Featured documents
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:
Most recent Practice notes
Restructuring & Insolvency—new starter guide Welcome to the world of restructuring & insolvency Restructuring & insolvency spans a range of procedures and tools created to meet distinct aims, from reviving a struggling business, to securing the optimal return for creditors, to enabling individuals to draw a line under their debts. Multiple stakeholders feature in these matters, such as: the financially distressed company or individual the lender aiming to recover funds the insolvency practitioner ( IP) overseeing the process and the advisers engaged by each party This guide offers a primer on the various restructuring and insolvency routes and directs you to the relevant materials where you can explore further. It also includes links to help you get the most from our restructuring and insolvency resources, including how to subscribe to daily or weekly email alerts. The Insolvency Act 1986 and Insolvency ( England and Wales) Rules...
This Practice Note aims to: offer hands-on guidance to private equity ( PE) firms and other funds seeking to purchase a distressed or insolvent company set out practical pointers for PE firms in their capacity as shareholders of a distressed or insolvent business outline a PE firm’s standing across the main corporate insolvency and restructuring scenarios advise on steps a PE firm can take to maximise its position if a company becomes distressed In the wake of the 2007/08 credit crunch, when M& A activity was scarce, PE funds—special situations vehicles included—turned to buying distressed businesses, aiming to revive them and fold them into their portfolios. This form of distressed investing is counter-cyclical and can help diversify risk within a portfolio. Existing PE shareholders, however, should appreciate the dangers if a portfolio company moves into the ‘zone of insolvency’. In ordinary trading, creditors’ and...
Restructuring and Insolvency Q& As— Brexit collection Restructuring and Insolvency Brexit Q& As Post‑ Brexit, where multiple jurisdictional gateways could apply, should parties expressly certify that an insolvency process is a COMI proceeding, an establishment proceeding, or a proceeding to which the EU Regulation, as it has effect in United Kingdom law, does not apply? Following IP completion day, is it likely that the English courts’ analysis of COMI will diverge from the approach adopted by the EU Court of Justice? Can fresh territorial proceedings still be commenced in the UK once IP completion day has passed, and on what basis would that occur? After IP completion day, do the English courts retain jurisdiction to place a foreign company into members’ voluntary liquidation under section 221(4) of the Insolvency Act 1986? How does Brexit influence corporate forum shopping and so‑called bankruptcy tourism by individuals seeking a more...
Status of the UK This material is archived and is not being updated. From exit day (31 January 2020), the UK ceased to be an EU Member State and, in line with the Withdrawal Agreement, entered an implementation phase during which EU law continued to apply. Citations to exit day in numerous Brexit SIs should be interpreted as referring to IP completion day ( Implementation Period completion day, defined in clause 39 as 31 December 2020 at 11.00 pm), unless the relevant SI expressly disapplies that reading. For more detail, see News Analysis: Brexit—impact of the Withdrawal Agreement and European Union ( Withdrawal Agreement) Act 2020 for R& I lawyers, and Brexit Bulletin—key updates, research tips and resources. We consider certain matters for R& I practitioners and professionals, in particular concerning (i) Regulation ( EU) 2015/848 ( OJ L141/19), the Recast...
Legal regimes The EU Recast Regulation on Insolvency applies within the EU Member States, whereas the UNCITRAL Model Law on Cross- Border Insolvency (the UNCITRAL Model Law) has potential global reach where a state chooses to adopt it. In the UK, the Cross- Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030, give effect to the UNCITRAL Model Law (see Practice Note: When does UNCITRAL (implemented by the Cross- Border Insolvency Regulations) apply and what are the effects?). Foreign main proceedings broadly mirror main proceedings under the EU Recast Regulation on Insolvency, while foreign non‑main proceedings correspond to secondary proceedings under that regime. Following Brexit (from 11 pm on 31 December 2020), the Insolvency ( Amendment) ( EU Exit) Regulations 2019, SI 2019/146, took effect and modified Regulation ( EU) 2015/848 ( OJ L141/19) — the Recast Regulation on Insolvency [ EU Recast...
Project documents This Practice Note offers an overview of several widely used agreements and papers in a PFI/ PF2 scheme, though the precise suite adopted will turn on the particular project. In the 2018 Budget (delivered on 29 October 2018), the government stated that PF2 will not be used for new schemes (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). That said, existing PFI and PF2 arrangements will remain in operation and, given the usual term of such projects, are expected to continue for many years... Project Agreement This is the core contract in any PFI arrangement. It records the full set of terms and conditions governing the relationship between the Authority and Project Co/ SPV for the life of the project. Where Project Co/ SPV is granted a concession (ie the exclusive right to...
