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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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This Practice Note outlines the role and functioning of the Financial Services Compensation Scheme ( FSCS), and explains how deposits protected by it are ranked within the waterfall of payments to creditors should a relevant firm become insolvent. For further information on the FSCS, see the following Practice Notes: The Financial Services Compensation Scheme Financial Services Compensation Scheme ( FSCS)—the qualifying conditions for compensation Financial Services Compensation Scheme ( FSCS)—automatic assignment or subrogation of rights Financial Services Compensation Scheme ( FSCS)—payment or rejection of compensation Financial Services Compensation Scheme ( FSCS)—funding Role and operation of the FSCS What is the FSCS? The FSCS was created by the Financial Services and Markets Act 2000 ( FSMA 2000) as an independent body that safeguards customers when a financial institution or financial services firm is unable, or likely to be unable, to meet claims...
This Practice Note sets out how the Financial Conduct Authority ( FCA), the Payment Systems Regulator ( PSR), the Prudential Regulation Authority ( PRA) and the Financial Policy Committee ( FPC) interact and co-ordinate effectively. It also outlines the ways in which UK regulators engage with regulators and regulatory bodies beyond the UK, including the memorandum of understanding ( Mo U) on financial services between the EU and the UK. For guidance on each regulator, see: UK regulators—financial services—overview. UK regulatory structure The Financial Services Act 2012 ( FSA 2012) revised existing financial services legislation, in particular the Financial Services and Markets Act 2000 ( FSMA 2000), by abolishing the Financial Services Authority ( FSA) and assigning the Bank of England ( Bo E) responsibility for financial stability, bringing together macro and micro prudential regulation......
Following the UK’s EU membership referendum on 23 June 2016, in which 52% backed leaving the EU, the government formally published the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). The Act set out a suite of legislative measures linked to the UK’s departure from the EU, aimed at keeping the statute book workable after Brexit. As a general position, overall, broadly, the legal framework in force immediately after exit day—11 pm on 31 January 2020—mirrored that in place before exit day, and continued to do so until the implementation period completion date of 11 pm ( GMT) on 31 December 2020 ( IP completion day)......
Scope of this Practice Note This Practice Note explains how UK authorities gave effect to the second Electronic Money Directive ( Directive 2009/110/ EC) (2EMD) via secondary legislation—principally the Electronic Money Regulations 2011, SI 2011/99 ( EMRs 2011)—together with updates to the Financial Services Authority’s rules and guidance (the FSA being the predecessor to the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA)). It also sets out an overview and draws out the key provisions of the EMRs 2011, and reviews the alterations made to the EMRs 2011 by the Payment Services Regulations 2017 ( PSRs 2017) arising from amendments to the 2EMD under the recast Payment Services Directive ( Directive 2015/2366/ EU) ( PSD2). In addition, it considers the effects that the UK’s decision to leave the EU has had on the UK’s e-money regulatory...
This quick reference to the Brexit Deposit Guarantee Schemes Directive 2014/49/ EU ( EU DGSD) explains the UK enactments and retained EU measures that were altered and/or repealed by the Deposit Guarantee Scheme and Miscellaneous Provisions ( Amendment) ( EU Exit) Regulations 2018, SI 2018/1285, and by various other instruments, taking effect from the very end of the implementation period after the UK’s departure from the EU, together with matching updates to the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA) regulatory rules and guidance. Background: The UK’s Brexit preparations and the EU- UK trade agreement The SI sits within HM Treasury’s programme of statutory instruments made under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), designed to address contingency planning for a no-deal Brexit. It constitutes part of the onshoring of EU law to preserve legal...
What does this Practice Note cover? The primary emphasis of this Practice Note is on debt securities (such as bonds or notes) and it provides an introduction to: trading, settlement and custody of debt securities in the UK, and the key UK regulatory frameworks that govern these activities This Practice Note also highlights the main categories of relevant service providers and summarises the UK regulatory frameworks applicable to them. For a quick summary of how the debt capital markets are regulated in the UK, see Practice Note: EU and UK regulation of the debt capital markets—one minute guide. For information on the debt securities market infrastructure in the EU, see Practice Note: EU Debt securities market infrastructure. Introduction The importance of tradeability of debt securities Tradeability is a fundamental attribute of debt securities. Investors’ ability to purchase and...
What does this Practice Note cover? This Practice Note sets out a high-level introduction to the debt capital markets and covers: what is meant by the capital markets the nature of a debt security the main differences between debt and equity securities the main differences between raising finance in the debt capital markets and borrowing by way of loan debt capital markets terminology the types of instruments used in the debt capital markets What are the capital markets? When a company wants to obtain funds (ie ‘capital’), it generally has three principal routes. Where authorised, it may: issue shares (to raise share capital)—usually via the equity capital markets borrow from an institution such as a bank (to raise loan capital)—through the loan markets (see: Types of lending—overview), or issue debt...
