthening the business climate, ensuring stability and predictability, and boosting competitiveness through innovation are central strands of the Romanian Government’s economic policy. The main route to greater competitiveness is raising productivity by diversifying and innovating the domestic industrial base. Executive branch priorities include improving the business environment by reinforcing State aid policy and advancing better regulation, which lowers administrative burdens on businesses, while enhancing transparency in decision-making and public consultation. At the same time, it intends to support private...
This Practice Note This Practice Note considers a woman’s entitlement to return to work after maternity leave under sections 71 and 73 of the Employment Rights Act 1996 ( ERA 1996) and the Maternity and Parental Leave etc Regulations 1999 ( MAPLE 1999), SI 1999/3312, as a matter of statutory right. Broadly speaking, where only ordinary maternity leave ( OML) is taken, she is entitled to resume the ‘same job’ when that leave ends, unless that position is no longer available (see: Return from maternity leave and Return to same job, below). A woman who also takes a period of additional maternity leave ( AML) is likewise entitled to return to her former role, unless it is not reasonably practicable for her to be permitted to do so (see: Qualified right to return, below). The right to return applies: at the conclusion of AML, if no...
The purpose of the return to work interview ( RTWI) Running an RTWI confirms that an employee coming back after a spell of absence is fully fit to resume work on their return to the workplace. This is particularly vital where the individual is still experiencing health issues or is taking medication with side effects you ought to be aware of at work. It also aims to put the employee at ease and make them aware of the support available to them. Why implement return to work interviews? Excessive absence harms a firm’s profitability, productivity and client service levels, as well as the effectiveness and morale of colleagues who must absorb the additional workload. It is also possible that absence patterns reflect workplace culture, and RTWIs provide a means to examine and address that. Putting in place a formal process to hold an RTWI after an...
All regulated law firms and individuals must behave in ways that promote equality, diversity and inclusion. It goes beyond meeting legal and regulatory duties; put plainly, it is the right thing to do. As an added benefit, it can enhance public confidence in the legal profession and deliver gains for your firm’s business. The Solicitors Regulation Authority ( SRA) expects you to be proactive and to take proportionate steps to encourage a diverse workforce at every level in your firm. This Practice Note explains why retaining diverse talent in a law firm matters, highlights common reasons why people leave roles and how firms can reduce these issues, and suggests tips for retaining diverse talent. Employees may leave because they are drawn to another opportunity (pull factors), such as: Higher pay A career change Family...
This Practice Note explains how in-house legal teams can benefit by exploring alternative resourcing models. It focuses on understanding different service models and the reasons for looking beyond traditional law firms. External resourcing—what are the options? Shifting workload peaks, the ongoing need to show value, and changing attitudes to flexible working are altering how in-house teams distribute their matters. The law firm model Often, a project demands rapid expansion followed by swift dissolution. Because internal capacity can be inelastic, work is passed to external law firms for the life of the project—an expensive path. Could firms deliver certain work more cost-effectively by rethinking overheads—for example, a budget option with teams located away from premium city offices? Many organisations stay with law firms for perceived ‘corporate memory’. The difficulty in moving is helping a new provider grasp the business. Yet that memory usually sits with...
This Practice Note explores how to inspire and oversee direct reports who are not co-located with you. It is typically more challenging to energise and direct people who are working somewhere else. By sharpening your ability to lead at a distance, you also strengthen your capacity to motivate and manage colleagues who sit nearby. These skills travel well across contexts and teams. Motivation Although many believe lawyers are, or should be, self-starters and therefore naturally driven, a team leader worth their salt must determine what stirs each person in the group, rather than rely on blanket assumptions. Assuming that one individual’s motivators will influence another in the same way is a fundamental error. For instance, some in-house lawyers constantly pursue variety and novelty, while others would rather remain within their comfort zone. The first group may need to recognise they cannot hop from one new thing to the...
