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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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Liquor licences for R& I professionals What is the main legislation governing this area? The Licensing Act 2003 ( LA 2003) sets out, regulates and controls the provision of licensable activities in England and Wales (separate legislation applies in Scotland and Northern Ireland). Under LA 2003, the activities that require authorisation include the following: the retail sale of alcohol the supply of alcohol by, or on behalf of, a club to a member of the club, or to the order of that member the provision of late night refreshment (hot food and/or hot drink supplied between 23.00 and 05.00) the provision of regulated entertainment (which encompasses music, dancing, exhibition of films, performances of plays, indoor sports events, and boxing and wrestling, subject to various exemptions depending upon the nature and timing of the entertainment, the size of the audience, and whether music is...
Index of Restructuring & Insolvency flowcharts This Practice Note provides pathways to Flowcharts within Lexis+® UK Restructuring & Insolvency, focused on insolvency disputes, with additional subjects to follow progressively. Each Flowchart also signposts pertinent Overviews, Practice Notes, Checklists, Precedents, News Analysis, with supplementary materials for study. Insolvency litigation Misfeasance claims under section 212 of the Insolvency Act 1986—flowchart ......
This Practice Note explores the position concerning the diligence of inhibition in Scotland. For direction on: other types of diligence in Scottish civil procedure, see Practice Note: Enforcement in Scottish civil litigation, which in turn links to detailed guidance on a range of diligences available in Scotland the counterpart in England and Wales, see: Introduction to enforcement—overview which, as well as providing an overview of this area, links to more detailed guidance on various aspects of domestic enforcement in England and Wales cross-border enforcement, see Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners which, in addition to offering an overview of this topic, links to more detailed guidance on multiple aspects of cross-border enforcement In 2020, the Scottish Government commenced a policy review of diligence measures in Scotland, culminating in the Bankruptcy and Diligence ( Scotland) Act 2024, which...
STOP PRESS: The Loan Market Association ( LMA) has issued refreshed editions of the standard terms and conditions for Par and Distressed Trade Transactions, the full and complete sets of Funded Participation and Risk Participation Agreements, and the Secondary Debt Trading Documentation User Guide; all of which take effect from 17 March 2026. The changes include the deletion of LIBOR references, updates to IBOR rate definitions and the Target2 definition, and revised ERISA representations that incorporate further exemptions from the prohibited transaction rules under ERISA and the US Internal Revenue Code. The revised documentation is accessible to LMA members only via the LMA’s Documentation Hub. Is loan trading on the secondary market a regulated activity? The UK position The use of information within the UK loan secondary debt market remains somewhat unclear. The UK regulatory framework oversees firms that deliver services to clients connected to...
Entry conditions For informal restructuring to be an option (rather than using a formal tool such as a Part 26A restructuring plan), you need: a viable core business, even if it is currently burdened with too much debt early recognition of distress, for example a financial forecast indicating a likely covenant breach liquidity whilst restructuring is assessed—companies will usually fully draw any existing facilities as soon as they can support from key stakeholders—typically the secured lenders together with existing shareholders The cause of the present difficulties is relevant too. Informal restructuring may work where, for example: an asset or part of the business (eg a legacy factory unit) is loss-making and consuming resources rapid, acquisition-led growth means newly acquired businesses have not been properly integrated there is the loss of a major customer there is the loss of a major supplier pensions liabilities are high base costs have risen (eg many airlines were hit by...
Who are bondholders? Bondholders, sometimes referred to as noteholders, have typically put capital into a company’s most junior—and therefore risky—debt. In a distressed scenario, they will often form a pressure group, coming together to seek recovery from a restructuring by presenting a unified position to the debtor’s advisers and other stakeholders, including senior lenders, as a collective. For further reading, see Practice Note: Bonds and notes. Bondholders will frequently sit within a complex capital structure. The bondholders’ committee The bondholders’ committee is usually organised by the indenture trustee for the bonds or by a lawyer specialising in representing the interests of junior creditors. The committee can also be known as the: steering committee co-ordinating committee A committee is formed as part of a restructuring process rather than as a formal insolvency process. The formation of the committee......
Informal creditors' committees In numerous restructurings, creditors often convene informal (ad hoc or unofficial) committees instead of formal ones (see Practice Note: Formal creditors' committee in a restructuring), which can significantly support discussions between the debtor company and its creditors. Since the 2007/8 credit crunch, the emergence of alternative finance providers, such as hedge funds and other investors, has amplified the influence of these informal groups. Typically assembled by bondholders, noteholders or unsecured creditors, they are playing a bigger part in the current surge of informal liability management exercises ( LMEs) (see Practice Note: FAQs on Liability Management Exercises). There are no statutory provisions or best practice standards governing how such committees are set up, and their make-up and operation are even more flexible than for formal committees. Informal committees possess no defined powers, and their members owe no fiduciary...
