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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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The Investigatory Powers Act 2016 ( IPA 2016) now provides the core legal structure for the use of covert surveillance by public bodies. Before this, the field was governed mostly—though not wholly—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). The RIPA 2000 provisions on intercepting and acquiring communications data have been repealed and replaced by IPA 2016. However, the regimes for direct surveillance, covert human intelligence sources ( CHIS), and obtaining electronic data protected by encryption continue to be governed by RIPA 2000. For guidance on interception and the acquisition of communications under IPA 2016, see the following Practice Notes: The regulation of intelligence gathering—an introductory guide Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016 Interception of communications under the Investigatory Powers Act 2016 Equipment interference under the...
This Practice Note This Practice Note provides an overview of the safeguards available for geographical indications ( GIs) and designations of origin, such as appellations of origin, protected designations of origin ( PDOs) and protected GIs ( PGIs) in the UK, and highlights distinctions between the systems in Great Britain and Northern Ireland. It examines the relationship between appellations of origin, PDOs and PGIs and trade mark law. It outlines the international architecture for protection under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade- Related Aspects of Intellectual Property Rights (the TRIPS Agreement). It further reviews the protections afforded by UK legislation, including the UK GI scheme—introduced when the EU regime ceased to apply in Great Britain—as well as the narrower protection available under the Trade Marks Act 1994 ( TMA 1994). Businesses frequently seek to adopt marks that point to the...
This Practice Note outlines the core principles governing awards of damages in tort actions. It addresses the compensatory purpose of tort damages; separates general from special damages; explains when exemplary (punitive) and aggravated damages may be available in tort; considers restitutionary and ‘user’ damages; sets out the date and method of assessment; deals with interest on tortious awards; and the reduction of damages through contributory negligence and mitigation. It also summarises when damages may be recoverable for a tortious wrong, including negligence. For further reading, see Practice Notes: The remedy of damages—general principles; Loss of chance damages; Claiming damages—tort and contract claims compared. It does not cover damages in clinical negligence or personal injury claims. General principles of liability in tort claims To succeed in a tort claim for damages, a claimant must, on the balance of probabilities, establish that: the...
Public authorities may, in a number of broad ways, be found not to have breached a Convention right. These avenues are contained in the European Convention on Human Rights ( ECHR) and, in domestic law, the Human Rights Act 1998 ( HRA 1998). This Practice Note considers: derogations from the Convention rights reservations to Convention rights matters within a state’s margin of appreciation For qualified rights (rather than absolute rights), a public authority will not be in breach if its actions meet the qualifying conditions, ie the interference with the Convention right is justified. For background, see Practice Note: Convention rights—structure of qualified rights. Derogations from the Convention rights What is a derogation? Article 15 of the ECHR allows Member States, in defined circumstances, to depart from the obligation to respect the Convention rights. The situations in which a contracting state may do so are...
Parliamentary statements of compatibility The Human Rights Act 1998 ( HRA 1998) not only furnishes individuals with a remedy where their European Convention on Human Rights ( ECHR) protections have been infringed, it also prompts government and Parliament to scrutinise, during law-making, whether proposed measures align with Convention rights. Under HRA 1998, s 19, a Minister of the Crown in each House must, before a Bill’s second reading, issue a statement confirming that the Bill complies with Convention rights (a section 19(1)(a) statement) or, alternatively, under section 19(1)(b), state that they cannot make such a confirmation, yet the government nonetheless asks Parliament to continue with the Bill. This process aims to ensure that human rights implications are addressed proactively, rather than remedied only after breach. It signals to both Houses the government’s assessment, while allowing Parliament to weigh...
rules on interpreting contracts (agreements) This Practice Note outlines the rules for construing contracts and their terms, reviewing leading cases— Rainy Sky v Kookmin, Arnold v Britton, and Wood v Capita—together with the principal canons of construction. It should be read alongside the Practice Notes: Contract interpretation—the guiding principles; and How to approach a contractual interpretation dispute—a practical guide. Lord Hoffmann’s five principles in ICS v West Bromwich Building Society (see Practice Note: Contract interpretation—the guiding principles) provide the central approach to interpretation, which is then supported by general rules or guidelines (often called canons of construction) used to help determine the meaning of a written agreement. This Practice Note examines the most significant of these, namely: the whole document is relevant commercial sense (business common sense) and avoiding an unreasonable outcome cutting down rights and remedies saving the...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note addresses public procurement exercises launched before the Procurement Act 2023 ( PA 2023) took effect on 24 February 2025. Any in-scope procedure started on or after that date is subject to PA 2023. Through the Act’s transitional and savings provisions, the prior public procurement regimes continue, so far as required, to enable contracting authorities to finalise and manage procurements commenced before PA 2023 commenced (ie procurements already under way). This Practice Note should be considered against that backdrop. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Additional practical guidance on PA 2023 appears in a separate subtopic, see: Procurement Act 2023—overview. Implications of changes during the public procurement procedure This Practice Note sets out when a contracting authority may adjust its award criteria during a...
