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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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STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect. Any procurement launched on or after that date must proceed under PA 2023, while procedures commenced under the prior framework—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 conducted and administered in accordance with that legislation. 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 comprise 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. Brexit impact—public procurement The UK public procurement framework stems from EU procurement rules and was thus...
ARCHIVED: This Practice Note is archived and not maintained. It considers the Public Bodies Act 2011 ( PBA 2011) and the contractual effects that should be assessed where a public body or business is impacted by it. Background On 14 October 2010, Francis Maude, the Minister for the Cabinet Office, set out in a written ministerial statement that the arrangements for public bodies required radical reform to enhance transparency and accountability, eliminate duplicated activity, and bring to an end work that is no longer necessary. In response, the PBA 2011 received Royal Assent on 14 December 2011. The Act is intended to enable the government to simplify the landscape of public bodies by, among other measures, abolishing so‑called quangos (ie quasi‑autonomous non‑governmental organisations). Quangos include non‑departmental public bodies ( NDPBs), a term commonly used by the government......
Boilerplate provisions in public sector contracts This Practice Note examines freedom of information clauses in public sector contracts. For further detail on what contracting authorities and other interested parties should be aware of when deploying boilerplate terms in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations. Public procurement reform The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 ( PA 2023). See: Procurement Bill [ HL]— LNB News 12/05/2022 14 and Procurement Bill receives Royal Assent— LNB News 26/10/2023 81. From 24 February 2025, the principal provisions of PA 2023 are in force, and procurements commenced on or after that date must proceed under PA 2023. Earlier procurements remain governed by the existing public procurement framework, including: Public Contracts Regulations 2015 ( PCR 2015) and Procurement Practice Notes ( PPNs) Utilities...
Stop Press : On 24 February 2025, the core provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are currently reviewing, auditing and refreshing our materials accordingly. Please note that any procurement launched on or after 24 February must proceed under PA 2023, whereas procurements 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 conducted and overseen in accordance with that legislation. For background reading, see Practice Note: Public procurement law—reform [ Archived]. Securing value is a central concern in public procurement, since public services are ultimately financed by the taxpayer. The law therefore imposes specific obligations on public authorities that outsource services, so that they achieve the best possible value. The...
ARCHIVED: This Practice Note is archived and no longer maintained. For further reading on this topic, see: State aid—overview. State aid—generally European Union rules on state aid prevent member states from granting support that distorts, or may distort, competition and trade between states. Consequently, whenever a public authority or publicly funded body (such as a quango) offers financial assistance to an undertaking, they must consider carefully whether that support constitutes state aid, mindful that the European Commission is obliged to recover any unlawfully granted aid, together with applicable interest. The EU nevertheless recognises that state aid can be a legitimate element of public policy, for example to attract inward investment into underdeveloped regions (often called ‘assisted areas’) or to foster investment in high-technology industries. Article 107(1) of the Treaty on the Functioning of the European Union sets out the primary prohibition on state aid, while TFEU, art 7,...
This Practice Note examines the impact of the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA) falling within the scope of the Freedom of Information Act 2000 ( FIA 2000). It complements broader notes on freedom of information and does not provide detailed guidance on making or answering FIA 2000 requests. In particular, it addresses the position of firms where the regulators might release material a firm regards as commercially sensitive or confidential. For additional reading, see Lexis+® UK IP and IT Practice Notes: Compliance with a freedom of information request Absolute exemptions to a freedom of information request Freedom of information request—flowchart The regulators and FIA 2000 For FIA 2000 purposes, the PRA and the FCA are classified as public authorities, so the public may submit requests to one or both regulators for disclosure of recorded...
Perspectives on operations management: process management There are numerous avenues to enhance the service you deliver. A powerful approach is to view that service as a process—or a set of processes—that spans functions and departments within the organisation. The core aim of operations management is to deliver maximum value to customers by overseeing every link in the delivery chain through rigorous process management. What are processes? Processes are the essential means by which value is produced. Put simply, they can be described as activities, or groups of activities, that take inputs, add value, and generate outputs for both internal and external customers. In practice, processes constitute organisational capabilities, and it is these capabilities that form the basis of competition. Controlling processes An important performance objective is consistent outcomes for customers; most organisations note that reliability is among the biggest drivers of...