What is financial custody? Systems and services that safeguard debt securities form part of the core infrastructure that underpins an efficient, secure and liquid market for such instruments—see Practice Note: UK Debt securities—trading, settlement and custody. In practice, debt securities are commonly held through an elongated chain of intermediaries. The ultimate investor holds rights comparable to ownership, yet they do not fall squarely within English law’s concepts of legal or beneficial ownership. At each point along the chain, credit, operational and legal risks may emerge. The position of end investors depends upon a succession of legal arrangements between intermediaries and upon accurate record keeping by the computer systems operated and maintained by each of those intermediaries, matters over which the investor has no influence or control. UK regulation of custodial services concentrates on curbing credit, operational and legal risk by requiring...
ARCHIVED ARCHIVED: This Practice Note is archived and not maintained. It tracks domestic legislation introduced by the UK government in response to the coronavirus ( COVID-19) pandemic, and includes a Coronavirus SI database compiling details of pertinent draft and made secondary legislation laid before Parliament. Quick links Click the links below to go to the relevant section: Coronavirus legislation Coronavirus SI database Coronavirus Act 2020 Coronavirus Act 2020—commencement tracker Bill Tracker Coronavirus legislation In addition to the Coronavirus Act 2020 (see below), the government has used delegated powers to introduce and deliver further coronavirus measures through secondary legislation. The chief vehicle is statutory instruments ( SIs). These SIs are made under varied enabling powers for multiple purposes, for example to modify existing UK law and to implement new or revised domestic policy prompted by the outbreak, including in public health,...
A core tenet of the loan relationships regime is that a company’s borrowing, lending and other corporate debt are taxed by reference to the profits and losses recorded in its accounts. Put differently, the way a loan relationship is recognised and measured under accounting standards will, in most cases, dictate the debits and credits taken into account for corporation tax under the loan relationships code. Although the rules depart from this approach in a number of specific situations, the strong alignment of tax with the financial statements means it is essential to understand the accounting treatment of corporate finance arrangements in order to operate the computational provisions of the loan relationships rules. Consequently, applying tax computations correctly requires familiarity with how such instruments are accounted for......
Under the loan relationships regime, a fundamental rule is that a company must bring profits and losses on its loan relationships into account for corporation tax in line with how those relationships are recognised in its accounts, provided that treatment complies with GAAP. For more detail on the general framework governing how profits and losses on loan relationships are calculated and brought into account for corporation tax, see Practice Note: Loan relationships—the main tax rules. There are, however, circumstances in which the loan relationships legislation requires the tax position to move away from the amounts shown in the accounts. This can arise where a debt within the loan relationships rules: becomes impaired, or is released (in whole or in part) It should be made clear at the outset that these provisions—which can trigger a departure from the accounts in such cases—only apply where a...
Practice Note This Practice Note sets out the principal tax considerations where a company facing difficulty repaying external borrowings looks to reorganise and restructure its external debt commitments. Companion Practice Notes in this series address tax matters connected with and arising in relation to: acquisitions of non-performing loans the enforcement of debts Additionally, the checklist ‘ Tax and distressed debt—checklist of points to consider’ summarises the main tax points to bear in mind when dealing with distressed debt more generally......
Initial steps Whether you are acting for the debtor, creditor, potential purchaser or a shareholder—and regardless of the jurisdiction in which the restructuring occurs (see Practice Note: Benefits of various jurisdictions)—the first priority is to gather all relevant security documents and carry out due diligence on the company or the wider group of companies... On larger restructurings with multiple parties and advisers, it is usual for one party (often the senior lenders) to manage the deal contact list, and you should promptly add your team’s details (phone, email, etc) so early communications can get underway... You will also be able to identify which firms represent each party, which can be informative—for example, if the bondholders have formed a committee and instructed lawyers, negotiations may become drawn out... As the objective is to restructure the company, understanding the live-side business is crucial when putting together your internal team. For...
An introduction to the legislation Corporate Insolvency and Governance Act 2020 Spurred by the coronavirus ( COVID-19) pandemic, the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) reached the House of Commons on 20 May 2020 and secured royal assent on 25 June 2020. Its purpose is to nurture a rescue culture, giving companies facing financial stress more scope to reorganise and steer clear of formal insolvency procedures—often terminal—during the coronavirus period and afterwards. It is therefore a comparatively debtor friendly piece of legislation. While giving statutory effect to temporary steps announced by the government as part of its coronavirus response, it also, more significantly, introduced permanent tools into the UK corporate insolvency and restructuring framework. This Practice Note summarises the changes to insolvency and restructuring law contained in CIGA 2020, drawing out key issues and discussion points for lenders, and provides links to further reading for those...