Early origins of the principle It cannot be successfully maintained that an Act of Parliament is invalid because of defects, or even fraud, within the legislative process. The provenance of this principle is arguably found in The Prince’s Case. In that matter, a challenge was made to a charter granting the Duchy of Cornwall, which had been issued under the authority of Parliament. Coke CJ determined that it stood as an Act of Parliament, having received the assent of the King, the Lords and the Commons, and therefore carried the full force and authority of an Act of Parliament......
This Practice Note explains the circumstances and methods by which parties may seek to limit or exclude liability for misrepresentation, by invoking section 3 of the Misrepresentation Act 1967 ( MA 1967) together with the section 11 reasonableness test under the Unfair Contract Terms Act 1977 ( UCTA 1977). Note: from 1 October 2015, UCTA 1977 applies only to business-to-business contracts; for consumer contracts, see sections 61–76 of the Consumer Rights Act 2015 ( CRA 2015). For guidance on rescission and damages arising from misrepresentation, see: Misrepresentation—damages as a remedy Misrepresentation—rescission as a remedy For related matters, including: Entire agreement clauses and their role in limiting or excluding liability for misrepresentation—see Practice Note: Contract interpretation—entire agreement clauses Non-reliance clauses used to exclude or limit liability for misrepresentation and the notion of ‘contractual estoppel’—see Practice Note: Contractual...
Licensing IP rights—introduction Preparing IP licences often throws up intricate commercial and legal considerations, typically demanding extensive bargaining. This Practice Note highlights the principal, practical matters to weigh up before you draft and while you negotiate an IP licence, seen from both licensor and licensee viewpoints. At its core, an IP licence is the licensor’s consent allowing the licensee to use IP that it would otherwise be barred from exploiting. Owners may exploit and commercialise IP as either a carrot or a stick. Parties might agree terms for a mutually advantageous licence to create new offerings or reach fresh markets. Equally, an owner may take a defensive stance, pressing for settlement licences and recovering settlement payments from those already using its IP without permission. Accordingly, the initial position and broader commercial context will heavily influence both the negotiations and the eventual licence terms......
This Practice Note outlines what know-how is and identifies the various methods by which it can be safeguarded, before offering guidance on matters connected to licensing know-how, including licensing within a broader research and development ( R& D) arrangement. It covers why know-how is licensed, the principal clauses of a know-how licence, IP considerations in R& D agreements and issues around co-ownership of IP rights. What is know-how? ‘ Know-how’ denotes technical or practical knowledge gained through research or experience and typically concerns how something is carried out. This technical or practical insight may be documented in any format—or retained solely in the mind of an inventor or key employee—and may include operating manuals, drawings, blueprints and other technical material. As it is not always recorded in writing, it can be hard to define. However, Article 1 of Assimilated Regulation ( EU) 316/2014, the...
Judicial deference Judicial deference is often characterised as the principle that 'respect is a central concept in judicial review'. It is not confined to matters concerning human rights. Where human rights are engaged, however, it relates to the weight courts will accord to the considered views of Parliament and/or the Executive when determining whether a given decision or a particular item of legislation amounts to a proportionate interference with one or more rights under the European Convention on Human Rights. Although akin to deference in several ways, the margin of appreciation is a separate doctrine applied by the European Court of Human Rights ( ECt HR). It encapsulates the notion that member states are, in principle, better placed to assess local needs and circumstances than an international court and should therefore be granted a measure of leeway as to the manner in which they...
A personal injury claim founded on a breach of statutory duty can, in principle, be pursued against any body bound by that duty, whether a public authority or a private organisation. However, relatively few statutory provisions actually create a cause of action in private law. The difficulty lies in pinpointing which enactments enable a claimant to bring proceedings for breach of statutory duty... Statutory provision expressly permits claimants to bring a claim for breach of statutory duty At times, the legislation makes it explicit that a failure to discharge the relevant obligation—whether effectively or at all—is intended to give rise to a right to sue for breach of statutory duty. Where a statute either (a) expressly confers a right of action, or (b) adjusts existing common law duties, the position is generally relatively clear. The most familiar example for personal injury...
