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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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Practice Note This note summarises the applicable law on limitation arising in claims against constructive trustees, encompassing claims against company directors and other parties in disputes alleging breach of fiduciary duty. It examines section 21(1) of the Limitation Act 1980 ( LA 1980) and identifies the situations in which that provision applies, outlining when and how it is engaged in such cases......
A private foundation is a legal person created by an individual, a family, or a collective of individuals for the founders’ benefit. It may equally be established for charitable or philanthropic aims. Historically, foundations are closely linked indeed to civil law territories, most prominently in Liechtenstein, and also Austria, Switzerland, Panama, St Kitts, Seychelles, Nevis, Anguilla, Malta, Curaçao and the Netherlands Antilles; they appear less commonly in common law states such as the Bahamas, where they were introduced in 2004. In more recent times, common law centres including Jersey, the Isle of Man, Guernsey and Mauritius have also enacted statutes permitting the creation of foundations. What is a foundation? Foundations trace their roots to civil law systems. An early antecedent was the Roman law device known as the fideicommissum, employed to circumvent limits on who might be named as an heir. For instance, if A wished to pass...
Practice Note This Practice Note does not offer an exhaustive description of the features of the Hague Trusts Convention of 1 July 1985 on the Law Applicable to Trusts (the Convention); rather, it serves as a primer and synopsis of selected key matters connected with this intricate subject. From the outset, it should be recognised that substantial scholarly controversy surrounds aspects of the Convention, alongside calls for amendment. This, in part, reflects its genesis and the formidable challenge confronting the drafters and sponsors, namely to frame rules that would satisfy both countries whose domestic systems include trusts ('trust states') and those that do not ('non-trust states'). Inevitably, there existed a strain between positions acceptable to trust states on one side and to civilian non-trust jurisdictions on the other. Accordingly, this remains a fluid and developing field. Owing to the complexity of various...
Introduction to the EU legal system The EU legal order is sui generis—unmatched by any other legal system, even if it incorporates elements from many. To grasp its operation, resist folding it into a national template (or measuring it against one) and watch how it behaves from multiple perspectives. From the outset, the EU (then the EEC) was meant to evolve into more than a mere economic community, hence the founding Member States consented to cede slices of sovereignty to newly created 'supranational' institutions. Supranational, as the term suggests, describes authority set above a national framework. The label marks the contrast with intergovernmental arrangements, where choices are made by consensus and remain tied to the interests of national governments. Once inside the EU, Member States can no longer enact, on their own, laws within fields allocated by the EU Treaties, ie the Treaty on...
FORTHCOMING CHANGE: This Practice Note sets out the law as it currently stands, though elements could be affected by the Digital Omnibus proposals released on 19 November 2025 under the European Commission’s ‘simplification’ agenda. For details, see Practice Note: EU Digital Omnibus—tracker. It introduces the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). The UK data protection law collection and the EU data protection law collection compile further core guidance on these regimes and are recommended starting points for research. In brief, data protection law across the EEA (the EU together with Iceland, Norway and Liechtenstein) and the UK aims to ensure that information about living individuals (‘personal data’) is treated fairly and responsibly. To that end, both EEA and UK data protection laws impose...
FORTHCOMING CHANGE relating to IHT on pension death benefits : At the Autumn Budget 2024 on 30 October 2024, the government stated that, from 6 April 2027, unused pension funds and pension death benefits will be brought into an individual’s estate for IHT. The change will affect both defined contribution and defined benefit schemes, and will apply to UK registered schemes as well as qualifying non- UK pension schemes. A technical consultation on implementing these reforms ran from 30 October 2024 to 22 January 2025, and the measures are introduced by the Finance Act 2026. For further information, see News Analysis: Unused pension funds and death benefits to be brought within the scope of inheritance tax and Autumn Budget 2024— Private Client analysis — Inheritance tax. On death, a person will typically own assets forming part of their estate, for example: land ...
The personal representatives ( PRs) of a deceased individual’s estate must identify: every asset forming part of the estate, and all outstanding liabilities within the estate PRs should issue initial correspondence—by letter, email, or online forms—to anyone: holding estate assets, asserting a debt, or with pertinent knowledge of the deceased’s financial affairs That communication ought to: advise of the death and set out: the deceased’s full name, plus any aliases or previous names, the deceased’s last known address, and where applicable, account number(s) and sort code(s) for any known account(s) enclose an official copy of the death certificate (or, if this cannot be provided, the deceased’s date of birth and date of death), and ...
