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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:
Most recent Practice notes
Banking regulation— Japan— Q& A guide This Practice Note contains a jurisdiction-specific Q& A guide on banking regulation in Japan, published as part of the Lexology Getting the Deal Through series by Law Business Research ( Law stated at: 25 January 2023). The authors are TMI Associates— Yoshiyasu Yamaguchi; Hikaru Kaieda; Tae Ogita; Ken Omura, as listed here 1. What are the principal governmental and regulatory policies that govern the banking sector? The Financial Services Agency of Japan ( FSA) articulates its mission in Japan as enhancing public welfare by ensuring the sustainable growth of the national economy and wealth, to be achieved through the following three goals: financial stability and effective financial intermediation; consumer protection and consumer benefit; market integrity, market transparency and market functions. 2. What are the defining characteristics of a bank to be caught by the banking laws and...
The debtor’s proposal for an IVA The route into an IVA commences with the debtor’s proposal, ordinarily shaped in collaboration with a licensed insolvency practitioner ( IP). At this juncture, the IP acts as the nominee. Should creditors accept the proposal, the nominee will typically take up the role of supervisor of the IVA. For broader background, see Practice Note: Individual voluntary arrangements ( IVAs). The nominee must adhere to Statement of Insolvency Practice 3.1, updated for nominees appointed on or after 1 March 2023—see News Analysis: LNB News 01/03/2023 13. Any debtor may advance an IVA proposal, including an individual who remains an undischarged bankrupt. The nominee will commonly meet the debtor, who will supply information on assets and liabilities, supported by documentation. Although the debtor puts forward the terms, the written proposal is, in practice, drafted by the nominee. The proposal will include a...
Who is the nominee/supervisor and what is their role in the individual voluntary arrangement? The nominee and the supervisor play central roles in an IVA. Often, one professional fills both positions, although this is not a necessity. The nominee’s duties extend only up to the point when the IVA proposal is accepted or declined. If creditors approve the proposal, the supervisor then assumes responsibility for ensuring the arrangement is delivered exactly in line with its terms. No person may act as nominee or supervisor in an IVA unless they are a licensed insolvency practitioner ( IP), a safeguard that provides independent scrutiny and professional supervision. Under section 253(2) of the Insolvency Act 1986 and rule 8.3 of the Insolvency ( England and Wales) Rules 2016 ( SI 2016/1024), the IVA proposal must include: the proposed supervisor’s name, address,...
Duration of an individual voluntary arrangement An individual voluntary arrangement ( IVA) is a formal arrangement between a person and their creditors under the Insolvency Act 1986 ( IA 1986). It functions as a contract between the parties, prepared by the individual and put before creditors for a decision. The debtor proposes how long the IVA should run, and the length will often be shaped by the planned source of funds. Where contributions come from ongoing trading income, a longer term is typically required, whereas a sizeable lump sum can shorten the timetable. An insolvency practitioner ( IP) will advise and guide the debtor, seek appointment as nominee, and, if approved, would usually act as supervisor, though the final proposal remains the debtor’s choice. Creditors then consider the terms and decide whether to accept them. An IVA may span anything from a few weeks or...
Banking regulation— Italy— Q& A guide This Practice Note provides a jurisdiction-specific Q& A overview of banking regulation in Italy, published within the Lexology Getting the Deal Through series by Law Business Research (law stated as at 24 January 2023). Authors: Ughi e Nunziante— Marcello Gioscia; Gianluigi Pugliese; Benedetto Colosimo; Alessandro Corbò. 1. What are the principal governmental and regulatory policies that govern the banking sector? The Italian framework is grounded in protecting the sound, prudent conduct of supervised entities and in maintaining the stability, efficiency and competitiveness of the broader banking and financial system. Over the past three decades, the sector’s design has been driven by Italy’s obligations as an EU member, requiring compliance with EU principles and rules. In this setting, EU-level prudential supervision applies, addressing, among other matters, banks’ capital adequacy, large exposures and risk concentration, governance arrangements and internal control systems, and the types of...
Banking regulation— Israel— Q& A guide This Practice Note presents a jurisdiction-specific Q& A on banking regulation in Israel, published within the Lexology Getting the Deal Through series by Law Business Research ( Law stated at: 6 March 2023). Authors: Arnon, Tadmor- Levy— Aviad Lachmanovitch; Guy Fuchs 1. What are the principal governmental and regulatory policies that govern the banking sector? Israel’s banking rules have taken shape over many years. They originated with the Banking Ordinance 1941, from the British Mandate era, which empowered the governor of the Bank of Israel to appoint a Supervisor of Banks. That ordinance was largely supplanted by the Banking ( Licensing) Law 1981. The Bank of Israel Law 1954 established the state’s central bank, and this statute was later wholly replaced by the Bank of Israel Law 2010. Any banking...