This Practice Note offers a high-level overview of the Private Finance Initiative ( PFI), outlining what PFI entails, how a standard PFI project is put together, and its core features. It also covers PFI’s successor, ‘ PF2’. In the 2018 Budget, delivered on 29 October 2018, the government stated that PF2 will not be used for new projects. Even so, existing PFI and PF2 schemes will continue, and, given the usual lifespan of these arrangements, they are likely to run for many years. What is PFI? PFI is a way to procure the design, construction and operation of public services and public sector infrastructure such as hospitals, schools, leisure facilities, social housing, waste management, emergency services, defence, roads and highways, social care and prisons. Introduced in 1992 by the Conservative government and later keenly adopted by their Labour successors, it was regarded as a...
What are the moral hazard (anti-avoidance) powers? Broadly, the Pensions Regulator’s ( TPR) moral hazard powers, also known as anti-avoidance powers, under the Pensions Act 2004 ( Pe A 2004) empower it to impose liabilities not only on employers of defined benefit pension schemes, but also on third parties that are connected with and associated with such a relevant employer entity (the target), provided that certain statutory conditions are satisfied. TPR’s moral hazard powers are: They are as follows: Financial support direction ( FSD) — TPR may issue an FSD in relation to an underfunded scheme where it concludes the employer is insufficiently resourced or is a service company. An FSD compels the target to arrange appropriate financial support for the scheme, though it is not generally imposed on an individual, and Contribution notice ( CN) — this can be placed by TPR on a...
Requirements for PPF entry The conditions for a scheme to transfer into the PPF are: the scheme must be an eligible scheme—see: What schemes are eligible? below and either: a qualifying insolvency event must occur in relation to a scheme employer—see: What is a qualifying insolvency event? below, or the employer is unlikely to continue as a going concern and meets SI 2005/590, reg 7—see: Alternative route to PPF entry, below the insolvency practitioner for the employer must confirm that a scheme rescue cannot proceed—see: Duty of insolvency practitioner to issue notices confirming status of scheme (section 122 notices) and the scheme’s assets must be below the ‘protected liabilities’ (broadly, the benefits the PPF would pay to...
Archived: This Practice Note has been archived and is not being maintained. What does the Market Insights Trend Report cover? Select below to obtain the complete report as a PDF. The Market Insights Trend Report offers detailed analysis of the 14 restructuring plans ( RPs) put forward in the UK in 2023, alongside commentary on patterns and what we and our contributors anticipate for 2024 and the years ahead......
What does the Market Insights Trend Report cover? The Market Insights Trend Report delivers a comprehensive examination of restructuring plans ( RPs) reviewed by the courts across the UK during 2024. It also offers perspective on prevailing patterns, providing insight into trends, and sets out what we, alongside our contributors, anticipate for 2025 and the years that follow thereafter......
What is the National Security and Investment Act 2021? The National Security and Investment Act 2021 ( NSIA 2021) brings in a UK mandatory notification system for deals in specified sectors to safeguard national security. Mandatory notification requirement — a duty on the buyer to inform the Secretary of State of a proposed acquisition of an entity in certain circumstances. Voluntary notification scheme — a buyer may choose to notify the Secretary of State about a proposed acquisition of an entity or asset; businesses and other bodies outside the mandatory scope may still submit a notification if they believe their trigger event could raise national security concerns. To guide that judgement, they can refer to the statutory statement on the exercise of the call-in power. Call-in power — allows the Secretary of State to scrutinise a proposed or completed...
This Practice Note This Practice Note reviews the principal issues that can emerge on a loan portfolio sale and that are likely to matter to banking law practitioners handling large-scale loan (and other financial product) disposals. For an outline of the usual participants and the sale process in a loan portfolio transaction, see Practice Note: Introductory guide to loan portfolio sales, and for an overview of the legal documentation typically deployed, see Practice Note: Loan portfolio sales—legal documentation. For additional insight into matters that may arise on single asset debt trades, see Practice Note: Introductory guide to loan transfers. Buyers and sellers alike should also assess whether the EU regime on non‑performing loans in Directive ( EU) 2021/2167 and Implementing Regulation EU 2023/2083 is applicable. If it is, there will be specific supplementary obligations for buyers, sellers and ‘credit servicers’. There is, as yet, no...
