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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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Content This Practice Note explores how stakeholders’ interests in commonly held intellectual property rights ( IPRs) can be safeguarded where the licensor, licensee, or a chargor over IPRs becomes insolvent. It addresses three principal strands of protection: measures available to a licensor when a licensee enters an insolvency process measures available to a licensee when the licensor enters an insolvency process steps a secured party may take to preserve its position where the chargor’s assets comprise valuable IPRs The Note also touches on elements of English insolvency law, including a concise overview of an insolvency practitioner’s ( IP’s) powers. A full analysis of the individual insolvency procedures recognised under English law falls outside its scope. Unless indicated otherwise, the umbrella expression ‘insolvency process’ is used to describe liquidation, administration, and administrative receivership, each involving the appointment of an IP over the...
The Insolvency ( Protection of Essential Supplies) Order 2015 ( I( PES) O 2015), SI 2015/989 Made on 26 March 2015, the Insolvency ( Protection of Essential Supplies) Order 2015 ( I( PES) O 2015), SI 2015/989, took effect on 1 October 2015 in line with article 1(1). According to its explanatory memorandum, I( PES) O 2015, SI 2015/989, aims to: amend the Insolvency Act 1986 ( IA 1986) so that essential IT and utility suppliers to businesses in certain formal insolvency procedures cannot enforce contractual rights to terminate supply or increase charges to the insolvent company because of the insolvency ensure that insolvency practitioners can secure supplies that are essential to facilitate a prospective rescue of the business, while also providing safeguards for affected suppliers so they may end the contract or the supply in certain specific...
This Practice Note on proprietary remedies explains what they are, when you may pursue them and why. What are proprietary remedies? A proprietary remedy (sometimes termed a proprietary claim) attaches to specific property, rather than a personal remedy such as a claim for damages. That does not exclude the possibility that the property is money or a debt; it can be either ( Lipkin Gorman v Karpnale). For these purposes, ‘property’ includes, eg: Real property and other tangible assets Money Intangible assets (such as shares) Digital assets and/or the proceeds of sale of such ‘property’ Where the defendant has received property which, at law or in equity, can be traced to the claimant, a proprietary claim may follow. A claimant seeking a proprietary remedy must establish not only that the defendant received property belonging to the claimant, but also that the defendant still has that property (or that it can be...
This Practice Note highlights key authorities and related material concerning the prohibited name rule in section 216 of the Insolvency Act 1986, the ramifications of contravening IA 1986, s 216, and the recognised exceptions. The decisions are arranged by theme and address: who is bound by IA 1986, s 216? which names are restricted? what conduct is restricted? penalties for breach of IA 1986, s 216: civil sanctions criminal sanctions avoiding liability under IA 1986, s 216: obtaining leave of the court established name For further reading on this topic, see Practice Notes: Prohibited names under section 216 of the...
What is the prescribed part? When does the prescribed part apply? When an insolvency office-holder is appointed, their principal duty is to gather and realise the company’s assets so they can be shared among creditors and shareholders in accordance with the statutory order of distribution, often called the waterfall of payments. See: Order of payments—overview. The prescribed part was brought in by the Enterprise Act 2002 as part of wide-ranging reforms to the corporate insolvency framework, inserting a new section 176A into the Insolvency Act 1986. IA 1986, s 176A applies where a company has granted a floating charge on or after 15 September 2003 and then enters one of these procedures: liquidation administration provisional liquidation receivership In such cases, the office-holder must set aside a portion (the ‘prescribed part’) of the company’s net property to satisfy unsecured creditors and must not pay that...
What is the UK GDPR? The Assimilated Regulation ( EU) 2016/679, known as the UK GDPR, governs the handling of personal data, aiming both to safeguard individuals and to enable the unhindered flow of such information. Insolvency professionals handle personal data in their roles as partners, employees or consultants within their organisations, and also when acting as appointed office-holders. In each of these roles, they must comply with the UK GDPR. Accordingly, the regulation applies to them in both professional and office-holder capacities alike. This note offers a concise outline of the UK GDPR’s obligations, together with practical points for those working in insolvency. The professionals concerned include insolvency practitioners, legal advisers and other professional advisers (e.g. financial advisers). After IP completion day (at 1 pm ( GMT) on 31 December 2020), the General Data Protection Regulation, Regulation ( EU) 2016/679 (the EU GDPR), was...