Termination—contractual and common law rights As commercial solicitors, we are commonly engaged to advise on setting up a commercial relationship. While we, much like family practitioners preparing pre-nuptial agreements, often consider the consequences of a relationship ending, only in more recent economic conditions are we more frequently asked how to unwind the relationship in the first place. It is vital to remember that a right to terminate may arise at common law (for example, for repudiatory breach) as well as under the contract’s express terms. Where an agreement is silent on termination, the courts will, in any dispute, apply common law principles. To minimise uncertainty, parties typically include clear contractual provisions dealing with termination. As a general rule, contractual termination rights are additional to, and not a substitute for, common law rights. In the absence of wording to the contrary, the default...
This Practice Note explores how marriage and civil partnership are defined for the purpose of safeguarding individuals against discrimination and other forms of prohibited conduct under the Equality Act 2010 ( Eq A 2010). Protected characteristics The Equality Act 2010 offers protection from discrimination connected to particular listed personal attributes that people may hold. Certain protections apply solely to a single specific attribute. Others confer identical protection in respect of all the attributes, which are collectively known as 'the protected characteristics'......
This Practice Note considers good faith in commercial agreements It explores the meaning of good faith and the degree to which it features in commercial arrangements, whether as an express commitment or as a term implied by law, including in the sphere of relational contracts. It also addresses agreements to negotiate in good faith, how other jurisdictions approach a duty of good faith, the operation of Braganza-type duties within commercial contracts, and offers drafting pointers for clauses dealing with good faith provisions. The orthodox position taken by the English courts has been to refrain from implying a general duty of good faith into commercial agreements, stating that, if parties intend to create such an obligation, it must be articulated expressly ( Mid Essex Hospital Services). Nonetheless, the courts may in some situations recognise an implied duty of good faith, either by applying the...
The Environmental Information Regulations 2004, SI 2004/3391 ( EIR 2004) EIR 2004 grants the public a right to obtain environmental information held by public authorities. While openness is the default position, that duty to disclose is limited by several exceptions, most of which appear in regulation 12 of EIR 2004. For an outline of what amounts to environmental information, see Practice Note: Environmental Information Regulations 2004—what is environmental information? For guidance on when a request may properly be refused, see the Information Commissioner’s Office resource ‘ When can we refuse a request for environmental information?’ and a Q& A examining whether, beyond the rulings in Fish v Legal and Attorney- General for the Prince of Wales v the IC, as well as the ICO’s own guidance, there is further authority on what constitutes ‘control’ within the definition of public authority in the...
Statutory framework In England, there are three pension arrangements in place for firefighters, collectively referred to as the Firefighters’ Pension Scheme. These are: Firefighters’ Pension Scheme 1992 ( FPS 1992), which stopped accepting new members from 6 April 2006 and ended future accrual on 1 April 2022 Firefighters’ Pension Scheme 2006 ( FPS 2006, or NFPS – the New Firefighters’ Pension Scheme), which likewise closed to future accrual with effect from 1 April 2022 Firefighters’ Pension Scheme 2015 ( FPS 2015), which commenced on 1 April 2015 FPS 1992 also covered fire and rescue personnel in Scotland and Wales. FPS 2006 did not, and separate new schemes were put in place by the Firefighters’ Pension Scheme ( Scotland) Order 2007, SSI 2007/199, and the Firefighters’ Pension Scheme ( Wales) Order 2007, SI 2007/1072. In 2014 and 2015, distinct successor schemes were also...
STOP PRESS As at 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are now in full effect and operation. Competitions launched on or after that date must be conducted in accordance with PA 2023, while procurements initiated under the earlier instruments—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 delivered, administered and overseen in accordance with those rules. See the Practice Note: Introduction to the Procurement Act 2023— PA 2023. This content relates to the Procurement Act 2023 regime This practical guidance addresses public procurement under the Procurement Act 2023 ( PA 2023). For further guidance on evaluation methodologies under the former legislation, see Practice Note: Using different evaluation methodologies for different types of public...
Article 17(1) TEU entrusts the European Commission with overseeing Member States’ adherence to EU law. The Commission’s chief enforcement mechanism is the general EU infringement procedure, comprising two distinct routes laid down in Articles 258 and 260 TFEU, each with its own subject matter. Article 258 TFEU seeks a declaration that a Member State’s conduct breaches EU law and that such conduct will cease. Article 260 TFEU seeks to spur a defaulting Member State to comply with a judgment confirming a failure to fulfil obligations—i.e. recurrent infringements—and has a much narrower scope than Article 258 TFEU (see P Sweden v API and Commission). This framework therefore distinguishes between ‘first order compliance’ with Treaty obligations and ‘second order compliance’ with judgments of the Treaty regime’s dispute settlement body. The complaint to the European...
