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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. The local authority ( LA) for a person’s place of ordinary residence carries out community care assessments for adults aged 18 or over. Once an LA becomes aware that someone may have needs requiring support, it has a duty to assess that individual. Introduction of care and support needs assessment easements To address pressures on care and support assessments during the coronavirus pandemic, the Coronavirus Act 2020 ( CA 2020) was enacted. Four key elements provided that: LAs were not required to carry out in-depth assessments of people’s care and support needs; LAs did not need to undertake financial assessments under the Care Act 2014 ( CA 2014); LAs were not obliged to draw up or review care and support plans under CA 2014; and LAs’ duties to meet eligible care and support needs, or carers’ needs, were...
Note: This Practice note explores how care is financed after the reforms introduced by the Care Act 2014 and the supersession of the Charging for Residential Accommodation Guide ( CRAG), which gave way to the Care and Support ( Charging and Assessment of Resources) Regulations 2014. Numerous provisions have since been repealed, with further legislation and regulation introduced to make the reforms operate as intended, including the Health and Care Act 2022. Health and Care Act 2022 Planned changes in this field, such as a cap on care costs, have faced repeated postponements; the government deferred the cap until 2025, and it remains uncertain whether the new government will pursue this policy. In parallel, the Care and Support ( Charging and Assessment of Resources) Regulations 2014 are under review. The rates for the Personal Expenditure Allowance and the Minimum Income Guarantee set out in these...
When someone dies, their personal representatives ( PRs) must compute and pay any inheritance tax ( IHT) to secure the grant and deal with the estate. They are also charged with closing the deceased’s tax position up to the date of death, and the income tax and/or capital gains tax ( CGT) outstanding at that point can influence the exact IHT due. Thereafter, the PRs must account separately to HMRC for any CGT (and income tax) arising during the administration period. In general terms, that period runs from death until the residuary estate is identified and the estate is fully wound up. CGT can arise where the PRs dispose of assets that have increased in value since death; however, if a sale occurs within a specified window after death, the sale proceeds may replace the death value for IHT...
FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill gained Royal Assent on 18 September 2023 and is now the Powers of Attorney Act 2023 ( PAA 2023). Although the Act has commenced, the necessary statutory instruments are yet to be made, and therefore most provisions are not currently fully operative. PAA 2023 will amend the Mental Capacity Act 2005 ( MCA 2005) to deliver a more up-to-date lasting power of attorney ( LPA) service overall......
British Virgin Islands ( BVI) trusts law is set out in the Trustee Ordinance, Cap 303 (as amended) as revised from time to time, and the Virgin Islands Special Trusts Act 2003 (as amended) ( VISTA Law). A widely used application of trusts constituted under the VISTA Law ( VISTA Trusts) is the holding of shares, whether directly or indirectly, in companies undertaking trading activities. The prudent person rule Historically, and over many years, using trusts to own shares in trading companies has been significantly constrained by the common law duty of prudence concerning investments......
British Virgin Islands English law/equity Observed by the courts except where BVI statutes or case law provide otherwise. Constitutional status British Overseas Territory—self-governing within the Commonwealth. Principal trusts legislation Trustee Act 1961 (as amended) ( Trustee Act) Virgin Islands Special Trusts Act 2003 ( VISTA) Trustees’ Relief Act Recognition of Trusts Act ( Overseas Territories) Order 1987 Courts Independent courts and judiciary, with the Privy Council as the ultimate appellate court; part of the Eastern Caribbean Court System. Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition ( Hague Trusts Convention) Its provisions are largely enacted, with many reinforced by BVI conflict-of-laws legislation. Cayman Islands English law/equity Applied by the courts except where altered by Cayman Islands legislation or case law. Constitutional status British Overseas Territory—self-governing member of the Commonwealth. Principal trusts legislation Trusts Act (2021 Revision) ( Trusts Act) Banks and Trust Companies Act (2013...
Practice Note This Practice Note introduces the national non-domestic rates ( NNDR), commonly known as business rates, that apply to non-domestic premises in England and Wales. It summarises the scheme’s background and sets out how valuations are carried out. It also describes how to review entries and, where appropriate, challenge a local list or lodge an appeal against determinations already made. Property rating has existed in one form or another since 1601. The present framework was principally created by the Local Government Finance Act 1988 ( LGFA 1988), and has since been amended......
