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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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STOP PRESS: Abolition of non-dom regime and introduction of residence-based IHT regime Finance Act 2025 ( FA 2025), which secured Royal Assent on 20 March 2025, brings an end to the remittance basis of taxation and installs a residence-based framework from 6 April 2025. For IHT, FA 2025 removes domicile as the primary driver of liability, establishing a residence-focused model instead. Revisions to the rules for determining excluded property status; Abolition of protected settlements status for offshore trusts; and Amendments to overseas workday relief. For details on these measures, see Practice Notes: The abolition of the remittance basis of taxation from 2025–26 and A new residence-based regime for IHT from 2025–26. See also: Finance Bill Tracking Service: Key dates ( Finance Bill 2025) and Finance Act 2025. Capital payments made by an offshore trust to beneficiaries who are UK resident and...
The Practice Note addresses income tax and capital gains tax ( CGT) implications for individuals who, prior to 6 April 2025, were neither UK-resident nor UK-domiciled (that is, neither actually nor deemed domiciled). Where a person is not resident in the UK, the income tax and CGT rules described below will broadly apply regardless of domicile. For inheritance tax ( IHT), residence is generally not the key connecting factor; domicile is. Nevertheless, an individual’s residence status remains relevant when undertaking IHT planning, as potential income tax and CGT exposures must be considered. For a brief overview of UK tax matters for non-residents, see Practice Note: Introductory guide to UK tax for non-resident individuals. Abolition of non-dom regime and introduction of residence-based IHT regime Finance Act 2025 ( FA 2025), which obtained Royal Assent on 20 March 2025, introduced legislation abolishing the remittance basis of...
This Practice Note explains how to work out the amount of inheritance tax ( IHT) arising on an individual’s estate when they die. For a wider outline of the IHT charge at death, see Practice Note: IHT—the charge on death. For a step-by-step illustration of an IHT computation on death, see Practice Note: Case study— IHT calculation on death. IHT charge on death The IHT position on a person’s death is split into two elements: the ‘additional charge’—which may arise on chargeable lifetime transfers ( CLTs) and potentially exempt transfers ( PET) made by the deceased within seven years before death, and the ‘estate charge’—which is imposed on the value of all property the deceased owned (or was treated as owning) immediately before death Additional charge on death Further IHT can become due on the transferor’s death in respect of CLTs that have already borne IHT at the...
ARCHIVED : This Practice Note has been archived and is not maintained. In October 2013, Jersey, Guernsey and the Isle of Man each entered into inter‑governmental agreements ( IGAs) with the UK to implement the automatic exchange of tax information. Owing to the way their disclosure provisions and timetable closely mirror the US Foreign Account Tax Compliance Act, these arrangements are often referred to as ‘ UK FATCA’. With effect from January 2015, the IGAs require financial institutions in the Isle of Man, Jersey and Guernsey to submit to HMRC automatic financial information returns covering UK‑resident individuals, partnerships and companies. Information relating to the 2014 and 2015 calendar years had to be provided by 30 September 2016, and thereafter reporting falls due within nine months of the end of the relevant calendar year each year. These IGAs are expected to be replaced by the Common...
STOP PRESS : Please note that the remittance basis of taxation will be abolished from 6 April 2025; see Practice Note: The abolition of the remittance basis of taxation from 2025–26. To promote lifetime philanthropic giving, the government enacted measures in the Finance Act 2012 ( FA 2012). Under these provisions, donors who gift pre-eminent property to appropriate institutions during their lifetime obtain a reduction in their UK tax liability. The relief is calculated as a percentage of the value of the donated object. For clarity, the scheme was initially termed ‘ Gifts of pre-eminent objects and works of art to the nation’, and Department for Culture, Media and Sport ( DCMS) guidance—both in December 2011 before FA 2012 came into force and in separate guidance when the scheme was ultimately launched—described it as the ‘ Cultural Gifts Scheme’. However, the Schedule in FA 2012 is titled ‘...
FORTHCOMING CHANGE: The Finance Bill 2025–26 proposes that, from 6 April 2027, unused pension funds and death benefits will be treated as part of a deceased member’s estate, and thereby fall within the inheritance tax ( IHT) regime. These rules will not extend to death-in-service benefits paid to active members in relevant employment, nor to a dependant’s scheme pension (meaning a DB scheme spouse’s or dependant’s pension). The standard exemptions, including those for spouses and civil partners, will continue to apply. Personal representatives will be chiefly responsible for paying any IHT arising. For further information, see the following: Practice Note: Inheritance tax and pensions News Analyses: HMRC— Reforming inheritance tax—unused pension funds and death benefits HMRC confirms new IHT rules on unused pension funds to apply from 6 April 2027 HMRC policy paper: Inheritance Tax: unused pension funds and death...
