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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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Key features of the Will and attorney maker The Will and attorney maker ( WAM) is a Will‑centred product (not a ‘clause‑based’ or ‘build‑your‑own Will’ tool) and is designed to automate the following eight Wills by asking relevant interview questions: gift to spouse outright, then to children outright wholly discretionary spouse on a flexible life interest trust, remainder to children outright to spouse outright, then on discretionary trust nil rate band legacy into discretionary trust; residue to spouse on a flexible life interest trust; remainder to own children outright legacy of business property into discretionary trust; residue to spouse outright; then to children outright individual unmarried with no children unmarried, divorced or separated with children and no partner Explanatory notes and letters of wishes for chattels can also be generated to accompany each Will, and the WAM allows you to...
Within this Practice Note, an incapacitated individual is termed the ‘adult’. For the statutory basis for guardianships, see Practice Note: Adults with Incapacity ( Scotland) Act 2000. For details on applying to appoint a guardian, refer to Practice Notes: Guardianship applications in Scotland—pre-application matters and Guardianship applications in Scotland—court process. General principles Anyone appointed under the Adults with Incapacity ( Scotland) Act 2000 ( AI( S) A 2000) must carry out the office in accordance with the s 1 principles, which can be summarised as: the appointment should confer a benefit on the adult any intervention should be the least restrictive of the adult’s freedom the adult’s wishes, past and present, must be considered so far as reasonable, the views of other relevant parties should be taken into account the adult should be encouraged to use their abilities wherever possible These operate as the guiding principles....
FORTHCOMING CHANGE: The Welsh government continues to review the ongoing availability of multiple dwellings relief, with a formal announcement anticipated in Spring 2025. This Practice Note outlines land transaction tax ( LTT), which replaced stamp duty land tax ( SDLT) in Wales with effect from 1 April 2018. Three related companion Practice Notes examine particular aspects of the tax in greater detail, as set out below: Wales: Land transaction tax ( LTT)—chargeable consideration and rates of LTT Wales: Land transaction tax ( LTT)—particular transactions and tax payers, and Land transaction tax ( LTT)—administration and compliance Background The Wales Act 2014 provides for SDLT to be disapplied in Wales with effect from 1 April 2018 and enables the Welsh Government to introduce its own tax on transactions in land in Wales. The legislative framework for LTT is set out in the Land...
This Practice Note This Practice Note reviews employment law matters that can emerge in connection with volunteers and voluntary workers engaged in voluntary or charitable activity. It covers how volunteers are recruited (notably criminal record vetting and immigration considerations), arrangements made with volunteers, the national minimum wage, equality and banned conduct, data protection, and health and safety. In broad terms, a person is regarded as a volunteer where they are free from any duty to work but choose to carry out tasks without remuneration. In the absence of consideration, no binding contract can exist (whether of employment or worker status). That said, volunteers may have out-of-pocket expenses properly repaid without jeopardising their volunteer status. A volunteer may generally arrive and leave at their own discretion. Because volunteer positions are frequently loosely defined, if any form of consideration is identified, the role performed by the...
Whether a Will has been validly revoked turns on the testator’s intention and is chiefly a question of fact. As a result, the authorities are fact‑sensitive, though the core principles are set out below. Involuntary revocation is limited to revocation by a later marriage, or to particular provisions that apply on the dissolution of a marriage or civil partnership. For guidance on involuntary revocation, see Practice Note: Revocation of Will by marriage or civil partnership. Modes of voluntary revocation At law, a Will remains revocable by the testator until death. Revocation cannot be effected in any manner the testator chooses; section 20 of the Wills Act 1837 ( WA 1837) prescribes the permitted methods: by a subsequent Will or codicil, duly executed by a written declaration of an intention to revoke the Will, executed with the formalities of a Will by...
This Practice Note outlines the process by which a Limited Liability Partnership ( LLP) may enter into a voluntary arrangement ( VA). It does not extend to Limited Partnerships; for those, refer to Practice Note: Limited partnerships and insolvency—key principles. Applicable legislation The Limited Liability Partnerships Act 2000 ( LLPA 2000) established LLPs and should be read alongside the Limited Liability Partnerships Regulations 2001 ( LLPR 2001), SI 2001/1090. Through the LLPR 2001, SI 2001/1090, the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, are applied to LLPs......
