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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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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...
2023: Key Restructuring & Insolvency cases [ Archived] ARCHIVED: This Practice Note has been retired and is not updated. For details, consult Practice Note: 2024: Key Restructuring & Insolvency cases [ Archived]......
Case law on guarantees is both extensive and intricate. A firm grasp of the judicial principles is vital when drafting and negotiating guarantees. This Practice Note highlights key authorities and related material on guarantees. The cases are grouped by topic and include: cases on the characteristics of guarantees cases on the formalities to create a guarantee cases on undue influence when taking an individual’s guarantee cases on guarantor rights cases on guarantor protections and variation of the underlying transaction cases on the rights and obligations of co‑guarantors cases on discharge or release of a guarantee Key cases relating to the characteristics of guarantees Names of Parties: Moschi v Lep Air [1972] 2 All ER 393 Judgment Date: 26 April 1972 Case Summary: Leading authority confirming the secondary nature of a guarantee. A...
Gategroup Guarantee Limited sought approval for a Part 26A restructuring plan ( RP), with the convening hearing in February 2021 and the sanction hearing in March 2021. The headline points are outlined below; unless stated otherwise, capitalised expressions have the meanings given in the convening and sanction judgments. This Deal Debrief forms part of our Restructuring plans collection. For an in‑depth review of key metrics from RPs submitted in 2023, together with insights from leading figures in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company gategroup Guarantee Limited (the Company) Industry sector Food catering Place of debtor’s incorporation and jurisdictional factors The Company is incorporated in England and Wales. Although the Issuer was incorporated in Luxembourg, its centre of main interests ( COMI) had been moved to England......
This Practice Note has been archived and is no longer maintained. Lexis+® UK are collaborating with INSOL Europe on a joint initiative to source articles from INSOL Europe’s national correspondents across EU Member States to compile a table distilling their findings, also drawing on Lexology Panoramic (see News Analysis: INSOL Europe/ Lexology Panoramic launch Joint Project on ‘ How EU Member States recognise insolvency and restructuring proceedings of a third country’). It examines how EU Member States would recognise insolvency or restructuring proceedings begun in a third country, such as the UK (post Brexit), the US, Japan, Australia or Canada. The table is intended only as a guide to the general principles and you should always consult local lawyers in the relevant jurisdiction to confirm the measures currently in force and the effect of any particular circumstances or nuances on your...
Why harmonisation is needed The lack of alignment across countries’ insolvency regimes influences: creditor recoveries across jurisdictions investment choices, and the restructuring of corporate groups A more consistent framework should not only raise returns to creditors and facilitate cross-border investment, but also support entrepreneurship, employment and innovation. In turn, greater clarity benefits markets and reduces barriers to cross-border investment decisions made by international creditors and investors. The World Bank has, on multiple occasions, produced substantial studies showing that enhanced insolvency legislation stimulates increased investment in a given country (see Practice Note: Table of advantages and disadvantages of restructuring in various jurisdictions worldwide and News Analysis: Coronavirus ( COVID-19)— A nucleus for significant reform), and divergences between national frameworks generate higher costs and uncertainty when evaluating the risks of investing in another state (as observed by the European Systemic Risk Board ( ESRB); see: LNB News...
FORTHCOMING CHANGE: This Practice Note sets out the law as it currently stands, though elements could be affected by the Digital Omnibus proposals released on 19 November 2025 under the European Commission’s ‘simplification’ agenda. For details, see Practice Note: EU Digital Omnibus—tracker. It introduces the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). The UK data protection law collection and the EU data protection law collection compile further core guidance on these regimes and are recommended starting points for research. In brief, data protection law across the EEA (the EU together with Iceland, Norway and Liechtenstein) and the UK aims to ensure that information about living individuals (‘personal data’) is treated fairly and responsibly. To that end, both EEA and UK data protection laws impose...
In numerous restructuring scenarios, setting up a creditors’ committee (or steering committee) at an early stage can materially facilitate talks between the debtor and its creditors, often producing a quicker outcome and improved recoveries for the creditor body overall. A committee might be formal or ad hoc/informal (see Practice Note: Informal creditors’ committee in a restructuring) and is typically composed of creditors from the same class. It remains in place until a successful restructuring is agreed and carried out, or until negotiations over the restructuring fail. In a consensual restructuring, no statutory regime or best-practice guidance governs the creation of committees (unlike in formal insolvencies where Statements of Insolvency Practice ( SIPs) 15 and 6 apply—see Practice Note: Statements of Insolvency Practice—a quick guide, SIP 15, which offers guidance to insolvency practitioners on reporting and supplying information to committees, and also the guide...
This Practice Note considers the equity of exoneration: what it is, and when and how it operates. It does not address how the trustee in bankruptcy (trustee) identifies and values any interest they may hold in property, which assets vest in them, how any such interest is realised, or equitable accounting. For further reading, see Practice Notes: Protecting a trustee in bankruptcy's interest in property following their appointment Equitable accounting—how it works in practice Possession and sale applications in respect of a bankrupt's family home What is the equity of exoneration? The equity of exoneration is an equitable remedy that may apply where jointly owned property is mortgaged or charged to raise funds to meet one co-owner’s debts, or otherwise for their sole benefit. In such a case, absent evidence to the contrary, there is a presumption that the...
