Featured documents
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:
Most recent Practice notes
When is it necessary to instruct a psychiatrist? Psychiatrists are often invited to evaluate the decision‑making capacity of protected persons ( Ps) who are the subject of proceedings before the Court of Protection. They are, on occasion, asked as well to offer a view on P’s best interests. For further guidance on mental capacity, see Practice Notes: Mental capacity—an introduction and Mental capacity—assessments and tests. It should be clearly recognised from the outset that instructing a psychiatrist is not invariably required in order to assess capacity. Capacity evaluations may properly and safely be undertaken by a broad range of professionals, including psychologists, general practitioners ( GPs), social workers, and speech and language therapists. In some matters, particularly where P’s capacity is borderline or fluctuating, instructing a psychiatrist to assess capacity can prevent significant delay and wholly unnecessary cost. This is especially true where the...
Test of insolvency Section 421(4) of the Insolvency Act 1986 ( IA 1986) sets out the statutory yardstick for deciding whether a deceased’s estate is insolvent: an estate is insolvent where, once every asset has been realised, the proceeds are insufficient to discharge in full all debts and other liabilities attaching to the estate. By contrast, an estate is not insolvent if all debts and liabilities can be paid, even where no legacies are capable of being honoured. In a genuinely insolvent estate, beneficiaries take nothing, and the debts and liabilities will not be settled in full, if at all. For illustration, Elizabeth’s estate comprises a single bank account holding £50,000. There is no IHT to pay because the full basic nil rate band is available. A funeral plan exists to cover the funeral expenses. The estate’s debts and liabilities total £12,000. Under her Will,...
FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) obtained Royal Assent on 24 February 2022 and will be introduced largely in stages from October 2022 through to early 2024. CA 2022 gives effect to the bulk of the recommendations in the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a synopsis of the accepted recommendations, see News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. For additional guidance on the roll-out of CA 2022, see News Analyses: Charities Act 2022—what do we know so far?, Charity land disposals—new law is coming into force, and government guidance: Charities Act 2022: implementation plan. Of particular importance to this Practice Note are the amendments relating to the following: disposals of land by liquidators, provisional liquidators, administrators, receivers and mortgagees, which are to be excluded from Part 7 of the...
For comprehensive guidance on working out the exit charge both before and after the tenth anniversary of a relevant property trust, refer to Practice Note: Relevant property trusts—the exit charge. When trust assets stop being relevant property, they fall within the scope of inheritance tax ( IHT). This liability is referred to as either: the exit charge the proportionate charge To determine whether there has been an ‘exit’ that attracts an IHT charge, see: The exit charge—what constitutes an 'exit' subject to charge? Exit charge pro forma The following pro forma......
Procedural table grant of representation and of every Applicants Spouse or civil partner of the deceased Spouse or civil partner of the deceased — I( PFD) A 1975, s 1(1)(a). Former spouse or former civil partner who has not entered into a later marriage or civil partnership — I( PFD) A 1975, s 1(1)(b). Cohabitant who, for the entire two years immediately before death, lived in the same household as the deceased as if a spouse or civil partner — I( PFD) A 1975, ss 1(1)(ba), 1(1A). Child of the deceased — I( PFD) A 1975, s 1(1)(c). Anyone whom the deceased regarded as a child of the family — I( PFD) A 1975, s 1(d). Any other individual who, immediately before the deceased’s death, was being maintained by the deceased — I( PFD) A 1975, s...
Time limits An action under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) should ordinarily be begun within six months of the date of a grant to the estate. Any application after that period may only proceed with the court’s permission. For guidance on time limits, see Practice Note: Family provision claims—preliminary issues— Time limits. Pre-action conduct There is no specific pre-action protocol for I( PFD) A 1975 claims, but both 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 placing them on an equal footing, saving expense, and proportionality—to observe that Practice Direction where appropriate and behave reasonably in exchanging information and documents relevant to the claim, and generally in attempting to avoid the need to issue proceedings. Conduct under the Practice...
Please note, this Practice Note is confined to English law alone. Since devolution, a range of divergences has emerged between England and Wales concerning numerous elements of the legal rules governing the appointment of independent mental capacity advocates. IMCAs were established under the Mental Capacity Act 2005 ( MCA 2005). Their role is to support local authorities and the National Health Service ( NHS) in relation to people aged over 16 who lack mental capacity, where a choice is needed that will substantially affect their health and wellbeing, or their long-term care and accommodation. The independent mental capacity advocate service The service delivered by an IMCA is intended solely for situations in which the individual has nobody else available to assist them or to articulate their preferences, entitlements and requirements on their behalf......