This Practice Note offers practical direction on correctly executing documents when one or more parties to a contract are not physically together, often referred to as virtual signing or a virtual closing. The Law Society has brought together established materials covering: execution of documents by virtual means, use of electronic signatures, its ‘ Tips on how to operate in practice’ concerning virtual execution and the use of e‑signatures, and Q& A on using electronic signatures and completing virtual executions, including ‘ Our position on the use of virtual execution and e‑signature during the coronavirus ( COVID‑19) pandemic’. We have assembled a comprehensive, interactive collection to help users identify and navigate the concepts and common issues involved in executing documents, including by virtual means. Each section or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For more...
This Practice Note sets out the particular rules governing VAT on costs that fall to be the subject of either summary or detailed assessment before the High Court. The applicable provisions are contained in CPR PD 44. Entitlement to This is addressed at CPR PD 44, para 2.3 through to CPR PD 44, para 2.6. The party seeking recovery of costs bears responsibility for ensuring that VAT is claimed only if, and only to the extent that, it cannot recover from HMRC the VAT it has incurred ( CPR PD 44, para 2.4). if the VAT is recoverable from HMRC, it should not be included in a claim for costs if only a proportion of the VAT is recoverable from HMRC, include only that proportion which is not recoverable from HMRC in the claim for costs The legal adviser’s VAT registration number must appear in a...
ARCHIVED: Following the changes proposed under The Windsor Framework, the details of which the UK government publicly set out on 27 February 2023, this Practice Note has been formally archived and is no longer updated. The material within this Practice Note remains correct as at 1 January 2021. For additional detail on The Windsor Framework and what it means for VAT in Northern Ireland, see: The Windsor Framework. This Practice Note addresses VAT in relation to the movement of goods between Northern Ireland ( NI) and the EU from 1 January 2021 (and how it applied to all VAT-registered businesses in the UK on or before 31 December 2020). Distance selling arises where a VAT-registered EU supplier sells and ships goods to a customer in another EU country who is not registered for VAT. The customer might be a private person, or an...
Variation of trusts As a general principle, trustees must give effect to the settlor’s intentions as expressed in the trust instrument. Nonetheless, situations can develop in which an alteration is advisable, for example in the interests of efficient administration. Where that occurs, the trustees will initially assess whether a change can be achieved without recourse to the court. Express powers The trust deed may have been composed to grant the trustees authority broader than that contemplated by the general law. Contemporary trust documents are typically designed to vest the trustees with considerable discretionary powers and flexibility. Acting under express powers contained in the deed does not amount to departing from the trust terms, since those powers are themselves part of the trust’s provisions. Powers of appointment A power of appointment is an authority vested by one person in another to decide how the property is to be held. There are...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first comprehensive re-examination of Scottish trust law in more than a century, since the cornerstone Trusts ( Scotland) Act 1921 was enacted. As regards trusts, a substantial proportion of its provisions will only operate once Scottish Ministers make further secondary legislation to commence them. By contrast, most succession provisions took effect on 30 April 2024, with a handful of minor trust-related points commencing on 26 June 2024. See News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be updated further to reflect, and align with, this new legislation. At common law, once a trust has taken effect, the scope to vary its terms or purposes is very narrowly confined. Where an inter vivos trust is...
Why use environmental consultants? Environmental consultants operate across varied sectors and disciplines, working to regulate, manage and prevent pollution of air, soil and water. They evaluate environmental risks, check conformity with environmental legislation and best practice, and appear as expert witnesses in formal legal proceedings......
Foreign Account Tax Compliance Act ( FATCA) The Foreign Account Tax Compliance Act ( FATCA) comprises three main pillars: strengthened due diligence, expanded information reporting, and a potential withholding tax on US‑source payments. This Practice Note explores typical issues encountered in implementing, and complying with, FATCA, such as: whether refunds or tax credits can be claimed for amounts withheld under FATCA which obligations are excluded (grandfathered) from FATCA what counts as pre‑existing obligations for FATCA purposes For a discussion of the broad meaning of a foreign financial institution ( FFI) under FATCA, and the obligations triggered by falling within scope, see Practice Note: US: FATCA—foreign financial institutions ( FFIs). For an outline of what a non‑financial foreign entity ( NFFE) is (and is not), and the different types of agreements that can ease FATCA’s burdens, see Practice Note: US:...
