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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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Charitable appeals Appeals for charity are commonplace, yet it is often overlooked that when members of the public contribute to an appeal for a purpose that is charitable in law, a trust for that purpose arises automatically by operation of law. This remains true even where the written terms are remarkably brief, eg ‘ Save the Rembrandt for the Nation!’ or ‘ Little Snoring Village Hall Roof Appeal’, or where there is no written notice at all but only an oral statement such as ‘ A retiring collection will be made for Cancer Research’. The act of giving for a charitable purpose places those who receive the funds under a fiduciary obligation to apply them to that purpose, and to no other. Put another way, the recipients hold the money as charitable trustees. The nature of the purposes and appeals, the intended...
This Practice Note offers a primer on the British Virgin Islands ( BVI) in the context of offshore trusts. For broader details on the BVI, see Practice Note: Private Client— British Virgin Islands— Q& A guide [ Archived]. Geography Situated east of Puerto Rico within the Virgin Islands chain known as the Leeward Islands, the BVI comprises the principal islands of Tortola, Virgin Gorda, Anegada and Jost Van Dyke, together with more than fifty smaller islands. The North Atlantic Ocean borders the territory to the north, while the Caribbean Sea lies to the south. Road Town, the capital, is located on Tortola and is the centre of the financial services industry. Government Ultimate executive authority in the BVI rests with King Charles III. A resident Governor is appointed by the Queen, on the advice of the UK government, and exercises...
Practice Direction 9D— Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs ( PD 9D) Practice Direction 9D ( PD 9D), made under rule 9.11 of the Court of Protection Rules 2017 ( COPR 2017), provides a streamlined route for current deputies (and attorneys) to make routine applications connected to their powers and responsibilities. It is intended to be used where the deputy reasonably considers that objections are improbable and where the order requested will not have a significant impact on P’s estate or interests. PD 9D, paragraph 4, explains that applications apt for this short-form process include, without limitation: regular payments to the deputy for remuneration minor adjustments to expenses met from P’s estate alteration of an accounting period change to the deadline for filing an annual account ...
A UK limited liability partnership ( LLP) For company law purposes, a UK limited liability partnership ( LLP) is a corporate body, but for tax it is generally treated like a partnership—that is, it is tax transparent. Where an LLP carries on a trade, profession or business with a view to profit, profits and gains are ordinarily taxed on the members, not on the LLP itself. Transparency also means members are taxed on the LLP’s profits and gains as they arise, whether or not any amounts have been distributed. In some cases this treatment may not apply, or can be lost; see When is an LLP not tax transparent? below. Members are taxed on their shares of the LLP’s profits in the same way as partners in other forms of partnership; see Practice Note: Taxation of general...
Following the closure of the Liechtenstein Disclosure Facility and the Crown Dependency Disclosure Facilities at the close of 2015 (see Practice Notes: Liechtenstein Disclosure Facility [ Archived] and Crown Dependency Disclosure Facilities [ Archived]), individuals were offered a last chance to disclose offshore non-compliance to HMRC. This new, time-limited disclosure route was first flagged at Budget 2015 and is now known as the ( WDF). The introduction of the WDF aligned with the rollout of the Common Reporting Standard ( CRS) (see Practice Note: Automatic exchange of information—the Common Reporting Standard: a summary), which automatically supplies HMRC with substantial volumes of offshore financial information. Up to 30 September 2018, the WDF could be used to make a disclosure for the purposes of the requirement to correct ( RTC). This Practice Note gives a short introduction to the WDF. For the terms of the WDF and...
On 17 July 2014, the Finance Act 2014 ( FA 2014) brought in the mechanism of a follower notice. The aim is for follower notices to be used against taxpayers who have entered into a tax avoidance arrangement that has been found to fail in another party’s litigation. Under this regime, a follower notice can be given where there is a final, relevant judicial decision that is not appealable or the time to appeal has expired (including decisions of the First-tier Tax Tribunal ( FTT)), and the reasoning in that decision would negate the tax benefit claimed by the taxpayer. Where there is an open HMRC enquiry into the taxpayer’s return (or claim) or the taxpayer has lodged an appeal (and that appeal remains live), HMRC may issue a follower notice requiring the taxpayer to amend their return (or claim) or withdraw their appeal to...
