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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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Dobbies Garden Centres Limited sought a Part 26A restructuring plan at a convening hearing in October 2024 and a sanction hearing in December 2024 before the Scottish Outer House, Court of Session. The key headline points are set out below (capitalised terms not defined here have the meanings given in the sanction judgment). This Deal Debrief forms part of our Restructuring plans collection. For an in‑depth analysis of key metrics from RPs filed in England & Wales in 2023, together with commentary from leading figures in the restructuring sphere, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Dobbies Garden Centres Limited (the Company) Industry sector Garden centres Place of debtor’s incorporation and jurisdictional factors The Company was incorporated in Scotland and its centre of main interests ( COMI) was in...
Searches are a vital component in the examination of any heritable title in Scotland, and no conveyance ought to settle without them. Findings usually derive from public records or registers, often enhanced with material drawn from a range of sources. Typical repositories include: Land Register Register of Sasines Register of Inhibitions Companies House Local Authorities where relevant Carrying out searches is a specialist, exacting and highly technical discipline. Since the mid-19th century, the legal profession has preferred to entrust this work to professional searchers and to rely confidently on their expertise. The seller’s solicitor will usually request the searches. As a matter of routine, they are commissioned early in the transaction to allow time to address any adverse findings. Certain searches must be current on the date of completion, so update searches are ordered immediately before...
This Practice Note offers guidance on the current rules and practice in the Scottish civil courts, including electronic lodging of documents and virtual hearings. It does not extend to criminal business or to procedures specific to the All Scotland Personal Injury Court. For key points in Scottish civil litigation, see: Scottish DR: courts and civil procedure—overview, Scottish DR: starting a claim—overview, and Scottish DR: case management and evidence—overview, which link to detailed guidance on particular aspects of dispute resolution in Scotland. Electronic submission of documents in Scotland From 1 December 2025, under the Act of Sederunt ( Electronic Signature and Electronic Transmission of Documents) 2025, SSI 2025/302: an electronic signature meets any requirement to sign or authenticate a document, and electronic transmission (to a person or their solicitor) meets any requirement to send a document to that...
The debtor's home in sequestration In most sequestration cases where a debtor holds assets, these often include the debtor’s home (see Practice Note: Scotland: the process for applying for sequestration). Frequently, it is the sole asset owned by the debtor, either outright or jointly with another, typically a spouse or partner. For definitions of regularly used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. The trustee is obliged to realise that interest so it can be shared among the debtor’s creditors. Trustees generally wish to avoid the disruption and cost of removing debtors and their families, followed by the marketing and sale of their homes. They therefore usually prefer the debtor, or a third party, to purchase the trustee’s interest and will, where feasible, seek dialogue with the debtor to determine whether such an offer may arise. In many...
What are Statements of Insolvency Practice? Insolvency practitioners ( IPs) must adhere to legislation as well as Statements of Insolvency Practice ( SIPs). SIPs are a collection of guidance notes that set out required practice. These notes promote consistency of approach among IPs in daily practice. Their purpose is to sustain and enhance high standards by prescribing expected practice and by harmonising how IPs address particular aspects of insolvency work across England and Wales, Scotland and Northern Ireland. Failure to observe statutory requirements, stipulated standards, or SIPs can lead to disciplinary measures against an IP by their relevant authorising body. SIPs are commissioned by the Joint Insolvency Committee ( JIC), comprising representatives from each of the bodies responsible for the authorisation and regulation of insolvency practitioners. IPs should also follow the Insolvency Practitioners’ Handbook and the Insolvency Code of Ethics. Current SIPs...
For many years, debtors have relied upon trust deeds in order to reach a compromise with their creditors as an alternative to formal sequestration in Scotland (see Practice Note: Scotland: the process for applying for sequestration). Rooted in the common law, trust deeds long attracted a relatively ‘light touch’ from the courts, but the law now pays closer attention to them and to this field generally today. Accordingly, trust deeds are presently subject to markedly tighter regulation than previously in Scotland. This Practice Note outlines the key legal principles on trust deeds and the process for obtaining, and the effect of, protected status in this context too. For definitions of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions therein. The Scottish government has announced a commitment to review both formal debt recovery...
The three personal insolvency regimes in Scotland Scotland has three personal insolvency and debt relief routes: sequestration protected trust deeds ( PTDs) the Debt Arrangement Scheme ( DAS) For definitions of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. For more on the key characteristics of each route, refer to the following Practice Notes: Scotland: the process for applying for sequestration Scotland: protected trust deeds Scotland: the Debt Arrangement Scheme The Scottish government has reviewed Scotland’s statutory debt solutions and formal debt recovery processes to modernise and enhance the framework. The review has involved public consultation, engagement with stakeholders, and policy development. The initial consultation ran from 12 August 2022 to 7 October 2022, with later phases centred on assessing responses, shaping reform proposals, and enacting regulatory changes. A further...
