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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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FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) secured Royal Assent on 24 February 2022. As detailed in the Charities Act 2022: implementation plan, its provisions are intended to take effect in three defined tranches over three stages: on 31 October 2022, on 14 June 2023, and in early 2024. For a digest of the CA 2022 measures already commenced, see Charities Act 2022: information about the changes being introduced. CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a summary (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’. A school within the maintained sector can move to independent academy status under the Academies Act 2010. Conversion takes place once the...
FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) obtained Royal Assent on 24 February 2022. As explained in the Charities Act 2022: implementation plan, its provisions are intended to be commenced in three defined groups across three stages—on 31 October 2022, on 14 June 2023, and in ‘early 2024’. For an outline of what has been brought into effect so far, see Charities Act 2022: information about the changes being introduced. The CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the proposals that have been accepted, refer to News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. In practice, while the same legislation applies to both, academies and free schools can differ...
Note: Although the Academies Act 2010 ( Ac A 2010) extends to Wales, the provisions enabling the establishment of new academies or free schools are confined to England. Therefore, this Practice Note relates solely to England. One much‑touted benefit of an academy or free school, when compared with a maintained school, is a degree of autonomy in setting the curriculum. That freedom is not absolute, naturally, yet it is greater by comparison. That relativity remains worth remembering here. The curriculum generally Ac A 2010, s 1A(1)(b) (as amended) obliges an academy or free school to meet the requirements in section 78 of the Education Act 2002 ( EA 2002) (which would otherwise bite only on maintained schools): namely, a balanced and broadly based programme of study that fosters the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and...
While the Academies Act 2010 ( Ac A 2010) extends to Wales, the powers to establish new academies and free schools are limited to England in scope. Accordingly, this Practice Note is relevant to England alone and should be read on that basis, for the purposes considered here. Who is the employer? In academies and free schools, the employer is the trust (that is, the trustees) or a proprietor. By contrast, in maintained schools the local authority or the governing body is the employer. For detail, see Practice Note: Teachers and staff in maintained schools. For more on status, see: Status and worker categories—overview. For guidance on school types, see: School organisation and regulation—overview, and for staff in maintained schools, see Practice Note: Teachers and staff in maintained schools. For more on governing bodies, see Practice Note: School...
This Practice Note pertains solely to England. While the Academies Act 2010 ( Ac A 2010) also extends to Wales, the provisions establishing and funding new academies operate only in England. Wales has no academies. What is an academy school? In law, free schools fall within the academy category. Both are created or run under the Ac A 2010. When opened, academies commonly superseded earlier maintained schools. Most free schools have been founded as entirely new institutions, though a small number have transferred from independent school status. For this Practice Note, ‘academy’ includes ‘free school’ unless expressly stated otherwise. The definition of academy schools appears in Ac A 2010, s 1A. Academy schools are, in technical terms, independent schools; however, their independence is from the local authority ( LA) in which they are located, not from the state. Their funding is derived from the...
Solicitors must consider the mental capacity of their clients in everything they do The assessment of capacity arises when: there is doubt whether an individual can decide, covering matters from marriage to consenting to or declining medical treatment to making a Will capacity might influence a proposed transaction and those directly or indirectly affected it is necessary to think about third-party participation in decision-making Every person has the right to choose, even if others see that choice as mistaken or unconventional. Generally, there is no need to intrude upon that process. Yet, while upholding personal autonomy, English law has long accepted that some people lack the mental capacity to bear responsibility for their choices. Traditionally, capacity law was drawn from various judicial authorities and legislation, including the Enduring Powers of Attorney Act 1985 and the Mental Health Act 1983......
For broader background and practical information on the Isle of Man, refer to Practice Note: Private Client— Isle of Man— Q& A guide. Legal framework Manx trust law stems from English law. It is grounded in long-established common law principles and is further supported and refined by statute which, for the most part, closely mirrors equivalent English measures. The key Manx trust enactments are: Trustee Act 1961 (largely derived from the Trustee Act 1925 of England and Wales) Variation of Trusts Act 1961 Perpetuities and Accumulations Act 1968 Recognition of Trusts Act 1988 (which gives effect in Manx law to the Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition ( Hague Convention)) Trusts Act 1995 Purpose Trusts Act 1996 Trustee Act 2001 (largely derived from the Trustee Act 2000 of England and...
