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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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ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explores how temporary COVID-19 measures affect dispute resolution. It is intended to help dispute resolution practitioners grasp changes to civil court procedures and processes during the pandemic, and how those shifts, and the pandemic, may influence their practice and individual cases. It addresses the practical impact of coronavirus on key litigation steps and concepts. Read alongside: Coronavirus ( COVID-19) civil court specific guidance—dispute resolution [ Archived], giving further guidance for particular courts SCCO guidance for detailed assessment from 1 August 2020 This Practice Note provides ‘matter-neutral’ guidance on the procedural effects of the coronavirus for dispute resolution in England and Wales. For substantive and ‘matter-specific’ consequences of the coronavirus, see: Contract breach and termination— Coronavirus ( COVID-19) and contractual...
This Practice Note sets out a practical overview of the first actions a property and affairs deputy should take once appointed... Checking and understanding the deputyship order The deputy must review the deputyship order promptly and become fully familiar with its terms so they know precisely which decisions they are authorised to make for the protected person ( P). For wider guidance on a deputy’s powers, see Practice Note: Deputyship—the deputy’s duties and powers... If any mistakes are identified, steps should be taken swiftly to correct them. Minor issues, such as a misspelt name, can usually be resolved informally with the Court of Protection... Where there are more significant errors, the deputy should file a COP9 application within the proceedings... If the court is not notified of errors within 21 days of the date the order was sent, the deputy may have to pay for a...
The position of Court of Protection Visitor is longstanding, having operated under the Mental Health Act 1983 as the ‘ Lord Chancellor’s Visitors’, and is also recognised by the Mental Capacity Act 2005 ( MCA 2005). The MCA 2005 Code of Practice explains that a Court of Protection Visitor is appointed to report to the Court of Protection on the way attorneys or deputies are performing their duties. They have been characterised as ‘the eyes and ears of the court’ and are particularly vital where there are no relatives or friends to act as a deputy or to raise issues with the court... Appointment and qualifications Court of Protection Visitors are not officers of the court, although their appointment is made by the court. Under MCA 2005, s 61, there are two categories of Court of Protection Visitor: A Special Visitor, who must be a...
The Court of Protection Rules 2017 ( COPR 2017), SI 2017/1035 The Court of Protection Rules 2017 were placed before Parliament on 30 October 2017 and took effect on 1 December 2017. They repeal the Court of Protection Rules 2007, SI 2007/1744, together with the amending rules of 2009, 2011, 2015 and 2017, and replace them with a single consolidated code... SI 2009/582 SI 2011/2753 SI 2015/548 SI 2017/187 ARCHIVED: This archived Practice Note is not maintained and is provided for background purposes only. The rules largely consolidate prior amendments made since COPR 2007, including last year’s pilot case management provisions. Procedures arising from the transparency and section 49 pilot schemes will be implemented through new practice directions... The principal alteration is a renumbering to mirror the structure of the Civil Procedure Rules 1998 ( CPR 1998), SI 1998/3132, the Family...
The principles The decision maker must first consider the principles set out in section 1 of the Mental Capacity Act 2005 ( MCA 2005), namely: the vulnerable person ( P) is to be presumed to have capacity unless it is demonstrated that P lacks it P must not be treated as unable to decide unless all practicable steps to assist P have been taken without success P is not to be regarded as incapable merely because P makes an unwise choice any act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be carried out in that person’s best interests before acting or deciding, regard must be had to whether the aim can be effectively met in a way that is less restrictive of P’s rights and freedom of...
The powers of the Court of Protection The Court of Protection is empowered to make one or more decisions about the personal welfare of a person who lacks capacity ( P) to make those decisions themselves. It can also appoint a deputy to take such decisions (see Practice Note: Choosing the deputy for further details), though health and welfare deputies are relatively seldom appointed, for the reasons articulated by Hayden J, then Vice- President of the Court of Protection, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For commentary on that ruling, see Case Analysis: Principles governing the appointment of personal welfare deputies ( Re Lawson; Re Mottram; Re Hopton). A recent application of the Lawson principles led to the appointment of a personal welfare deputy—see Case Analysis: Court of Protection—when is the criteria for appointing a Personal Welfare Deputy met ( Parr v...
