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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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This Practice Note examines the interplay between the statutory moratorium in Schedule B1 to the Insolvency Act 1986 ( IA 1986), which stays most creditor or third-party steps against a company in administration, and a landlord’s ability to exercise its proprietary right of forfeiture under the company’s lease. For an outline of the moratorium that applies on administration, see Practice Note: The moratorium in administration. This Practice Note is concerned with obtaining relief from the moratorium so that a landlord may forfeit a lease; it does not cover other enforcement routes, eg commercial rent arrears recovery. For more detail, see Practice Note: Recovering rent arrears. Introduction to forfeiture Where a tenant does not pay rent under a lease, the landlord may seek to determine the lease either by applying to the court or by peaceable re-entry. Ordinarily, the landlord’s forfeiture powers arise from the lease, and a...
This Practice Note examines the practical considerations when assessing the proprietary processes of following and/or tracing in civil claims. For guidance on what following and tracing involve and when they might be available, see Practice Note: Proprietary remedies—following and tracing. Following and tracing—not a remedy themselves Although often discussed within the sphere of proprietary remedies, following and tracing are processes, not standalone causes of action or remedies. The fact that an asset can be followed or traced does not, by itself, establish whether the claimant has a legal claim against a person or in relation to property, or indicate what remedy (if any) could be pursued. You should therefore give careful thought to the potential causes of action you might advance and against whom, assuming the property can be followed and/or traced. While following and tracing are not limited to cases featuring dishonest or...
Part XXIV of the Financial Services and Markets Act 2000 ( FSMA 2000) Part XXIV enables the regulators to take part in insolvency-related proceedings against firms and individuals. These powers extend to authorised firms and recognised investment exchanges, and also to those carrying on regulated activities in breach of the general prohibition ( FSMA 2000, ss 19–20). Each provision in Pt XXIV defines when rights accrue, and in some cases more than one regulator benefits. Seeking insolvency orders is a key regulatory step, particularly where unauthorised business is being conducted. Such proceedings may target insolvent firms and individuals, and those that are not technically insolvent but for which it is just and equitable that the business should stop. The FSMA 2000 provisions should be read with the UK bank recovery and resolution regime, including the special resolution regime under the Banking Act 2009 ( BA...
Lexis+® UK is partnering with INSOL Europe on a joint initiative to gather contributions from INSOL Europe’s members and Country Co-ordinators, illustrating how EU Member States have put into effect Directive ( EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to enhance the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive ( EU) 2017/1132 (the EU Directive). This Practice Note offers a high-level snapshot of selected headline features of the ways different EU Member States (together with the UK) have revised or adapted their insolvency and restructuring regimes to transpose the EU Directive. Practitioners should consult the full article for full detail and, in all cases, liaise with lawyers in the relevant jurisdiction to confirm measures in force and any...
Project Lietzenburger Strasse Holdco SÀRL (incorporated in Luxembourg) Project Lietzenburger Strasse Holdco SÀRL (incorporated in Luxembourg) lodged an application for a Part 26A restructuring plan ( RP) at a convening hearing in 2023, with sanction hearings following in 2024. The principal points are outlined below (capitalised terms not defined here have the meanings given in the convening and sanction judgments). Although sanction was first declined, the hearing was treated as a further convening hearing, allowing an Amended Plan to be considered, which was subsequently sanctioned. The Company sits within a broader sub-group of companies (the Group) ultimately held by Aggregate Holdings 4 S.à.r. L. ( Ah4). Another Group entity, Project Lietzenburger Straße Prop Co S.à.r. L., holds a development site on the ‘ Ku’ Damm’, Berlin’s well-known shopping boulevard (the Development), one of the largest unfinished commercial real estate projects in Germany. This deal...
Part 26A restructuring plan deal debrief— CB& I UK Ltd CB& I UK Ltd advanced a Part 26A restructuring plan ( RP), with the convening hearing in September 2023 and the sanction hearing in February 2024. The principal points are set out below; capitalised terms not defined here take the meanings used in the convening and sanction judgments. This Deal Debrief forms part of our Restructuring plans collection. For detailed metrics from 2023 RPs and commentary from leading figures in restructuring, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company: CB& I UK Ltd (the Company), within a group ultimately owned by Bermudan company Mc Dermott International Limited. Industry sector: Construction/engineering. Place of debtor’s incorporation and jurisdictional factors: England & Wales, with its centre of main interests ( COMI) in the UK. The...