Decisions on creating a charity When setting up a charity, pivotal choices arise around the preferred legal form and how best to carefully plan the application for approval of charitable status. Before this begins, pause to assess whether a charity is in fact the right route to realise the aims to be pursued. The proposed objects must be recognised as charitable within the definitions set out expressly in the Charities and Trustee Investment ( Scotland) Act 2005 (2005 asp 10) ( CTI( S) A 2005), and they must clearly provide, or be intended to provide, a public benefit. Practical matters—how activities will be funded and how the work will be delivered—also belong to this preliminary decision‑making stage and should be considered with equal care. The Office of the Scottish Charity Regulator ( OSCR) guidance on Meeting the Charity Test is a helpful starting point at the...
This Practice Note considers the equity of exoneration: what it is, and when and how it operates. It does not address how the trustee in bankruptcy (trustee) identifies and values any interest they may hold in property, which assets vest in them, how any such interest is realised, or equitable accounting. For further reading, see Practice Notes: Protecting a trustee in bankruptcy's interest in property following their appointment Equitable accounting—how it works in practice Possession and sale applications in respect of a bankrupt's family home What is the equity of exoneration? The equity of exoneration is an equitable remedy that may apply where jointly owned property is mortgaged or charged to raise funds to meet one co-owner’s debts, or otherwise for their sole benefit. In such a case, absent evidence to the contrary, there is a presumption that the...
FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) obtained Royal Assent on 24 February 2022, and, as outlined in Charities Act 2022: implementation plan document, its measures are scheduled to commence in three specified and defined tranches across three phases, on 31 October 2022, on 14 June 2023 and in early 2024, respectively. For an overview of the CA 2022 provisions already brought into effect to date, see Charities Act 2022: information about the changes being introduced. The CA 2022 delivers the majority of the proposals from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the recommendations that have been accepted, see News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. This Practice Note is relevant solely to England, as such; there are no...
Fees for applications to the Office of the Public Guardian Fees payable for applications and other matters to the Office of the Public Guardian arise from the Public Guardian ( Fees, etc) Regulations 2007, as amended by subsequent regulations. References to Columns 1 and 2 correspond to those in the 2007 Regulations. Enduring power of attorney registration (regulation 4): £92.00 Enduring power of attorney office copy fee (regulation 4A): £25.00 Lasting power of attorney registration (regulation 5): £92.00 Reduced fee for repeat application to register a lasting power of attorney (regulation 5): £46.00 Lasting power of attorney office copy fee (regulation 5A): £35.00 Deputy assessment fee (regulation 8): £100.00 General supervision (regulation 8): £320.00 Minimal supervision (regulation 8): £35.00 Guardianship set-up fee (regulation 8A): £200 Guardianship supervision (regulation 8A): £320 Fees for...
Commencement and revocation This revocation clause may include optional phrasing restricting revocation solely to Wills concerning UK property. That accords with later provisions which can, if preferred, confine this Will’s scope to UK property only. This ensures consistency across the instrument where the intention is to confine effect to UK assets while leaving arrangements concerning overseas holdings untouched. Using this optional language means any testamentary dispositions relating to assets abroad remain effective. The wording is marked as optional and might be unsuitable where the Will is drafted for a testator with no foreign property and no prospect of acquiring any, or for one who owns property overseas and intends to revoke any testamentary dispositions concerning such property (note that local legal requirements for a valid revocation must be reviewed and verified). Accordingly, foreign dispositions previously made would continue without alteration and remain fully...
This Practice Note This Practice Note outlines the key issues and pragmatic measures when pursuing enforcement involving trusts in family proceedings, covering offshore structures and how offshore trustees may respond to orders made in this jurisdiction. It addresses enforcing a variation of settlement, the effect of exclusive jurisdiction clauses, implementing findings of sham or invalidity, compliance with ‘judicious encouragement’ orders, and trustee submissions. At the outset of any case with trust elements, parties should evaluate whether any financial remedy order will be capable of enforcement, as this can shape the strategy from the drafting of the application onwards. A cost–benefit assessment is essential, especially where offshore trusts or assets are in play. Enforcement problems are less likely where the trust is governed by English law and the trustees and assets are situated in England and Wales. Under the Family Procedure Rules 2010 ( FPR 2010), SI...
Although it is no longer possible to set up enduring powers of attorney ( EPA), they will be in operation for a while yet, and the conduct of EPA attorneys continues to be examined......