What are credit derivatives and what are credit events? What is a credit derivative? A credit derivative is a contract between two parties whose value is derived from the credit risk of a third party (the reference entity)—a corporate, sovereign, municipality or similar organisation. The product points to defined underlying debts of that entity, for example bonds or loans, known as the reference obligations. Its principal aim is to allow one party, the protection buyer, to purchase credit protection to offset the risk of the reference entity defaulting. The party bearing that credit risk is the protection seller. If a credit event affects the relevant reference obligation, the contract’s payment provisions are activated and the trade is settled. For an overview of credit derivatives, see Practice Note: What are credit derivatives? What is a credit event? A credit event occurs when the reference entity defaults. For each...
What does this Practice Note cover? The overwhelming majority of derivatives trades are recorded under standard-form documentation produced and issued by the International Swaps and Derivatives Association, Inc. ( ISDA). The commercial terms of any given deal are captured in a confirmation; for further detail and context, see Practice Note: ISDA confirmations. A confirmation can also import defined terms by cross-referring to booklets published by ISDA, commonly referred to as the. A broad range of such booklets exists and the appropriate ones are chosen for inclusion in a confirmation according to the nature and structure of the derivative concerned. This Practice Note outlines: how these booklets sit within the ISDA documentation framework the purpose of these materials their key features, and key considerations when incorporating them into trade documentation and the ISDA documentation...
The overwhelming bulk of derivative transactions rely on standard-form documentation produced and issued by the International Swaps and Derivatives Association, Inc. ( ISDA). A confirmation records the commercial terms agreed for a specific transaction. This Practice Note sets out: where confirmations sit within the ISDA documentation framework why confirmations are used and the details they include the documents that make up a confirmation, and the legal consequences of confirmations Confirmations and the ISDA documentation framework ISDA documentation framework The ISDA documentation framework for derivatives comprises layers of documentation......
Mis-selling interest rate hedging products—a guide for R& I lawyers Introduction Before September 2008, numerous small and medium-sized enterprises ( SMEs) entered into interest rate hedging products ( IRHPs) to accompany borrowing agreed with major financial institutions. After the collapse of Lehman Brothers and the subsequent financial crisis, many found themselves either tied to swaps they did not need or facing far higher-than-envisaged costs to terminate these products. The core aim of IRHPs was to provide protection against movements in interest rates. Broadly, they comprised the following: swaps—which fix the interest rate at a pre-agreed level caps—which place a ceiling on any rise in interest rates collars—which confine rate movements within a specified range structured collars—which also confine rate movements within a specified range, but may include terms whereby, if the reference rate falls below the lower bound, the...
Banking regulation— Ireland— Q& A guide This Practice Note sets out a jurisdiction-specific Q& A on banking regulation in Ireland, published within the Lexology Getting the Deal Through series by Law Business Research (law stated at 2 February 2023). Authors: Dillon Eustace LLP— Keith Robinson; Alex Kennedy. 1. What are the principal governmental and regulatory policies that govern the banking sector? The Central Bank of Ireland ( CBI) is the primary state authority overseeing regulation of the Irish banking sector. Its mission is to uphold monetary and financial stability, ensuring the financial system functions in the interests of consumers and the wider economy. The CBI’s statutory aims cover: maintaining price stability; safeguarding the stability of the financial system as a whole; resolving financial difficulties in banks and other regulated entities; achieving proper and effective regulation of financial service providers and markets, with consumer protection to the fore;...
Background to the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) Driven by the coronavirus ( COVID-19) crisis and the need to cushion businesses from the impact of lockdown measures, the Corporate Insolvency and Governance Bill gained Royal Assent on 25 June 2020, becoming CIGA 2020. It built on the government’s 2016 consultation on reforming the UK’s insolvency framework, with the official response issued on 26 August 2018 (see News Analysis: Exploring the government’s response to the insolvency and corporate governance consultation). Among its changes, CIGA 2020 inserted fresh provisions into the Insolvency Act 1986 ( IA 1986) to protect continuity of essential supplies and to curb insolvency‑triggered termination rights in contracts (the so-called ‘ipso facto’ clauses). For a summary of CIGA 2020, see News Analysis: Corporate Insolvency and Governance Act 2020. What are ipso facto clauses? Where a company enters an...
Why these Regulations were introduced The 2007 financial crisis, exemplified by the collapse of Lehman Brothers in September 2008, revealed the profound economic consequences that can arise when major financial institutions fail. In consequence, the Investment Bank Special Administration Regulations 2011 (the Regulations), SI 2011/245, were brought into force on 8 February 2011 under powers in the Banking Act 2009 ( BA 2009). The Investment Bank Special Administration ( England and Wales) Rules 2011 (the Rules), SI 2011/1301, then commenced on 30 June 2011. Following the Bloxham review (see below) and a 2016 consultation, HM Treasury introduced the Investment Bank ( Amendment of Definition) and Special Administration ( Amendment) Regulations 2017, SI 2017/443, effective from 6 April 2017, updating the Regulations facilitate an administrator’s ability to transfer client assets reinforce the bar date mechanism confirm that client money claimants are not...