Background— EU law in the UK Pre-exit day The European Communities Act 1972 ( ECA 1972) was enacted to implement the United Kingdom’s obligations, as a Member State, under the relevant EU treaties and to ensure adherence to EU law. Under ECA 1972, s 2(1), certain EU rights and obligations intended to have direct effect applied in the UK without the need for additional domestic legislation. This encompassed rights under the EU Treaties and EU regulations setting out detailed legal rules. Other forms of EU law took effect via UK regulations made under ECA 1972, s 2(2), or, in some circumstances, through separate Acts of Parliament. This pathway covered EU directives, which stipulate overarching aims or frameworks while leaving each Member State to make its own provision to secure the required legal outcome. In its operation within Member States, EU law is...
Introduction Article 8 of the European Convention on Human Rights ( ECHR) sets out that: 1) every individual is entitled to respect for his or her private and family life, home and correspondence; and 2) a public authority must not interfere with the exercise of this right unless any interference is lawful and necessary in a democratic society for reasons including: in the interests of national security in the interests of public safety for the country’s economic wellbeing for the prevention of disorder or crime for the protection of health or morals for the protection of the rights and freedoms of others The rights safeguarded by Article 8 are also set out in Schedule 1 to the Human Rights Act 1998, and are qualified rights (see Practice Note: Convention rights—structure of qualified rights). Article 8 is engaged whenever one or more of the interests listed in Article 8(1) are in...
When collaborators join forces on creative projects or research and development, knotty questions arise about who owns any resulting IP. Joint ownership can appear a straightforward and equitable answer where efforts were shared and the contributions cannot be disentangled. Yet, without careful thought about how jointly created IP will be owned, organised and exploited, parties may face legal traps, practical hurdles and limits on full commercialisation. In the great majority of cases, it is preferable to put in place an express agreement on joint ownership of IP rather than depend on the default legal position... This Practice Note provides an overview of the law on joint ownership of IP (also known as co-ownership, used interchangeably in this note): Implied joint ownership—basic principles Implied joint ownership—risks and obstacles Joint ownership agreements—key considerations Alternatives to joint ownership of IP ...
FORTHCOMING CHANGE: On 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect. Any procurement launched on or after that date must follow PA 2023, while procedures begun under earlier regimes—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 under those rules. See Practice Note: Introduction to the Procurement Act 2023. PCR 2015 as assimilated law As EU-derived domestic legislation, PCR 2015 constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. FORTHCOMING CHANGE: From 24 February 2025, Procurement Policy Note ( PPN) 015 supersedes PPN 10/23 with updated guidance on evaluating suppliers’ payment...
The UK GDPR regime This Practice Note offers a concise high‑level overview of the rules concerning cross‑border scope and the designation and appointment of representatives under the following: the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) framework; and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR) framework (in force under UK law from the close of the Brexit implementation period on 31 December 2020) Assimilated law is the label applied to retained EU law ( REUL) that continues to operate after the end of 2023. Re‑classification of REUL (and related terminology) as assimilated law signals a shift in its status and handling under UK law, so that it is, in general, construed in line with ordinary UK domestic legal doctrines and principles. From 1 January 2024, REUL is ‘assimilated’ into domestic law because it is...
This Practice Note reviews the provisions for declining vexatious or repeated requests under section 14 of the Freedom of Information Act 2000 ( FIA 2000). Vexatious or repeated requests―scope of the exemption Section 14 sits within FIA 2000, Pt I, which prescribes in detail how requests made under the statute should be managed. Although it is not included among the right to know exemptions listed in FIA 2000, Pt II, in practice it operates to the same effect, as it allows a public authority to refuse a request for information in specified circumstances. section 14(1) effectively releases public authorities from the duty set out in FIA 2000, s 1(1), namely to confirm whether information is held and, if it is, to disclose it to the requester. This applies where the request is vexatious. FIA 2000 does not further define...
The Planning Act 2008 ( PA 2008) brought in development consent orders ( DCOs) for nationally significant infrastructure projects ( NSIPs). This framework allows compulsory acquisition powers to be included within a DCO, removing the need to obtain separate compulsory purchase order powers for such NSIPs. This applies to development in England; in Wales, where compulsory acquisition is required for associated development, a distinct compulsory purchase order still has to be promoted. This Practice Note addresses the focus required on the nature of land interests proposed to fall within compulsory acquisition powers, and identifies classes of land that demand special treatment from a compulsory acquisition standpoint. It also examines the meaning of ‘associated development’ and the procedure where further land, not in the original DCO application, is later identified as required for compulsory...
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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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