Since 1 October 2007, no new enduring powers of attorney ( EPA) can be made, yet numerous documents still remain in circulation, either active or ready to be used. Solicitors are, not uncommonly, asked whether a client ought to retain an existing EPA or instead set up a lasting power of attorney ( LPA) afresh. Validity Where an EPA turns up, the initial task is to confirm it was executed properly and is therefore valid. Capacity Perhaps the most significant point is the donor’s capacity at the moment they entered into the EPA, when the document was made......
Trustees may recover an indemnity from the trust fund in respect of expenses, including: administration costs the costs of proceedings against third parties trust proceedings The need to seek an indemnity commonly arises on final distributions, when trustees could face liabilities arising later. It also frequently comes up when trustees retire. Administration expenses A trustee is entitled to be reimbursed from the trust fund for expenses properly incurred while acting for the trust. Examples include: trustees’ fees investment management fees legal or accounting fees After establishing the extent of any outstanding liabilities for trust expenses, the trustees should set aside a reserve to cover the anticipated amounts. Section 27 of the Trustee Act 1925 ( TA 1925) enables trustees to protect themselves by placing notices for interested persons (beneficiaries and creditors) in an appropriate newspaper or gazette and, where land is concerned, also in a newspaper circulating in the district in which the land is...
FORTHCOMING CHANGE : From 6 April 2020, the Employment Rights ( Miscellaneous Amendments) Regulations 2019, SI 2019/731, broaden the entitlement to a written statement of employment particulars so that it covers every category of ‘worker’, not only ‘employees’. Taking effect on the same date, the Employment Rights ( Employment Particulars and Paid Annual Leave) ( Amendment) Regulations 2018, SI 2018/1378, convert this into a day one entitlement that applies when an individual begins work and stipulate that additional details must appear in the statement, including the specific days of the week to be worked (and how these may vary in practice), the terms and conditions governing any paid leave, particulars of any other benefits, and any probationary period and training requirements. For further detail, see our reports: LNB News 18/12/2018 123 and LNB News 19/12/2018 122. See also Practice Note: Written...
What is an employee ownership trust? An employee ownership trust ( EOT) is a specific kind of employee benefit trust ( EBT) that must meet statutory criteria. The concept was introduced by the Finance Act 2014 ( FA 2014), together with tax advantages for companies owned by an EOT and for individuals who dispose of shares to an EOT. If the statutory criteria are not met in relation to the EOT, these reliefs will not be available. The reliefs were enacted by FA 2014, Sch 37, following a Budget 2013 announcement and a subsequent consultation. For guidance on pitfalls and common errors when creating or running an EOT, see Practice Note: Pitfalls of setting up and operating an employee-ownership trust. For general information on EBTs, see Practice Note: What is an employee benefit trust? What tax reliefs can an EOT...
The rules regarding Scottish electronic documents and their execution are contained in: Requirements of Writing ( Scotland) Act 1995 ( RW( S) A 1995) Assimilated Regulation ( EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (as amended by the Electronic Identification and Trust Services for Electronic Transactions ( Amendment etc) ( EU Exit) Regulations 2019) ( UK e IDAS) Land Registration etc ( Scotland) Act 2012 ( LRE( S) A 2012) Electronic Documents ( Scotland) Regulations 2014, SSI 2014/83 Land Registration etc ( Scotland) Act 2012 ( Commencement No 2 and Transitional Provisions) Order 2014, No 41 ( C 4) (2014 Order) Land Register of Scotland ( Automated Registration) etc Regulations 2014, SSI 2014/347 Legal Writings ( Counterparts and Delivery) ( Scotland) Act 2015 ( LW( CD)( S) A...
Jersey, Guernsey and the Isle of Man, along with the Overseas Territories of Bermuda, the Cayman Islands and the British Virgin Islands, have enacted new economic substance laws for companies and other entities operating in their jurisdictions. These rules apply to accounting periods beginning on or after 1 January 2019. Background In 2016, the EU Council pledged co-ordinated action against tax fraud, evasion and avoidance, and approved conclusions setting out the criteria and process for creating the EU list of non-co-operative jurisdictions for tax purposes. Accordingly, the EU Code of Conduct Group ( Business Taxation) ( COCG) was asked by the Council to carry out a review under which jurisdictions, including the Crown Dependencies, were evaluated against three benchmarks: tax transparency fair taxation adherence to anti-base erosion and profit shifting ( BEPS) measures In December 2017, the COCG published a list of...
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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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