Criminal investigation of cryptoassets Owing to the decentralised design of many cryptoassets, pinpointing their holders, and curtailing dealings with them at any given moment, is more constrained than for other asset types. Tracing ownership and impeding transfers is, as a result, often significantly harder in practice. In the UK and across Europe, steps have been taken to counter this, including bringing cryptoasset exchange providers and custodian wallet providers (cryptoasset businesses) within anti-money laundering regimes (see Practice Notes: Offences under the Money Laundering Regulations 2017 ( MLR 2017) and MLD5 and UK implementation—key provisions for financial services firms—one minute guide [ Archived]). The Financial Services and Markets Act 2000 ( Financial Promotion) ( Amendment) Order 2023, SI 2023/612 (the Cryptoassets Promotion Order) has also broadened the restrictions on financial promotions in section 21 of the Financial Services and Markets Act 2000 to cover...
What are the issues for a tenant if an intermediate landlord becomes insolvent? This Practice Note considers to whom the rent might be payable, and addresses disclaimer, forfeiture and surrender of the superior lease. Rent payment An insolvent landlord might default on rent owed to its superior landlord. Under the Commercial Rent Arrears Recovery ( CRAR) regime, a superior landlord may issue a notice requiring an undertenant to pay rent straight to the superior landlord where the immediate tenant is in arrears, continuing until those arrears are cleared. If the undertenant then does not pay, the superior landlord may exercise CRAR against the undertenant. To promote fairness, where the tenant pays any sum under a notice served by a superior landlord, the undertenant may deduct that sum from the rent due to its immediate landlord, even if the amount has already been paid in full or in part by...
Background The intercreditor agreement is designed to manage the inevitable clashes that arise between different classes of secured lenders during a restructuring. It deals with a range of matters (see Practice Note: Intercreditor agreements for R& I lawyers). A key feature is the security trustee’s authority to grant releases, allowing assets to be sold ‘free and clear’ of junior liabilities when instructed by the requisite majority of senior lenders—typically 66⅔%—in connection with enforcement of the security. Many restructurings involve enforcing share pledge collateral, where shares in the holding company ( Holdco) are transferred either to a new company ( Newco) controlled by senior creditors who are ‘in the money’, or to a third party buyer (see Practice Notes: Where the value breaks and negotiating strength and Transfer to Newco). To achieve this, Holdco and the wider group must be released from all...
Background The purpose of an intercreditor agreement—also called a deed of priority—is to manage and resolve the conflicts that will inevitably emerge between different classes of secured lender during a restructuring. Waterfall of payments Such an agreement commonly details a distribution waterfall instructing the security trustee on how to deploy any funds it receives (including sale proceeds, litigation recoveries, or amounts originally paid in error by a debtor to a junior creditor and then transferred under turnover provisions). The waterfall may apply either: (i) universally in all situations; or (ii) by distinguishing between ordinary operations (pre-enforcement) and post-enforcement, namely via a ‘flip’ clause. Ordinarily, the waterfall requires the security trustee’s fees to be settled first, after which monies are distributed to creditors in line with their ranking (with secured lenders typically at the top of the order), and any remaining balance is ultimately returned to the...
Intercreditor agreements for R& I lawyers Rationale As companies and groups of companies make greater and frequent use of multiple layers of debt, the significance of intercreditor agreements has increased markedly. The purpose of an intercreditor agreement is to manage the likely clashes that will inevitably arise between different classes of secured lenders when a restructuring takes place. These agreements carry particular weight in Europe, where there is a wide range of potential restructuring procedures, in contrast to the US, where the chapter 11 regime automatically delivers creditor releases and is relatively well settled and predictable for creditors (see US chapter 11—overview). As a result, an increasing reliance is being placed on the contractual position and its terms......
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Insolvency practitioners ( IPs) will recognise the established routes to finance claims, such as conditional fee agreements ( CFAs), damages-based agreements ( DBAs), third party funding, creditor-backed funding, assigning a cause of action, and after-the-event ( ATE) insurance. See: Funding of insolvency litigation and investigations—overview. Yet, for many, the burgeoning practice of using insurance to mitigate not only adverse costs and security for costs but also their own spend is less well known. ATE providers have broadened their offerings to cover own disbursements, counsel’s fees, solicitor’s fees, and the work in progress of restructuring specialists. From 2013, the insolvency litigation funding landscape has had to respond to sweeping changes under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, including the non-recoverability of CFA success uplifts and ATE premiums from the losing side (implementation for insolvency cases was postponed until April 2016). As with...
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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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