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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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Sino- Ocean Group Holding Ltd sought approval for a Part 26A restructuring plan ( RP) at a convening hearing in October 2024, with the sanction hearing taking place in January 2025. Capitalised expressions not defined here bear the meanings given in the convening and sanction judgments. This Deal Debrief sits within our Restructuring plans collection. For an in-depth review of 2023 RP metrics and commentary from leading restructuring practitioners, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Sino- Ocean Group Holding Ltd (the Company) Industry sector Property Place of debtor’s incorporation and jurisdictional factors The Company was incorporated in Hong Kong and its shares are listed on the Hong Kong stock exchange. The Plan Liabilities are governed by Hong Kong law ( Class A) and English law ( Classes B, C and D)......
Banking regulation— Singapore— Q& A guide This Practice Note provides a jurisdiction-specific Q& A guide to banking regulation in Singapore, published as part of the Lexology Getting the Deal Through series by Law Business Research ( Law stated at: 17 January 2023). Authors: Wong Partnership LLP— Elaine Chan; Chan Jia Hui 1. What are the principal governmental and regulatory policies that govern the banking sector? Robust local banks remain central to Singapore’s banking landscape, and the policy of preserving domestic banks’ share of total resident deposits at not less than 50% continues unchanged. In view of their systemic significance to the Singapore economy and financial system, local banks must meet capital adequacy standards that exceed Basel III requirements. Alongside this, the government has progressively liberalised the industry to encourage greater participation by foreign banks in wholesale and retail banking, fostering dynamism and...
STOP PRESS: The Short Selling Regulations 2025 were finalised and released on 13 January 2025, accompanied by an explanatory memorandum. They replace the assimilated UK Short Selling Regulation and introduce a new statutory framework for regulating short selling in the UK, defining designated activities and granting the Financial Conduct Authority ( FCA) powers to make rules for those activities, as well as to intervene in exceptional circumstances. Certain elements took effect on 14 January 2025, with the remainder commencing on the date the UK Short Selling Regulation is revoked under the Financial Services and Markets Act 2023. In October 2025, the FCA published CP25/29, outlining proposals for a new Short Selling sourcebook and changes concerning, among other matters: position reporting covering arrangements lists of reportable shares market maker exemptions disclosures of aggregated net short positions ( ANSPs) The FCA also issued a derivations and changes table explaining how rules and guidance have been...
This note aims to: offer clear, practical guidance to shareholders of a distressed or insolvent company set out the position of shareholders across most types of corporate insolvency or restructuring scenarios suggest steps a shareholder can take to maximise their position if the company becomes distressed This note is specifically designed to help shareholders secure the strongest possible footing as the company enters the ‘zone of insolvency’. During ordinary trading, the interests of creditors and shareholders typically run in parallel. Yet, once the business moves into that ‘zone of insolvency’, then directors’ duties realign and are owed to creditors instead (see Practice Note: Directors’ duties: companies in financial difficulties). The point at which that shift occurs will be determined on the specific facts in each individual instance (see News Analysis: Directors' duties and assessing...
The general position of the bankruptcy and family courts The interaction between bankruptcy and divorce has been examined in numerous judgments across both the bankruptcy and family courts. Regrettably, it is not unusual for a bankruptcy to be underway while divorce proceedings continue, and parallel actions can give rise to disputes over the distribution of assets. The point at which a bankruptcy petition is presented, when contrasted with the time the family court issues a property adjustment order, is pivotal in determining how bankruptcy proceedings will affect the family case. For further reading on bankruptcy and divorce proceedings, see: Bankruptcy and family financial remedy proceedings—overview Practice Note: The impact of bankruptcy on divorce proceedings Practice Note: Can the court annul a bankruptcy order obtained in order to defeat the divorce proceedings?......
There are five main types of set-off: independent set-off (sometimes known as legal set-off or statutory set-off) transaction set-off (also known as equitable set-off) contractual set-off insolvency set-off banker’s set-off (sometimes known as current account set-off) This Practice Note looks at the characteristics of these five types of set-off. For information on set-off in general, see Practice Note: What is set-off and when is it available? Independent set-off Independent set-off operates as a procedural defence available for use in court proceedings. It permits mutual, reciprocal claims to be set off against each other where they are separate and not connected, in contrast to transaction set-off. Independent set-off is also described as legal set-off or statutory set-off......