When a charity is created as a trust, the reality that its property, investments and contracts are held by the individual trustees in their own names means all such assets must be transferred or novated each and every time the trustee body’s composition changes from time to time (e.g. on death, retirement, or the appointment of a new trustee). A way to sidestep this is for the charity’s trustees to constitute themselves as a corporate body under Part 12 of the Charities Act 2011 ( CA 2011). This enables the charity’s property to be held by a permanent corporate trustee, while individual trustees are still appointed and removed in the ordinary manner, as is customary, and continue to manage the charity with the same powers and responsibilities as before, on the same basis. Trustee incorporation is available to every charity, including those exempt or...
What is a company? A company is a distinct legal person, separate from its owners. Members own it, while directors run it day to day. Its framework is set by the Companies Act 2006 ( CA 2006). As a business structure, it is widely adopted; more than 5 million companies are registered across the UK. The CA 2006 recognises several forms, including: Public or private companies limited by shares Private companies limited by guarantee (used chiefly by charities and other not-for-profit organisations—see Practice Note: Companies limited by guarantee) Unlimited companies (uncommon—see Practice Note: Unlimited companies) This Practice Note focuses on forming public or private companies limited by shares, as these are the predominant models. Why set up a company? A principal attraction of incorporation, compared with trading as a sole trader, a partnership or another vehicle, is the separate legal...
When someone dies, the personal representatives ( PRs) will typically compute and pay the inheritance tax ( IHT) due so they can secure the grant of probate and then proceed to properly administer the estate as required. They must also finalise the deceased’s tax position to the date of death, and any income tax and/or capital gains tax ( CGT) owed by the deceased can affect the exact amount of IHT payable in practice. See Practice Note: Finalising the deceased's tax affairs with HMRC. PRs must then make a separate account to HMRC for any income or gains arising in the administration period, handled distinctly from the pre-death position. The administration period starts on the date of death and finishes when the estate is wound up, or at minimum when the residuary estate is identified and capable of distribution or being held on trust as...
The matters to be decided within the welfare remit of the Court of Protection are frequently highly intimate, and commonly entail either the court endorsing the use of state authority, or exercising that authority itself, over an individual—such as by imposing limits on contact between the protected person ( P) and their relatives. It is therefore no surprise that human rights run through every facet of the court’s decision-making... The Human Rights Act 1998 and the European Convention on Human Rights The European Convention on Human Rights ( ECHR) was brought into domestic law by the Human Rights Act 1998 ( HRA 1998), which renders it unlawful for any public authority to act in a way that violates a person’s human rights. This binds all local authorities and National Health Service ( NHS) bodies, as well as the courts themselves. The Court of...
Applications to the Court of Protection Proceedings in the Court of Protection (the court) are regulated by the Court of Protection Rules 2017 ( COPR 2017) with the Court of Protection Practice Directions, rather than the Civil Procedure Rules 1998 and accompanying practice directions. When issuing an application to the court, locate the relevant provisions in COPR 2017 and the applicable practice direction(s). Applications should be lodged on the correct Court of Protection forms, as outlined in detail below. This Practice Note covers most applications to the Court of Protection. Identify any relevant practice directions before proceeding, and ensure the correct forms are used throughout as necessary. That said, a separate route applies where the request is to appoint a deputy for property and financial affairs. From January 2023, an upfront notification pathway became the standard approach for all property and affairs...
FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill secured Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). Once commenced, PAA 2023 will introduce amendments to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more up-to-date lasting power of attorney ( LPA) service. The updates will include: Setting regulations so that those creating an LPA can choose to sign the document digitally or with a paper signature; Ending attorneys’ ability to register an LPA, meaning only the donor will be allowed to complete registration; Introducing regulations that set out identity verification requirements for registration applications; Establishing a single pathway for objections to...
This Practice Note examines general partnerships established under the Partnership Act 1890. It sets out the key statutes and case law that shape the legal framework for partnerships. It also explains how to assess whether an individual is a partner, when partners may properly be regarded as employees or workers, the extent of a partner’s authority, partners’ liability for the firm’s debts and obligations, and the treatment of partnership property... Sources of partnership law The principal source of law for a general partnership governed by English law (as distinct from a limited liability partnership, a limited partnership, or a partnership incorporated under Scottish law) is the Partnership Act 1890 ( PA 1890), which has remained largely unchanged for more than a century. However, it is not a comprehensive code: it expressly preserves the rules of equity and common law applicable to...
