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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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What is a trust corporation Many law practices operate a trust corporation to perform fiduciary duties, including appointment as executor, administrator, trustee, attorney or deputy. This corporation is a distinct legal entity capable of holding assets. Trust corporations are widely regarded as the most appropriate vehicle to provide continuity and flexibility, since a corporate trustee does not retire, die or become ill as firm partners ultimately might. This model therefore promotes stable administration across matters and over time, whilst preserving consistent decision-making by a single, enduring officeholder within the firm's entity structure. Resorting to a trust corporation can also trim costs, because there is less, for example, need to manage the not infrequent appointment and retirement of trustees where they are natural persons. The compliance obligations on trustees are now significant, and deploying a trust corporation can relieve the...
The concept of being ‘resident in a contracting state’ is key in a double tax treaty ( DTT) because: Double tax treaties apply solely to persons who are resident in one or both contracting states, whether individuals or entities, for the purposes of the treaty. The concept is also employed throughout numerous treaty provisions to allocate taxing rights between the participating states; for instance, dividend articles often stipulate, under the terms of the relevant article, that a dividend paid by a resident of one contracting state to a resident of the other contracting state is taxable exclusively in the latter jurisdiction. Accordingly, when advising a taxpayer about their position under a DTT, it is essential first to ascertain where that taxpayer is resident for the purposes of the treaty, which may not align with the residence attributed under domestic...
Trusts created on death Trusts can be set up either while the settlor is alive or when an individual dies. This Practice Note focuses on trusts that arise on death, whether under the testator’s Will or through the intestacy provisions. For guidance on creating trusts more generally, see Creation of trusts—overview and, in particular, Practice Note: Creation of trusts—by Will. A personal representative ( PR) of a deceased person’s estate may become trustee of assets to be held on continuing trusts established: by the terms of the deceased’s Will, or under the statutory intestacy regime After the PRs have settled and distributed all: liabilities debts administration expenses legacies and any remainder of the estate that is payable and capable of immediate distribution then for any property not capable of immediate distribution: the PRs may assume the role of...
It is common for spouses or civil partners to wish to give gifts to one another, as sharing possessions is a familiar feature of coupledom. This reflects the everyday reality of jointly owned property and pooled resources. The label ‘spouses’ in this Practice Note covers both married pairs and those in a registered civil partnership, of any gender. For clarity, the term is applied inclusively and neutrally. Balancing the pair’s holdings so each enjoys personal financial stability can be prudent, and it also opens up the widest opportunities for tax planning. For instance, where one spouse is taxed on income at a higher rate than the other, it is logical to shift more income-producing assets to the spouse taxed at lower rates. An equivalent approach works for capital gains tax ( CGT): aim for each spouse to use their annual exemption on...
Double tax treaties ( DTTs) Double tax treaties ( DTTs) are founded on the idea that members of a multinational group are charged tax as if they were independent, dealing with one another at arm’s length. To apply the separate entity concept correctly, DTTs allow jurisdictions to amend a group company’s profits so that any outcomes arising from particular conditions or relationships are removed for tax purposes. This is referred to as the ‘arm’s length principle’. Under Article 9 of the Organisation for Economic Co- Operation and Development ( OECD) model tax convention ( OECD MTC) and the UN model tax convention ( UN MTC), contracting states may recalibrate the taxable income of ‘associated enterprises’ when their transactions are not conducted on arm’s length terms. The 2025 revised commentary to Article 9 of the OECD MTC makes clear that, when adjusting an...
FORTHCOMING CHANGES: At Budget 2025 on 26 November 2025, the government stated it intends to introduce modest rectifying amendments to the residence-based tax regime established by Finance Act 2025......
Under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), the court can make orders that: concern how trustees perform their functions, including directions removing any requirement to obtain consent or to consult any person when exercising those functions; or determine the nature or extent of an individual’s interest in property held on trust. Whilst section 6 TOLATA 1996 gives trustees of land the powers of an absolute owner, those powers are constrained by duties of consultation, consent and occupation. The court, by contrast, has the full powers of an absolute owner without the trustee-specific restrictions. However, it cannot vary existing beneficial interests, nor order the removal or appointment of trustees. Pre- Action Conduct and Protocols There is no dedicated pre-action protocol for TOLATA 1996 claims, but parties should have regard to the Practice Direction Pre- Action...
