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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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A company with a share capital can issue several classes of share, each carrying distinct rights. A company without a share capital may likewise have different classes of member with varying entitlements. The presence of multiple share classes or categories of member within a company may result in class rights arising. Where class rights exist, they may only be altered in the manner allowed by the Companies Act 2006 ( CA 2006). Different types of shares In a limited company that has share capital, every share must have a fixed nominal value (as mandated by CA 2006, s 542) and will generally be given a designation or name, for example ordinary shares of £1 each. The nominal (par) value is the fixed monetary figure by which a share is denominated and defines the shareholder’s liability to contribute to the company’s assets on a winding up. Any...
What does this Practice Note cover? This Practice Note describes the duties and functions of a bond trustee appointed under an English law trust deed for a bond issue. A trustee is not a feature of every bond offering. Some issues proceed without one. The issuer chooses whether to use a trustee or a fiscal agent—see Practice Note: Parties in an issue of debt securities— Fiscal agent or trustee. Bringing in a trustee has significant implications for the issuer and for bondholders (see: Reasons for appointing a trustee below). In this Practice Note, ‘bonds’ is used as a catch-all term for debt securities of all kinds (such as bonds, notes and commercial paper). Be aware, however, that alternative considerations can arise in structured finance deals. For an explanation of the difference between ‘bonds’ and ‘notes’ and the definition of ‘commercial paper’, see Practice Note: Types of debt...
This Practice Note outlines the steps to alter or update a company’s articles of association in line with the Companies Act 2006 ( CA 2006). Why amend the articles? There are numerous reasons a company may wish, or be required, to revise or adjust its articles of association......
Trusts and trustees A trust can be created for many purposes and to pursue different aims. What virtually all trusts share, however, is the presence of a trustee, or a number of trustees (the trustee). The trustee’s principal role is to hold and administer the trust’s property. The scope of the trustee’s authority and duties is ordinarily described in a formal trust instrument, for example a trust deed (the trust deed). Read together with the general law, the trust deed will specify, among other matters: the trustee’s powers and obligations, and any restrictions on the trustee’s powers and obligations A trust that owns shares in a private company is most often structured as either a discretionary trust—through which different members of the immediate or wider family may receive benefits—or an employee trust in practice within private company...
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note discusses the two ‘failure to prevent’ corporate criminal offences created by the Criminal Finances Act 2017 ( CFA 2017): CFA 2017, s 45 establishes the offence of failing to prevent the facilitation of a UK tax evasion offence(s) ( UK tax evasion facilitation offence) CFA 2017, s 46 establishes the offence of failing to prevent the facilitation of a foreign tax evasion offence(s) (foreign tax evasion facilitation offence) Both offences impose strict liability, with a ‘reasonable procedures’ defence for those able to show they maintained reasonable procedures designed to prevent facilitation of the underlying tax evasion offences. This Practice Note explains the components of each offence and the defences introduced by the CFA 2017. The offences sit within a broader suite of measures aimed at combating tax evasion and its facilitation, both in the UK and worldwide. They are...
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
Duties The obligations of court-appointed deputies are defined by the Mental Capacity Act 2005 ( MCA 2005) and its Code of Practice ( MCA 2005 Code of Practice). In addition, the Office of the Public Guardian ( OPG)’s deputy standards outline what is required of lay, Public Authority and professional court-appointed deputies. Further obligations appear in the deputy’s declaration on Form COP4. General duties arising under the law of agency also apply. The deputyship order A deputy must operate strictly within the specific parameters of the authority granted by the court, as described in the order of appointment. Where a deputy considers that the powers in the appointment order are not sufficient to carry out their responsibilities effectively, they must apply to the court (using Form COP1 and a witness statement on Form COP24) to either: ask the court to make the decision in...