Although the Court of Protection (the court) may issue a single order for someone who lacks capacity in a given case, that route is not invariably the most suitable on the facts. Where it is not, the court may direct that a deputy be appointed, if required, to handle the particular matter or to manage affairs on a continuing basis, as needed, especially if the incapacity is expected to persist. The court’s statutory authority to appoint a deputy arises under section 16 of the Mental Capacity Act 2005 ( MCA 2005). This Practice Note outlines the steps for making an initial application to appoint a health and welfare deputy. For guidance on applying to appoint a property and affairs deputy, which has operated an upfront notification process since January 2023, see Practice Note: Application to appoint a property and financial affairs...
For anyone appointed by the Court of Protection to serve as a deputy for property and financial affairs or for health and welfare, whether acting as a lay deputy or a professional deputy, an annual return must be submitted to the Office of the Public Guardian ( OPG). The OPG now scrutinises the way deputies report and their obligation to account for every transaction. Of note to professional deputies is the OPG’s growing collaboration and information sharing with the Senior Courts Costs Office ( SCCO), the authority that decides what a professional deputy may charge. In this Practice Note, references are made to ' P', 'the protected person' and 'the client', reflecting the terminology used within the applicable legislation or guidance. In each instance, these terms denote the person for whom the deputy has been appointed. That terminology is used...
When P’s personal injury or clinical negligence claim settles, or an interim payment is received, the deputy must decide how to invest the compensation most effectively and prudently. Standard 4(d) in the updated Deputy Standards Policy, issued by the Office of the Public Guardian ( OPG) in February 2023, also requires property and financial affairs deputies in this role to pursue the best attainable return on savings with minimal risk, wherever reasonably possible, and to optimise the management of P’s estate using appropriate, cost‑effective measures at all times. Further detail for professional deputies on Standard 4(d) appears in the Deputy Standards— Guidance for Professional Deputies, also published by the OPG in February 2023. Following the judgment in Re ACC, a professional deputy should take care to avoid any potential conflict of interest if proposing to appoint an associated company to manage P’s...
This Practice Note covers two forms of court procedure that arise in deprivation of liberty cases: applications brought where the legality and validity of a person’s detention under the deprivation of liberty authorisation process is called into doubt or dispute applications that a public authority may issue seeking authorisation to deprive a person of liberty beyond the ambit and outside the scope of the regime set out in Schedule A1 to the Mental Capacity Act 2005 ( MCA 2005) Both categories of procedure lie outside allocation to case pathways, as each is governed by their own distinct procedural requirements and rules. Note: at the time this note was prepared, the Court of Protection is reviewing the route for obtaining judicial authorisation of deprivation of liberty......
Introduction The authority of the Court of Protection (the court) derives from the Mental Capacity Act 2005 ( MCA 2005), and the way in which that authority is exercised is directed by the Court of Protection rules, alongside related practice directions. MCA 2005 broadened the court’s remit and, from 1 October 2007, it may determine issues about an individual’s personal welfare and health care, in addition to continuing to address that person’s property and financial affairs as before. The court will usually not intervene unless there is a dispute, or an inability to reach a decision on a particular matter, because in most situations an appointed deputy will be present to make the decision that is required. Nevertheless, even where a deputy has been appointed, there will be occasions when their position needs clarification or when some further practical assistance is sought......
Use the link below to obtain the training presentation. Contents Overview of the Court of Protection and the landscape prior to the Mental Capacity Act 2005 Relevant statutes and procedural rules Primary role of the Court of Protection Principal powers exercised by the Court of Protection Decisions concerning property and financial matters Decisions relating to health and welfare Guiding principles underpinning Court of Protection decisions Responsibilities and authorities of deputies Support services......
The Court of Protection Rules 2017 ( COPR 2017) carry an overriding aim of enabling the court to determine cases fairly and at proportionate cost, reflecting the principles within the Mental Capacity Act 2005 ( MCA 2005). Under COPR 2017, r 1.3, the Court of Protection has a duty to manage cases actively by, among other matters: considering the most suitable case pathway for the proceedings; and ensuring allocation to an appropriately levelled judge (or authorised court officer) and, so far as possible, preserving judicial continuity Allocation to case pathways COPR 2017, r 3.9 provides for assigning cases to case management pathways. There are three such pathways: the personal welfare pathway the property and affairs pathway the mixed welfare and property pathway Each case should be placed on one of the above pathways on issue unless it falls within these...