This Practice Note explores the legal and practical questions that can arise when an employer (called in this note the 'new employer') seeks to hire an individual or, in a team move scenario, a group of individuals, from a competitor employer (described in this note as the 'former employer' or 'current employer'). It considers how to minimise the potential risk of legal liability for economic torts, including: inducing a breach of contract conspiracy (by unlawful and lawful means) unlawful interference with business as well as other protective action. It sets out what action to take where the employee is in breach. Privilege, including common interest privilege, is assessed in this note. Litigation and settlement strategy is addressed as well. The legal framework In employee competition disputes, the basis of litigation will be the express and implied terms of the employment contract between the...
A person wishing to set up a new company has the following options: Incorporate a new company in line with the Companies Act 2006 ( CA 2006), configuring it on incorporation to satisfy its particular requirements (a tailor-made company); or Acquire a ready-made, ‘off-the-shelf’ company (ie a company already incorporated that has never traded, a ‘shelf company’) from a company formation agent and then adapt it to meet those requirements. The actions involved in buying and customising a shelf company are set out below. For information on forming a tailor-made company, refer to Practice Note: Incorporating a company......
Most of us will either attend or run remote presentations as part of our role. Delivering a session online has plenty in common with speaking face-to-face, but there are differences you need to acknowledge. For more on presenting in person, see Practice Note: Presenting with confidence—in person. Why presenting virtually is different from presenting in person When we present virtually we are not in the same room as the people we are addressing. Although that is obvious, many presenters forget this during planning. They still rely on the same slides and format they would use in a face-to-face setting, yet an online presentation calls for a different approach from the very beginning. Some of the main issues when delivering virtually include: An absolute dependence on technology — you must get to grips with the technology. Lack of control — when presenting...
You are responsible for taking steps to reduce workplace fire hazards and to protect staff should a fire occur, minimising risk and safeguarding employees. There is no single, prescriptive set of rules dictating the exact fire safety measures you must adopt. Smaller organisations might require only basic arrangements, whereas larger organisations or those facing specific fire risks may need greater provision and additional resources. This Practice Note offers practical guidance and information on arranging, managing and maintaining fire safety in the workplace. Its scope is office-based, non-residential settings. It addresses fire safety in that workplace context only. Distinct, industry or premises-specific obligations may apply elsewhere, notably in residential and domestic properties, such as flats and multi-storey residential buildings. Regulatory requirements concerning fire safety in residential and domestic premises fall outside this Practice Note, as do building regulations requirements relating to fire safety. For...
Finding and hiring the right person is challenging and time-consuming, and misjudgements can become costly for the firm. It’s essential to get it right from the start: be clear about the individual you need, where to locate them, and what to prioritise when screening CVs. The cost of recruitment Recruitment can be costly, particularly for senior staff and partners. A range of elements drive these costs: salaries and pension contributions easing-off time getting up to speed client care issues placing job adverts agency fees your time reviewing CVs your time interviewing HR admin—references, offer letters, etc IT—changes to phones, logins, email lists, etc With such a commitment of time and resources, it’s vital to get it right from the outset. Recruitment involves six main stages: determining whether a vacancy exists drafting a job...
Businesses are continually seeking ways to raise performance, and effective pricing can play a pivotal role in boosting the bottom line over time and with deliberate attention. This Practice Note introduces pricing in law firms and sets out guidance on key considerations for any firm aiming to adopt a more sophisticated pricing model. Pricing warrants attention in every business—the connection between price and profitability surfaces both in anecdotes and in deeper analysis. Although the outcomes from refining pricing strategies and tactics will differ greatly, one study indicated that pricing has two to four times the potential to influence profitability when compared with other business levers. Firms that recognise and actively pursue pricing as a central strand of their strategy typically outperform industry peers without a pricing focus across several important financial metrics, eg return on equity and net profit. Firms that are moving towards...
Producing a first-rate proposal demands efficient, streamlined processes, committed and capable people, meticulous attention to detail and strict alignment with the RFP/ ITT. It must also be clearly written and well presented. Writing ability varies across legal and BD teams, and the strongest writers may not always be free. Therefore, a robust checking process is essential to keep the document’s quality as high as possible. This Practice Note offers quality control questions addressing frequent faults and weaknesses in proposals, with ideas on how to fix them. For broader checking before submission, see Precedent: Tender document checks. For more on building proposals, see Practice Note: Creating a persuasive proposal document. Proposal quality control checks Have you answered all the questions properly? The leading cause of an unsuccessful pitch is failing to respond to what the RFP/ ITT asked. Nominate someone to verify that every question has been fully...