The Solicitors Regulation Authority The SRA’s Standards and Regulations set out two Codes of Conduct: one for individuals and another for firms. For guidance on these, see Practice Note: SRA Codes of Conduct for individuals and firms (available subject to subscription)... Preliminary checks The SRA Codes and the Money Laundering Regulations require initial checks on prospective clients. For trustee and trust compliance, refer to the following Practice Notes from Compliance for trusts—overview: Money Laundering Regulations 2017—impact on trustees Trusts—disclosure of beneficial ownership information via the Trust Registration Service ( TRS) and record-keeping Trust Registration Service ( TRS) Beneficial ownership registers—private clients and trusts The first client meeting The Law Society’s Practice Note Engaging clients indicates the key matters to address include: the client’s objectives your role your advice the costs of the retainer The client’s objectives for setting up a...
Court fees and disbursements On issuing a fresh application to the court, every applicant must pay the relevant court fees and disbursements. Further, charges are due to the supervisory authority, the Office of the Public Guardian ( OPG). If a professional is named as deputy, they may levy fees for work undertaken for the protected person ( P). Both professional and lay deputies can claim back reasonable out-of-pocket expenses. Where the case relates to P’s property and financial affairs, the default position is that the costs of the proceedings, or the part dealing with property and affairs, are borne by P or debited to P’s estate. If the case addresses P’s personal welfare, the usual approach is that no order as to costs is made for the proceedings, or for the welfare element of them. If both property and affairs and personal welfare are in...
This Practice Note outlines the process for applying to change a child’s name under sections 8 or 13 of the Children Act 1989 ( Ch A 1989). It identifies who may apply, whose consent is needed to effect the change, when the court’s permission must be obtained, and the steps to be followed. The Note clarifies when the court’s permission is necessary. It also lists the considerations the court must have regard to under the Ch A 1989, together with relevant case law. In addition, it provides guidance on changing a name by deed poll. Children's surnames at registration A child’s birth must be registered within 42 days of the birth. The child’s mother and father are responsible for completing the registration. The surname recorded in the register is the name intended for the child at the date of...
When guiding an older or at-risk person on any litigation matter, it is crucial to assess at the outset whether they possess the capacity to pursue and manage proceedings effectively. Under the Mental Capacity Act 2005 ( MCA 2005), anyone who lacks the ability to conduct the case falls within the statutory definition of lacking capacity and, since 1 October 2007, is referred to as a 'protected party'. Where a claim is issued by, on behalf of, or against a protected party, no settlement, compromise, or payment, and no acceptance of money paid into court, is effective or valid, insofar as it concerns the claim by, on behalf of, or against that person, unless and until the court approves it. Principles of capacity under MCA 2005 Before turning to the specific rules and case law concerning capacity to litigate, it is helpful to note the relevant general...
The Variation of Trusts Act 1958 ( VTA 1958) empowers the court to sanction alterations to a trust’s provisions on behalf of beneficiaries who cannot themselves give consent to the change at all. It is chiefly intended for the familiar circumstance in which the trust instrument contains no explicit authority empowering anyone to modify the settlement under its own terms. Background to the Variation of Trusts Act 1958 The statute traces its origins to the decision in Saunders v Vautier, a leading case. The court there held that, where every beneficiary is an adult with capacity, they may collectively, acting unanimously, revise the trust terms as they choose if they wish to do so. Traditionally, the most typical illustration is a life tenant and a remainderman opting to divide the trust fund between them rather than maintain the settlement until the life tenant’s death. In...
This Practice Note outlines the classic fiduciary obligations owed by company directors, such as the duty to promote the company’s best interests, the twin rules against conflicts and unauthorised profits, and the equitable obligation of confidence. It also examines the remedies for contravention of those duties, and the different routes by which a director may be excused from the consequences of a breach, namely ratification, indemnity and insurance. What is a fiduciary relationship? A fiduciary duty signifies a relationship of trust, assurance or confidence between two or more persons. Although the common law imposes no inherent limit on the types of relationship that may be treated as fiduciary, certain relationships are generally fiduciary by default, eg those between trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, mortgagor and mortgagee. Other relationships will be treated as fiduciary where one...