This Practice Note has been prepared in association with Josephine Howe, partner, and Grace Gao, counsel, both at Ogier. Key points Individuals who are not domiciled in the British Virgin Islands ( BVI), but who personally hold assets located in the BVI, may adopt a separate Will governed by BVI law to deal with those assets and to ease the subsequent probate process. Under BVI law, the law governing both the formal validity and the essential or material validity of a Will made by a person domiciled elsewhere turns on the nature of the property. For immovable property in the BVI, the lex situs applies, meaning BVI law. For movable property, such as cash in bank, shares in BVI companies or an interest in a BVI partnership, the applicable law is that of the deceased’s last domicile......
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explains the consequences for family law arising from the UK’s departure from the EU (commonly referred to as Brexit) and signposts resources covering both Brexit generally and family law in particular. Outlines statutory instruments affecting family proceedings Provides guidance on retained EU law, termed ‘assimilated law’ from 1 January 2024 From 31 January 2020, the UK ceased to be an EU Member State and no longer took part in the EU’s political institutions or governance structures. Nevertheless, in line with the transitional provisions in Part 4 of the Withdrawal Agreement, exit day initiated an 11‑month implementation period during which, for many purposes, the EU continued to treat the UK as a Member State. See also Practice Notes: Brexit—introduction to the Withdrawal Agreement and What does IP completion day mean for family law? [...
ARCHIVED: This Practice Note is archived and no longer maintained. It outlines the legal consequences for Scotland arising from the UK’s departure from the EU. Notably, these implications stem from the United Kingdom’s devolution arrangements, which allocate legislative and executive authority to the Scottish Parliament and the Scottish Government under the Scotland Act 1998 ( SA 1998), subsequently and progressively expanded—principally to increase legislative and taxation powers—by the Scotland Act 2012 ( SA 2012) and the Scotland Act 2016 ( SA 2016) (collectively, the Scotland Acts). For additional guidance on Brexit, see: Scotland collection. Scotland's constitutional arrangements The starting point remains that Scotland’s status within what is now the United Kingdom of Great Britain and Northern Ireland finds its constitutional basis in the Act of Union between Scotland and England. Although devolution has re-ordered aspects of internal governance, the UK’s character as a single and...
Guiding a trustee alleged to have breached trust is challenging, as the boundary between a complete defence and asking the court to excuse a clear breach is a fine one. There are several options available to the practitioner. Acting honestly and reasonably—section 61 of Trustee Act 1925 This provision is especially valuable to the lay trustee; it can assist the professional trustee too, though convincing the court to exercise its discretion in their favour is generally tougher. As often observed: ‘a remunerated trustee is expected to display a higher standard of diligence and knowledge than an unpaid trustee.’ The section indicates that if it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for a breach of trust—whether the alleged transaction pre‑ or post‑dates the Act’s...
For general information on trustees’ powers and duties, see: Trustees—overview. Precedents for appointing trustees are set out in Practice Note: Fast find key trust precedents. First steps When a replacement is needed—whether a trustee intends to retire or there is a wish to add particular expertise—prepare a brief role description specifying the required skills, experience and knowledge. Agree the recruitment procedure and allocate who will do what, ensuring any process mandated by the trust instrument is followed. Consider the beneficiaries’ views; this might include consulting the settlor, if living, or a protector. Identifying potential trustees The most direct route to candidates is personal referral or word of mouth. In principle, anyone connected with the trust—trustees or beneficiaries—may put forward a name. Where the departing trustee is a professional adviser, they will often recommend a successor from their own firm or the...
Failure of gifts under Will Even where a person dies leaving a validly executed Will, some legacies and testamentary gifts may not take effect. Possible reasons are: uncertainty disclaimer dissolution of marriage or civil partnership disqualification due to: undue influence or fraud forfeiture being an attesting witness the beneficiary having been adopted by a third party, altering their former legal relationship to the testator failure to satisfy a contingency lapse ademption If the residuary estate is insufficient to meet the liabilities, the legacies must be reduced—ie abate—so those liabilities can be discharged. For further detail on ademption, lapse and disclaimer, and on failure of gifts...
