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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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Publication and approval In this Practice Note, ‘bank’ denotes a UK institution authorised under Part 4A of the Financial Services and Markets Act 2000 ( FSMA 2000) to conduct the regulated activity of taking deposits (as defined by FSMA 2000, s 22, read with Schedule 2 and any order made under FSMA 2000, s 22). Any later references to ‘bank’ also cover a resolution company. Following the failure of Silicon Valley Bank, the government consulted on additional reforms and, in May 2025, enacted the Bank Resolution ( Recapitalisation) Act 2025 (see: LNB News 19/07/2024 30). These changes are not confined to smaller institutions: from 16 July 2025 they extend to banks of any scale (subject to meeting the other entry criteria) to enable recapitalisation of in-scope entities using FSCS monies rather than taxpayer funding, thereby lowering the likelihood that small bank failures give rise to calls on...
Practice Note In this Practice Note, the term ‘bank’ denotes a UK institution authorised under Part 4A of the Financial Services and Markets Act 2000 ( FSMA 2000) to undertake the regulated activity of accepting deposits (as defined by FSMA 2000, s 22, read with Schedule 2 and any order under FSMA 2000, s 22), and any mention of ‘bank’ below also covers a resolution company. In the wake of Silicon Valley Bank’s failure, the government consulted on additional reforms and, in May 2025, passed the Bank Resolution ( Recapitalisation) Act 2025 (see: LNB News 19/07/2024 30). These changes are not confined to smaller banks and, from 16 July 2025, apply to banks of any size, provided the other entry conditions are met (see Practice Note: Bank resolution reforms under the Bank Resolution (...
Special resolution regime toolkit The Bank of England ( Bo E) leads the response when banks, building societies and designated investment firms supervised by the Prudential Regulation Authority ( PRA) fail, using a process called resolution, which is separate from insolvency, and is described in the Bank of England’s approach to resolution (published 15 December 2023). The Bo E will trigger resolution where intervention is required to safeguard financial stability. The framework does not aim to prevent all failures; rather, it ensures that, when they occur, they are managed in an orderly way that seeks to avoid deploying public money to prop up failed banks. Under the special resolution regime ( SRR), the most suitable tool must be chosen for resolving or winding up a failed bank, including combinations of tools where appropriate. Through secondary legislation implementing the Financial Services Act 2012 and the Bank...
The economic and legal backdrop Ordinary corporate insolvency regimes were ill-suited to troubled banks. Notably: the insolvency practitioners appointed to conduct proceedings were under no obligation to factor in broader public policy goals connected to preserving overall financial stability banks are exposed to crises of confidence, so swift resolution and prompt intervention are particularly critical depositors, unlike the creditors of an industrial firm: are many in number are not professional market actors, and whose claims on the bank, as ‘money’, play a significant role in the broader functioning of the economy a banking failure can generate very serious external effects for the overall stability of the financial system Before the measures outlined in this Practice Note were...
Under the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE), a move of an undertaking from one organisation (the transferor) to another (the transferee) can arise in several situations, such as: a business sale at the beginning or the end of an outsourcing an internal reorganisation within an employer’s group (where the employing entity changes) a management buy-out the establishment or ending of a franchise These are circumstances in which TUPE may operate in practice. For further information, see Practice Note: TUPE—an overview for pensions lawyers. Considerations relevant to determine level of pension provision post- TUPE transfer When determining the pension benefits a transferee employer must make available to staff who move across, the transferee should assess the minimum pension provision it is legally obliged to put in place for those...
The Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE) have been in force since 6 April 2006 TUPE gives effect to the Acquired Rights Directive. Unlike TUPE, the Acquired Rights Directive is not part of domestic law, even as assimilated law. TUPE has a wide scope. For example: TUPE can apply when a client acquires something with employees attached, whether an asset or an activity rather than a business, so those workers' protections may follow. A buyer of a shopping centre, for instance, may inherit cleaners, security guards or caretakers with the building. Likewise, if a client takes over the delivery of a service, the employees currently providing it may transfer and become the client's staff by virtue of TUPE. TUPE may operate regardless of who the employees' existing employer is, including where their employer is not the seller in the...
Practice Note This Practice Note explores the moderated operation of the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006) when insolvency arises. Significant elements of TUPE 2006 fulfilled the UK’s EU duty to give effect to Directive 2001/23/ EC, the Acquired Rights Directive ( ARD). Up to 1 January 2024, the pertinent provisions were classed as retained EU-derived domestic law under the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). From 1 January 2024, the Retained EU Law ( Revocation and Reform) Act 2023 reclassifies such EU-derived domestic legislation as ‘assimilated’ law, reflecting the removal, in general terms, of EU interpretive effects (for example, EU law supremacy, directly effective rights, and the general principles formerly preserved by the EU( W) A 2018). For additional detail, see Practice Note: Assimilated law. This Practice Note also cites...
