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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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Charity proceedings broadly concern a charity’s internal management and domestic matters. Such proceedings may only be begun: by the charity, any of its trustees, any ‘person interested’, or, for a local charity, two or more inhabitants of the relevant area; and only where the Charity Commission has authorised them by order. Exceptions to these limits are: proceedings by the Attorney General; proceedings brought by the Charity Commission under powers conferred by the Charities Act 2011 ( CA 2011); proceedings concerning an exempt charity (except where the increased regulation of exempt charities applies to the charity or class in question). What are charity proceedings? Under CA 2011, s 115(8), “charity proceedings” are proceedings in any court in England or Wales brought either under the court’s jurisdiction over charities, or under its jurisdiction over trusts as it relates to...
Key principles The core principles relating to conflicts of interest are: A conflict of interest is any circumstance where a trustee’s personal interests or loyalties could, or could be perceived to, prevent them from acting solely in the charity’s best interests Trustees must avoid any position in which their trustee duties may conflict with personal interests or loyalties, and must not allow private loyalties or interests to override their trustee duties and responsibilities The Charity Commission’s Guidance places growing emphasis on the management and/or avoidance of conflicts of interest, and the number of Charity Commission investigations in this area has increased noticeably When a potential conflict arises, it must be managed appropriately-for example, the relevant trustee should withdraw from the decision-making process Charities should also draft and maintain a conflicts of interest policy that covers: ...
Over 800,000 charity trustees are thought to operate in England and Wales, with many serving on a voluntary basis. Trustees are the decision-makers, and every charity trustee-paid or unpaid-must use their decision-making authority in a way that satisfies legal obligations drawn from a range of sources. If they do not, they can, in the end, be held responsible for any failure. This Practice Note offers a summary of the principles that govern charity trustee decision-making in England and Wales. Key principles For general guidance on trustees’ powers and duties, see Practice Note: Charity trustees-duties and liabilities. The main principles for trustee decision-making are: When making a decision, trustees owe fiduciary duties to: operate within the powers conferred by the charity constitution act in good faith always act...
ARCHIVED: This key charity litigation case is archived and is not being maintained. The Supreme Court matter of Children’s Investment Fund Foundation ( UK) v Attorney General illustrates how a substantial philanthropic trust can become entangled in matrimonial disputes and engage a range of charity litigation issues. Key facts The Children’s Investment Fund Foundation ( UK) ( CIFF) was a charity and a company limited by guarantee, incorporated and registered in 2002 by a husband ( H) and his then wife ( W). H and W acted as trustees of the charity and were also members of the company. The company’s only other member was Dr Marko Lehtimäki. After the breakdown of their marriage, H and C agreed that W would resign as a member and trustee of CIFF. In return, CIFF would provide a grant of $360m to a new charity founded by...
Costs The expense of contested litigation in England and Wales can be substantial. Under the Civil Procedure Rules 1998, there is a risk that the court will require one party-typically the unsuccessful side-to pay some or all of the other party or parties’ costs. Charities that are involved in, or thinking about becoming involved in, litigation face a series of interlinked considerations. This potential exposure to adverse costs can be a pivotal factor. Careful assessment is vital before taking any matter to court now. Civil litigation cost rules in England and Wales The default position-subject to specific exceptions and the provisions of the Civil Procedure Rules 1998-is that the court has discretion over the costs of civil proceedings, whether or not a charity is a party. See Overviews: Principles of costs recovery-overview and Costs orders-overview (available subject to...
ARCHIVED: This key case in charity litigation has been archived and is not being updated. Key facts H and W were committed to conserving Chinese tigers, a severely endangered species. In keeping with modern philanthropic practice, they directed H’s wealth into a single-issue, cross-border venture dedicated to that purpose. In 2000 they founded a UK charity, Save China’s Tigers UK ( SCT UK), and in 2002 they created a Mauritian trust, Chinese Tigers South Africa Trust ( CTSAT). SCT UK was made CTSAT’s sole beneficiary, and CTSAT accumulated assets of £25m deriving from H’s work. H was the settlor of CTSAT and served initially as protector. By the time of the financial remedy proceedings, H was no longer protector and both H and W had been irrevocably excluded from any benefit. A professional trustee was appointed. Although CTSAT’s terms were described as very wide, they were not unusual for offshore trusts of this...