Fundraising Raising funds can be viewed as a discipline, a body of specialist know‑how, and a profession in its own right. Many charities maintain in‑house fundraising teams and also bring in external advisers—‘professional fundraisers’—to generate income for them. Charities may likewise enter arrangements with ‘commercial participators’: typically businesses that promise a financial benefit to the charity while selling their own goods or services, incorporating the charitable element into their promotion. The Charities Act 1992 ( CA 1992), as amended by the Charities Act 2006 ( CA 2006) and supporting regulations, sets out detailed duties for professional fundraisers and commercial participators, alongside specific constraints on their agreements with charities, designed to protect the charity rather than the other party. For completeness, CA 2006 has for most purposes been replaced by the consolidating Charities Act 2011 ( CA 2011), as amended by the Charities (...
The Terminally Ill Adults ( End of Life) Bill (the Bill) marks a notable development in UK law on end-of-life choice. Put forward as a Private Member’s Bill by Labour MP Kim Leadbeater, it would permit assisted dying for terminally ill adults in England and Wales, subject to strict eligibility tests and procedural protections. What is the current legal position on assisted dying? Although suicide was decriminalised in 1961, section 2 of the Suicide Act 1961 still makes it an offence to encourage or assist another person’s suicide. How has the Bill progressed? The Bill was tabled on 16 October 2024 and cleared its second reading in the House of Commons on 29 November 2024 by 330 votes to 275. Across a 14 day committee stage, more than 500 amendments were examined. It then passed third reading in the Commons on 20 June 2025, with a slim...
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, enacts the end of the remittance basis and brings in a residence-based system from 6 April 2025. FA 2025 also makes residence, rather than domicile, the determinant for inheritance tax exposure. Further measures include: Revisions to the rules for excluded property status Removal of the protected settlements status of offshore trusts Alterations to overseas workday relief For guidance on these reforms, 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. Under section 86 of the Taxation of Chargeable Gains Act 1992 ( TCGA 1992), where a UK resident and...
What is exchange of information? Exchange of information ( EOI) among tax authorities has long stood as a key pillar of international co-operation in tax matters. In more recent years, growing levels of public and governmental concern about perceived tax avoidance—at both the individual and the corporate level—have elevated the subject still further, ensuring that EOI has become a centrally important (and arguably more effective) cross-border anti-avoidance measure. There are numerous regimes and instruments pursuant to which authorities such as HMRC exchange information relating to taxpayers with overseas tax authorities, in accordance with those frameworks. The primary focus of this Practice Note is the approach to EOI taken under double tax treaties or conventions ( DTTs), although the other principal platforms through which EOI operates are also summarised. In most cases, DTTs contain a specific provision dealing with the exchange of...
This Practice Note offers a succinct overview of TIEAs. For a broader introduction to tax information exchange across jurisdictions, see Practice Note: Exchange of information on tax matters. For guidance on the OECD's Multilateral Convention on Mutual Administrative Assistance in Tax Matters (the Multilateral Convention), see Practice Note: The OECD Multilateral Convention on Mutual Administrative Assistance in Tax Matters ( MAATM). For an introduction to the automatic exchange of information, including the Foreign Account Tax Compliance Act (known as FATCA) and the Common Reporting Standard (the CRS), see Offshore tax evasion—overview and Practice Note: Automatic exchange of information—outline. What is a TIEA? A TIEA is a bilateral arrangement through which jurisdictions agree to co-operate on tax matters by sharing information. Most TIEAs are modelled on the OECD's Model Agreement on Exchange of Information on Tax Matters, published in 2002. Under the Model...
This Practice Note explains the court procedure for appointing a welfare and/or financial guardian to an adult aged 16 or over in Scotland, covering the process from preparing the application to the making of the order. For guidance on considerations before applying to appoint a welfare guardian or a financial and property guardian, see Practice Notes: Welfare guardianships— Scotland, Financial and property guardianships— Scotland and Adults with Incapacity ( Scotland) Act 2000. The Adults with Incapacity ( Scotland) Act 2000 ( AI( S) A 2000) provides the statutory framework for safeguarding the interests of adults who lack capacity in Scotland. Drafting of the application Initial step All lay guardians seeking financial powers must complete and lodge a Guardian Declaration form together with the application. Style There is no prescribed statutory style for a guardianship order application; commonly it proceeds by summary application for a first order and for any...
This Practice Note explores the changes to succession law introduced by the Succession ( Scotland) Act 2016 ( S( S) A 2016). It provides information on every section of S( S) A 2016 and comments on its effect on the position of the law prior to its enactment. It also notes how those provisions interact with the prior legal position. Effect of divorce, dissolution or annulment on Will— S( S) A 2016, s 1 Where a marriage or civil partnership ends by divorce, dissolution or annulment, any gift or power of appointment conferred by a testator on a former spouse or civil partner, together with any designation of that person as executor or trustee, is revoked. For this to take effect, the deceased must die after the decree of divorce, dissolution or annulment has been obtained and after 1 November 2016. This will not apply where the Will...