The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, confers extra protection on employees when a dismissal arises in the context of a transfer. EU‑sourced legislation, including much of TUPE 2006, enacted to give effect to the UK’s obligations under EU law (for example, Directive 2001/23/ EC, the Acquired Rights Directive ( ARD)), and still applicable in the UK at the end of the Brexit transition period/ IP completion day, continues in force as assimilated law. For further information, see Practice Note: Assimilated law. Enhanced protection against dismissal An individual benefits from this enhanced protection only if they can pursue an unfair dismissal claim—meaning they must be an employee (see Practice Note: Employee status) with the required two years’ continuous employment. For further information, see Practice Note: Entitlement to claim unfair dismissal......
Limitation periods set the window within which a claimant must commence proceedings. Where a claim is issued after the relevant period has lapsed, a defendant may rely on a limitation defence and the court may strike it out as time-barred. For material on limitation rules in insolvency claims, see Practice Note: Limitation periods applicable to insolvency claims. That Practice Note considers sections 21 and 32 of the Limitation Act 1980 ( LA 1980). Trustees and fraud The LA 1980 identifies two types of insolvency-relevant claims with no limitation period: LA 1980, s 21(1)(a): claims by a beneficiary involving fraud or a fraudulent breach of trust in which the trustee was directly involved or complicit, and LA 1980, s 21(1)(b): claims by a beneficiary to recover trust property (or its proceeds) from a trustee who is in possession of it, or who has received it and...
FORTHCOMING CHANGE The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first comprehensive reconsideration of Scottish trust law in more than a century, since the principal Trusts ( Scotland) Act 1921 was enacted. The trusts elements will only operate once Scottish Ministers make the necessary secondary legislation to commence them, whereas the provisions on succession took effect on 30 April 2024. A synopsis of the principal reforms designed to modernise the law appears in News Analysis: Trusts and Succession ( Scotland) Bill passed. Definitions Arriving at a fully adequate definition of a ‘trust’ is challenging, given the breadth of contexts in which trusts arise, and a trust itself has no separate legal personality. For practical purposes, a ‘trust’ can be viewed as a legal arrangement whereby legal title to property passes from the truster to one or more...
Obtaining information about the bankrupt’s affairs On taking office, a trustee in bankruptcy (trustee) typically starts without first-hand insight into the bankrupt’s business, transactions or assets. To grasp the reasons for the insolvency, trace and realise assets, examine potential claims, and regularise the estate’s administration, the trustee must gather information about: the bankrupt, including the bankrupt’s conduct, transactions and general affairs the bankrupt’s assets, together with details enabling the trustee to assert or safeguard such property Such material may exist as documents or be held in the knowledge of the bankrupt and/or third parties. Although the trustee will ordinarily try to secure this information informally, the law recognises that, at the outset, the trustee has only limited access, and that those holding relevant records or knowledge may decline to co-operate. Accordingly, the Insolvency Act 1986 ( IA 1986) places obligations on the bankrupt and others to assist the...
This Practice Note has been archived and is not maintained. The Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015) obtained Royal Assent on 26 March 2015, delivering a package of reforms and statutory clarifications designed to keep the UK recognised worldwide as a dependable, fair environment for commerce while creating fresh scope for small firms to innovate and compete. The Act introduced a range of company and insolvency measures to underpin a robust regulatory framework for those responsible for administering insolvencies. Within this Practice Note we address the provisions relevant to trustees in bankruptcy, located in SBEEA 2015, section 133 and Schedule 10. These provisions took effect on 6 April 2017 under the Small Business, Enterprise and Employment Act 2015 ( Commencement No 6 and Transitional and Savings Provisions) Regulations 2016, SI 2016/1020. SBEEA 2015 is supported by...
A common restructuring technique is to shift a company’s assets or business into a newly incorporated company ( Newco). In practice, the stronger assets and business lines are carved out and transferred to Newco. In exchange for compromising or cancelling their debt claims against the company (and the rest of the group), financial creditors may swap: debt in the company for debt in Newco debt in the company for equity in Newco debt in the company for a mix of debt and equity in Newco The transfer reduces or eliminates liabilities on the company’s balance sheet. In debt-for-equity swaps, it enables creditors to participate in any upside after the restructuring—once Newco generates profit, equity holders may receive dividends when there are sufficient distributable reserves—or on any later sale (see Practice Note: Debt for equity swaps). Securing a robust valuation is...
