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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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Introduction This Practice Note outlines the principal documents commonly required at financial close for a merchant waste to energy project, together with a brief summary of each. It is prepared on the basis of a primary deal where a special purpose vehicle ( SPV)—typically known as ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and funds the project, and where the following are executed or provided at financial close: project documents (energy and operations, property, planning, environmental and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries That said, this list can equally serve as a reference point for a secondary market merchant waste to energy transaction, since many documents requiring review and/or amendment will be the same. For a companion template of this completion documents list, without document...
Released on 18 December 2017, this year’s Brexit round-up surveys the major developments of 2017 and signals what to expect in 2018. It offers updates and analysis on: the process and implications of triggering Article 50 TEU progress made in the first phase of Brexit talks the government’s domestic readiness and contingency planning, covering key legislative programmes, devolution questions and ongoing parliamentary scrutiny It also looks ahead to core priorities as both sides prepare to shift negotiations into a second phase in 2018, and provides updates on Lexis Nexis® content—highlighting last year’s developments and what is scheduled over the next 12 months. Reviewing 2017 EU withdrawal process What happened? The UK’s decision to leave the EU is without precedent, creating significant legal and constitutional challenges. With both the UK and the EU navigating uncharted territory, debate has persisted across multiple fronts, including the 2016 EU...
Public sector equality duty ( PSED) The public sector equality duty ( PSED), as articulated in Part 11 of the Equality Act 2010 ( Eq A 2010), consists of a general equality duty—the core obligation—supported by specific duties intended to aid delivery of the general duty. With Scotland as the focus in particular, this Practice Note explores how the specific duties oblige public bodies to conduct a range of assessments and to report on assorted information. It sets out, in practice, how those specific duties encourage transparency and accountability to service users for decisions, ensuring equality objectives remain prominent in the minds of decision-makers. It should be borne in mind that the specific duties do not supplant the general PSED—public bodies subject to the specific duties must still also adhere to the PSED. Indeed, within the Scottish regime, the intention is for the...
The terms of an agreement can be so imprecise or indeterminate that they have no real meaning and are therefore not enforceable. Nevertheless, where parties have concluded a bargain, a court will seek to give that bargain effect. This Practice Note explains the nature of the certainty requirement and the ways in which courts have attempted to narrow its reach. For guidance on the general approach when assessing whether an enforceable contract exists and identifying its terms, see Practice Note: Forming enforceable contracts—the court’s general approach. Requirement of certainty—the basic principle A court will not enforce a contract that cannot be given a definite meaning ( G. Scammell & Nephew v Ouston). In Scammell, the House of Lords decided that an agreement to obtain goods ‘on hire-purchase’ was too uncertain to enforce because there were many varieties of hire-purchase operating on very different terms. As 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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