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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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CGT position on an individual’s death The rules governing CGT on death provide that: assets that the deceased had the power to dispose of are treated as acquired by the personal representatives ( PRs), or any other person to whom they pass, at their market value on the date of death and are treated as not disposed of by the deceased, which means that: death is not a disposal for CGT purposes and no CGT arises as a consequence of the individual’s death, but the assets take on a fresh base value for CGT; i.e. any unrealised gains up to death are effectively wiped out, and assets that have increased in value since their original acquisition by the deceased receive a tax-free uplift when calculating future gains in the hands of the PRs or...
Conditional relief from inheritance tax ( IHT) on a transfer of value of a qualifying asset is granted at the Treasury’s discretion, with applications evaluated by the relevant body, currently Arts Council England. The purpose, mirroring other heritage property reliefs, is to secure the retention of pre-eminent heritage objects within the UK and to safeguard them for the public good, rather than see them disposed of to private traders. For a transfer to secure conditional exemption, specified requirements must be satisfied and the owner (or another relevant person) must undertake to keep the item in good repair and to permit reasonable public access. Conditions for exemption to apply In order for conditional exemption to operate, the following must be satisfied: the property transferred must qualify (and be designated by the appropriate body) as pre-eminent for its national, scientific, historic or artistic interest, or, for land and...
Transfer of assets abroad code ( TAA Code) Part 13, Chapter 2 of the Income Tax Act 2007 ( ITA 2007) sets out key UK anti-avoidance rules referred to as the transfer of assets abroad code. The TAA Code creates an income tax charge where a ‘relevant transaction’ exists in three situations. First, a charge applies to individuals treated as having income under ITA 2007, s 721—those with the power to enjoy such income (see Practice Note: Transfer of assets abroad—transferors having the power to enjoy income). Secondly, a charge applies to individuals treated as having income under ITA 2007, s 728—those who receive capital sums (see Practice Note: Transfer of assets abroad—transferors receiving capital sums). Together, these are called the ‘transferor charge’. Thirdly, a charge applies to individuals to whom income is treated as arising under ITA 2007, s 732 as a...
For an overview of the changes to the taxation of non-domiciled individuals and the removal of the remittance basis from 6 April 2025, see Practice Note: The abolition of the remittance basis of taxation from 2025–26. For details of the remittance basis before 6 April 2025, refer to Non-domiciliaries and the remittance basis—overview [ Archived]. HMRC’s guidance on the reforms appears in the following manuals: Remittance Basis and Domicile RDRM70000 and Residence and FIG Regime RFIG40000. What is the TRF? The temporary repatriation facility ( TRF) is an elective scheme designed to encourage former remittance basis users to pay tax on unremitted foreign income and gains ( FIG) that arose before 6 April 2025, by applying a reduced flat rate. The TRF is available for three tax years, from 6 April 2025 to 5 April 2028. FIG designated to the facility is taxed at 12% in...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 gained Royal Assent on 30 January 2024, representing the first overhaul of Scottish trusts law in more than a century since the Trusts ( Scotland) Act 1921. Certain provisions on succession began on 30 April 2024, while others have yet to commence. The principal updates to modernise the regime are set out in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be further revised to reflect this new legislation. This Practice Note considers section 29 of the Family Law ( Scotland) Act 2006 ( FL( S) A 2006), concerning the right of a surviving cohabitant to ask the court for an order for payment from an intestate estate in Scotland. The court retains discretion as to whether to make an award when asked. These...
This Practice Note This Practice Note offers a concise outline of common contractual terms governing the end of employment and directs readers to fuller resources. An employment contract can cease in several ways. In some cases the ending amounts to a dismissal, giving the employee certain statutory protections, for example the ability to bring an unfair dismissal claim. In other situations the employee leaves of their own accord; in those circumstances they generally cannot claim against the employer unless the resignation is a constructive dismissal. Parties should address termination clauses at the very start of employment, particularly as views on what is suitable may diverge. By the time those clauses are relied upon, the relationship may have deteriorated and each side may take a different stance. Contracts commonly allow termination to occur: on the expiry (without renewal) of a fixed term: the agreement may run for a stated...
This Practice Note considers negligence and contractual claims against auction houses and valuers in relation to artworks. It reviews four decisions, drawing out how the courts have approached questions concerning the issues below: The focus is on how those issues have been dealt with judicially. the attribution of artwork (see Practice Note: Art law-authenticity, provenance and attribution of artworks) the duty owed and the appropriate standard of care in such cases the assessment and quantification of damages It should be noted that negligence claims about objects of art are highly fact-dependent. The terrain is complex in legal, evidential and related respects. This Practice Note provides a concise overview of select key themes; securing specialist advice at the earliest possible stage to navigate the complexities will almost invariably be sensible. For an introduction to art law for Private Client...