Jointly owned property and loss of capacity Q& As This Practice Note steers practitioners towards Q& As setting out the rules and procedure relevant where one or more co-owners of jointly held property lacks mental capacity. Note that the Q& A material is not maintained; the Q& As linked from this Practice Note state the law only as at the date shown in each instance. Introduction When two or more individuals own real property together, whether as joint tenants or as tenants in common, a trust of land arises and the owners act as trustees. Should any such trustee become unable to manage their property and affairs, they will be incapable of executing legally binding documents in relation to the property. If a sale is proposed, an application must therefore be made for an order appointing a person to substitute the incapable trustee, or...
Other international Q& A guides The guides below, set out in a question-and-answer format, cover a topic and supply replies with regard to a number of specified......
From 1 April 2021, non‑ UK residents purchasing residential property in England and Northern Ireland are liable for a 2% surcharge in addition to the standard stamp duty land tax ( SDLT) rates for homes. This Practice Note explains when that additional charge applies. SDLT on residential transactions is intricate: several different rate structures may apply to a single purchase and, from 1 April 2021, the 2% uplift introduces a further band. SDLT does not apply in Scotland or Wales; for Scottish land and buildings transaction tax ( LBTT) and Welsh land transaction tax ( LTT), refer to the LBTT subtopic and the LTT subtopic... Background The government proposed a surcharge for non‑residents acquiring homes in England and Northern Ireland at Budget 2018, confirmed it at Spring Budget 2020, and ran a consultation until 6 May 2019. Following that...
Convention rights The Human Rights Act 1998 ( HRA 1998) took effect in October 2000 and is intended to give effect to the rights set out in the European Convention on Human Rights ( ECHR) (the Convention rights). The ECHR is a binding international treaty reflecting the United Nations Universal Declaration of Human Rights 1948. The UK ratified the ECHR in 1951, but it became binding in UK law only with the introduction of the HRA 1998......
The UK’s formal withdrawal from the EU took effect at 11 pm on 31 January 2020 (exit day). At that point, the withdrawal period under Article 50 TEU concluded, and the ratified Withdrawal Agreement, which set the legal terms of the UK’s departure, entered into force. On exit day, the ratified Withdrawal Agreement was released in the Official Journal of the European Union, together with the Political Declaration outlining the framework for the future relationship between the UK and the EU: Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.20, p 7-187 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.20, p 1-16 Exit day stood as a significant milestone, being the date on which the UK...
The European Convention on Human Rights ( ECHR) Adopted by the Council of Europe in 1950, the ECHR sets out rights and freedoms that contracting parties must respect and secure for everyone within their jurisdiction. These include: life protection from torture and other inhuman or degrading treatment or punishment freedom from slavery and forced or compulsory labour liberty and personal security a fair trial prohibition of retroactive penal legislation respect for private and family life, home and correspondence freedom of thought, conscience and religion freedom of expression freedom of assembly and association to marry and found a family an effective remedy for violations of rights—this is not incorporated into UK law by the Human Rights Act 1998 ( HRA 1998) freedom from discrimination in relation to specific rights and...
The preface to the Organisation for Economic Co-operation and Development ( OECD) model tax convention ( MTC) expressly states that, when concluding a double tax treaty ( DTT), the contracting jurisdictions neither seek to open avenues for tax avoidance nor are compelled to extend treaty benefits where arrangements amount to an abuse of the treaty concerned. Accordingly, the parties are not required to confer relief where abusive arrangements exist under the relevant treaty framework. Specific anti-avoidance measures that stop a given article of the treaty from applying to a transaction or category of income (eg provisions on dividends, interest and royalties), including ‘beneficial ownership’ conditions and anti-conduit rules designed to ensure the person legally receiving the income is also its real economic beneficiary; and General anti-avoidance rules that limit the operation of the treaty......
This Practice Note provides a concise overview of the principal capital gains tax ( CGT) reliefs and exemptions relevant to business assets and available to trustees, as well as to individual business owners. It considers the following areas. CGT reliefs for trustees carrying on a business, namely: business asset roll-over relief incorporation relief CGT reliefs and incentives for trustees as investors, namely: enterprise investment scheme ( EIS) and seed enterprise investment scheme ( SEIS) relief on company reorganisations relief for losses on loans to traders EIS and SEIS play a significant role in drawing investment into a business. That said, this Practice Note concentrates on the tax treatment of both schemes for trustees in an investor capacity, ie the EIS income tax and CGT benefits available to an investor. The reliefs excluded from this Practice Note, but covered in separate Practice Notes, are: CGT...