This Practice Note explains HMRC’s authority to visit and examine business premises to verify an individual’s tax affairs, and the limits on that authority. Their rights to seek information and records are addressed in Practice Note: HMRC information powers. Comparable inspection powers exist for Revenue Scotland and the Welsh Revenue Authority in respect of devolved taxes. Where fraud is suspected, HMRC can draw on more extensive powers. For further detail, see Practice Note: HMRC criminal investigations and dawn raids. HMRC may likewise use inspection powers when acting in its anti-money laundering role. For guidance, see Practice Note: HMRC guidance under the Money Laundering Regulations 2017 [ Archived]. What are the purposes for which HMRC may use its inspection powers? HMRC may deploy these powers where it is reasonably necessary to check a person’s tax position......
are commonly taken by a close relative of the person who has died. If no suitable family member is able to act, an executor named in the Will may need to assume this role when circumstances demand it. Personal representatives should promptly and carefully review the Will for any statements by the testator about the handling of their remains, bearing in mind that such instructions are not legally binding at law. Even so, adherence to Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 is necessary in practice, recognising the right to respect for private and family life, home and correspondence. Accordingly, the deceased’s preferences concerning funeral arrangements ought to be given appropriate consideration and treated with due weight. This position is not entirely settled, so particular care is advisable. Be aware that innovative, more...
What is a flee clause? A flee clause is a provision in a trust deed that is intended to shift, automatically, the trust property, the office of trustee and the forum for trust administration to a ‘safe’ jurisdiction when specified triggers occur. Common triggers include the collapse of public order, natural catastrophes, socialist measures aimed at seizing private assets, the introduction of a tax that previously did not apply, the bringing in of exchange controls, or a situation where a trust faces creditor attack. Example flee clause AUTOMATIC RETIREMENT OF TRUSTEES AND CHANGE OF JURISDICTION [ A] if any of the circumstances listed in clause B (‘the Emergency Event’) arises, [name of alternate trustee] shall act as the alternate trustee (‘the Alternate Trustee’) and the following shall take effect: (1) Any trustee domiciled in the territory in which the Emergency Event takes place shall, without further act, cease to hold...
The Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) The I( PFD) A 1975 enables the court to alter the dispositions arising under a Will or the rules of intestacy where, at death, the deceased was domiciled in England or Wales. It empowers the court to award, or increase, financial provision for specified categories of claimant identified in the Act. In deciding whether a claimant has received reasonable financial provision, the court must consider the factors set out in section 3 of the I( PFD) A 1975... Did the Will or intestacy provide the claimant with reasonable financial provision? If not, what reasonable financial provision should now be made for that claimant? When addressing these two central questions, section 3(1) requires the court to take into account all the matters listed in that...
What is a DRO? Debt Relief Orders are a newer, streamlined route to clear the slate for people who cannot afford to go bankrupt. A DRO is granted in relation to qualifying debts. A qualifying debt is one that is: for a liquidated amount payable now or at a future date unsecured not an excluded debt Under the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 9.2, an excluded debt means: any fine for an offence, or an obligation arising from an order in family proceedings, or a maintenance assessment or maintenance calculation under the Child Support Act 1991 any obligation under a criminal confiscation order student loans damages relating to the death of, or personal injury to, any person a crisis loan or budgeting loan made under the Social Security...
As people live longer, mental ill-health rises because bodies outlast minds. Dementia and conditions such as depression, anxiety, psychosis, confusion and personality disorders can all affect a testator’s ability to make a Will. Substance misuse, alcoholism and a recent bereavement can also materially reduce capacity. Analysis of the test for testamentary capacity When evaluating a deceased person’s testamentary capacity, recent authority confirms that Banks v Goodfellow remains the governing test. It requires that a testator must: grasp the nature and consequences of making a Will comprehend the breadth of the estate being disposed of recognise and weigh any potential claims on the estate be free from any disorder of mind that distorts or overbears the above In Leonard v Leonard, the High Court provided an authoritative, wide-ranging synthesis of the principal principles and authorities relating to each of these four limbs, and...
Legal validity of Wills In Scots law, a testamentary writing made after 1995 is treated as valid and self‑proving where the following requirements are met: the testator has signed every page the signing took place in the presence of a witness the witness signed the final page The absence of one or more of these features is not fatal, provided the testator did sign the document. If so, anyone with an interest (for example, an executor or beneficiary) may ask the court to ‘set up’ the writing. This can be done by summary application in the Sheriff Court, or incidentally within other proceedings, and in practice is often pursued when applying for confirmation. The burden of proof rests on the applicant, and evidence will usually be by affidavit unless the court directs otherwise. A decree has the effect of creating a...
