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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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The 'three-year rule' and why it applies Through the Enterprise Act 2002 ( En A 2002), a new section 283A was added to the Insolvency Act 1986 ( IA 1986). In effect, it affords the trustee in bankruptcy (trustee) a three-year window to take appropriate action to realise or protect the bankrupt’s interest in the bankrupt’s home (as defined, see below). If no such steps are taken within that period, the interest drops out of the bankruptcy estate and automatically re-vests in the bankrupt. This measure, widely referred to as the 'three-year rule', applies to anyone adjudged bankrupt after 29 December 1986 (the commencement date of IA 1986) on a petition issued on or after that date (see Pannell v Official Receiver), while transitional arrangements operate for any bankruptcy begun before 1 April 2004. The intent behind the three-year rule was to remove the undue delay...
This practice note relates solely to defined benefit occupational pension schemes. The Pensions Regulator's moral hazard powers The Pensions Act 2004 ( Pe A 2004) granted the then newly established Pensions Regulator a broad suite of powers. Foremost among these, and the most groundbreaking, were the moral hazard measures set out in sections 38–54 of the Pe A 2004. These moral hazard powers—also referred to as anti-avoidance powers—allow the Pensions Regulator to challenge schemes aimed at evading pension funding duties and, ultimately, in turn, limit the Pension Protection Fund’s ( PPF) potential exposure. In specified situations, the Pensions Regulator may even look beyond corporate structures and also allocate pension liabilities to third parties that are connected with, or associated with, a scheme’s sponsoring employer......
Deal Debrief The Great Annual Savings Company Ltd sought approval for a Part 26A restructuring plan ( RP), reaching a convening hearing in February 2023 and progressing to a sanction hearing in April 2023. Sanction was declined owing to significant objections from HMRC and other creditor groups. Core terms for this SME RP are set out below (all capitalised expressions not otherwise explained take the meanings given in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For a detailed review of metrics from RPs filed in 2023 and insights from restructuring practitioners, consult Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]......
Deal Debrief NGI Systems & Solutions Ltd ( NGI)—a principal shareholder, creditor and supplier—sought approval of a Part 26A restructuring plan ( RP) for the SME, The Good Box Labs Co Ltd (in administration), at a sanction hearing in January 2023. The main points are outlined below (capitalised terms not defined here have the meanings in the sanction judgment). The matter is distinctive as it represented the first RP application made by a party other than the company and the first instance of an RP being used to bring an administration to an end. This Deal Debrief is included within our Restructuring plans collection. For in-depth analysis of the key metrics from RPs filed in 2023 and commentary from leading figures in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [...
The Gibbs rule It holds that whether a liability is released can only be decided by the law governing that liability. Subject to the adjusting impact of legal instruments in the field of cross‑border insolvency, an English court may invoke this common law principle in appropriate cases, and conclude that a foreign restructuring, which claims to extinguish an English law governed liability (or one governed by a system other than that of the foreign restructuring), does not in fact achieve that result at all in England. As a result, the court may permit a dissenting creditor to pursue enforcement of the liability in England. The scope and reach of the Gibbs rule will matter to distressed debt investors and their advisers, and this note highlights some of the key points for consideration. The evolution of the Gibbs rule was recognised and developed across a line of...
Deal Debrief Thames Water Utilities Holdings Ltd sought a Part 26A restructuring plan ( RP), with a convening hearing in December 2024 and a sanction hearing in February 2025, respectively. Key takeaways are set out below for ease (unless stated otherwise, capitalised terms bear the meanings given in the convening and sanction judgments). Though the RP was taken to the Court of Appeal, that challenge was rejected (see News Analysis: Thames water beats appeal against £3bn rescue plan). One appellant, MP Charlie Maynard, then applied for permission to appeal to the Supreme Court; that bid was refused on 28 July 2025, so the Court of Appeal’s ruling remains in force. This Deal Debrief sits within our Restructuring plans collection. For an in‑depth review of headline metrics from RPs lodged in 2023 and commentary from leading figures across the...
A note on terminology Under the Law of Property Act 1925 ( LPA 1925), the holder of a legal mortgage may appoint an LPA receiver in two circumstances: when the mortgage monies fall due, and after a demand for payment is made in accordance with the mortgage terms Alternatively—and more typically—the right to appoint arises under the provisions of the charge itself. In either scenario the appointee is often described as a fixed charge receiver (although, in the latter case, they are not technically an LPA receiver, the label is still commonly used in practice). Lack of statutory provision There is no legislation that sets out how an LPA/fixed charge receivership should be brought to an end. As the authority to appoint an LPA/fixed charge receiver derives from the legal charge, once that charge is discharged the receiver’s office ends and no further powers remain. A...
