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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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Devolution settlements in the UK Within the UK’s devolution arrangements, devolved governments can only legislate in fields where they hold competence. The accompanying table sets out the extent of legislative competence for both the Scottish Parliament and the Senedd Cymru. For further reading, consult Practice Notes: An introduction to devolution in Scotland, Wales and Northern Ireland; Structure and operation of the Scottish Parliament; and Structure and operation of Senedd Cymru......
Introduction to statutory interpretation The aim of statutory interpretation is to determine the legal meaning of a statute, that is, the sense that expresses the legislator’s intention. The clearest guide to that intention is the statutory wording itself, read in its context and with its overall purpose in mind, and its broader legislative setting. Courts should seek to fulfil the purpose of legislation by construing its language, so far as they can, in the manner that most effectively serves that purpose. Put differently, the courts’ default method is purposive, and every enactment is to be construed with that end in view. There is a starting presumption that the grammatical and ordinary sense of an enactment reflects the meaning intended by the legislator. Where an enactment reasonably bears only a single meaning, and no other interpretative tools or...
This Practice Note offers an overview of the Scottish Parliament. It outlines how its members are elected and how it uses its power to make laws. In that setting, it also sets out how the Scottish government is formed, and the roles it performs. Which voting system is used in Scottish Parliament elections? Elected representatives in the Scottish Parliament are called Members of the Scottish Parliament ( MSPs). The voting method in use, the Additional Member System, blends a straightforward ‘first past the post’ constituency ballot with a proportional element. On election day, every voter has two votes: one for an MSP to represent the voter’s constituency (eg Edinburgh Central), and another for a political party or individual on a regional list (eg the region of Lothian) There are 73 constituency Members and 56 regional Members. The ‘first past the post’ system selects the MSP for each...
What is a public authority? A public authority is a form of the state carrying out a public role. The line between a private entity and a public authority has grown more significant since the Human Rights Act 1998 ( HRA 1998), because HRA 1998 bars public authorities from behaving in a way or manner that conflicts in any respect with any Convention right under the European Convention on Human Rights ( ECHR). The approach to deciding whether an entity is a public authority can be broader in practice under HRA 1998 than it is within judicial review. Institutions that are plainly and inherently public by character are very likely to count as public authorities. Illustrations include, for example: central government police and emergency services local authorities local education authorities housing authorities the Ministry of Defence NHS bodies There are also various other organisations performing certain public tasks that may meet the...
This Practice Note examines when a failure to follow a pre-action protocol or the Practice Direction Pre- Action Conduct and Protocols may lead to a party being penalised, as well as the types of sanctions that could be imposed. For broader guidance on the potential recovery of costs incurred before proceedings, see Practice Note: Pre-action—costs recovery. Compliance with pre-action protocols The Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) outlines the behaviour ordinarily expected of parties prior to commencing proceedings. Its provisions apply in every case, and are expressly stated to govern where none of the more detailed, subject-specific protocols are applicable to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For further detail, consult Practice Note: Pre-action behaviour in non-protocol cases— Practice Direction Pre- Action Conduct and Protocols. If your claim is caught by one of the dispute...
When will a public authority owe a duty of care? The Supreme Court examined when a public authority owes a duty of care in Michael and Robinson. In Michael, Ms Michael dialled 999 to tell the police that her former partner had threatened to kill her. The call handler failed to relay the threat to kill, so the incident was treated as lower priority, causing a delay in the police response. Ms Michael was killed by her ex-partner before the police finally arrived. In Robinson, an elderly pedestrian was knocked down by police officers who were attempting to arrest a suspected drug dealer in the course of an attempted arrest. Each case was assessed to decide whether a duty of care was owed in those circumstances......
This Practice Note explains which jurisdictional rules the English courts will use when deciding which court has authority to hear a dispute. Those rules derive from the Hague Convention on Choice of Court Agreements, Brussels I (recast), Brussels I, the Lugano Convention, the Brussels Convention, and from statute or the common law. In international litigation, parties may disagree about the proper forum—ie, the jurisdiction—in which their dispute should be tried. Accordingly, identifying the appropriate venue for issuing and hearing proceedings can itself become contested. It is therefore essential to appreciate that particular rules govern the allocation of jurisdiction to a court. These frameworks direct the court’s analysis when deciding jurisdiction. The UK’s exit from the EU also influences which jurisdictional rules will be applied by the courts of England and Wales when determining which courts have jurisdiction. For discussion of wider...