‘ The attribution of works of art to particular artists is often a matter of great controversy ’ (per Sir Raymond Evershed MR) The art market’s value keeps rising, and linking a piece to a specific creator can dramatically influence its price. As Jordan Holland, a barrister working in art law, has noted, a sought-after attribution can lift a work from tens of thousands of pounds into the tens of millions. Combined with the arrival of new collectors, buyers and art investors, it is unsurprising that the court is increasingly called upon to address the attribution of art and cultural property. In doing so, it must confront questions unlike those it ordinarily faces. See: The approach of the English court to connoisseurship, provenance and technical analysis, Jordan Holland, Dec. 2012, Art Antiquity & Law ( Vol. 17, Issue 4), Institute of Art and Law (not...
For a primer on art law aimed at Private Client practitioners, consult Practice Note: Art law-introduction for Private Client practitioners. Restitution is a nuanced field. For a detailed overview of the general law in England and Wales on this area, see: Unjust enrichment and restitution-overview. This Practice Note examines restitution within an art law frame. Although it centres on English law, it touches on several core restitution issues of relevance to practitioners. As the subject is global in reach, continually developing and bound up with varied ethical and public policy concerns, this introductory note aims only to flag key features, without attempting an exhaustive treatment of every element or complexity that may arise. Restitution in art cases Historical context War all too often brings widescale looting and pillage across territories caught up in the fighting. In earlier times, it was accepted that victors could take cultural and...
Business asset Capital gains tax ( CGT) may fall due when you realise a gain on the disposal of all or part of a business asset. A business asset is any asset connected to a trade or business, owned by an individual or the business. Examples include: a factory farm buildings agricultural land plant and machinery a furnished holiday letting ( FHL) shares registered trade marks Business assets may benefit from CGT reliefs; investment assets do not. Reliefs can apply where the asset has been used for business purposes. Furnished holiday accommodation For a property to qualify as an FHL and benefit from CGT relief, it must be: in the UK or the European Economic Area ( EEA) furnished with sufficient furniture for use as holiday accommodation available to the public for commercial holiday letting for at least 210 days...
Basic principle An individual calculates the gain or loss on a land disposal in the same manner as for any other asset. There are, however, specific rules for computing gains and losses where the individual: grants a lease assigns or surrenders a lease disposes of land that has been compulsorily purchased Leases For tax purposes, granting a lease is a part disposal because the landlord retains an interest, whether the underlying title is freehold or leasehold. Grants of leases are grouped into three types: a long lease carved out of a freehold or long leasehold interest a short lease carved out of a freehold or long leasehold interest a short lease carved out of a short leasehold interest Definition of lease For capital gains tax ( CGT), a lease includes: subleases tenancies licences any interest...
This practice note sets out two mechanisms by which trustees can reduce exposure to personal liability arising from their office: indemnities exoneration clauses in trust instruments Indemnities Trustees may reimburse themselves from the trust fund for expenses incurred in performing their trustee functions. This spans administration costs, taxes connected to the trust fund, and contractual obligations. It can also extend to the costs of actions against third parties and trust litigation, but care is needed to ensure such legal expenses are payable from the fund rather than personally. A trustee’s right to be indemnified arises only where the costs were incurred: properly, and while acting in their capacity as trustee In FMA v BBA, a case involving compromised trust proceedings, the trustees were refused an indemnity from the trust fund for costs incurred to advance their own interests rather than those of the...
Questions about bailment frequently surface within the art sphere. For instance, warehousing or freight operators may owe bailment obligations when holding and/or moving artworks or other chattels. Lending pieces and/or using artworks as security or collateral can also create bailment relationships. Claims founded on breach of contract and/or negligence often additionally plead bailment. Further illustrations appear throughout this Practice Note. Bailment is a nuanced field. This Practice Note concentrates on bailment issues in the context of art law. For a fuller outline of bailment law generally, see Practice Note: Bailment. See also Q& A: How are damages quantified when bailed goods have been negligently lost? For a summary of aspects of art law pertinent to Private Client practitioners, see Practice Note: Art law-introduction for Private Client practitioners. Additional examples are set out across this Practice Note. What is...
ARCHIVED This Practice Note consolidates material on fiscal events across the 2022–23 tax year, beginning with the Spring Statement on 23 March 2022 and running through to the Finance Act 2023 ( FA 2023) and the passage through Parliament of a second Finance Act in 2023. For details on the Autumn Finance Bill 2022, which became Finance Act 2023 ( FA 2023), and on the Spring Finance Bill 2023-tracking each Bill’s journey towards Royal Assent and outlining their principal measures-see: Tax- Finance Bills 2022–23 tracker. For further background on the annual Budget and Finance Bill process, see Practice Note: The Budget and Finance Bill process. Spring Finance Bill 2023 Spring Finance Bill 2023 ( Finance ( No 2) Bill 2023) was issued on 23 March 2023 and is expected to become the second Finance Act of 2023 ( Finance ( No 2) Act 2023). Our...