This Practice Note explores how the stages of commercial property sales differ between England and Wales and Scotland, covering pre-contract, contract, post-contract, completion or settlement, and post-completion or settlement. Assuming a straightforward transaction with no funding, the outline below sets out the principal steps at each stage for both jurisdictions... Pre-contract England and Wales Buyer submits pre-contract enquiries to the seller Buyer undertakes due diligence and orders required searches (for example official copies, land charges searches, coal mining reports, and local authority search and enquiries), see Practice Note: Pre-contract searches Seller circulates a draft contract incorporating the standard conditions of sale The parties negotiate the draft contract Buyer makes an official search with priority; see Pre-completion searches—checklist Scotland Seller supplies a title pack, comprising a copy title sheet where registered in the Land Register, or title deeds if still in the...
January 2020 Date Event 31 January 2020 Exit day deferral: On 19 October 2019, the UK sought to prolong the Article 50 withdrawal window until 31 January 2020. On 28 October 2019, the EU27 Ambassadors agreed to that new date (see LNB News 28/10/2019 37). However, the European Union ( Withdrawal Agreement) Act 2020 introduces an implementation period / transition period and, for this purpose, includes a series of amendments to the EU( W) A 2018, notably pushing back various provisions from exit day to the end of the implementation period. See: LNB News 24/01/2020 6 February 2020 Date Event 1 February 2020 The UK government had notified the Dutch Ministry of Foreign Affairs that the UK and Gibraltar’s accession to the Hague Convention of 30 June 2005 on Choice of Court Agreements was paused until 1 February 2020. As the...
UK and US secondary (private) debt trading markets closely resemble each other when deals are executed on the document suites published by the Loan Market Association ( LMA) in the UK and the Loan Syndications and Trading Association ( LSTA) in the US. For details on the documentation, terms and mechanics for LMA secondary trades, consult the following Practice Notes: Overview of the principal documentation in a standard secondary debt trade Secondary debt trading — timeline for a typical trade Secondary debt trading — finalising the trade confirmation Key provisions of the LMA standard terms and conditions for secondary debt trading Over time, the two debt-trading regimes and conventions have markedly converged, so in most key respects they are largely alike. That said, there remain certain material distinctions between the regimes and conventions, as set out...
The labels ‘bonds’ and ‘notes’ are commonly used as equivalents in practice, with no legal distinction between the two. Typically, notes are issued on a continuous or intermittent basis and usually have shorter maturities (under three years), whereas bonds tend to be brought to market in a single, large offering with a longer maturity. For a general introduction to the debt capital markets, see Practice Notes: Key features of the debt capital markets and Introductory guide to the debt capital markets. Characteristics and motivation of bondholders Bonds are typically held by a broad cross‑section of investors generally situated in a range of jurisdictions. Bondholders are usually institutional or private lenders and may include pension funds, insurance companies, investment funds, governments and large corporate entities. Because bonds are freely traded on the open market, the ease and frequency of trading mean it is more...
2014: Key Restructuring & Insolvency cases [ Archived] This Practice Note is archived and no longer updated. Parties and citation(s): Re Harvest Finance Ltd ( In Liquidation); Jackson v Cannons Law Practice LLP [2014] EWHC 4237 ( Ch), [2014] All ER ( D) 216 ( Dec) Judgment date: 16 December 2014 Subject: Expenses linked to the handover of documents and digital files Lexis®PSL analysis: Sections 234 and 236 orders—who bears the costs of compliance? Parties and citation(s): Salford Estates ( No.2) Ltd v Altomart Ltd [2014] EWCA Civ 1575, [2014] All ER ( D) 102 ( Dec) Judgment date: 10 December 2014 Subject: Winding-up proceedings and the Arbitration Act 1996 Lexis®PSL analysis: Can...
STOP PRESS: The Loan Market Association ( LMA) has issued refreshed 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, all coming into force on 17 March 2026. The revisions cover the deletion of LIBOR references, updates to IBOR rate definitions and the Target2 definition, plus refreshed ERISA representations that incorporate further exemptions to the prohibited transaction rules under ERISA and the US Internal Revenue Code. Access to the new documents is restricted to LMA members via the LMA’s Documentation Hub. Most secondary debt trades are arranged over the phone or by email. After the trade call or email dialogue, the counterparties set out the agreed trade terms in a trade confirmation. For additional detail, see Practice Note: Secondary debt...
Cineworld Cinemas Limited, together with three other group entities, pursued four Part 26A restructuring plans, with a convening hearing in August 2024 and a sanction hearing in September 2024. Headline points are set out below (capitalised expressions not explained here bear the meanings in the sanction judgment). This Deal Debrief sits within our Restructuring plans collection. For deeper analysis of 2023 RP metrics and commentary from recognised experts, consult Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan companies Cine- UK Limited ( CUKL), Cineworld Cinemas Limited ( CWCL), Cineworld Cinema Properties Limited ( CCPL) and Cineworld Estates Limited ( CWEL) (collectively, the Plan Companies). Industry sector Entertainment/ Cinemas. Place of debtor’s incorporation and jurisdictional factors All Companies were incorporated in England and Wales. The Plan Companies acted as guarantors of the Group’s principal financing...