STOP PRESS : The Moveable Transactions ( Scotland) Act 2023 (the Act) took effect on 1 April 2025, together with the following connected regulations: The Moveable Transactions ( Register of Assignations and Register of Statutory Pledges Rules) ( Scotland) Regulations 2024, SSI 2024/381, which set out rules for the Register of Assignations and the Register of Statutory Pledges under the Act; The Moveable Transactions ( Forms) ( Scotland) Regulations 2024, SSI 2024/379, prescribing the form of a pledge enforcement notice and the form of a correction demand under the Act; The Moveable Transactions ( Scotland) Act 2023 ( Financial Collateral Arrangements and Financial Instruments) ( Consequential Provisions and Modifications) Order 2025, SSI 2025/275, bringing financial collateral arrangements and financial instruments within the scope of the reforms; The Registers of Scotland ( Fees and Plain Copies) Miscellaneous Amendments Order 2025, SSI...
This Practice Note addresses the initiation of creditors’ voluntary liquidations ( CVLs) as provided in Part IV of the Insolvency Act 1986 ( IA 1986) and the Insolvency ( Scotland) ( Receivership and Winding up) Rules 2018 ( ISRWUP Rules 2018), SSI 2018/347, r 4.1 ( Part 4). It excludes the commencement of members’ voluntary liquidations ( MVLs) in Scotland and does not deal with the relevant law, procedure and practice after a CVL has begun and been approved by creditors, through to exit and dissolution. Scottish Insolvency Rules 2018 The Insolvency ( Scotland) ( Company Voluntary Arrangements and Administration) Rules 2018, SI 2018/1082, and the ISRWUP Rules 2018, SSI 2018/347 (together, the ‘2018 Rules’), took effect on 6 April 2019. This Practice Note has been revised to reflect the operation of the 2018 Rules. It does not consider any...
Debt Arrangement Scheme ( DAS) The Debt Arrangement Scheme ( DAS) is a statutory mechanism enabling eligible debtors to clear what they owe over a longer timeframe through a Debt Payment Programme ( DPP). It is intended to help specified categories of debtor repay liabilities over an extended period via a structured DPP. While a DPP remains in place, creditors are barred from taking enforcement action against the debtor. For definitions of frequently used Scottish insolvency terminology, refer to Practice Note: Glossary of Scottish insolvency words and expressions. The legislative foundation for DAS sits in Part 1 of the Debt Arrangement and Attachment ( Scotland) Act 2002 ( DAA( S) A 2002). That Act sets only the overarching framework within which the scheme functions. The operative detail appears in secondary legislation made under DAA( S) A 2002. Chiefly, this comprises the Debt...
Loan market and developments Overview Broadly, Scotland’s loan market mirrors that of England. Financial services regulation operates on a UK‑wide basis; a substantial body of legislation governing companies and other corporate vehicles (including corporate insolvency) likewise applies across the UK; and all Scottish clearing banks conduct business in every UK jurisdiction, as do their counterparts across the UK. In practical terms, this means English law governed loan documents typically require minimal amendment for UK cross‑border lending transactions. There are, however, some differences in terminology and certain statutory variations that must be allowed for; beyond those matters, an English law loan document and a Scots law loan document are closely aligned. It is commonplace, for example, for English law loan agreements to be deployed in Scottish lending transactions. The principal divergences between the jurisdictions arise in relation to property law and to the law...
This Practice Note is archived and not maintained. The summary below sets out when particular support measures ended for Scotland (either as part of the UK or in its own capacity, as shown by scope). September 2021 30 September 2021 — Temporary limits on winding-up petitions and statutory demands lapse and are replaced by new provisions from 1 October 2021 (see below). See Practice Note: Corporate Insolvency and Governance Act 2020—temporary changes to corporate statutory demands and winding-up petitions [ Archived], Corporate Insolvency and Governance Act 2020 ( Coronavirus) ( Extension of Relevant Period) ( No. 2) Regulations, SI 2021/718, and Corporate Insolvency and Governance Act 2020 ( Coronavirus) ( Amendment of Schedule 10) ( No. 2) Regulations 2021, SI 2021/1091 ( UK). 30 September 2021 — The allowance for more than one moratorium on diligence in any 12‑month period expires. See...
For the impact of Brexit on Scottish procedures, see Practice Note: Table showing impact of Brexit on jurisdiction to commence insolvency/restructuring proceedings and obtain recognition in other EU Member States. This Practice Note deals with administrations as provided for in Part 3 of the Insolvency ( Scotland) ( Company Voluntary Arrangements and Administration) Rules 2018 ( ISCVAAR 2018), SI 2018/1082. The ISCVAAR 2018 came into force on 6 April 2019, as did the Insolvency ( Scotland) ( Receivership and Winding Up) Rules 2018 ( ISRWR 2018), SSI 2018/347. The existence of two instruments reflects the devolution settlement and the divided responsibilities of the Scottish and UK parliaments over corporate insolvency. Consequently, a number of provisions in each set are counterparts of one another. ISCVAAR 2018, SI 2018/1082, together with ISRWR 2018, SSI 2018/347, were designed to modernise and consolidate the Insolvency ( Scotland) Rules 1986 ( ISR...