Practice Note: Costs in the First-tier Tax Tribunal ( FTT) This case study is authored by Anne Redston, Barrister. It sets out her personal perspective; she is not authorised to speak officially on behalf of the Tribunals Service or the judiciary. Sasha is a recently qualified member of Parul LLP, a firm of solicitors based in Bristol. The practice represented a client in a long-running, protracted dispute with HM Revenue and Customs ( HMRC). HMRC had imposed VAT penalties spanning six years in total, and Parul LLP appealed those assessments for its client. The First-tier Tax Tribunal ( FTT) classified the matter as ‘standard’. For further detail on what a standard categorisation entails, see Practice Note: Preparing for a tax tribunal case— Standard cases. Parul LLP retained a barrister to act as counsel from a set of specialist tax chambers in London. The parties...
The examples in this Practice Note draw on a privately held UK company, although similar considerations arise for families holding alternative assets or operating businesses in other territories. Ownership governance for a family enterprise entails the family reflecting on core beliefs about ownership, then documenting these through legal agreements. For details on how to put a formal framework around a family-run company, see Practice Note: Formalising the family business: the advantages a formal structure can bring. Value-out owners or custodians? There is a clear divergence in outlook between two owner archetypes in a family firm. Value-out owners commit while short- to medium-term financial returns are adequate. If those returns fail to appear, they will, like any rational investor, seek to dispose of their shares and reallocate capital to better-performing...
Facts Antoine and Camille met while both working in Leeds in 1980, and in 1981 they bought a home there in their joint names. They had three children together— Gabriel (born 1985), Audrey (born 1987) and Laure (born 1990)—and married in 1995. In 2003, Antoine inherited a chalet in the French Alps. Throughout their marriage they remained resident in the UK, taking regular trips to France for holidays and to visit family. Camille, born in France in 1955 to French parents, lived there throughout her childhood and early twenties until moving to England in 1979. Antoine, born in England in 1953 to an English father and French mother, grew up in England, but spent five years in the 1970s living with his maternal grandparents in Lyon while at university. Antoine died in April 2024 at the age of 71, leaving both an English Will and a...
What is ESG Environmental, social and corporate governance ( ESG) sets out benchmarks that socially minded investors use to evaluate how prospective investments affect the wider world: the environmental pillar considers a company’s care and stewardship of the natural environment the social pillar reviews the organisation’s ties with employees, suppliers, customers and other stakeholders the corporate governance pillar examines leadership, internal controls and shareholder rights ESG acts as a catch-all label for various forms of ethical investing. The measures and criteria applied to judge ESG investments differ across this developing area. With the intense attention on ESG, some offerings have faced allegations of ‘greenwashing’—a misleading tactic where marketing overstates an investment’s ESG credentials. This may cause a material fall in value if the company’s reputation is damaged... Why might trustees choose ESG...
Who may be beneficiaries Any individual who would be capable of holding property if of full age and sound mind can be a beneficiary under a trust, even where they are not presently of full age or sound mind. Identifying the beneficiaries To establish a valid trust, the three certainties must be satisfied. The three certainties certainty of intention certainty of subject-matter certainty of objects Charitable trusts are not required to meet certainty of objects provided there is a general charitable intention. Certainty of objects—named beneficiaries Every trust deed must set out who the beneficiaries are. In a straightforward life interest trust, there are usually few beneficiaries and they may be identified in the clause that specifies the beneficial interests. For example: ‘ The Trustees shall distribute the income of the Trust Fund to [ X] for their lifetime and, on their death, shall transfer the capital to [ Y].’...
ARCHIVED : This Practice Note has been archived and is no longer kept up to date; please see Practice Note: Money Laundering Regulations 2017 ( MLRs)— FCA supervision of cryptoasset firms, Annex 1 financial institutions, MSB/ TCSP activities. It explores the risks posed by cryptoassets from the angles of financial crime, money laundering and terrorist financing. It assesses how and why cryptoassets can be vulnerable to, and enable, criminality, and how regulators have addressed these perceived risks. It also reviews criminal matters involving cryptoassets, notably Bitcoin. What are cryptoassets? A key obstacle to grasping non‑traditional currencies and assets is the inconsistent terminology. Regulators, tax authorities and commentators variously speak of digital currencies, virtual currencies, cryptocurrencies, cryptoassets and crypto tokens; and it is often uncertain whether these labels are being used as synonyms or with distinct meanings in mind. For definitions, see Practice Note Web 3.0, digital assets and...
Popular documents
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 ]...
Discover more from LexisNexis