Transferring a loan by assignment This Practice Note outlines a principal route for a lender to pass a loan under English law to another lender: assignment. Other principal methods are: novation — see Practice Note: Transferring a loan by novation sub-participation or risk–participation — see Practice Note: Selling a loan by sub-participation A loan (as a debt) is a chose in action. A chose in action is a right that is enforced through legal proceedings, rather than something held physically. As a general position, choses in action are not assignable at common law. Consequently, assignments of choses in action are either: statutory — often described as ‘legal’ assignments because they produce an equivalent effect to legal assignments equitable Under English law, an assignment transfers rights only; it does not transmit obligations (unlike a novation — see Practice Note:...
Executive summary a reconstruction or amalgamation scheme—commonly termed a transfer scheme (transfer scheme)—constitutes a form of scheme of arrangement pursuant to section 900 of the Companies Act 2006 ( CA 2006) transfer schemes are not commonly encountered in practice. The limited reported instances of approved transfer schemes concern solvent corporate reorganisations the process and formalities mirror, in broad terms, those for a scheme of arrangement under CA 2006, s 895 (section 895 scheme) (see: Schemes of arrangement—overview and Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)). That said, when considering whether to sanction a transfer scheme, the court’s powers under CA 2006, s 900 are more extensive than those exercised on a section 895 scheme in a transfer scheme, the transferor and transferee companies must share...
Sovereign debt restructuring techniques The build-up of public liabilities and their steady rise have triggered repayment difficulties and, in some instances, default. Consequently, as states accumulate untenable debt loads (i.e. when the debt-to-gross domestic product ratio climbs so high that policy measures cannot reverse it), the imperative to reorganise their sovereign obligations intensifies. In broad terms, sovereign debt restructuring refers to the set of methods employed by sovereigns to avert or address financial and economic turmoil and to restore debt to sustainable levels. The bulk of sovereign borrowing is evidenced through bond issues (domestic or international) and, on occasion, commercial loans. Multilateral liabilities are not subject to restructuring (at most, rolled-over), while bilateral exposures are typically rescheduled or reworked under the auspices of the Common Framework or the Paris Club. Sovereign debt workouts comprise two dimensions: procedural and substantive. The procedural limb concerns how the...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It records certain significant hearing dates either scheduled or appearing in the High Court, Insolvency and Companies Court ( Chancery Division) daily cause list from 1 January 2025 onwards (with the latest first) for: Part VII transfer schemes: transfers pursuant to Part VII of the Financial Services and Markets Act 2000 (see Practice Notes: Part VII Transfer of Banking Business and Insurance business transfer schemes) For hearing dates in 2026, please consult the Practice Note: Tracker of Part VII transfer schemes hearing dates 2026, and for 2024 hearings, please see Practice Note: Tracker of Part 26 scheme/ Part 26A......
This Practice Note reviews the principal features of the 2010 Act, which superseded the Third Parties ( Rights Against Insurers) Act 1930 (the 1930 Act) with effect from 1 August 2016. The framework can assist where the insured is insolvent, as it permits a third party that has suffered loss to pursue a direct claim against the other party’s insurer in defined situations (the claimant is the third party because they are not a party to the insurance contract). This offers a marked advantage to the third party, who may recover 100% of their claim from the insurer’s substantial funds, rather than proving in the insured’s insolvency as an unsecured creditor and receiving only a fraction. In short, the law enables the intended beneficiaries of an insurance policy to access the cover. It extends to all categories of liability insurance (for a...
Purpose of the TP( RAI) A 2010 The Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) revoked and superseded the Third Parties ( Rights Against Insurers) Act 1930 ( TP( RAI) A 1930). The aim of the 1930 Act was to make sure that, where an insured person had incurred an insured liability to a third party and later became insolvent, the insurance proceeds were paid to that third party rather than forming part of the insolvent estate to be divided amongst all creditors of the insured. In much the same vein as the earlier regime, TP( RAI) A 2010 assigns to the third party certain of the insolvent insured’s rights under the policy and permits the third party to issue proceedings straight against the insurer. The principal development under TP( RAI) A 2010 is that a third party may now sue the...
This Practice Note outlines the remit of the Pensions Regulator ( TPR). For details on TPR’s role specifically regarding public sector pension schemes, see the Practice Note in respect of public sector schemes. Background to the role TPR, an executive non-departmental public body of the Department for Work and Pensions, is the UK regulator for work-based pension schemes. The office was established on 6 April 2005 by the Pensions Act 2004 ( Pe A 2004), s 1, replacing the Occupational Pensions Regulatory Authority ( OPRA), the former pensions regulator. TPR’s remit and powers are, however, considerably wider than those of its predecessor. Under Pe A 2004, s 5(3), a ‘work-based pension scheme’ means: an occupational pension scheme a personal pension scheme where there are ‘direct payment arrangements’ for one or more members of the scheme who are employees, or 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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