ARCHIVED : This Practice Note has been archived and is not maintained. Finance Act 2013 ( FA 2013) brought in the annual tax on enveloped dwellings ( ATED) as one element of a wider set of reforms designed to discourage the indirect holding of high-value UK residential property—for example through a company—in order to avoid or lessen taxes such as stamp duty land tax ( SDLT) on a later sale of the property. For further information on ATED, see Practice Note: ATED—the basics. Within the same package, FA 2013 expanded the capital gains tax ( CGT) regime by imposing a CGT charge on disposals on or after 6 April 2013 of property interests that fall within ATED’s scope by non-natural persons ( NNPs), whether resident in the UK or non-resident. This Practice Note outlines the CGT charge on gains connected with ATED...
Why is assistance in collection needed? The context is a long-standing rule of international law: courts in one country will not enforce the penal or revenue laws of another. This is termed the ‘revenue rule’. It is also identified as Dicey Rule 3, as it first appeared as Rule 3 in Dicey and Morris on the Conflict of Laws, and now features as Rule 20 in Dicey, Morris and Collins on the Conflict of Laws. The fundamental reason for the revenue rule is that a foreign state is not permitted to exercise sovereign authority within the borders of a different state. In short, the revenue rule prohibits: courts or tax officials from aiding the collection of taxes for another state, and a state from commencing proceedings in a foreign court to recover taxes due to it The extensive reach of the revenue rule has prompted the...
Practice Note This Practice Note sets out the tests for arranging residential accommodation in England and Wales under the Care Act 2014. In Wales, social care is regulated by the Social Services and Well-being ( Wales) Act 2014. When questions arise about residential provision, practitioners will commonly face one or both of: the requirement for admission to such settings, and the management of those services. The statutory framework for each is intricate. Further uncertainty stems from the fact that responsibility for residential care sits across both local authority functions and the private sector in practice......
ARCHIVED: This Practice Note has been archived and is not maintained. The Tier 1 ( Entrepreneur) route was specifically created for those seeking to either join an existing UK company or to launch their own enterprise in the UK. The provisions governing this visa sit in paragraphs 245D–245DF of Part 6A of the Immigration Rules and in paragraphs 35–53 of Appendix A of the Immigration Rules. The corresponding provisions on English language and financial maintenance are set out within paragraphs 1–15 of Appendix B and paragraphs 1A–3 of Appendix C, respectively. Home Office policy guidance can be viewed at the Guidance on application for UK visa as Tier 1 ( Entrepreneur). Who is eligible? This route closed to new applicants on 29 March 2019, although dependants can still apply to join a main applicant who has been granted leave as a Tier 1 (...
ARCHIVED : this Practice Note is no longer maintained as the majority of concessions, which were introduced as a result of the coronavirus ( COVID-19) pandemic, have ended This Practice Note remains archived for historical reference and may assist advisers conducting research. It brings together links to relevant information, news, and analytical commentary on the immigration consequences of the coronavirus pandemic. It will continue to be refreshed periodically with pertinent materials. Links to all key government and third-party guidance can be found below at: Coronavirus ( COVID-19) immigration resources— Information resources. For the National Archives page hosting earlier versions of the main Home Office guidance for individuals from 27 March 2020, see here. Update: Relaxation of restrictions, switching and international arrivals and travel On 19 July 2021, most coronavirus rules in England were lifted, before new measures were brought in on 30 November 2021 to limit the...
ARCHIVED This archived Practice Note outlines the data protection regime in place before 25 May 2018 and reflects the position under the Data Protection Act 1998 ( DPA 1998). It is provided for background only and is not updated. It identifies and explains the main exemptions available under the DPA 1998. When does the DPA 1998 apply? Before invoking any exemption, you should first determine the underlying obligation it concerns and why the exemption is needed. The first step is to confirm whether the DPA 1998 applies at all and, if it does, what it requires. This depends on: the nature of the information (personal data) the operations carried out on that personal data (processing) the equipment and/or the location used for processing which party bears the duties (data...
ARCHIVED: This archived Practice Note outlines which statutes and guidance were repealed, revoked, replaced or withdrawn following implementation of the Care Act 2014. It is no longer maintained and is provided for background purposes only. With parts of the Care Act 2014 ( CA 2014) commencing in April 2015, a range of statutory provisions and guidance were repealed, revoked or cancelled. Orders have been, and will continue to be, made under CA 2014 to give effect to these changes. The timetable for bringing the remainder of CA 2014 into force is still uncertain. The cap on care costs and the duty on local authorities to meet the eligible needs of self‑funders in care homes have been deferred until April 2020. The proposed appeals system for care and support has also been postponed. Guidance appeared in October 2014, with corrective guidance issued in March 2015, and it is...
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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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