FORTHCOMING CHANGE relating to IHT on pension death benefits : In the Autumn Budget 2024 on 30 October 2024, the government revealed plans to treat unspent pension pots and pension death benefits as part of an individual’s estate for IHT from 6 April 2027. The measure will cover both defined contribution and defined benefit arrangements, spanning UK-registered schemes and qualifying overseas pension schemes. A technical consultation on delivery ran between 30 October 2024 and 22 January 2025, and the provisions now appear in Finance Act 2026. For further details, see: Autumn Budget 2024— Private Client analysis— Inheritance tax. This Practice Note offers a step-by-step guide to completing Form IHT400 (the IHT account) and Schedules IHT401– IHT436, for use within probate or letters of administration applications and throughout broader estate administration. Form IHT400 supplies HMRC with comprehensive details of the estate’s assets and...
Trustees' powers As trusts may arise both by operation of law and through express creation, the law provides implied powers so that trustees can discharge their responsibilities. Those implied powers include, for instance: advancements delegation insurance investment maintenance buying and selling land When setting up express trusts it is common practice to vary these implied powers and to add further provisions... The Standard Provisions of the Society of Trust And Estate Practitioners (1st Edition) Background The Society of Trust and Estate Practitioners ( STEP) was established in 1991. It asked James Kessler QC to prepare routine administrative clauses that could be incorporated into trusts and Wills by reference, so those documents could be shortened and simplified. These clauses are referred to as the Society of Trust and Estate Practitioners Standard Provisions (1st Edition) (the 1st Edition). The Standard...
Only the Court of Protection is empowered to arrange the execution of a Will or codicil for a person who lacks capacity. An individual cannot hand over the authority to make their Will to an attorney, and a deputy likewise has no power to settle the terms of a Will or to sign it for their protected person ( P). Any Will executed on the strength of an order of the Court of Protection takes effect exactly as if P had signed it personally, and the formal execution requirements in section 9 of the Wills Act 1837 ( WA 1837) do not apply. The Court of Protection’s authority ends on P’s death. Statutory Wills Under the Mental Capacity Act 2005 ( MCA 2005), someone who lacks the mental capacity to make a valid Will or codicil ought, as nearly as possible, to be placed in the same...
This Practice Note reviews the different stamp duty land tax ( SDLT) rates, including those that apply to transactions involving rent. For general guidance on when SDLT is chargeable, see Practice Note: Land transactions, chargeable interests and chargeable transactions. From 1 April 2015, SDLT no longer applies to any land transaction concerning interests in or over land in Scotland. From that date, such transactions are within land and buildings transaction tax ( LBTT), subject to transitional provisions. Accordingly, any references in this Practice Note to ' UK land' or similar wording, in the context of SDLT, should be understood as excluding interests in or over land in Scotland from 1 April 2015. For further information, see the LBTT subtopic. SDLT also ceased to apply to any land transaction involving any interest in or over land in Wales from 1 April 2018. From that date, land...
Types of special purpose vehicle and orphan trust The deployment of special purpose vehicle structures is widespread in aviation finance. They offer lenders several advantages, including tax benefits and a bankruptcy-remote platform for the financing. A special purpose vehicle ( SPV), also known as a single purpose company ( SPC), is a legal entity established for a limited aim; in aviation finance this is commonly to own an aircraft for a particular transaction. There are numerous forms of SPV used in aviation finance, with the principal categories being: subsidiary companies orphan trusts limited partnerships Each of these is considered below. The type of SPV selected will vary on a transaction-by-transaction basis. Subsidiary companies Subsidiary companies are typically limited liability companies incorporated in a tax-friendly jurisdiction......
Introduction Shari’ah—also rendered as Sharia, Shariah, or Shari’a—literally means, in Arabic, ‘the path towards the watering place’. As Islamic law, it is the religious legal framework of Islam, laying down duties and a code of conduct for people to observe so that they can lead their lives in a rewarding and worthwhile way. According to Potter LJ, much of the classical Islamic law governing financial dealings is not set out as formal ‘rules’ or ‘law’ in the Qur'an and Sunnah; instead, it rests on the often differing opinions of established schools of law that took shape roughly between 700 and 850 CE......
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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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