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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 How to guide outlines what to think about when establishing a trust and points to related resources. It focuses on private trusts (not charitable trusts). What form will the trust take? There are several ways in which a private trust can be created: An express private trust can arise by: lifetime declaration by the settlor (see Practice Note: Creation of trusts—by declaration) transferring property to trustees subject to a trust arrangement (see Practice Note: Creation of trusts—by transfer of property to trustees) Will (see Practice Note: Creation of trusts—by Will) exercise of trustees’ powers (see Practice Note: Creation of trusts—by exercise of trustees powers) the Court in particular proceedings ...
This Practice Note explains the tax consequences to consider when a relationship ends, ie separation, divorce or dissolution, covering income tax, capital gains tax, stamp duty land tax and inheritance tax. Independent expert guidance should be obtained where appropriate and necessary. As there are no particular tax consequences for relationships between unmarried couples or those who have not entered into a civil partnership, there are likewise no specific bespoke tax rules when their relationship breaks down. There is, however, a general capital gains tax ( CGT) principle that dealings not on arm's length terms must be treated as occurring at market value—a transaction between an unmarried/non‑civil partnership couple living together may well be regarded as not at arm's length. For married couples and civil partners, the principal relevant tax provisions applicable to spouses/civil partners stop applying when the...
Choosing whether to sell a family business, and deciding on the moment to do so, are among the weightiest calls a family may encounter. Some set out in enterprise with a future sale as the ultimate aim from the outset, while others arrive at this possible end to their commercial journey because they cannot see any other practical response to the question, ‘what comes next?’ However a family reaches the stage of debating a sale, the steps outlined below can support them in reaching the soundest possible conclusion for their circumstances. Timing External market conditions can, to a degree, shape when the decision is reached—for example, a buoyant deals market or consolidation within a sector. Yet internal dynamics are just as significant for effective planning, and they tend to lie more directly under the family’s...
FORTHCOMING CHANGE relating to a new SDRT exemption: As set out at Budget 2025, Finance Bill 2026 will create a new relief from the principal (but not the higher rate) SDRT charge, known as the UK listing relief. It will apply to contracts to transfer any chargeable securities in a company during the three years following the company’s initial admission of its shares (or depositary interests in shares) to trading on a UK regulated market, provided that first UK listing takes place on or after 27 November 2025. For further detail, see Practice Note: UK listing relief from principal charge to SDRT and News Analyses: Finance Bill 2026— UK listing relief— Stamp duty reserve tax holiday for new listings and Budget 2025— Tax analysis— Stamp and transfer taxes. FORTHCOMING CHANGE relating to the modernisation of stamp taxes on shares...
Stamp Duty Land Tax ( SDLT) is payable on chargeable land transactions, namely the acquisition of a chargeable interest. For additional guidance on how SDLT works in practice and its basic principles, see Practice Note: Land transactions, chargeable interests and chargeable transactions. In Scotland, with effect from 1 April 2015, SDLT was replaced by Land and Buildings Transaction Tax ( LBTT). See Practice Note: Scotland: Land and buildings transaction tax ( LBTT)—the basics. In Wales, with effect from 1 April 2018, Land Transaction Tax ( LTT) superseded SDLT. See Practice Note: Wales: Land transaction tax ( LTT)—the basics. Accordingly, references in this Practice Note to land, property, or similar terminology in the context of SDLT should be read and understood as excluding any interest in or over land located in Scotland (from 1 April 2015) and Wales (from 1 April 2018). The first...
FORTHCOMING CHANGE : On 30 January 2024, the Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent, representing the first significant review of trusts law in Scotland in more than a century since the principal Trusts ( Scotland) Act 1921. Provisions concerning trusts will commence only when Scottish Ministers introduce the necessary secondary legislation, whereas certain succession provisions came into force on 30 April 2024. The main reforms aimed at modernising the law are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes covering aspects of Scottish trusts and succession law will be further updated to align with this new legislation. At the outset, note that powers authorise trustees to act and advance the trust purposes, while duties oblige trustees to discharge an obligation. Source of trustees’ powers Trustees derive their authority from both the prevailing law and the relevant deed of...