ARCHIVED: This Practice Note was archived and is not maintained. It outlines two categories of clauses that are frequently encountered in intercreditor agreements involving both senior and mezzanine financiers: restrictions on the capacity of senior and mezzanine creditors to alter finance terms without consent from the other creditor class; and senior creditor control over payments made to mezzanine lenders by the borrower group The note summarises these clauses and identifies matters that are routinely negotiated. For an explanation of the range of provisions found in intercreditor agreements, see Practice Note: Intercreditor agreement—key provisions; and for an introduction to senior/mezzanine intercreditor agreements in particular, see Practice Note: Senior/mezzanine creditor intercreditor issues—introduction [ Archived]. For a straightforward intercreditor agreement with accompanying drafting notes, see Precedent: Intercreditor deed—single company borrower—single secured senior lender—single secured junior lender—single unsecured subordinated lender. More detailed guidance on...
Rationale In any cross-border matter involving a formal insolvency process, practitioners consider which jurisdictions can host the proceedings, weighing the benefits and drawbacks of each option (see Practice Note: Table of advantages and disadvantages of restructuring in various jurisdictions worldwide). The concept of centre of main interests ( COMI) in Regulation ( EU) 2015/848, the EU Recast Regulation on Insolvency, and in the UNCITRAL Model Law on Cross- Border Insolvency (see: UNCITRAL Model Laws—overview) means that, where time allows, practitioners may engage in forum shopping to shift a company’s COMI—regardless of its place of incorporation—to a jurisdiction with a more favourable restructuring or insolvency framework (see Practice Note: Forum shopping and practical ways to move COMI). World Bank/ UNCITRAL findings In April 2021, the World Bank, working with UNCITRAL, issued the Principles for Effective Insolvency and Creditor/ Debtor Regimes. These principles distil...
This Practice Note highlights principal authorities and accompanying materials concerning the validity of security The matters are organised by topic and cover: Voidable transactions Undue influence Execution issues Capacity of the borrower Further advances Contractual restrictions Voidable transactions Names of parties: Re MC Bacon Ltd [1990] BCLC 324 Judgment date: 30 November 1989 Case summary: Where an entity grants security for its own borrowing, the value of the chargor’s assets is not reduced; by creating security it simply accords priority to some obligations over others. To establish a voidable preference within section 239 of the Insolvency Act 1986 ( IA 1986), it was necessary to demonstrate that the company was motivated by a desire to bring about the effect described in IA 1986, s 239(4)(b). Relevant content: See Articles: Transactions at an...
Scope of this Practice Note This Practice Note offers an overview of security reviews and outlines: when and for what reasons a lender may instruct its lawyers to undertake a security review preparatory steps before commencing a security review the approach to presenting the outcome of the security review to the lender It forms part of a trio of documents addressing how to conduct and present a security review, intended to be used together. The accompanying documents are: a Security review checklist, which details the searches and verifications to be performed during the security review a Precedent: Security review report, to be used for delivering the findings of the security review to the lender Security reviews—when and why? Frequently, the initial step in a restructuring is the lender asking its legal advisers to carry out a...
A structure chart depicting the corporate structure of a borrower, together with the security provided in favour of the lender (or another entity), is a useful method to illustrate visually to a......
The purpose of security in securitisations In a classic (non-synthetic) securitisation, security is broad in scope: the issuer charges all of its rights in favour of a security trustee for the benefit of all secured creditors, commonly under a single security deed. For guidance on synthetic securitisations, see Practice Note: Synthetic securitisations. Creating effective security interests over the issuer’s underlying assets (the ‘security package’) therefore supports both the credit and the legal assessment of a securitisation: Credit analysis— A key strand of the credit review assumes value will be realised via enforcement rather than scheduled repayment. In the same way, a mortgage lender primarily prices and approves a loan by reference to the mortgage collateral—the asset to be enforced on default—rather than the borrower’s income capacity. Legal analysis— Transaction counsel focus closely on ensuring each issuer asset is properly charged and that the...
In many lending arrangements, financiers commonly obtain security to back a borrower's duties under a loan agreement. By taking security, they secure defined rights over the charged assets if the borrower fails to make repayment when due. This Practice Note outlines the core features and key characteristics of the four categories of security recognised under English law. It also clarifies what is meant by the distinction between legal and equitable security interests, and explains the differences between them. Practice Note: Introductory guide to security in a lending transaction offers a broader primer on security in lending and serves as a helpful starting point for those new to the subject or unfamiliar with it. Practice Note: Security—frequently asked questions provides links to answers for many of the most common security questions and issues. What is security? A security interest grants the secured party rights in the security...
This Practice Note This Practice Note outlines the early, practical key actions a trustee in bankruptcy (trustee) ought to take on appointment to safeguard their proprietary stake in the bankrupt’s assets—particularly real property such as the bankrupt’s family home. It does not cover which assets and interests vest in the trustee, the process by which they identify and realise that stake, or when equitable accounting or the equity of exoneration might arise as issues or disputes of concern. For more on these topics, consult the following Practice Notes: Property that vests in the trustee in bankruptcy on bankruptcy and how the trustee in bankruptcy determines the scope of their interest in it Equitable accounting—how it operates in practice The equity of exoneration and its practical application Possession and sale applications concerning a bankrupt’s family home This Practice Note likewise does not set out in detail what occurs...