When you are asked to produce a business case, you should already understand its purpose, the reason you are compiling it, and precisely what you intend to secure once your organisation signs it off. You might, for instance, wish to roll out a new practice management tool for the legal team and therefore require suitable financial investment and organisational backing, or funding for another need. Even if the objective is plain, you may overlook key considerations to embed before submission to strengthen approval prospects. the case’s purpose why you are preparing it what you seek upon approval The importance of being able to prepare a business case Speak to a cross‑section of lawyers and many will admit they have never reviewed a business case, let alone drafted one themselves; after all, what would prompt them to write one? The legal...
One difficulty lawyers encounter when meeting a potential client is not knowing enough about the individual and the company they speak for. Getting ready for those early meetings is, therefore, crucial to maximise the chances of building the relationship from the outset as effectively as possible. This Practice Note offers pointers to support a lawyer in preparing for a meeting with a corporate prospect. Ten steps to a successful meeting The steps below will assist you in preparing for a business development ( BD) meeting and should improve your prospects of securing a positive result. Conduct initial research Identify principal stakeholders and decision makers in your target organisation. Collect as much detail as you can on the person you will meet and the organisation they represent, eg: on the person—what their present role is, their place in the hierarchy, and what their previous role was on the...
This Practice Note outlines how to plan and deliver a training course or presentation. It includes guidance on: the difference between a training course and a training presentation clarifying the purpose of the presentation or course pitching your presentation or course appropriately pre-course or presentation details controlling nerves sidestepping death by Power Point engaging with delegates handling challenging delegates gathering and applying feedback The difference between training courses and training presentations A training presentation is mostly one-way communication—a message to be delivered with limited audience involvement. A training course is interactive, with the trainer actively involving delegates and learning taking place through suitable activities and discussions as well as the presentation itself. The two formats share some common ground at the outset, and this Practice Note reflects that...
You are responsible for supplying suitable and sufficient equipment, facilities and personnel so employees can receive prompt attention if they are hurt or fall ill at work. What counts as suitable and sufficient will vary according to several factors, such as the scale and nature of your undertaking. To determine what is right for your operations, you should carry out a first aid needs assessment. This Practice Note sets out guidance on performing such an assessment. For details of the regulatory obligations that apply to first aid, see Practice Note: First aid in the workplace—regulatory requirements. Key staff members Ensure the individual (or team) with overall responsibility for evaluating first aid needs holds enough seniority to lead the process and supervise any actions implemented. You should also think about how to properly involve all staff in discussing and agreeing the key elements of the...
You are obliged to take steps to reduce the likelihood of fire at work and to protect your staff should a fire occur. There are no fixed rules on the level of fire safety measures you must adopt: small organisations might only require basic provision, whereas larger businesses or those with distinct fire hazards may need greater resources. To determine what is adequate and proportionate for your activities, you must perform a suitable and sufficient review of the risks—a fire risk assessment. This Practice Note provides guidance and information on conducting a fire risk assessment. It focuses on fire safety within office-based, non-residential workplaces. Other industry or premises-specific requirements may apply in different settings, particularly in relation to residential and domestic buildings, including flats and multi-storey residential properties. Regulatory requirements concerning fire safety in residential and domestic premises are outside the scope of this...
Time is an invaluable resource, so learning how to get organised and maximise the hours available to us is an essential skill for everyday modern work and life. Dealing with time bandits Time management rests on three core components that guide daily choices: what should I be working on right now? what is standing in my way? what practical action can I take? If your current approach to managing time isn’t consistently delivering the outcomes you need, you must attempt a different approach. It may feel uncomfortable at first, yet persisting with the same methods will only ever produce the same results. Begin by creating a list for clarity: what are you hired to deliver in your role? which core activities most directly support these duties? It might seem overly simple, but amid the day-to-day turmoil of working life it is very easy to lose sight of your main...
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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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