When establishing a charity, the anticipated longevity of that body should be a key consideration when defining its aims and objects. If it is a short term endeavour (perhaps tied to a single event) this is less of an issue; however, for a long term venture it must be recognised that aims and objectives may evolve, or need to evolve, as time passes. Aims and objectives Before setting up the charity, certain points should be settled: what the charity will tangibly aim to deliver alongside this, who stands to benefit from the charity whether the actual work the 'charity' proposes is charitable under the legal definition what the pros and cons of charitable status are—some activity (notably political) may not be best pursued (or even permitted) through a charitable organisation New charities also confront the question of...
FORTHCOMING CHANGE: A consultation, which closed on 7 July 2025, invited views on ways to streamline, modernise and reform HMRC’s approach to dispute resolution, aiming to raise awareness of the processes and to enhance access to, and uptake of, alternative dispute resolution ( ADR) and statutory review routes. It also proposes harmonising and simplifying appeal processes to bring together the advantages of the different methods currently used for direct and indirect tax disputes. For more information, see News Analysis articles: Tax update spring 2025— Tax analysis— Taxes management and dispute resolution and Tax update spring 2025— Improving HMRC’s approach to dispute resolution. This Practice Note is written by Anne Redston, Barrister. The views expressed are personal; she is not authorised to speak for the Tribunals Service or the judiciary. The Note sets out the procedure for challenging an HMRC decision and signposts further notes that...
Statutory rights of succession in relation to an agricultural tenancy Statutory succession applies to an agricultural tenancy only where the Agricultural Holdings Act 1986 ( AHA 1986) governs that tenancy. No succession rights attach to farm business tenancies, i.e. tenancies granted under the Agricultural Tenancies Act 1995 ( ATA 1995)......
A protected party ( P) falls within the jurisdiction of the Court of Protection (the court) only where incapacity is evidenced. The court may then transfer its powers by naming a deputy to act for P, pursuant to an order. That authority exists strictly in line with the order’s terms and duration, and endures only so long as those terms allow. Should P cease to fall within the court’s remit, the deputy’s mandate will not continue; likewise, where the deputy cannot act, or it would be inappropriate for them to do so, a change is required. In such cases, having considered the evidence lodged with an application, the court may order the discharge of a deputy and, where apt, appoint a successor. Replacing a deputy There are occasions when a deputy no longer wishes to continue, or is unable to serve. This might be because deputy...
This Practice Note examines the UK tax consequences of a UK-resident trust relocating out of the UK. Guidance on the continuing taxation of trusts that are not resident in the UK is also available in the Offshore trusts—taxation subtopic. How does a trust migrate? For a trust to move its residence from the UK, the UK trustees would usually resign formally from office and be replaced, in their stead, by newly appointed trustees who are not UK resident. For details on replacing trustees, see the Practice Notes: Trustees—appointment of trustees and Trustees—retirement of trustees. For additional guidance on trustee residence, see the relevant Practice Note: Tax position of non-resident trusts. A trust may emigrate where the trust deed grants the trustees (or another person, eg the protector or the settlor) an express authority to appoint non- UK resident trustees. Courts will ordinarily respect any such...
The refusal of a gift before it is accepted is known as a disclaimer. Freedom to disclaim The law does not oblige a beneficiary to accept a testamentary gift against their wishes. A beneficiary is at liberty to decline a gift if they choose. As Abbot CJ observed in Townson v Tickell, the law is not so absurd as to compel someone to take an estate against their Will. Although any estate, whether given by Will or otherwise, is presumed to benefit the recipient, he is the best judge; if he decides it is not beneficial, the law will, by some means, permit him to renounce or refuse it. A beneficiary may disclaim by: in writing by deed by conduct Retracting a disclaimer For a person sui juris, a disclaimer is ordinarily final; a disclaimer executed by deed binds the maker as any other deed would. It has been...
Express lifetime declarations Where an express lifetime declaration creates a trust, the settlor simply states that they hold the trust property on trust absolutely for the specified person or object. The declaration must be unequivocal, and the settlor should communicate the trust’s terms to the beneficiaries. The following must be satisfied: there is property capable of being made subject to a trust the trust complies with any formal validity requirements the terms are sufficiently certain (essential validity) the trust’s purpose is not unlawful Evidential requirements—personalty Provided the conditions for essential validity are met, a declaration of trust concerning personalty (other than an equitable interest) may be made: in writing orally or, in exceptional circumstances, by conduct There are no legal rules prescribing a particular form for a declaration of trust over personalty. Nevertheless, it is prudent practice to record all terms in a...
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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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