This Practice Note provides an overview of individual voluntary arrangements ( IVAs) and how they affect legal proceedings from a dispute resolution standpoint. What is an IVA? An IVA is a contract made between an individual and their creditors (and potentially involving third parties) to compromise that person’s debts, or to implement a scheme for managing their affairs, under the Insolvency Act 1986 ( IA 1986). The precise form and terms of any composition or scheme are determined by the debtor and the creditors, assisted by an insolvency practitioner—called the nominee before approval of the IVA, and the supervisor afterwards. IVAs are put forward when an individual faces financial difficulty, and may often follow the presentation—or the threatened presentation—of a bankruptcy petition, or be advanced to head off a threatened petition. The usual objective of an IVA is the discharge of...
General Creditors decide whether, and to what extent, an individual voluntary arrangement ( IVA) proposal should be approved. In-person meetings are no longer the default way to reach decisions; the nominee may instead choose a qualifying decision procedure to obtain creditors’ views on the proposal. These procedures are set out in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, Pt 15. The relevant procedure or any meeting is overseen by the convener or chair, almost always the nominee; if the nominee cannot attend, a replacement will act on their behalf. Creditors’ consideration of the proposal The debtor’s proposal is the foundation of any IVA. IR 2016, SI 2016/1024, r 8.3 specifies the required contents of an IVA proposal. Where no interim order is sought, the nominee must inform creditors of their opinion on the viability of the debtor’s proposal within 14 days of the...
Nature of an individual voluntary arrangement An individual voluntary arrangement ( IVA) is a deal made between a person and their creditors (and potentially third parties) for a composition of that person’s liabilities or to implement a scheme of arrangement (scheme) for managing their affairs. The governing provisions sit in Part VIII of the Insolvency Act 1986 ( IA 1986). The form and substance of any compromise or scheme are unrestricted and open-ended, being determined by the debtor and their creditors with the support of an insolvency practitioner ( IP) (called the ‘nominee’ before approval of the IVA, and typically the ‘supervisor’ afterwards). An IVA operates in a manner akin to a contract, its conditions being set out in the IVA proposal. By contrast, a purely private contract would require the consent of every creditor of the individual to achieve a...
This Practice Note considers independent business reviews ( IBRs) and sets out to: offer high-level guidance on an IBR indicate when an IBR might be requested identify potential areas of conflict highlight typical scope and report contents outline common outcomes of an IBR, and flag key issues at the point of engagement What is an IBR? The purpose of an IBR is often misconstrued, sometimes regarded as a precursor to insolvency or a lender withdrawing support. Although either may occur, an IBR chiefly provides stakeholders with an external perspective to aid decision-making. It is an independent, objective and impartial review that typically examines a company’s current trading position and future prospects, enabling the company and its stakeholders—principally lenders and investors—to consider their options using an agreed, fact-based understanding. While many IBRs focus on historic and forecast financial...
Income payments order ( IPO) Under section 310 of the Insolvency Act 1986 ( IA 1986), the court may order that a bankrupt’s income, in whole or in part, be paid to the appointed trustee in bankruptcy (the trustee). An IPO obliges the bankrupt, or a third party—most commonly the employer—to pay the trustee the sum specified in the order. The amount is determined individually, and payments generally run for three years; they cannot extend past that term. Either the trustee or the bankrupt may apply to the court to vary the order, whether before or after the bankrupt’s discharge. On appeal in Official Receiver v Baker, it was decided that income received after the bankruptcy order but before the IPO is made can still be brought within the IPO. An IPO can also continue after discharge. In Azuonye v Kent, the court...
An income payments agreement ( IPA) is a counterpart to an income payments order ( IPO), used where a bankrupt person consents to pay their spare income into the bankruptcy estate. Such contributions are made voluntarily rather than by a court order. To explore IPAs more fully, it helps to revisit the concept of an IPO. What is an IPO and when is it used? Once a bankruptcy order is made against an individual, the bankrupt no longer has to make further direct payments to creditors. Frequently, this means their income exceeds what is required for ordinary household outgoings. While the bankrupt remains undischarged, the court may, under section 310 of the Insolvency Act 1986 ( IA 1986), impose an IPO, specifying the amount of the bankrupt’s income that is to be claimed for the benefit of the estate during the time the order is in...