Overview of the Tameside duty The Tameside duty takes its title from Secretary of State for Education and Science v Tameside MBC. As Lord Diplock made clear, a decision-maker must frame the right question and take reasonable steps to equip himself with the relevant information in order to answer it correctly before acting. It is most often characterised as a duty to undertake sufficient or due inquiry. For background reading, see: ‘ Due Inquiry’: Supperstone, Goudie and Walker on Judicial Review [10.59]... This obligation is a logical development of the broader, general and long‑standing public law principle that a decision-maker must weigh every relevant consideration, and disregard those that are irrelevant, most notably exemplified by Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In this regard, Lord Diplock’s statement of the test in Tameside is firmly anchored in the Wednesbury principle ( R ( Law...
STOP PRESS: From 24 February 2025, the principal parts of the Procurement Act 2023 ( PA 2023) have taken effect. Any procurement launched on or after that date must proceed under PA 2023, while procedures initiated under the earlier regime (the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011) must continue to be run and administered in line with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the standing and interpretation of assimilated law, see Practice Note: Assimilated law. Legal regime Framework agreements are ever more common for procuring works, services and...
The list below monitors current European Commission in‑depth investigations and ongoing State aid sector inquiries. Concluded investigations are moved to EU State aid decisions (non in‑depth investigations)—closed cases tracker. For details of State aid appeals before the General Court, see General Court State aid appeals—ongoing cases tracker; for appeals before the Court of Justice, see Court of Justice State aid appeals—ongoing cases tracker; and for national reference cases before the Court of Justice involving State aid, see Court of Justice State aid national references—ongoing cases tracker. In-depth investigations Revision of CE Oltenia’s restructuring plan (amending SA.59974) ( SA.117913) — Romania Industry: Electricity generation from non‑renewable sources Type of aid: Other Latest step: Decision to open the formal investigation...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note provides guidance for procurements that began before the Procurement Act 2023 ( PA 2023) commenced on 24 February 2025. Procurements within scope that start on or after that date fall under PA 2023. Under the Act’s transitional and savings provisions, the prior procurement regimes still apply, so far as is needed, enabling contracting authorities to finalise and administer procedures launched before PA 2023 took effect (ie live procurements). Read this Practice Note on that basis. For context, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Additional practical material on PA 2023 appears in the separate subtopic, Procurement Act 2023—overview, which also includes: Practice Note: Direct award— PA 2023. Using the negotiated without a notice procedure The legal bases for applying the negotiated procedure without a notice are set out in...
This Practice Note distils the law, guidance and practical approach to varying contracts and deeds. It outlines how a contract or deed can be changed in writing, orally or by conduct, and also addresses unilateral variation, waiver and sustained minor breach. It offers practical and drafting pointers, flags issues when adjusting business-to-consumer contracts, public contracts and third party guarantees, and considers third party rights on variation. For a step-by-step guide to contract variation with full resources, see Practice Note: How to vary a contract. Where a variation stems from renegotiation after difficulties during performance, see also Practice Note: Managing difficulties in commercial contracts for further guidance. When is a contract variation appropriate? In commercial life, parties rarely operate only through isolated, stand-alone agreements; rather, relationships evolve over time, which may necessitate changes to existing contracts. Variations may arise and be proposed for many reasons,...
This Practice Note explores the definition, interpretation and practical use of conditions precedent in commercial arrangements. It also reviews common conditions precedent and key drafting considerations... What are conditions precedent? In a commercial contract, a condition precedent identifies an event that must occur before either: the contract itself, or a party’s obligations under the contract, take effect Until that event is fulfilled, neither the agreement nor the relevant duty is binding. The leading authority on construing a condition precedent is Bremer Handelsgesellscheft Schaft mb H v Vanden Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109 (not reported by Lexis Nexis®). There, Lord Wilberforce explained that whether a clause amounts to a condition precedent, or is some other form of contractual term, turns on: (i) the wording of the clause, (ii) its place within the agreement as a whole, and (iii) broader legal...
The Civil Contingencies Act 2004 The Civil Contingencies Act 2004 ( CCA 2004) constitutes the principal legal framework for managing large-scale emergencies across the UK. Part 1 of the CCA 2004 places obligations on a spectrum of public bodies and designated private entities (e.g. energy suppliers and telecommunications operators) to carry out contingency planning and co‑operation for emergencies. Part 2 of the CCA 2004 empowers a senior government minister to make emergency regulations, including provisions capable of altering primary legislation. It should also be recognised that a variety of other exceptional statutory powers can be used in a crisis without any declaration under Part 2. For example, primary legislation such as the Coronavirus Act 2020 and section 14 of the Human Rights Act 1998 ( HRA 1998) enables a Secretary of State to issue a designated derogation from rights under the European...