This Practice Note outlines the threshold values that trigger the applicability of the EU public procurement Directives and the legal sources underpinning them. Relevance and setting of thresholds The EU public procurement Directives apply to contracts where the estimated value does not fall below the relevant threshold stated in each Directive (see Practice Note: The applicability of EU public procurement). These requirements are contained in: Article 4 of Directive 2014/24/ EU, the EU Public Contracts Directive Article 15 of Directive 2014/25/ EU, the EU Utilities Directive Article 95 of the EU Utilities Directive, which also sets a threshold for design contests run as part of a services procurement procedure above the applicable threshold. This threshold is the estimated value of the services contract net of VAT, including any potential prizes and/or payments to participants Article 8 of Directive 2014/23/ EU, the EU...
The freedom of information case archive captures and distils notable decisions and case law on the enforcement of the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391. For background reading, see: Freedom of information—overview; Environmental information regulation—overview. Under each heading, the archive records previous rulings from the following: Court of Appeal ( CA) Upper Tribunal ( UT) Alongside the key elements of each ruling, where possible there are links to news analysis and commentary from the Freedom of Information Journal, available to Lexis®Library subscribers. For the most recent FIA 2000 and EIR 2004 rulings, see Practice Note: Freedom of information case tracker. For further archived decisions, see archived Practice Notes: Freedom of information case tracker [ Archived]; Access to environmental information case tracker [...
A range of statutory obligations regulate the acquisition, retention, examination and dissemination of private material by public authorities for intelligence purposes. These frameworks comprise: Investigatory Powers Act 2016 ( IPA 2016) Regulation of Investigatory Powers Act 2000 ( RIPA 2000) Human Rights Act 1998 ( HRA 1998) Intelligence Services Act 1994 ( ISA 1994) Security Service Act 1989 ( SSA 1989) Computer Misuse Act 1990 ( CMA 1990) Wireless Telegraphy Act 2006 ( WTA 2006) Investigatory Powers ( Interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018, SI 2018/356 The IPA 2016 is further supported by statutory codes of practice: Interception of communications: code of practice Equipment interference: code of practice Communications data: code of practice Bulk acquisition of communications data: code of practice Bulk personal...
ARCHIVED: This Practice Note is archived and no longer maintained This Practice Note outlines the continuing effects in Scotland of the Coronavirus ( COVID–19) pandemic across the following practice areas: Corporate Crime Dispute Resolution Private client Property Restructuring & Insolvency Key legislation applicable in Scotland The Coronavirus ( Scotland) Act 2020 and the Coronavirus ( Scotland) ( No 2) Act 2020 (together, the Scottish Coronavirus Acts) introduced time‑limited provisions to manage the pandemic. The Coronavirus ( Extension and Expiry) ( Scotland) Act 2021 brought to an end provisions no longer needed and prolonged those still required until the end of March 2022. The Coronavirus ( Scotland) Acts ( Amendment of Expiry Dates) Regulations 2022, SSI 2022/113, then revised the Scottish Coronavirus Acts so that Part 1 of each Act expired at the close of 30 September 2022. In parallel, the UK...
Services of general economic interest ( SGEI) The notion of ‘services of general economic interest’ is not expressly defined in the EU Treaties or in secondary legislation. Its contours are set out in Article 14 TFEU and, in particular, Article 106(2) TFEU, which provides that undertakings entrusted with an SGEI remain subject to the TFEU unless applying those rules would impede the particular task assigned. Further, the development of intra‑ Community trade must not be affected in a manner that runs counter to the EU’s interest. Protocol No 26 to the TFEU highlights the importance of SGEI and affirms the discretion of Member States in defining them. It also clarifies why there is no single EU definition: SGEI vary between Member States due to differing needs arising from distinct historical, geographical, cultural and social circumstances. The role of SGEI also evolves with...
Introduction This Practice Note sets out the principal documents usually required at financial completion of an onshore wind farm or large scale ground mounted photovoltaic (pv) solar project in Great Britain ( GB), together with concise explanations of each. It is prepared on the basis of a primary transaction in which a special purpose vehicle ( SPV)—commonly termed ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and finances the project, and at close the following are executed or provided: project documents (energy and operations, property, planning, and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries Nevertheless, this documents list can also serve as a reference in a secondary market onshore wind farm or solar transaction, since many documents needing review and/or amendment will be identical. For a...
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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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