STOP PRESS: Abolition of non-dom regime and introduction of residence-based IHT regime Finance Act 2025 ( FA 2025), which received Royal Assent on 20 March 2025, enacts the ending of the remittance basis of taxation and introduces a residence-based system from 6 April 2025. FA 2025 also removes domicile as the principal criterion for determining inheritance tax liability. Further measures include updates to the rules for excluded property, the ending of protected settlements status for offshore trusts, and revisions to overseas workday relief. For detailed guidance, see Practice Notes: The abolition of the remittance basis of taxation from 2025–26 and A new residence-based regime for IHT from 2025–26. See also: Finance Bill Tracking Service: Key dates ( Finance Bill 2025) and Finance Act 2025. Summary of key reporting obligations This Practice Note reviews a range of tax and regulatory frameworks that require...
Charities have access to a wide range of investments, from straightforward interest‑bearing bank accounts through to hedge funds. The tax treatment of any holding is, understandably, a vital consideration, and a charity should refer to the HMRC list of ‘approved investments’ when forming its investment strategy. See Charity investment - definitions. Possible investments The Charity Commission identify several possible investment options. These, among others, include: derivatives private equity underwriting hedge funds buildings or land common investment funds Specific investment characteristics When choosing where to invest, trustees should always remain mindful of their duties in relation to investments. The Charity Commission state that investments can be a major source of funding; however, investing also exposes charities to risks which, if not properly managed, can affect not only the charity but also public trust and confidence in the sector at large. For this...
When an individual disposes of an asset and realises a profit of a capital nature, a taxable capital gain may arise. In determining whether a charge to tax is triggered, consider: whether the asset, the act of disposal, and the disposer are of kinds within CGT’s scope whether the ‘consideration minus costs’ computation in Practice Note: How is a capital gain calculated? produces a positive figure whether any exemption or relief is available whether losses exist to set off against the gain These points are outlined below. For what distinguishes capital from revenue profits, see Practice Note: Taxation of trading profits—basis, receipts and deductions— Receipts— Capital v revenue. Note that particular corporate tax regimes override the chargeable gains rules in some cases, notably the intangible fixed asset rules and the loan relationships rules. For more detail, see: Intangible fixed assets and...
ARCHIVED: This archived Practice note reviews business investment relief ( BIR), the form of remittance relief or exemption available where a qualifying investment is made. It explains what amounts to a ‘qualifying investment’, identifies who is eligible to invest, and states the deadline for deploying the funds. It also discusses anti-avoidance measures together with the operation of the advance assurance facility. STOP PRESS: Abolition of the non-dom regime and introduction of a residence-based IHT regime. The Finance Act 2025 ( FA 2025), which received Royal Assent on 20 March 2025, legislates to abolish the remittance basis of taxation and to institute a residence-based system with effect from 6 April 2025. FA 2025 likewise replaces domicile as the principal test for inheritance tax liability. Other reforms include: amendment of the rules determining excluded property status, the abolition of protected settlements status of offshore trusts, and ...
This Practice Note reviews the principal procedural aspects of family proceedings that engage trust assets, including the issue and service of proceedings. It also explains the steps required to add a trustee or a third-party beneficiary to the case, highlights evidential considerations, and summarises the court’s powers to compel a non-party to provide disclosure. Initial considerations Where either party holds or benefits from a trust interest, the applications made and the ensuing procedure will depend on the circumstances, which determine which of the three principal approaches to trust assets should be adopted, namely: considering trust assets as a resource available to one party—see Practice Note: Introduction to trusts within financial proceedings— Trusts as a financial resource the court exercising its power to make a variation of settlement order under section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil...
This Practice Note offers clear practical guidance on the nature of trusts and how trust assets are dealt with in family financial remedy cases. It also reviews pertinent case law, the situations in which trust property might be treated as available to a party as a financial resource, and the making of ‘judicious encouragement’ orders directed at trustees. When faced with an application for a financial remedy, the court commonly adopts three principal approaches to trusts: regarding trust income or capital as a resource accessible to either party (or refusing to do so)—see: Trusts as a financial resource using its power to vary a nuptial settlement under section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or the parallel provisions in the Civil Partnership Act 2004 ( CPA 2004)—see Practice Note: Trusts—variation of a nuptial...
This Practice Note This Practice Note examines breaches of trustees’ duties that consist solely of negligent acts or omissions, and do not extend to misapplying trust funds or infringing fiduciary duties, such as the obligation on trustees to put beneficiaries’ interests before their own. Liability for misapplying trust property and for fiduciary breaches is treated differently from liability for a negligent breach of trust, and those topics are addressed in other Practice Notes. Before considering negligent breach, it is necessary to outline how it differs from other categories of breach. In short, a trustee who commits a negligent breach of trust is liable to furnish equitable compensation, a remedy akin to a professional’s liability in negligence. This is to be distinguished from a trustee’s obligation to restore the trust where the assets have been misapplied by, for example, paying the wrong persons, making...