This Practice Note will cover: the aim of administration which parties may appoint an administrator out of court, and in what situations This Practice Note does not cover: the mechanics for out-of-court appointments. Refer to Practice Note: Out-of-court administration appointments by a QFCH—the procedure and Out-of-court administration appointments by a company or its directors—the procedure appointments made by the court. See Practice Note: Court appointments—who can apply and in what circumstances? and Court appointments of administrators—the procedure administrations involving partnerships or limited liability partnerships. See Practice Notes: Insolvency of general partnerships—administration and Administration of a Limited Liability Partnership, and Limited partnerships and insolvency—overview Introduction to administration Administration operates as a corporate rescue mechanism. It is accompanied by a stay on proceedings (see Practice Note: The moratorium in administration), providing a company with time and space to pursue a sale or a...
Definition In this Practice Note, the term ‘conflict administrator’ denotes an insolvency practitioner ( IP) appointed as administrator specifically to manage defined matters where a prior administrator is unable to act owing to a conflict of interest. Although this Practice Note adopts the label ‘conflict administrator’, the same legal principles apply to a conflict liquidator or any other individual appointed as an office-holder in an insolvency process to resolve conflict situations encountered by a previously appointed office-holder. Situations when a conflict might arise The work undertaken by insolvency office-holders is arguably exposed to more conflict concerns than that of an accountant or lawyer. Such conflicts are especially prone to arise in larger cases where the debtor has, in the ordinary course of business, engaged multiple major accounting firms, which together constitute a significant share of the insolvency profession capable of managing substantial...
Ratings outlooks and watch-lists Among the leading credit rating agencies ( CRAs) are Moody’s Investors, Standard & Poor’s ( S& P) and Fitch Ratings, which carry out periodic reviews of assigned ratings. They also publish rating outlooks—opinions on the likely direction of a rating over the medium term (typically the next 6 to 24 months)—which may be: positive negative stable developing or evolving An outlook usually explains the rationale and the possible scale of any change; in most cases, outlooks are stable. If an issuer’s credit profile is weakening and a payment default is anticipated, it may be moved to a negative outlook or placed on negative watch to signal that a downgrade could follow. Receiving a negative outlook or being added to a watch-list is not, in itself, a rating action, but it can foreshadow...
The use of invoice discounting and factoring of receivables as business finance has expanded markedly in the UK over the past 25 years. Introduction to receivables purchase transactions Invoice discounting and factoring fall within receivables purchase arrangements under which a supplier of goods and/or services (often called the seller or the supplier) transfers, typically by way of assignment, debts owed to it by the purchaser of those goods and/or services (commonly referred to as the buyer or the account debtor), usually together with all associated rights. These receivables purchases are frequently completed at a discounted purchase price. That said, receivables can also be acquired for an amount equal to their face value, with the supplier paying the purchaser a purchase fee. For a variety of reasons, suppliers may opt to sell receivables (on a no recourse or limited recourse basis) in preference to...
This Practice Note covers: funding issues facing insolvency practitioners the development of litigation funding which costs different funding routes meet general options for funding litigation insolvency-specific funding solutions key points for IPs when using litigation funding exposure to an opponent’s costs Funding concerns for insolvency practitioners Insolvency practitioners ( IPs) must maximise returns for creditors of an insolvent entity, and current or potential claims can be crucial assets of the estate. IPs are obliged to manage the estate’s claims, or at least decide whether prospective actions should be pursued. Yet inquiries and proceedings are costly and outcomes are uncertain. Planning should address: the IP’s legal fees (solicitors and counsel) disbursements, including court fees and expert reports the probable need to provide security for costs Under CPR 25, defendants are likely to seek security for costs against an IP at an early stage, because they may fear that the claimant lacks the resources to meet their costs if the...
Hotels, as an asset class, demand significant capital and are exposed to economic swings, since both consumer and corporate spending on accommodation is typically discretionary. Corporate ownership of a hotel can be structured in several ways. This Practice Note focuses on one of the industry’s most prevalent models—the hotel management agreement ( HMA). Increasingly, the real estate is held by an independent third party investor or developer ( Hotel Owner) rather than the brand that operates it ( Hotel Operator). Commonly, the Hotel Owner funds a portion of the purchase or development expenditure with bank borrowing. To secure operating expertise and the advantages of alignment with a wider platform or brand, the Hotel Owner enters into an HMA with the Hotel Operator. The HMA sets out how the Hotel Operator will manage the business within its...
This Practice Note explores the operation of the Hague Convention on Choice of Court Agreements when jurisdictional questions arise in practice. It reviews the varieties of jurisdiction clauses and assesses whether they fall within the Convention’s scope. It then explains the duties placed on the court named in an exclusive jurisdiction clause (the chosen court), together with the responsibilities of courts seised where they are not the designated forum (non‑chosen courts). The Practice Note also addresses the availability of anti‑suit injunctions under the Convention and how the Convention is applied in disputes involving multiple parties and interests. It should be read in conjunction with Practice Notes: Hague Convention on Choice of Court Agreements—application by contracting states and Hague Convention on Choice of Court Agreements (jurisdiction and enforcement)— Brexit considerations. An explanatory report on the Hague Convention on Choice of Court...