Section 423 of the Insolvency Act 1986 ( IA 1986) Section 423 provides a route to set aside dealings engineered to prejudice creditors. The regime is aimed at stopping parties from shifting assets in a manner that thwarts creditor claims. Put shortly, it targets arrangements by which assets are moved so creditors are kept at bay. A claimant may proceed under IA 1986, s 423 against a company or an individual following a transaction at an undervalue ( TUV) executed with the intention of placing assets out of creditors’ reach. Though there are parallels with a TUV under IA 1986, s 238 (for corporate insolvency) and IA 1986, s 339 (for personal insolvency), the following distinctions are central: Relief under IA 1986, s 423 does not necessarily have to be connected to any formal insolvency...
Businesses may either suffer fraud or be used by their own management to commit it. In the first scenario, corporate property is diverted. In the second, the enterprise may trade partly legitimately or lack any real business. Either way, insolvency may follow. Once appointed, the office-holder will seek to uncover events, trace assets and recover value for creditors. Investigation and enquiry into a company’s assets After a decision is taken to appoint an insolvency practitioner ( IP), the Insolvency Act 1986 ( IA 1986) grants powers allowing the office-holder to probe the company’s affairs and investigate its dealings, then gather in its assets. Under IA 1986, s 236, an administrator, administrative receiver, liquidator or provisional liquidator may ask the court to order certain persons to supply information about the company and/or its dealings, produce any books, papers or other records in their possession or under their...
This Practice Note is about the tax implications of liquidation demergers, also known as section 110 demergers, after section 110 of the Insolvency Act 1986 This Practice Note examines the tax consequences of liquidation demergers, sometimes referred to as section 110 demergers, taking its label from section 110 of the Insolvency Act 1986. For context on the reasons a company may undertake a demerger, and an overview of alternative structures, see Practice Notes: Demergers—an introduction to the tax issues and Demergers—an introduction for corporate lawyers. Detailed Practice Notes cover the tax aspects of the principal demerger routes: statutory (or dividend) demergers, which can be direct or indirect—see Practice Note: Statutory demergers capital reduction demergers—see Practice Note: Capital reduction demergers liquidation demergers—the focus of this Practice Note Typically, a liquidation demerger involves placing a new holding company at the top of the group, then...
This Practice Note explores the use of section 110 of the Insolvency Act 1986 ( IA 1986) — commonly termed section 110 arrangements, section 110 demergers, section 110 schemes, section 110 transfers, section 110 liquidation schemes, or section 110 reconstructions. It addresses their key purpose, the standard transaction structure, the reconstruction agreement, how dissenting shareholders may contest, and tax matters. What is a section 110 arrangement? A section 110 arrangement is a statutory device to separate or demerge undertakings or assets sitting in, or owned by, a single corporate body, so that following the deal they are held by two or more corporate bodies. Such arrangements are available only within a voluntary winding up, usually a solvent winding up, i.e. a members’ voluntary liquidation ( MVL). With preparation they can deliver tax efficiency compared with alternative routes. In its basic form, a section 110...
What is second lien financing? Second lien financing describes funding that is principally backed by the same collateral package as senior or first‑ranking borrowings, yet it generally sits behind that senior or first‑ranking debt on a second‑ranking basis, whether in terms of payment priority and/or security (for more detail, see the Intercreditor position section below). It operates as a tranche of borrowing positioned between senior bank facilities and other junior or subordinated indebtedness within a leveraged buy‑out. Second lien borrowings are most often structured as term loans (or issued as notes in the US). The investor base for second lien instruments is typically institutional investors, encompassing funds that allocate to leveraged loans, collateralised loan obligations ( CLOs), hedge funds, and other specialist debt funds......
Macfarlanes and Burness Paull advised Dobbies Garden Centres, the UK’s largest operator of garden centres, on its restructuring plan ( RP) under Part 26A of the Companies Act 2006 ( CA 2006), which was approved by Lord Braid in the Court of Session in Scotland on 9 December 2024. An RP is a mechanism by which a financially distressed company may propose a compromise or arrangement with its creditors in order to remove, lessen, avert, or soften the impact of its financial difficulties. These compromises and arrangements can be structured in many ways, including, for example, amendments and extensions of debt obligations, debt-for-equity swaps, and alterations to lease terms together with compromises of rent payable under leases and other property-related liabilities. The RP was introduced during the coronavirus ( COVID-19) pandemic to offer a new restructuring tool in the UK. Whilst there is...
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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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