R& I spotlight on health and safety law What is the main legislation covering this area? The principal statute for health and safety is the Health and Safety at Work etc Act 1974 ( HSWA 1974). HSWA 1974: sets out the overarching health and safety duties that may arise in a workplace establishes the enforcement framework to ensure those duties are fulfilled enables the making of subordinate legislation More than 600 subordinate regulations have been introduced under HSWA 1974. Frequently, these regulations impose detailed, prescriptive requirements that must be followed. Broadly, they fall into three groups addressing: how specified activities must be undertaken the management of health and safety responsibilities matters particular to a sector or industry Accordingly, in any situation much of this subordinate law may not be relevant. Nevertheless, it remains essential in each instance to...
What is a guarantee? A guarantee is a commitment between a guarantor and a creditor, under which the guarantor agrees to be liable for another party’s obligations (the principal). For a guarantee to be valid, it must be in writing and signed by the guarantor, or by an agent authorised to sign on their behalf. Why are guarantees relevant to insolvency? They offer a creditor reassurance for sums owed by a debtor where there are doubts about the debtor’s long‑term solvency. They are frequently used by: banks that lend to companies and require guarantees from other group companies or company directors landlords, who often secure guarantees from the tenant company’s parent or from one or more directors factoring companies As guarantees are typically called upon when a debtor is insolvent or in financial distress, they appear regularly in insolvency...
It is widely accepted that corporate collapse can frequently give rise to fraud allegations. The Insolvency Act 1986 ( IA 1986) includes ten provisions whose titles contain the term ‘fraud’ or ‘fraudulent’ in their headings—although, when analysing provisions such as IA 1986, s 423 (transactions defrauding creditors), as this Practice Note will consider below, it becomes clear that, at least in that context, ‘fraud’ in the modern legal sense is not a required component or element. Enquiries into fraud following the insolvency of a company (or that of a corporate group) can take many forms in practice, including, in particular, ventures incorporated purely as a vehicle for fraud or those involving some manner of group investment, which likely produced an unlawful collective investment scheme ( CIS) that breaches, among others, the Financial Services and Markets Act 2000......
The Foreign Judgments ( Reciprocal Enforcement) Act 1933 ( FJ( RE) A 1933) The FJ( RE) A 1933 streamlines enforcement in England of overseas monetary judgments. In New Cap Reinsurance Corp v Grant, the Supreme Court held that a preference order from Australian liquidation proceedings could be registered and enforced under the FJ( RE) A 1933 against persons resident in England. This was the first use of the Act in insolvency proceedings. This Practice Note considers the FJ( RE) A 1933, its deployment in New Cap Re and its application to foreign insolvency judgments generally, and how it sits with other ways the English courts aid cross-border insolvencies. The FJ( RE) A 1933 allows civil and commercial foreign money judgments to be registered and then enforced in England. It applies to the following jurisdictions: France Belgium Pakistan India Germany Norway ...
What is a DRO? Debt Relief Orders are a newer, streamlined route to clear the slate for people who cannot afford to go bankrupt. A DRO is granted in relation to qualifying debts. A qualifying debt is one that is: for a liquidated amount payable now or at a future date unsecured not an excluded debt Under the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 9.2, an excluded debt means: any fine for an offence, or an obligation arising from an order in family proceedings, or a maintenance assessment or maintenance calculation under the Child Support Act 1991 any obligation under a criminal confiscation order student loans damages relating to the death of, or personal injury to, any person a crisis loan or budgeting loan made under the Social Security...
Functions The role of a creditors’ committee in bankruptcy comprises: setting the trustee in bankruptcy’s (trustee’s) remuneration; and examining financial and other records concerning the administration of the bankruptcy estate that the trustee provides to the committee. If the committee is dissatisfied with the content or outcomes of that information, it may notify the Secretary of State, stating its reasons, and the Secretary of State may take whatever action he considers appropriate. In addition to any functions granted by the Insolvency Act 1986, the committee is to assist the trustee in performing the trustee’s functions and to deal with the trustee in such manner as may from time to time be agreed. The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, Pt 17, set out provisions relating to creditors’ committees in...
The outcome of an administration will frequently hinge on the worth of the company’s assets and the administrator’s capacity to handle those assets freely so as to secure the best possible result for creditors as a whole. The administrator is granted extensive powers to deal with property, including assets encumbered by various forms of security and quasi-security (for example, hire purchase or retention of title arrangements). A key advantage of administration is the protection created by the moratorium against enforcement by creditors, which permits the administrator to proceed without the constraints the company may have experienced before administration. The administrator may intend to sell or otherwise deploy charged property in order to meet one of the purposes of the administration, while, by contrast, a creditor may wish to enforce its security and recover what it is entitled to from a company it regards as at...
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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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