If a needs assessment finds an adult must move into residential accommodation, they may choose, subject to their own financial circumstances, between privately funded or local authority arrangements accordingly. Whichever setting the adult ultimately enters, the oversight and guidance governing how such ‘care homes’ operate is generally consistent. Care homes are overseen by the Care Quality Commission, as are connected services, including community provision, mental health support and care delivered at home, all of which are particularly relevant to older clients. The principal legislation for the provision of residential care is: National Assistance Act 1948 ( NAA 1948) Care Act 2014 ( CA 2014) Other legislation of interest in relation to the physical provision of accommodation in a care home can be found in: Care Standards Act 2000 ( CSA 2000) Health and Social Care Act 2008 ( HSCA 2008) Care...
Public Guardian The Public Guardian is a statutory office-holder and an appointee of the Lord Chancellor. Whoever holds the Public Guardian role also serves as chief executive of the Office of the Public Guardian ( OPG), an executive agency of the Ministry of Justice ( Mo J), created when the Mental Capacity Act 2005 ( MCA 2005) came into force on 1 October 2007 at that time. A key objective of the MCA 2005 was to distinguish the Court of Protection’s judicial powers from the administrative and supervisory oversight functions of a government body. Under the MCA 2005, the Court of Protection exercises statutory jurisdiction over the property and affairs of the mentally incapacitated person ( P), while the Public Guardian undertakes the day-to-day administration and supervision of P’s affairs. The Public Guardian is also the formal registration authority for lasting and enduring powers of...
Forthcoming change: Sections 6–7 of the Finance Act 2026 provide that, with effect from 6 April 2027, an individual’s property income will be subject to income tax at the property basic rate of 22%, the property higher rate of 42%, and the property additional rate of 47% for a given tax year. A person’s property income is treated as the highest portion of their income, save where they also have savings and/or dividend income. Where savings and/or dividend income arises, the property income is taken to be the portion of the person’s income that falls immediately before the savings and/or dividend income. FA 2026, Schedule 1, makes consequential amendments to ITA 2007. For these purposes, property income means income that is: chargeable under Chapter 3 of Part 3 of ITTOIA 2005 (profits of a UK property business or an overseas property...
FORTHCOMING CHANGE : In the inaugural Budget of the new Labour administration on 30 October 2024, the Chancellor of the Exchequer, Rachel Reeves, announced that the currently unlimited 100% rate of APR will be restricted to the first £1m of value, taking into account the value of business property relief held by the taxpayer and which is also eligible for 100% relief. This change is expected to take effect on 6 April 2026......
This Practice Note examines the winding-up of an insolvent partnership treated as an unregistered company under the Insolvency Partnerships Order 1994 ( IPO 1994), SI 1994/2421, arts 7 and 9, on the petition of a creditor, member, responsible insolvency practitioner ( IP) or the Secretary of State, provided no simultaneous petition is issued against a member or members. IPO 1994, Sch 3, and Sch 5 (for a member’s petition) adjust elements of Part V of the Insolvency Act 1986 ( IA 1986), which addresses the winding-up of an unregistered company. Note: there is no provision for the voluntary winding-up of a partnership ( IA 1986, s 221(4), as modified by IPO 1994, SI 1994/2421, Sch 3 Pt I, para 3). Background General partnerships, unlike limited liability partnerships ( LLPs), do not possess separate legal personality, so partners remain jointly and severally liable for...
FORTHCOMING CHANGE : On 30 January 2024, the Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent, signalling the first comprehensive review of Scottish trust law in more than a century since the principal Trusts ( Scotland) Act 1921. The trust-related provisions will not operate until secondary legislation is made by the Scottish Ministers, while the succession elements took effect on 30 April 2024. The chief reforms aimed at modernising the law are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes covering Scottish trusts and succession will be further updated to align with this new legislation. CORONAVIRUS ( COVID-19) : Certain formal requirements for creating a valid Will in Scotland have been eased since the coronavirus pandemic. See News Analysis: Signing Wills in Scotland in times of social distancing. Making a Will On death, it must be determined whether a valid Will...
Following the Government’s reply to the Law Commission’s Modernising Wills: Final report, ministers accept that reform is required and have indicated that further announcements will follow once all 31 recommendations have been reviewed. The accompanying draft legislation reflects the report’s proposals, including repealing the Wills Act 1837 and introducing a new, future‑ready statute, as set out in Modernising Wills: Final Report Volume II: draft Bill for a new Wills Act... What is the position with the Wills Bill? The Law Commission issued the draft Wills Bill as Volume II alongside its report on modernising the law of Wills... What are the key provisions of Wills Bill? The Wills Bill seeks to re-enact the Wills Act 1837 in updated language together with 31 recommended reforms from the extensive report. The principal planned changes are: Power to make a Will and dispose of property by Will: section 1...