Examples of claims against trustees for breach of investment duties include: delay—where the trustee is slow to deploy trust capital poor investment choices—e.g. reckless exposure to high-risk, undiversified holdings unauthorised investments—such as disregarding a mandate to invest only in specified assets not investing the trust fund as required Trustees' powers of investment Trustees should confine themselves to authorised investments. They must consider both the statutory general power of investment and any extra powers, exclusions, or limits set out in the trust instrument. The “general power of investment” permits trustees to make any kind of investment they could make if absolutely entitled to the trust assets. An exception applies to “investments in land other than in loans secured on land”, which are governed by a separate provision (see “ Investments in land” below). This general power sits alongside powers conferred other than under the...
THIS PRACTICE NOTE APPLIES TO TRUST- BASED OCCUPATIONAL PENSION SCHEMES Trustees can face personal liability if a breach of trust leads to loss for the pension scheme. This may arise where trustees: operate beyond the powers set out in the scheme’s trust deed and rules, or fail to comply with legislation or the law of trusts. Trustees should ensure that sufficient safeguards exist to protect them against personal liability. With pensions legislation becoming increasingly complex, trustees who do not seek appropriate advice and who lack the necessary knowledge and skills are liable to make errors when administering pension schemes. Directors of a corporate trustee are generally considered to have stronger protection from personal liability than individual trustees. In the absence of dishonesty, the court is unlikely to permit a claim against those directors for a breach of trust by the trustee company, mainly because of the...
Note that this Practice Note concerns only trust property comprising an interest in land. Transferring assets to a trust Assets are placed into a trust when: the trust is brought into being, or the settlor contributes further assets to it, or the trustees acquire new property or settle trust assets on new trusts A trust may arise by will, or during the settlor’s lifetime. A lifetime arrangement can be made by: a self-declaration of trust by the existing owner of the land interest, or a transfer of the land to trustees to hold on trust which, either at the outset or later, is “manifested and proved by some writing signed by a person who is able to declare such a trust”: see section 53(1)(b) of the Law of Property Act 1925 ( LPA 1925). “ Writing” includes email: see Khan v Khan For the formal requirements when...
What is a security agent? The security agent plays a pivotal role in syndicated transactions. In a syndicated loan, the security agent (often referred to as the ‘security trustee’) holds the transaction security on trust for the lenders and any other secured creditors, including hedging counterparties. Although commonly labelled a security agent, the function is not an agency role but a trusteeship. Using a trust structure to hold the transaction security offers significant benefits in syndicated lending, where the creditor group usually shifts over time as lenders transfer their loans to new lenders (see Practice Note: Introductory guide to loan transfers). The key advantages are as follows: the trust structure removes the need for security to be granted separately to each creditor, which can be costly and time‑consuming; and the security is vested in the security trustee for the benefit of the...
Relevant property The phrase 'relevant property' identifies a class of trust assets that falls within a distinct inheritance tax ( IHT) regime. As outlined in Practice Note: Introductory guide to the taxation of trusts, the IHT treatment of trust assets sits in two principal groupings: beneficial entitlement relevant property Within the 'beneficial entitlement' grouping, trust assets are charged to IHT as though the beneficiary owned them outright. They are regarded as the beneficiary’s and are included within their estate. This generally applies where the beneficiary enjoys a qualifying interest in possession ( QIIP), or holds an absolute entitlement to the trust assets. See Practice Notes: Qualifying interest in possession trusts— IHT treatment and Bare trusts— IHT. In contrast, relevant property has a separate tax existence. Once it is effectively taken out of the settlor’s estate, it is not assessed as part of any other...
Winding up the trust Before bringing the trust to an end, the trustees must have settled or set aside funds for all outstanding liabilities, addressed any compliance issues, and identified the beneficiaries who are entitled to the trust assets. Winding up the trust will involve: preparing final trust accounts determining each beneficiary’s entitlement transferring legal ownership of the trust assets to the beneficiaries obtaining an appropriate release or discharge Trust accounts Beneficiaries are entitled to be kept informed about the state of the trust property, and trustees must be ready at all times to produce accounts. Copies are generally supplied, although strictly beneficiaries are entitled to inspect the original accounts and to have copies made at their own expense. Trustees must also allow a beneficiary to examine all documents connected with the trust (trust documents), but not those that would expose the reasons for the...
ARCHIVED: This Practice Note is archived and not maintained. Temporary non-residence conditions The pre-2013 regime applies where an individual’s temporary spell of non-residence lasts five years or fewer. As a result, those provisions ultimately lapse on 6 April 2018, when anyone who departed the UK in 2012/13 will have finished a five-year period of non-residence. Paragraph 158 of Schedule 45 to the Finance Act 2013 ( FA 2013) provides that the existing temporary non-resident provisions, as they stood immediately before the day the Act was passed, continue to apply on and after that date in any case where the year of departure (as defined in Part 4 of the Schedule) is a tax year prior to 2013–14. The pre-6 April 2013 temporary non-residence conditions are: the taxpayer meets the residence requirements for any year of assessment they did not meet those...
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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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