This Practice Note reviews how the Foreign Account Tax Compliance Act ( FATCA) applies to UK trusts, implemented domestically by the International Tax Compliance Regulations 2015, SI 2015/878. For a broader overview of FATCA, see Practice Note: US: Foreign Account Tax Compliance Act ( FATCA)—summary, which provides further detailed guidance. Where the trust is a pension fund, see Practice Note: Automatic Exchange of Information ( AEo I) in the UK—pension schemes. Where the trust is an employee benefit trust, see Practice Note: Automatic Exchange of Information ( AEo I) in the UK— Employee incentive arrangements. What is FATCA and how does it affect UK Trusts? FATCA is US legislation intended to curb tax evasion involving US taxpayers’ offshore assets. This Practice Note addresses the impact of FATCA on trusts situated in the UK and highlights the principal issues. It does not extend to...
This Practice Note provides a broad overview of: the intergovernmental agreement between the UK and the US to enhance international tax compliance and to give effect to FATCA, signed on 12 September 2012 (the UK: US IGA), and the International Tax Compliance Regulations 2015, SI 2015/878 (the International Tax Compliance Regulations), insofar as they relate to implementing the UK: US IGA The International Tax Compliance Regulations took effect on 15 April 2015. They supersede and repeal the International Tax Compliance Regulations ( United States of America) Regulations 2014, SI 2014/1506, which were in force from 30 June 2014 until 14 April 2015. The International Tax Compliance Regulations and the UK: US IGA comprise detailed and demanding provisions. This Practice Note is a summary and does not address every facet of the framework. In certain sections, it necessarily adopts a...
STOP PRESS/ FORTHCOMING CHANGES : The UK intends to bring the OECD’s Cryptoasset Reporting Framework ( CARF) into domestic legislation, taking effect from 1 January 2026. The implementing instrument is the Reporting Cryptoasset Service Providers ( Due Diligence and Reporting Requirements) Regulations 2025 ( SI 2025/744), formally presented to the House of Commons on 25 June 2025. On the same date, HMRC released official tax impact and information notes ( TIIN) for the measure. HMRC has additionally also issued public guidance on reporting under the CARF. The government has likewise introduced new legislation revising the existing domestic law implementing the OECD’s Common Reporting Standard ( CRS) and the UK’s obligations under the Intergovernmental Agreement with the US for the implementation of the US Foreign Account Tax Compliance Act ( FATCA). The principal legislation is the International Tax Compliance Regulations 2015 ( SI...
Scope of this Practice Note Land, or real property, is frequently taken as security for a loan...
This Practice Note examines what is meant by chargeable consideration, the concept that sets the level of stamp duty land tax ( SDLT) payable on a chargeable transaction. For guidance on what constitutes a chargeable transaction, consult Practice Note: Land transactions, chargeable interests and chargeable transactions. For treatment of chargeable consideration in relation to leases, see Practice Note: SDLT-common lease transactions. From 1 April 2015, SDLT no longer applies to any land transaction involving any interests in or over land in Scotland. From that date, land and buildings transaction tax ( LBTT) applies to those transactions, subject to transitional provisions. Accordingly, any references in this Practice Note to ‘ UK land’ or similar terms, where SDLT is in point, should be interpreted as excluding interests in or over Scottish land from 1 April 2015. For more information, refer to the LBTT...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, signalling the first major overhaul of Scottish trusts law in more than a century since the Trusts ( Scotland) Act 1921. Most trust provisions will commence only when Scottish Ministers implement the required secondary legislation. By contrast, certain succession measures and aspects concerning the removal of trustees are already in operation. A summary of the key modernising reforms is set out in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be revised to reflect the new regime in due course. General nature of beneficiaries’ rights Under Scots law, beneficiaries are generally regarded as holding personal rights against the trustees, although in some situations their rights resemble a real right in property. Notably, 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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