Scope of Practice Note This Practice Note on preparing a notice of breach of contract highlights the principal situations in which serving such a notice may be appropriate and explains the context for our tailored notice of breach precedents. Many commercial agreements contain terms requiring a party in default to receive notice of its breach. Frequently this sits within a termination clause and may be necessary to enable the defaulting party to remedy the failure and/or operate as a preliminary step to issuing a termination notice for breach under a contractual right to terminate. That said, not every breach of contract creates a right to terminate or necessitates a notice to remedy; some breaches may confine the innocent party to a claim for damages only. In those circumstances, a notice may be issued to inform the defaulting party that the innocent party requires the breach to be...
Legislative framework This Practice Note explores the transfer of IP rights. It sets out the statutory rules on the formal requirements for effecting legal assignments of patents, trade marks, copyright and designs, as contained in the Patents Act 1977 ( PA 1977), the Trade Marks Act 1994 ( TMA 1994), the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Registered Designs Act 1949 ( RDA 1949) and Assimilated Regulation ( EU) 6/2002, and addresses the possibility of partial assignments. It also addresses equitable assignments of IP rights. Alongside the shared principles applicable to patents, trade marks, copyright and designs, it identifies the specific issues to be considered when transferring each distinct right. The Note additionally deals with the assignment of rights that may arise in future, and with assignments of comparable trade marks and re-registered designs. It explains how to...
Introduction This Practice Note delivers a succinct guide to Article 10 of the European Convention on Human Rights ( ECHR), which protects freedom of expression. Its primary aim is to summarise the European Court of Human Rights ( ECt HR) case law on Article 10, with references to UK decisions on Article 10 included where appropriate. This Practice Note addresses: the text and structure of Article 10 the core principles governing Article 10 disputes the breadth and limits of Article 10 the lawful bases for restricting the right the penalties and other sanctions that may follow The structure of Article 10 Article 10 is a qualified right formed of two limbs. Article 10(1) sets the parameters of the freedom of expression. Article 10(2) specifies when a public authority may legitimately interfere with that freedom. Article 10 is one of four...
Electronic signatures This Practice Note sets out the legal position on electronic signatures—also called digital signatures, e‑signatures, E‑ Signatures, e Signatures, paperless signing or electronic document signing. It explains the categories of electronic signature and the technology used to generate digital signatures, including public key infrastructure ( PKI). It reviews key UK legislation such as the Electronic Communications Act 2000 ( ECA 2000) and the UK e IDAS Regulation, and outlines best practice for executing documents by electronic means. An electronic signature functions as the digital counterpart to a handwritten signature, connecting an individual with the contents of an electronic document. The Note focuses on the general law in England and Wales for commercial contracts in a business‑to‑business context. Readers should be aware that particular transactions may present distinct issues, for example due to laws applicable to consumers. For practical guidance on signing when one or more...
This Practice Note explores the role, function and significance of defined terms within an agreement context. It outlines those definitions most frequently found in documents relating to transactions, and considers the method that ought properly to be adopted when reviewing or preparing a contract that uses defined terminology. For wider guidance on boilerplate clauses generally, see Practice Note: The role of boilerplate. For general guidance on construing contracts, see Practice Note: Contract interpretation—rules of contract interpretation. The definitions and interpretation clause A common boilerplate provision is the definitions and interpretation clause, often treated as a standard component. It should gather every individual defined term contained in the agreement together with all provisions that govern the overall interpretation of the agreement and, where required, the meaning of particular expressions used in it as well. Typically, the defined terms and the...
Judicial enforcement of EU law Alongside the enforcement tools available to EU institutions via the EU infringement procedure—such as referring matters to the Court of Justice of the European Union—there exist a number of judge-made principles, devised by the Court of Justice of the European Union, to secure the application of EU law within Member States. Put differently, when EU law is not observed, individuals have access to remedies. These principles, which fall within what is commonly termed the judicial enforcement of EU law, are: direct effect indirect effect state liability Their evolution occurred chiefly through the preliminary ruling mechanism, a framework through which national courts of the Member States co-operate and engage in dialogue with the Court of Justice of the European Union so as to achieve a harmonised interpretation of EU law. For further reading, see Practice Note:...
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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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