New Practice Direction/ Rules Fresh Practice Directions and, in certain instances, substitutions to the Court of Protection Rules 2007 came into force on 1 July 2015. Following the Court of Protection ( Amendment) Rules 2015, the Court of Protection forms were amended and a suite of new forms was also brought in from 1 July 2015... Practice Direction 2A— Participation of P Effective from 1 July 2015, this Practice Direction aims to secure P’s meaningful involvement in proceedings and to ensure the court is fully apprised of P’s circumstances, whilst avoiding undue delay and unnecessary expense. It references a new Rule 3A, also operative from 1 July 2015, which requires the court to consider whether to issue directions: for P to be joined as a party or for P to be represented by an accredited legal...
STOP PRESS: On 26 October 2023, the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) obtained Royal Assent. Its purpose is to bolster corporate openness in the UK, primarily through Companies House reforms and amendments to provisions within the Companies Act 2006. It further aims to modernise the regulatory framework for limited partnerships and confer stronger powers to combat economic crime. Implementation of ECCTA 2023 will be phased, with commencement dates staggered. Several measures commenced on 4 March 2024 and could affect this content. For more detail, refer to Practice Notes: Implementation of the Economic Crime and Corporate Transparency Act 2023 and The Economic Crime and Corporate Transparency Act 2023—tracker, especially the legislation and consultation tracker. This Practice Note summarises the Companies Act 2006 ( CA 2006) provisions concerning a company’s annual accounts and associated reports. The CA 2006 contains detailed rules and...
Agreement for lease An agreement for lease is a commitment between a landlord or property owner and a tenant, under which the tenant promises to take a lease of all or part of a property at a future date, once the landlord has met specified obligations set out in the agreement. In legal terms, an agreement for lease is a contract for the sale or other disposition of an interest in land, and it will be ineffective unless it complies with section 2 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989). It must: be in writing set out or incorporate all the terms expressly agreed between the parties, and be signed by, or on behalf of, the parties Such an agreement is required where the landlord and tenant cannot enter into the lease...
Principles governing the interpretation of Wills have evolved over many years, and rules on construing dispositions were historically muddled by differing treatment of personalty and realty. The Administration of Justice Act 1982 ( AJA 1982) altered this. In Marley v Rawlings, the court confirmed the modern method: determine the testator’s intention from the language used. Although the previous canons are no longer as conclusive as they once were, many remain a useful starting point. In light of the caselaw, practitioners should rely on well-used Will precedents and avoid straying from them without careful thought. References to property in a Will speak from the date of death A reference to real and/or personal property (for a discussion of real and personal estate, see Practice Note: Devolution of assets and the need for a grant) in a Will is taken to speak from the date of death, that is, as...
Connected persons Capital gains rules contain targeted measures for people who are connected with each other. These fall into two main strands: rules for dealings between connected persons; and rules that, in effect, treat a taxpayer together with their connected persons as one economic unit The first strand includes the market value requirement, limits on the use of capital losses, and the treatment of linked transactions (each outlined below). These measures aim to stop manipulation of the capital gains regime—for example, generating artificial capital losses by transferring an asset for little or no consideration to a family member, or to a company that the taxpayer controls. The second strand is found throughout the capital gains legislation. One illustration is the value shifting provisions, which apply where a tax‑free benefit has been conferred either on the person disposing of an asset, or on someone...
The Charity Commission The Charity Commission serves as the regulator for more than 170,000 charities (as at 31 March 2025), and in the financial year 2024–25 oversaw charity income surpassing £100 billion. Its remit covers England and Wales only. In Scotland, equivalent duties are currently carried out by the Office of the Charity Regulator ( OSCR). The websites of both the England and Wales and the Scotland regulators similarly offer guidance on every facet of establishing and managing a charity and should be the initial point of reference for anyone involved in charity affairs and administration at every stage of the process. The Charity Commission is a body corporate and its functions are presently governed, on the Crown’s behalf, by the provisions of the Charities Act 2011 ( CA 2011), as amended......
The Law Society’s Wills and Inheritance Quality Scheme ( WIQS) The Law Society’s WIQS, introduced in 2013, operates through a set of detailed practice policies covering Will drafting and estate administration. The protocols within the Will drafting element do not lay down a strict, sequential method for creating a Will, as the correct approach depends on the individual client and any recent legal developments that may not yet appear in the protocols. Rather, they offer a framework for how a practice should approach Will drafting to secure WIQS accreditation. The scheme also requires Will drafters to be alert to the many potential pitfalls and issues that may arise, together with ways these might be managed. WIQS—general principles As set out by the Law Society, WIQS is intended to deliver a quality standard for producing Wills and administering estates. Its key elements...
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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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