The depth of enquiries into a limited company in the United Kingdom will vary depending on whether it is private or public and, if public, whether its securities are traded on an exchange or an alternative trading platform. Listed companies are typically obliged by exchange rules to disclose a broader range of information than private or unlisted public entities. Information sources for all companies and individuals Companies House Companies House is the obvious first port of call when reviewing a UK company. Its free search provides extensive filings covering a company’s constitution, registered office and incorporation date, current and former officers, people with significant control ( PSCs), mortgage charge data, previous names, accounts and insolvency details. Search the register Advanced company search Dissolved company search (for details on a company dissolved more than ten years ago) To order certificates and certified copies see here, and for further detail see...
Company distributions and dividend payments are governed by, and fall under, Part 23 of the Companies Act 2006 ( CA 2006). For an in-depth review of the law on distributions and dividends, refer to the Practice Notes: Distributions and Dividends—the legal framework. What is a distribution? For the purposes of CA 2006, Part 23 (sections 829–853), the term “distribution” is construed very broadly indeed. It covers any form of transfer of a company’s assets to its shareholders, in cash or otherwise, save for: the issue of bonus shares (fully or partly paid), and certain: reductions of share capital redemptions of shares buybacks of shares, and distributions of assets to members on the winding up of a company ...
Company accounts for restructuring & insolvency lawyers This Practice Note provides a concise guide to company Accounts for lawyers working in restructuring and insolvency. It focuses on limited liability companies, with occasional references to the position for listed companies. The requirements for limited liability partnerships are, in broad terms, aligned with those for private limited companies. The expressions ‘accounts’ and ‘financial statements’ are used interchangeably; this note adopts the label ‘ Accounts’. Financial reporting obligations and standards in the UK—general requirements Basic requirements under the Companies Act 2006 All incorporated entities in the UK must, under the Companies Act 2006 ( CA 2006), keep accounting records and prepare and file annual Accounts with the Registrar of Companies. Once filed, Accounts become publicly available (usually about two weeks after submission) either on application to the Registrar or directly via the Companies House website. Private...
Relevant articles The Corporate Rescue and Insolvency and the Journal of International Banking and Finance Law contain a wide selection of helpful articles on Part 26A restructuring plans for restructuring & insolvency lawyers practising in this area, and links to them are provided directly on this page. These items are accessible exclusively to Lexis®Library subscribers only. Date Article Brief description of the article as follows 1 April 2026: Proxy meetings, the gifting principle, and the limits of the rationality test: Re Argo Blockchain plc: (2026) 2 CRI 53. Jordan Cooper, senior associate at Taylor Wessing, offers essential reflections on the High Court’s approval of Argo Blockchain plc’s restructuring plan under Part 26A of the Companies Act 2006. Argo, an English-incorporated holding company undertaking large-scale Bitcoin and wider cryptocurrency mining, was, when the plan proceeded, dual-listed on the London Stock Exchange ( LSE) and the NASDAQ Stock...
Banking regulation— United Kingdom— Q& A guide This Practice Note provides a United Kingdom–specific Q& A guide to banking regulation, published within the Lexology Getting the Deal Through series by Law Business Research (law stated as at: 24 February 2023). Authors: 1 Crown Office Row— Edite Ligere 1. What are the principal governmental and regulatory policies that govern the banking sector? Oversight of the UK banking sector rests chiefly with two regulators, with a further body setting system-wide policy: The Prudential Regulation Authority ( PRA), a part of the Bank of England, is responsible for prudential supervision, safeguarding the financial safety and soundness of banks. The Financial Conduct Authority ( FCA) regulates how banks conduct themselves in financial markets and in dealings with clients. The Financial Policy Committee ( FPC), operating within the Bank of England, functions as the macroprudential regulator for the UK financial...
This Practice Note provides high-level guidance on the administration regimes for UK banks, investment firms, building societies and investment banks under: the Banking Act 2009 ( BA 2009) the Building Societies ( Insolvency and Special Administration) Order 2009, SI 2009/805 ( Building Societies Order 2009) the Investment Bank Special Administration Regulations 2011, SI 2011/245 ( IB Regulations 2011) Banking Act 2009 BA 2009 was devised to reinforce the resilience of the UK financial system and to promote financial stability by bolstering depositor protection and introducing mechanisms to tackle banks in difficulty. Among other measures, BA 2009 established a special resolution regime ( SRR). The SRR confers powers on HM Treasury, the Prudential Regulation Authority ( PRA), the Financial Conduct Authority ( FCA) and the Bank of England ( Bo E) to address issues concerning banks, banking group companies, investment firms, building...
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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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