Introduction to the art market and art law Over the past three decades, the art market has altered markedly: Key hubs are now London, New York and Hong Kong, with Paris the fourth largest centre, and domestic markets serving lower-priced art and collectables Transactions have grown more opaque and anonymous Values for iconic works have soared- Leonardo da Vinci’s Salvator Mundi achieved $450.3m in 2017 Leading auction houses exert ever greater power Collectors engage art advisers for due diligence, access and guidance, though some are not suitably qualified The past 20 years have seen the rise of ‘mega’ art fairs, appearing roughly every four months worldwide Art is increasingly treated as an asset class-and promoted as an investment by auction classes In an ever more global market, lawyers acting for collectors, businesses and...
This Practice Note outlines compulsory and discretionary business rates relief for charities, plus empty property rates, mitigation and risk. FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) received Royal Assent on 24 February 2022 and will be introduced in phases up to March 2024. It implements the majority of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a summary of the accepted recommendations, see News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. For further guidance on the roll-out of CA 2022, see News Analysis: Charities Act 2022-what do we know so far? Discretionary relief Under sections 43(6) and 47 of the Local Government Finance Act 1988 ( LGFA 1988) and LGFA 1988, Sch 4ZA Pt 2, para 2, a charity occupying commercial premises qualifies for a mandatory 80% reduction in business rates,...
Business rates are typically payable by the relevant ‘owner’ where non-domestic premises are unoccupied, though specified exemptions apply. This Practice Note explains liability for empty property business rates, highlighting common exemptions (often referred to as ‘empty rates relief’) with a focus on England. Occupation and possession are decisive-whether actual or attributed through ownership. Empty properties: rates A ratepayer is chargeable for the full non-domestic rate whether a property is wholly in use or only partly occupied. Where premises are partly occupied for a short period, the local authority may, in certain situations, use its discretion to grant relief for the unoccupied portion. For rating purposes, the ‘owner’ of a hereditament or land-and therefore the person liable-is the party entitled to possession. See section 45 of the Local Government Finance Act 1988 ( LGFA 1988). See Practice Note: Liability for business rates- Owners. Under LGFA 1988, s 65(1), the...
One of the Charity Commission’s core statutory roles, as the regulator of charities, is to identify and examine suspected misconduct or mismanagement in the running of charities, and to take corrective or protective measures. This remit extends to: all charities in England and Wales, whether or not registered with the Commission; and all funds raised for charitable purposes in England and Wales, even where the money is not raised by a charity (for example, fundraising appeals run by newspapers, broadcasters or other voluntary organisations in response to a natural disaster or famine) The Commission carries out this function: in serious matters, by opening a formal statutory ‘section 46’ inquiry; or in non-serious matters, by exercising its general regulatory powers The approach taken is determined by the Commission’s published Risk Framework tool. In Part 5 of the Charities Act 2011 ( CA 2011) these are...
Practitioners bringing claims concerning estates and trusts should be conversant with: CPR Parts 7 and 8, which set out the correct procedure for issuing proceedings; CPR Part 57, dealing with probate and inheritance claims; CPR Part 64, addressing estates and trusts; the Chancery Guide, which offers practical detail and guidance not found in the CPR or its Practice Directions, particularly Chapter 25. There is no pre-action protocol for claims under CPR 57 and CPR 64, but parties should have regard to the Practice Direction Pre- Action Conduct and Protocols. The court will expect the parties, bearing in mind the aims of keeping them on an equal footing, saving expense and proportionality, to observe that Practice Direction, act reasonably in exchanging information and documents relevant to the claim, and generally seek to avoid the need to issue...
Under the Limitation Act 1980 ( LA 1980), the expiry of a limitation period does not extinguish the underlying right; it simply blocks the claimant’s remedy. Limitation must be raised by the defendant, and when properly pleaded it operates as a complete defence. Once pleaded, the initial burden lies with the claimant to demonstrate they fall within time; if they do, the burden then shifts to the defendant to show otherwise. Sections 21, 22 and 23 of LA 1980 reaffirm the earlier position set out in sections 19 and 20 of the Limitation Act 1939, and they extend to executors and trustees, including trustees of express, resulting and constructive trusts of property. LA 1980 also preserves the distinction between: trustees who have acted fraudulently or retained trust assets or converted them to their own use, and trustees...
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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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