This Practice Note reviews the UK prudential framework for investment firms, called the Investment Firms Prudential Regime ( IFPR). It summarises the origins and evolution of the IFPR, together with the rules introduced by the Financial Conduct Authority ( FCA) to put the regime into effect. Background and introduction to the IFPR On 20 December 2017, the European Commission unveiled plans to overhaul the EU prudential regime for investment firms, aiming to deliver a framework that is more proportionate and sensitive to risk. Under the new EU measures—now set out in the Investment Firms Regulation ( EU) 2019/2033 ( IFR) and the Investment Firms Directive ( EU) 2019/2034 ( IFD)—most EU investment firms follow new, simpler prudential requirements, while large, systemic firms undertaking bank-like activities and posing risks akin to banks are regulated and supervised as banks. For more on the IFR and IFD, see...
Hurricane Energy PLC sought approval for a Part 26A restructuring plan ( RP), put to the court at a convening hearing in May 2021 and a sanction hearing in June 2021. The court, however, declined to sanction the RP. Highlights are set out below (capitalised expressions not otherwise defined adopt meanings in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For a review of metrics from RPs lodged in 2023 and insights from figures in the restructuring community, consult Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]......
In June 2022, Houst Ltd sought a Part 26A restructuring plan ( RP) at the convening hearing, with the sanction hearing following in July 2022. The principal points are set out below (capitalised terms not defined take their meaning from the convening and sanction judgments). This Deal Debrief forms part of our Restructuring plans collection. For an in-depth analysis of key metrics from RPs filed in 2023 and insights from leaders in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]......
Hotchpot rule of domestic English law The hotchpot doctrine has long formed a settled element of domestic English law. In essence, it obliges a creditor to give credit for sums recovered in another jurisdiction, whether through court action or otherwise, before sharing in any dividend in English insolvency. Where the rate it has achieved overseas outstrips the percentage payable to other creditors in the English process, it is barred from taking part in the dividend distributed in England. The Privy Council, in Cleaver v Delta American Reinsurance (in liquidation), encapsulated the rule as requiring a creditor to 'bring into the common fund what he has received abroad'. It also made clear that the rule has no application to property that never entered the common fund (eg secured assets). In Cleaver, a secured creditor (the letter of credit meant he was secured in...
Hong Kong Airlines Ltd sought approval of a Part 26A restructuring plan ( RP) at a December 2022 sanction hearing. The principal highlights are set out below (capitalised expressions not otherwise explained adopt the meanings in the sanction judgment). This Deal Debrief sits within our Restructuring plans collection. For comprehensive insights into metrics from the RPs lodged in 2023, together with commentary from prominent figures in the restructuring community, refer to Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Hong Kong Airlines Ltd (the Company) Industry sector Airlines Place of debtor’s incorporation and jurisdictional factors Hong Kong. COMI is in Hong Kong, yet the Company is registered as an overseas company in England, and the underlying debt was mostly governed by English law (see below)......
A limited partnership can be brought to an end by its: dissolution insolvency (see Practice Note: Ending a limited partnership—what is dissolution?) This Practice Note considers the termination of a limited partnership, including a private fund limited partnership ( PFLP), by dissolution where the court orders that outcome. A significant body of partnership law under the Partnership Act 1890 ( PA 1890) applies equally to limited partnerships and is relied on throughout this note. For other means by which a limited partnership might be dissolved, refer to Practice Note: Ending a limited partnership—dissolution otherwise than by the court. From 6 April 2017, the Limited Partnerships Act 1907 ( LPA 1907) was revised by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017 ( LRO), SI 2017/514. The LRO was initially issued in January 2017 by HM Treasury, together with an explanatory document. It followed a...
Cross-border tools By its very nature, the EU Recast Regulation on Insolvency is binding in law and directly applicable across all EU Member States, except Denmark (which opted not to participate in this regulation). Following Brexit, the principal operative provisions on automatic recognition under the EU Recast Regulation on Insolvency are no longer applicable in the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency [ Archived]). However, other Member States continue to apply the EU Recast Regulation on Insolvency where its requirements are met. The UNCITRAL Model Law on Cross- Border Insolvency (the UNCITRAL Model Law on Cross- Border Insolvency) has no direct effect; nonetheless, countries around the world may decide to adopt it, in whole or in part, with or without modifications (see Practice Notes: List of countries which have adopted the UNCITRAL Model Law on insolvency or are...
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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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