Background to the Temporary Insolvency Practice Direction Supporting the Insolvency Practice Direction The coronavirus ( COVID-19) outbreak brought about extraordinary lockdowns and social distancing. Consequently, both the courts and their users found it difficult to perform routine activities. In reaction, new court protocols and procedures have been adopted—see Practice Note: Coronavirus ( COVID-19)— Changes to the court process in insolvency proceedings [ Archived]. To complement those measures, and to address particular issues arising in insolvency work, a Temporary Insolvency Practice Direction ( TIPD) came into effect on 6 April 2020. That direction lapsed and was succeeded by further iterations of the TIPD (in identical terms), the latest of which was issued on 30 June 2021. The 30 June 2021 version expired on 30 September 2021 and has now been superseded by a new temporary insolvency practice direction supporting the insolvency practice direction ( MIPD 2021). For more...
Banking regulation— Switzerland— Q& A guide This Practice Note provides a Switzerland-focused Q& A on banking regulation, appearing in the Lexology Getting the Deal Through series by Law Business Research (law as at 1 January 2023). Authors: Lenz & Staehelin— Patrick Hünerwadel; Shelby R du Pasquier; Marcel Tranchet; Isy Isaac Sakkal. 1. What are the principal governmental and regulatory policies that govern the banking sector? The Swiss Financial Market Supervisory Authority ( FINMA) oversees banks operating in Switzerland. FINMA issues licences to companies carrying out banking business, rather than to their executives or owners. Licensing conditions are prescribed by the Swiss Federal Act on Banks and Savings Banks (the Banking Act). Applicants must show that those responsible for management are of sound reputation and ensure proper business conduct (a guarantee of irreproachable activity). If, at any point, licensing criteria cease to be met,...
ARCHIVED: This Practice Note has been archived and is not maintained Silicon Valley Bank concentrated on providing finance to businesses—particularly early‑stage firms—in the technology and life sciences fields. Escalating concerns about the bank’s resilience triggered the withdrawal of tens of billions in deposits by customers, prompting regulatory intervention on Friday 10 March 2023 in the largest failure of a US bank since 2008. UK authorities took corresponding action. This Practice Note highlights the key matters arising from the collapse, including context, effects on deposits, lending arrangements and derivative positions, and implications for stablecoins and cryptoassets. It also signposts general resources on the legal issues surrounding bank stability. What has happened in the US? On 10 March 2023, California financial regulators seized Silicon Valley Bank, California ( SVBUS) citing inadequate liquidity and insolvency, appointing the Federal Deposit Insurance Corporation ( FDIC) as receiver. On 12 March 2023, the...
Introduction This Practice Note offers high-level guidance on trading with a company in liquidation or administration, being insolvency procedures where control of the company passes to an insolvency practitioner. The note is likewise pertinent to administrative receivership, although that route is now available only in very narrow circumstances. It also addresses procedures where directors retain control, eg company voluntary arrangements and moratoria under Part A1 of the Insolvency Act 1986 ( IA 1986). It summarises key considerations when engaging with such entities during insolvency-related trading at a high level. For fuller discussion and practical guidance on this topic, you may wish to consult the following Practice Notes: A creditor’s guide to dealing with a company in financial difficulty Dealing with suppliers, customers and ROT claims Factors the court will take into account when deciding whether to lift or impose a liquidation stay The moratorium in...
Practice Note This Practice Note aims to guide sub-contractors in identifying early warning signs of contractor insolvency and the practical, proactive steps a sub-contractor may take to safeguard itself in advance. If the main contractor has already become insolvent, consult Checklist: Sub-contractor steps to take if contractor becomes insolvent—checklist accordingly, promptly thereafter......
This Practice Note This Practice Note sets out when an employee can receive a payment from the state guarantee fund (the National Insurance Fund), i.e. a ‘fund payment’, and identifies the categories of employer liability that can trigger such a payment. It addresses sums due from an employer to an employee as a statutory redundancy payment, a sum due under a formal settlement agreement, and a sum due under a collective agreement, where the employer either declines to pay or is unable to do so because it is insolvent following a voluntary liquidation or compulsory liquidation process, a winding-up order being made, or the opening of collective insolvency proceedings. It further covers interest accruing on late payment, the steps for bringing a claim, the relevant limitation periods, the information to be supplied to the Secretary of State (the Insolvency Service), and the transfer (by...
Standard Profil Automotive GMBH sought a Part 26 scheme of arrangement ( Scheme), with the convening hearing taking place in July 2025 and the sanction hearing in September 2025. Key details are outlined below (capitalised terms not defined herein have the meanings given in the convening and sanction judgments). Name of company Standard Profil Automotive GMBH (the Company) Industry sector Automotive Place of debtor’s incorporation and jurisdictional factors Germany Legal counsel involved The Company: Adam Al- Attar KC and Charlotte Cooke (instructed by Linklaters LLP) Timeline 4 February 2025: the Company and Sealing Technologies S.à.r.l. (the Sponsor) agreed to push back the maturity of the Existing Shareholder Loan to April 2027 14 April 2025: the Company commenced a consent solicitation of the Existing Senior Notes to permit specified amendments (including permitting incurrence of debt under the Bridge Loan)......