Administration of the scheme The scheme document must set out in clear terms how the scheme of arrangement (the scheme) will be run and by whom, on an ongoing basis. Where outstanding questions remain between scheme creditors, or assets still need to be gathered in or realised for the estate, it can be useful or required to appoint a scheme administrator. This is typically an independent party, commonly called a scheme supervisor or scheme administrator. Such a supervisor is ordinarily either a licensed insolvency practitioner or someone with specialist expertise in the scheme company’s sector. Role of the supervisor The duties assigned to the scheme supervisor or administrator should be considered with care from the outset, with their authorities, scope and responsibilities defined with precision. Appointing a scheme supervisor enables that person(s) to oversee, manage and carry out the scheme, and to fulfil the duties and...
This Practice Note This Practice Note assists with identifying the applicable law before the courts of England and Wales for loss-causing events that took place between 11 January 2009 and 31 December 2020, in respect of matters giving rise to damage. Where events fell outside those dates, the UK courts will apply an alternative applicable law regime appropriate to the relevant timeframe. The governing regime turns entirely on the date the event happened in question. For help on the various regimes and how they interrelate, see Practice Note: Applicable law regimes. It also explains when and why Regulation ( EC) 864/2007 on the law applicable to non-contractual obligations, Rome II, was introduced. Further, it outlines the situations in which it applies and those in which it does not, as appropriate. In this Practice Note, the Regulation is referred to as Rome II. For...
At a convening hearing in July 2024 and a sanction hearing in August 2024, Revolution Bars Limited sought approval for a Part 26A restructuring plan ( RP), although the Company subsequently entered administration in 2026. For ease, the headline points are set out beneath (capitalised terms not explained here take the meanings given in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For in-depth metrics on RPs lodged in 2023, and insights from leading figures in restructuring, consult Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Revolution Bars Limited (the Company) Industry sector Retail Place of debtor’s incorporation and jurisdictional factors The Company is incorporated in England & Wales and entered into a Deed of Contribution......
Retained EU Law ( Revocation and Reform) Act 2023 The Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) overhauls the framework set by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It has a marked effect on the status and treatment of what had been retained EU law ( REUL); from 1 January 2024, by virtue of the Act, this is recognised as assimilated law. The legislation also confers a broad set of powers enabling the further amendment, repeal, and substitution of assimilated law over time. REUL( RR) A 2023 came into force in part on 29 June 2023, with additional provisions taking effect on 29 August 2023, and the remaining elements commencing on appointment. It was brought into force on 1 January 2024, save for section 6 ( Role of courts). For...
Introduction to company voluntary arrangements ( CVAs) A CVA offers a lifeline to a company under financial strain by enabling it to reorganise its liabilities. Unlike other insolvency routes, the directors retain control and the business broadly trades as usual, subject to oversight by an insolvency practitioner (the Supervisor). A CVA constitutes a statutory agreement between the company and its creditors, designed to secure a better outcome than a move into a formal insolvency process. Funding for the proposals may take the form of a single lump‑sum contribution or a fixed timetable of instalments across a set term (typically 1–5 years). Where 75% or more in value of the company’s creditors approve the proposals, they become binding on all unsecured creditors, including those who (1) opposed them and (2) were entitled to vote but did not receive notice of the decision...
Types of valuation for R& I lawyers Pinpointing where the value breaks shapes any restructuring and dictates who occupies a place at the negotiating table (see Practice Notes: Where the value breaks and negotiating strength and Blocking majorities). Different creditor constituencies may commission their own valuations because these figures drive their eventual recoveries. With no statute prescribing a single methodology, parties must lean on intermittent court guidance. That uncertainty predictably spurs creditor challenges, as stakeholders select valuations that support the most favourable result for them. As a rule, using a number of techniques to produce a valuation range is sensible. In practice, applying more than one method helps triangulate the value range. Going-concern basis versus liquidation basis versus indicative bids A going concern basis (also called enterprise or firm value) assumes the debtor company continues to trade. The three principal approaches are: ...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) introduced a new restructuring device: the restructuring plan under Part 26A of the Companies Act 2006 (see Practice Note: Part 26A restructuring plans). Although it broadly follows the established schemes of arrangement process, there are significant differences, including the introduction of cross-class cram down ( CCCD) (see Checklist: Differences between restructuring plans, schemes of arrangement, and CVAs and Practice Note: Cross- Class Cram Down under a Part 26A restructuring plan). For an in-depth review of key metrics from 2024 RPs—covering instances where CCCD has been applied—and insights from leading restructuring practitioners, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024. Below we consider some frequently asked questions ( FAQs) on the restructuring plan. Can restructuring plans be used for small to medium enterprises (...
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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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