ARCHIVED : Practice Note on cryptoassets for dispute resolution lawyers This archived Practice Note surveys court rulings on cryptoassets (cryptocurrencies, NFTs), smart contracts and digital securities covering 2018–2025. It is no longer maintained and is provided for background only. For matters from 2026 onwards, see Practice Note: Cryptoassets for Dispute Resolution lawyers—illustrative decisions (2026). As cryptoassets and smart contracts evolve, legislators are likewise examining how best to facilitate the resolution of disputes arising from these novel technologies. The Note sets out, in a concise tabular overview, key and illustrative decisions of the courts of England and Wales concerning cryptoassets (cryptocurrencies, non-fungible tokens ( NFTs)), smart contracts and digital securities. For general guidance on cryptoassets for dispute resolution lawyers, see: Practice Note: Cryptoassets for Dispute Resolution lawyers Issues in cryptoasset related civil...
Powers—general The statutory authority given to an LPA/fixed charge receiver is quite restricted. Therefore, to perform the functions required by the appointing mortgagee, the LPA/fixed charge receiver must rely on express powers contained within the mortgage deed. Statutory powers The statutory powers of an LPA/fixed charge receiver are found in section 109 of the Law of Property Act 1925 ( LPA 1925), and are limited in extent. Under LPA 1925, s 109(3), the receiver is authorised to demand and collect income from the property over which they are appointed and to provide receipts. In addition, under the LPA 1925 the LPA/fixed charge receiver may exercise any powers that have been delegated to them by the mortgagee......
STOP PRESS: The Loan Market Association ( LMA) has issued revised and updated editions of the standard terms and conditions for Par and Distressed Trade Transactions, the complete set of Funded Participation and Risk Participation Agreements, and the Secondary Debt Trading Documentation User Guide, effective from 17 March 2026. Changes comprise the elimination of LIBOR mentions, updates to IBOR rate definitions and to the Target2 definition, together with refreshed ERISA representations that incorporate further exemptions to the prohibited transaction rules under ERISA and the US Internal Revenue Code. These materials are available solely to LMA members via the LMA’s Documentation Hub. In London, secondary debt trades are generally recorded using recommended-form documents produced by the Loan Market Association ( LMA), and this Practice Note proceeds on the basis that the parties to the secondary trade have agreed to use those forms for...
Provable debts The starting point for what counts as a provable debt in administration, winding-up and bankruptcy is Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 14.2(1). In essence, save where the rule provides otherwise, all creditor claims are provable against the company or the bankrupt, whether due now or in the future, fixed or contingent, quantified or recoverable only as damages. This sits alongside section 322 of the Insolvency Act 1986 ( IA 1986) on proof of debts in bankruptcy, and IA 1986, s 382, which sets out what constitutes a bankruptcy debt. It should also be considered with IR 2016, SI 2016/1024, r 14.1, which defines “debt”, “small debt” and “liability”. Read together, these provisions supply the statutory framework for identifying debts and determining which debts are provable across different insolvency processes. An...
On 5 July 2022, the Financial Conduct Authority ( FCA) issued guidance on schemes of arrangement, alongside restructuring plans and company voluntary arrangements, under reference FG22/4. This also followed serious concerns that such mechanisms were being put forward and deployed by firms to sidestep paying customer redress (see: LNB News 05/07/2022 72, News Analyses: New FCA draft guidance sets out an interventionist approach to restructuring plans, schemes of arrangement and CVAs, and FCA consultation on restructuring guidance—do not confuse the devil with the detail). Practitioners must heed the FCA’s position where any proposed scheme features regulated businesses, namely firms authorised under the Financial Services and Markets Act 2000 ( FSMA 2000), and entities authorised or registered under the Payment Services Regulations 2017 ( PSRs 2017), SI 2017/752, or the Electronic Money Regulations 2011 ( EMRs 2011), SI...
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The impact that bankruptcy and divorce proceedings have on one another Decisions in both the bankruptcy and family courts have repeatedly grappled with how each process affects the other. It is, regrettably, frequent for a bankruptcy to be underway at the very time a marriage is ending, and running both together often generates friction: the competing pull of creditors’ claims against the needs of the bankrupt’s spouse and any dependants. The family court’s task is to craft a property adjustment order, apportioning the parties’ assets with an eye to their future requirements, including provision for children and other dependants. By contrast, the bankruptcy court is concerned with distributing the bankrupt spouse’s estate strictly in line with the statutory insolvency scheme. That clash of objectives must be evaluated with particular care, and, above all, the chronology—when the bankruptcy commenced as against when any property...
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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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