The foundation originates in civil law and, unlike the common law trust, is a statutory construct. This Practice Note distils the regime that began in 2013. It highlights the core attributes of a Guernsey foundation and briefly covers the registration steps, the key individuals involved and their respective rights and duties, the applications of a foundation, and the relocation of an overseas foundation to Guernsey. The regulation and taxation of Guernsey foundations are also considered below... What is a Guernsey foundation? The Foundations ( Guernsey) Law, 2012 (the Law), which took effect on 7 January 2013 (and was amended by the Beneficial Ownership of Legal Persons ( Guernsey) Law, 2017 (the Beneficial Ownership Law) and, most recently, by the Foundations ( Guernsey) ( Amendment) Law, 2023, together with further changes made by ordinance and regulation), enables the creation of foundations in Guernsey. The...
In recent years, the phenomenon of older clients who are asset-rich but cash-poor has become increasingly common. Typically, their wealth is locked in a home that has climbed markedly in value over time, while income from pensions and savings has stayed largely static, if not fallen in real terms. Unsurprisingly, many wish to convert that fixed, generally unrealisable wealth into cash without having to sell their home. Equity release basics Equity release may offer a solution. Funds released can be taken as a lump sum, regular income, or a blend of both. Options fall into two main types: Lifetime mortgages, where the homeowner raises money by securing a mortgage on the property. The borrowing is repaid only when the homeowner dies or no longer needs the home (eg on moving permanently into residential care). Home reversion plans, where the owner sells a share, or all, of...
More UK trustees now hold overseas assets within trust property. This may occur because: the original settlor transferred them into the trust they were included in the testator’s estate the trustees subsequently acquired them Reasons why foreign assets may be held in trust An individual with a large worldwide portfolio might place non‑ UK assets into trust during life in order to: reduce complications on death protect property from external claims avoid the impact of forced heirship rules Investing in foreign assets Where UK trustees are contemplating overseas investment, they should consider: whether they have power to invest abroad—the general investment powers under the Trustee Act 2000 ( Tr A 2000) permit investment in foreign assets, subject to any express terms in the trust instrument. Note that the Tr A 2000 provisions on investing in land apply only to land located in the UK. If the current powers do not allow the...
Trustees and trust assets In numerous ways, obtaining security from trustees over trust property resembles taking security from chargors who hold the applicable asset outright. Factors that arise when securing obligations from an individual equally arise when securing obligations from individual trustees, and the same principle applies to their corporate counterparts. This Practice Note does not aim to address matters of general application when taking security; instead, it concentrates on particular points to keep in view when security is taken over trust assets. It highlights nuances specific to trust-held assets for lenders and advisers. This Practice Note addresses the following topics: the nature of trusts the powers of trustees to borrow and grant security specific issues to assess where security is taken over land regulatory aspects, and documentary considerations Please note, this Practice Note deals with issues concerning the taking of security from trustees generally and not charity...
From the mid-nineteenth century, Parliament promoted gifts of land by individuals for charitable and/or other benevolent ends (especially concerning education and religion) by permitting the land concerned to return back to the original owner, or their heirs, if the land stopped being used, whether indefinitely or for a stated period of time, for the very purpose for which it had first been originally bestowed when granted......
The phrase ‘mutual Wills’ refers to joint or separate Wills made under an agreement to create irrevocable interests in favour of identifiable beneficiaries. While the court recognises that any Will can be revoked by the testator during their lifetime, in the case of mutual Wills, equity will safeguard and enforce the interests arising from the agreement for the beneficiaries. Mutual Wills thereby allow individuals to crystallise their intentions so that, on the second death, the estate is dealt with in line with those intentions. Establishing the existence of a mutual Will The law on what amounts to a mutual Will is helpfully set out by John Gaunt QC in Charles v Fraser: Mutual Wills are Wills made by two or more people, usually in substantially similar terms and granting reciprocal benefits, following an agreement to make such Wills and not to revoke them without the other’s...
This guide explains the use of e-signatures across a range of international jurisdictions. A comprehensive table provides a quick-reference overview of whether, and in what ways, e-signatures are deployed in different countries. More extensive detail on every overseas jurisdiction listed is provided in the sections that follow. For detailed information on executing contracts in multiple jurisdictions, see Practice Note: Execution of contracts—jurisdictional guide. For guidance on the execution of deeds in different jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For insight into how contracts are formed across various jurisdictions, see Practice Note: Contract formation—jurisdictional guide. For information concerning the execution of documents under Scots law, see Execution— Scotland—overview. Please note that this is an introductory resource only, and that local advice from suitably qualified legal professionals in the relevant country should be obtained where...