Duty to keep estate accounts Section 25 of the Administration of Estates Act 1925 ( AEA 1925) states that personal representatives ( PRs) must, if the court asks, provide an account of the estate’s administration. Sensible practice is for PRs to maintain running accounts throughout, so they can evidence that the estate has been managed correctly and properly. On finishing the administration, PRs ought to supply complete accounts for the residuary beneficiaries to receive with their distributions. Where an estate requires more than two years to complete, an interim account should be prepared, and annual interim accounts where the process spans several years. The estate accounts must also be open for inspection, upon request, by any beneficiary or creditor. If PRs fail to give information to those with a proper entitlement to it, an application can be brought by originating summons in the...
CORONAVIRUS ( COVID-19): For Wills made on or after 31 January 2020, the formal rule requiring a valid Will to be witnessed by two witnesses covers both physical and virtual presence, enabling remote witnessing via video conference. For the latest guidance on this temporary measure (which applies to Wills made up to and including 31 January 2024), see Practice Note: Coronavirus ( COVID-19)—remote witnessing of Wills [ ARCHIVED]. Note that the guidance below concerns WA 1837 in its original, unchanged form. Statement of the privilege Section 11 of the Wills Act 1837 ( WA 1837) provides that any soldier in actual military service, or any mariner or seaman at sea, may dispose of his personal estate without formalities; in other words, the Will need not be in writing or, if written, need not comply with the usual execution requirements in WA 1837, s 9. This has been...
FICs have long served as an estate-planning tool, and their appeal remains undiminished presently, even as corporation tax rates increase. The label FIC covers numerous structural models, deployed for many aims, and is used in practice across a broad spectrum of arrangements. This Practice Note, however, does not address the wider tax-planning possibilities linked to using a FIC in any detail. What is a family investment company? A FIC is, at its core, a company created specifically to meet the needs of, typically, a single family. As the name suggests, it is generally formed, in many cases, to hold the family’s investments, though many of the same principles can equally apply to a family trading company. Investments may take any form that a company is permitted to hold and would typically include, often, property and/or equities. Such companies will usually adopt bespoke articles of...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first overhaul of Scots trusts law in more than a century since the key statute, the Trusts ( Scotland) Act 1921, was enacted. Provisions on trusts will only commence following secondary legislation by Scottish Ministers, while the succession measures took effect on 30 April 2024. A summary of the principal modernising reforms appears in News Analysis: Trusts and Succession ( Scotland) Bill passed. Express creation of trusts An express trust arises where the owner of assets (the truster) conveys property to trustees to hold for specified purposes for the benefit of the beneficiaries. The trust’s constitution is finalised by delivery of the trust property or the trust deed to the trustee. Trust deed ‘ Trust deed’ is defined in the Trusts ( Scotland) Act 1921 ( T( S) A 1921) as...
STOP PRESS: Abolition of non-dom regime and introduction of residence-based IHT regime The Finance Act 2025 ( FA 2025), which obtained Royal Assent on 20 March 2025, ends the remittance basis of taxation and introduces a residence-based system from 6 April 2025. FA 2025 also replaces domicile as the principal factor for determining liability to inheritance tax. Other updates include: Changes to the rules that determine excluded property status Abolition of protected settlements status for offshore trusts Amendments to overseas workday relief For details on these measures, 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. When a trustee errs, remember there are several potential remedies: rectification, the doctrine of mistake, and the so‑called rule in Hastings‑ Bass ( Rule). This...
Trusts commonly arise in commercial transactions in two principal scenarios: express trusts, namely a trust intentionally established as the vehicle or structure by which individuals can take part in a transaction or arrangement imposed trusts (for example, a resulting trust or a remedial constructive trust) that arise by operation of law to provide a participant in a transaction with a remedy after a trustee’s breach of duty or the misconduct of a third party, or to prevent injustice General issues Where an express trust is deployed to give effect to a commercial transaction, it is crucial to establish: who the current trustees are (which requires reviewing the trust instrument and any deeds of retirement, removal, or appointment of trustees) the scope of their express and statutory powers (in addition to the trust instrument, you will need to consider the...
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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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