Although each litigation funding agreement ( LFA) and its related documents will differ according to the funder and the nuances of the matter being financed, there are key issues that must be addressed at the various stages of negotiation. This Practice Note is part of a series of concise Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, intended to give those negotiating or evaluating LFAs and their accompanying documents a clearer understanding of the factors involved. Pricing structures In the formative period of litigation funding, funders’ returns were set as a percentage of the damages (percentage pricing). That mirrored how risk-taking US law firms run contingent matters and echoed early investors’ view of litigation investing as comparable to Series A venture capital, which often involves a percentage stake in a company. As the market expanded, funders...
The life sciences industry Comprises a broad constellation of stakeholders, spanning small university spin‑out biotechs built around a single discovery and research team through to vast, global ‘ Big Pharma’ firms commercialising and promoting blockbuster medicines across multiple markets. Across that continuum sit, among others, contract research organisations, contract manufacturing organisations, specialist logistics and distribution providers, wholesale and retail pharmacies, and, increasingly, technology and AI businesses offering support and capability. Countless enterprises contribute to the life cycle of a pharmaceutical product—a journey frequently laden with hazards and uncertainty, and one that is operationally complex for most organisations at every step for participants overall. Bringing a medicinal product to market is thought to take 12 to 15 years, with a significant likelihood of failure; only a minute fraction of candidates entering pre‑clinical studies will secure regulatory clearance for use in people over that path over time....
This Practice Note This Practice Note sets side-by-side patents, supplementary protection certificates ( SPCs), trade secrets, copyright, database rights, design rights, trade marks and the tort of passing off, measured against: how protection comes about, what is covered (including, e.g. originality/novelty thresholds), length of protection, geographic scope, ownership, infringement, available defences, and threats provisions. It then weighs the principal pros and cons of each form of IP. The emphasis is on rights operating in the UK. After Brexit, the UK ceased to participate in the EU trade mark ( EUTM) and EU designs regimes. Those regimes confer unitary rights spanning the EU Member States. Nonetheless, as outlined in greater detail below, arrangements exist for comparable UK rights to be established. This Practice Note does not examine the EUTM and EU designs regimes in depth. For further reading, see: Trade marks ( EU...
STOP PRESS The Financial Services and Markets Act 2023 ( FSMA 2023) revokes the 2004 Regulations ( SI 2004/353) with effect from a date still to be appointed, alongside a range of other EU‑derived legislation. The government does not intend to begin revoking individual EU‑derived instruments and provisions unless the regulators have prepared and consulted on rules that are ready for enforcement, and only where it is appropriate that the provisions are replaced with rules. FSMA 2023 also updated the UK’s insolvency regime for insurers, both to clarify certain points and to widen the protections available to an insurer and its policyholders undergoing insolvency or write‑down procedures—the government consulted on these measures in 2021, and published its response in April 2022 (see News Analysis: Financial Services and Markets Bill sets out post‑ Brexit framework for UK financial services, and LNB News...
R& I spotlight on immigration Why is this immigration law relevant to insolvency practitioners and their staff? Legislation applicable generally At the outset, employers are obliged to stop unlawful working in the UK by performing the specified document checks before taking on anyone under a contract of employment, for service or apprenticeship, whether express or implied, and whether agreed orally or in writing. These right to work checks confirm an individual is permitted to carry out the role concerned. This applies irrespective of whether terms are spoken or recorded. Employers must also decide a person’s status, because only employees need a right to work check. Individuals may...
This Practice Note offers additional guidance on the principal definitions found in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 (the UK GDPR). For a high-level overview of UK data protection legislation, see Practice Notes: The UK General Data Protection Regulation ( UK GDPR) and Data protection law—new starter guide. The UK data protection law collection brings together further general guidance and is a recommended first point of reference for research. Scope of this Practice Note Given the significant volume of data moving between the UK and the EEA, corresponding EEA data protection rules remain particularly relevant to UK practitioners. There continues to be substantial similarity between: the EU GDPR (which was applicable under UK laws until the close of the Brexit implementation period at 11 pm UK time on 31 December 2020 and still applies within the EEA) the UK GDPR...
Summary of the UK GDPR regime This Practice Note condenses the UK GDPR framework. For a higher-level primer on UK data protection, see Practice Note: Data protection law—new starter guide. The UK data protection law collection assembles key guidance on this regime and is a recommended first stop for research. For information on the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679, see Practice Note: The EU’s General Data Protection Regulation ( EU GDPR). This Practice Note covers: principal legislation substantive scope territorial reach core concepts data protection principles legal bases for processing special category personal data criminal conviction and offence data individual rights accountability and governance security personal data breaches international transfers of personal data exemptions the Information Commissioner data protection fees ...
Popular documents
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 ]...
Discover more from LexisNexis