Banking regulation— Sri Lanka— Q& A guide This Practice Note delivers a Sri Lanka-focused Q& A on banking regulation, produced within the Lexology Getting the Deal Through series by Law Business Research (law stated as at 31 January 2023). Authors: Tiruchelvam Associates— Heshika Rupasinghe. 1. What are the principal governmental and regulatory policies that govern the banking sector? Banks operate under the Banking Act and must obtain the Monetary Board’s consent. The regime treats overseas and domestic banks alike. Licences are granted to both licensed commercial banks ( LCBs) and licensed specialised, savings or deposit-taking banks ( LSBs). An institution must either be a public company or a branch of a foreign bank registered under the Companies Act. Several institutions are state-owned, partly to counter the dominance of privately held banks in the capital and partly to channel funds into priority areas such as...
Insolvency in the sports industry—overview The sports landscape has witnessed numerous notable collapses since 2010, among them the administrations of the Force India, Caterham and Marussia Formula 1 ( F1) outfits, Bradford Bulls RFC and Plymouth Albion RFC, as well as Bolton Wanderers FC in 2019. Sport has been especially affected by the coronavirus pandemic, largely due to reduced matchday income. Among those affected are Bury Football Club and Wigan Athletic Football Club, both of which entered administration in 2020. With coronavirus restrictions extending into 2021, teams across a range of disciplines face further headwinds, increasing the likelihood of insolvency within the sector. Collectively, this has created an increased risk of insolvency in the sports industry. In addition, the pandemic could drive failures among other participants in the sporting ecosystem—such as sponsors and...
Sources of financing Sovereign borrowers, whether emerging or advanced, raise funds via multilateral, bilateral, or private channels. The first two typically take the form of loan agreements. Private funding most often relies on bond placements and is the predominant avenue; at times it may involve commercial loan contracts, but because creditor groups are small these are negotiated discreetly and largely pass unnoticed. As bond issuance has surged, and virulent financial crises have become more frequent, bond restructurings have taken on greater prominence, particularly for sovereign issuers. Difficulties with sovereign debt restructuring Reliance on bonds to cover sovereign deficits has broadened and deepened capital markets. Yet major drawbacks emerge when obligations turn unsustainable. These include: a growing, anonymous creditor base that is hard to co-ordinate multiple instruments and issuance across diverse legal venues, with no unified statutory regime, which strengthens creditors’ capacity to hold out or...
SWS Holdings Limited and Greensands Financing Plc (both within the Southern Water group) sought two inter-conditional schemes of arrangement under Part 26 (each, a scheme) at a convening hearing in September 2025 and a sanction hearing in October 2025. The key points are set out below (capitalised terms not defined here have the meanings given in the convening and sanction judgments). Name of companies SWS Holdings Limited ( SWS) and Greensands Financing Plc ( Midco). Industry sector Water. Place of debtors’ incorporation and jurisdictional factors Both incorporated in England and Wales. SWS executed a deed of contribution in favour of the SWS Borrowers; similarly, Mid Co entered into a deed of contribution, making it a joint principal obligor under the Mid Co Facility Agreement......
Banking regulation— South Africa— Q& A guide This Practice Note offers a jurisdiction-specific Q& A on banking regulation in South Africa, published within Law Business Research’s Lexology Getting the Deal Through series (law stated at: 11 February 2022). Authors: White & Case— Joz Coetzer; Jennifer Stolp; Marianna Naicker. 1. What are the principal governmental and regulatory policies that govern the banking sector? In 2011, National Treasury released the policy paper titled ‘ A safer financial sector to serve South Africa better’ (the 2011 Policy Document). The 2011 Policy Document sets out policy priorities for the financial services sector, including: Stability and soundness of financial institutions. The South African Reserve Bank ( SARB)— South Africa’s central bank—has as its primary purpose the protection of the value of South Africa’s currency, in the interests of balanced and sustainable economic growth in South Africa. The SARB also assesses the...
Insolvency practitioners ( IPs) must follow both legislation and Statements of Insolvency Practice ( SIPs). SIPs are a collection of guidance notes issued by the Joint Insolvency Committee, see Practice Note: Statements of Insolvency Practice—a quick guide. SIP 16 was brought in to tackle perceived potential misuse of pre-pack administration sales and requires an administrator to take steps relating to: preparatory work marketing disclosure A revised SIP 16 (effective from 30 April 2021) was published to reflect the extra statutory duties placed on administrators by the Administration ( Restrictions on Disposal etc to Connected Persons) Regulations 2021, SI 2021/427. For further reading on the regulations, see Practice Note: Pre-pack administration—connected person sales. When does SIP 16 apply? SIP 16 states that it applies to all pre-pack sales in administrations, regardless of who the purchaser is. The amendments to SIP 16...
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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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