Follow the link below to obtain the training presentation. Contents Wills—essential principles Wills—contesting a Will Capacity to create a Will Executing a Will Further safeguards to secure validity Starting out on planning and drafting the Will What to include in a Will What else to include in a Will Will drafting—additional points to consider (across two slides) If the testator changes......
FORTHCOMING CHANGE: As set out in the Autumn Budget 2024, the government intends that, from 6 April 2027, unused pension pots and pension death benefits will fall within an individual’s estate for Inheritance Tax. This will cover both defined contribution and defined benefit arrangements, spanning UK-registered schemes and qualifying non- UK pension schemes. A technical consultation on how to implement these reforms has also been launched today, which closes on 22 January 2025. For more detail, see: Autumn Budget 2024 (para 5.52), OOTLAR (para 2.4), and Technical consultation – Inheritance Tax on pensions: liability, reporting and payment. Typically, the draftsperson meets the client to take instructions and gathers all pertinent information about their circumstances during that meeting and through other communication with the client. With those details and the client’s wishes for their Will, the overall structure of the Will can then be mapped out. It is then...
Overview Regulation ( EU) No 650/2012 (the Succession Regulation) has applied since 17 August 2015 across most EU Member States to both testate and intestate estates. As a rule, succession matters fall to the courts of the participating Member State where the deceased was habitually resident; however, if the deceased validly elected a choice of court, the courts of the participating Member State of his nationality may hear the case. There are also provisions for subsidiary and exceptional jurisdiction. The Regulation can influence an estate wherever there is a connection to any participating Member State in which it has direct effect. This includes individuals living in third states such as the UK, Ireland, Denmark, or those residing outside the EU. Generally, the law of the state of habitual residence (which may not be a Member State) governs succession, unless the deceased was manifestly more closely...
STOP PRESS: Abolition of non-dom regime and introduction of residence-based IHT regime The Finance Act 2025 ( FA 2025), which secured Royal Assent on 20 March 2025, brings in the abolition of the remittance basis of taxation and introduces a residence-based system from 6 April 2025. It also replaces domicile as the principal criterion for determining inheritance tax exposure. Revisions to the rules defining excluded property status Ending protected settlements status for offshore trusts Amendments to overseas workday relief For further detail, 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. CORONAVIRUS ( COVID-19) For guidance on the challenges and practicalities of taking instructions during the coronavirus ( COVID-19) pandemic, see Practice Notes:...
Civil partnerships The Civil Partnership Act 2004 ( CPA 2004) places those who form a civil partnership on the same footing as spouses in matters of succession, effective from 5 December 2005. Civil partnerships are available to same-sex couples and, from 2 December 2019, to opposite-sex couples too. There are two ways to register as civil partners: the standard route the special route by way of a Registrar General’s Licence, reserved for cases of unavoidable urgency Under the standard route, each partner must give notice of the intended civil partnership, which is displayed publicly for 28 days. If, after that period, no objections have been raised, a civil partnership schedule is issued to the parties. The civil partnership must then be registered within 12 months of the schedule’s issue. CPA 2004 establishes a statutory framework conferring on civil partners rights broadly comparable to those of...
STOP PRESS: 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, enacts the removal of the remittance basis and introduces a residence-based taxation model from 6 April 2025, with effect from that date. FA 2025 likewise substitutes domicile as the principal criterion for determining inheritance tax exposure. Additional reforms include, in particular, revisions to the rules defining excluded property, the removal of protected settlements status for offshore trusts, and key updates to overseas workday relief. For further detail on these measures, please 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. For many testators,...
Ordinarily, a Will moves smoothly through the probate process without complication or hindrance. Yet, if the language in the Will is unclear, the personal representatives ( PRs) may foresee a challenge about how it should be read or construed, whether concerning a particular provision or the document in its entirety. Over many years, case law has offered indicators on the meaning of specific words and phrases, assisting PRs who seek to reach agreement with the relevant beneficiaries so that the matter need not proceed to court. Even where a Will gives rise to an issue of interpretation, it remains possible for the PRs to settle a course of action with all beneficiaries, provided everyone is ascertained, of full age, and mentally capable. If that is not achievable, the PRs may turn to section 48 of the...
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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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