If the deceased was domiciled in a country to which the Colonial Probates Act 1892 ( CPA 1892) and the Colonial Probates ( Protected States and Mandated Territories) Act 1927 ( CPA 1927) (together, the CPAs) apply, and a local grant has been issued, you may apply for that grant to be resealed to administer the estate in England and Wales. This route is often easier than producing evidence to prove a foreign Will and/or beneficial entitlement to secure an order under rule 30(1)(b) of the Non- Contentious Probate Rules 1987 ( NCPR 1987). A resealing application can be made to any district probate registry using form PA1P. Once resealed, the grant has the same authority and effect in England and Wales as if made by a court in this jurisdiction. A district judge or registrar may: accept the grant for...
Property joint ventures are commonly set up in three formats: contractual agreement partnership limited liability company Contractual agreement As the most straightforward variety of joint venture, a basic project management agreement, development management agreement, or collaboration agreement can often be the suitable path. Typically, one party provides a service in return for a pre-agreed share of any eventual profit. Common forms of collaboration agreement include asset, property, or investment management agreements......
Jurisdictions whose legal frameworks acknowledge trusts are generally those that stem from or have adopted English law and the principles of equity. These encompass the British Overseas Territories (including the Cayman Islands, British Virgin Islands, Bermuda and Gibraltar), together with the Crown Dependencies of Jersey, Guernsey and the Isle of Man. Infrastructure and regulation Their appeal for trust and corporate services does not rest solely upon having an appropriate legal framework. They provide high-calibre professional and fiduciary services, allied with suitable expertise and a high degree of regulation and governance. Each jurisdiction maintains a supervisory authority responsible for overseeing the finance sector, including the Cayman Islands Monetary Authority, the Bermuda Monetary Authority, the British Virgin Islands Financial Services Commission, the Guernsey Financial Services Commission, the Jersey Financial Services Commission and the Isle of Man Financial Services Authority. See Practice...
The framework of the people with significant control ( PSC) regime The people with significant control ( PSC) regime, effective from 6 April 2016, is set out in Part 21A of the Companies Act 2006 ( CA 2006), as modified by sections 81–83 and Schedule 3 of the Small Business, Enterprise and Employment Act 2015, and sections 44, 51 and Schedule 2 of the Economic Crime and Transparency Act 2023 ( ECCTA 2023). Created to confront the opacity of corporate ownership—where historically only the legal, and not always the beneficial, shareholder was recorded—the PSC register provides clearer and more current details of who ultimately owns and controls companies and other entities. This information is publicly accessible on the central registry kept at Companies House. It informs investors when considering whether to invest in a company and also assists law enforcement bodies with money...
Certainty In order for a settlor to establish a private express trust, the three certainties must be present. These are: certainty of words — known as certainty as to the settlor’s intention to create a trust, with the trust property intended to be kept separate from the trustee’s other property certainty of subject matter — known as certainty as to the property to which the trust is to attach certainty of objects — known as certainty as to the persons or ‘objects’ who are intended to benefit Charitable purpose trusts differ from express trusts for the benefit of persons in relation to the three certainties only, in that they do not need to satisfy the certainty of objects, so long as there is a general charitable intention. Certainty of intention of the settlor to create a trust The requirement of intention is met where there is sufficient evidence showing that the...
Incorporated v unincorporated charities Charities commonly adopt a range of incorporated and unincorporated forms. Corporate forms eligible for charitable status include: a charitable company (almost always a company limited by guarantee) a co-operative society or community benefit society (formerly termed industrial and provident societies) charity trustees incorporated under Part 12 of the Charities Act 2011 ( CA 2011) a charitable incorporated organisation (ie the limited-liability model created by Part 11 of CA 2011), requiring registration solely with the Charity Commission a body corporate established by Act of Parliament or Royal Charter (eg the Official Custodian for Charities) Unincorporated charities take one of two forms: a charitable trust; or a charitable unincorporated association Charitable company A charitable company may enter into contracts, execute deeds and issue other documents in the same way as any company formed under the Companies Acts......
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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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