The Foreign Account Tax Compliance Act ( FATCA) rests on three core pillars: heightened due diligence wider information reporting a possible withholding tax on US‑source payments FATCA’s primary aim is to secure information on offshore accounts owned by US persons, thereby imposing extensive disclosure and reporting obligations on foreign financial institutions ( FFIs) and other overseas entities. A significant concern identified by the Internal Revenue Service ( IRS) is the use of foreign corporations to hold assets abroad, which contributes to under‑reporting of income by US taxpayers. This Practice Note addresses: what a non‑financial foreign entity ( NFFE) is what an excepted NFFE is what foreign financial institution ( FFI) agreements are what an intergovernmental agreement ( IGA) is the overarching reporting and due diligence duties under an IGA For analysis of the expansive definition of an FFI for FATCA...
Introduction On occasion, it becomes necessary to make an urgent application to the Court of Protection in one of two scenarios: when no proceedings are on foot, yet urgent relief from the court is required before the preliminary steps to issue can be completed; or when proceedings are already underway and an unforeseen development means the court must be approached swiftly during those proceedings In essence, the same principles apply in either scenario (and they apply equally whether the application concerns the person’s health and welfare or their property and affairs). Under Practice Direction 3B on case pathways ( PD 3B), more formal requirements govern how the first category above should be brought. See Practice Note: Making an application to the Court of Protection. The particular requirements for medical treatment cases (despite their inclusion within the personal welfare case management pathway) are covered in...
This Practice Note outlines the key characteristics of an unlimited company and explains why an unlimited company might be chosen as the vehicle for carrying on a business rather than a limited company... What is an unlimited company? An unlimited company is a private company whose members are not restricted in their liability to contribute towards the company’s obligations on a winding up. An unlimited company cannot be a public company. It may exist with or without share capital. Where shares are issued, they provide working capital and indicate each member’s rights, but they do not cap members’ liability... Why incorporate as an unlimited company? Members of unlimited companies do not enjoy one of the commonly cited advantages of incorporation over being self-employed or operating as a partnership: limited liability. Consequently, if the company is wound up, members themselves must meet any debts,...
This Practice Note examines the meaning of an unregistered company under section 1043 of the Companies Act 2006 ( CA 2006) and the Unregistered Companies Regulations 2009, SI 2009/2436, and sets out the principal characteristics of unregistered companies. The definition captures incorporated bodies that are not formed under the CA 2006 or any other public general Act of Parliament. It does not extend to unincorporated associations. What is an unregistered company? An unregistered company is an uncommon type of incorporated entity that is neither formed nor registered under the CA 2006 nor under any other public general Act of Parliament. It includes entities established by private Acts of Parliament (which differ from a public general Act) or by Royal Charter. Companies incorporated by Royal Charter account for by far the largest proportion of unregistered companies (see incorporated by Royal Charter...
When one or more people set out to establish a business, they must choose the vehicle through which it will operate. Beyond the commercial and legal drivers for that decision (see Practice Note: Forms of business vehicle), the tax profile of each option can be crucial in judging whether it suits a given enterprise. Before considering how tax steers the selection, it is helpful to grasp the essentials of how each vehicle is taxed. This Practice Note outlines the tax consequences of trading as a: sole trader general partnership limited partnership limited liability partnership limited company For ease, it assumes one or more unconnected UK resident individuals are starting a UK trading business on a commercial basis. It provides a summary of the overarching points and does not address the detailed rules or their application to...
The UK’s first formal tax residence test for individuals, the statutory residence test ( SRT), took effect on 6 April 2013 and has applied to determine an individual’s residence for tax years 2013/14 onwards. Further details can be found in the following Practice Notes: The structure of the statutory residence test The statutory residence test—key concepts and definitions This Practice Note outlines how the rules operate when a person arrives in, or leaves, the UK part way through a tax year. It, together with the other SRT Practice Notes, provides only a summary and is not comprehensive. Inevitably, some interpretations may be open to debate or certain situations may not have been contemplated by the draftsmen, so primary legislation should always be consulted. HMRC has issued detailed guidance on the legislation, which may be updated periodically. The current SRT guidance is...
When administering a deceased person’s estate, the assets will typically produce income and, at times, capital gains may arise. The administration period begins on the day following death and concludes once the estate is effectively finalised. Throughout this time, income received by the personal representatives ( PRs) and gains realised on disposals of estate property are charged on the estate as a distinct entity. Determining precisely when the administration period is over is not always straightforward. HMRC considers the end date to be when the residue has been ascertained, though it accepts that administration can carry on beyond that stage. As a practical yardstick, this is a sensible approach. The residue is ascertained when every asset is collected and all debts and liabilities are settled. PRs may still retain assets or cash for beneficiaries, but then they hold them as bare trustees. In...
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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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