Jurisdiction for English schemes The English court may approve a scheme of arrangement for a non- UK company under section 895(1) of the Companies Act 2006, where—following Knox J in Re Real Estate Development Co and Re Latreefers ( No 2)—the following are satisfied: the entity proposing the scheme is a “company” within Part 26 CA 2006 (that is, one that can be wound up under the Insolvency Act 1986, which includes companies incorporated abroad: see Re Magyar and IA 1986, ss 220(1)–221); there is a sufficient connection to England and Wales; and the scheme is capable of practical effectiveness, for example it will be recognised and given effect in other jurisdictions where the company holds assets or has creditors. For more on establishing jurisdiction, see Practice Note: Establishing jurisdiction and sufficient...
Smile Telecoms Holdings Limited sought a Part 26A restructuring plan ( RP), with a convening hearing in February 2021, followed by a sanction hearing in March 2021. A further plan was subsequently proposed and sanctioned in March 2022 (see Practice Note: Part 26A restructuring plan deal debrief— Smile Telecoms Holdings Limited (second plan)). The principal points appear below (capitalised terms not defined herein carry the meanings given in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For an in-depth review of headline metrics from the RPs lodged in 2023, together with commentary from leading figures in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Smile Telecoms Holdings Limited (the Company) Industry sector Telecoms Place of debtor’s...
Statutory provisions on jurisdiction and sufficient connection/discretion At the convening hearing, an English court first carefully determines whether it has jurisdiction before turning to any Part 26A restructuring plan ( RP). Under Part 26A of the Companies Act 2006 ( CA 2006), the regime extends to companies capable of being wound up under the Insolvency Act 1986 ( IA 1986) (see CA 2006, s 901A(4)(b); Re Virgin Atlantic applying DAP Holding NV and Re Pizza Express). The phrase ‘companies liable to be wound up under IA 1986’ aligns with the definition used for schemes of arrangement, and for both schemes and RPs includes unregistered companies and foreign companies. In addition, where overseas companies are involved, and when the court considers whether to exercise its discretion to sanction an RP, jurisdiction over a foreign company will only be assumed if there is a...
Madagascar Oil Limited sought approval of a Part 26A restructuring plan ( RP), with a convening hearing in April 2025 and a sanction hearing in June 2025. The headline points are set out below (capitalised terms not otherwise defined take the meanings given in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For deeper insights into 2023 RP filings and commentary from leading figures in restructuring, consult News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024... Name of Company Madagascar Oil Limited (the Company) Industry sector Oil and Natural Resources Place of debtor’s incorporation and jurisdictional factors The Company is incorporated in Mauritius and maintains its head office in the UK. It serves as the Group’s intermediate holding entity, with subsidiaries including Madagascar Oil S. A. ( MOSA) and BMK Resources Ltd ( BMK). To...
This Practice Note examines the role of fixed charge receivers from a Jersey standpoint. As there is no fixed charge receivership process in Jersey, it focuses on how Jersey law interacts with English fixed charge receiverships in the circumstances below: security granted by Jersey companies under English law over property located in England; and security constituted under Jersey law over property located in Jersey Security created by Jersey companies under English law over property situated in England In broad terms, the Jersey courts will recognise a charge validly granted by a Jersey company over collateral outside Jersey where a non- Jersey governing law has been properly chosen, which is usually the law of the place where the collateral is located. However, certain aspects of a non- Jersey law charge created by a Jersey company remain governed by Jersey law, applying private...
Insolvency of private not-for-profit registered providers of social housing The social housing landscape in England is often labelled a ‘no default’ market, reflecting that no English private not-for-profit registered provider of social housing ( NFPRP) of meaningful scale has ever been wound up through insolvency. When providers have encountered financial stress, the regulator of social housing (under its various historic incarnations) (the Regulator) has, thus far, leveraged regulatory intervention and sector-wide influence, including with the principal funder, to broker rescues by ‘white knights’—typically larger NFPRPs operating in the same locality as the faltering body or organisations with the requisite specialist know-how. This approach has to date avoided insolvent winding-up for significant NFPRPs, with takeovers arranged to steady distressed entities by suitable counterparts. The current housing administration framework was created by Part 4, Chapter 5 of the Housing and Planning Act 2016 ( HPA 2016) and...
Background In the wake of the coronavirus ( COVID-19) outbreak, governments around the world imposed extraordinary social distancing rules and lockdowns. Within the UK, these steps severely affected how the courts—and those using them—could perform their routine functions. In response, the courts are operating under revised protocols and procedures—see Practice Note: Coronavirus ( COVID-19)— Changes to the court process in insolvency proceedings [ Archived]. To build on those adjustments, and to tackle issues unique to insolvency cases, a new Temporary Insolvency Practice Direction ( TIPD) took effect on 6 April 2020—see: Issue 96 of Insolvency Service’s Dear IP published, LNB News 06/04/2020 90. The TIPD lapsed on 1 October 2020 and was succeeded by the Temporary Insolvency Practice Direction Supporting the Insolvency Practice Direction (effective from 1 October 2020 to 31 March 2021). That instrument has itself been followed by additional temporary practice...
Once a bankruptcy petition and its supporting documents have been presented (or issued) at court, the petitioning creditor’s initial step is to ensure the documents are served on the debtor. This Practice Note outlines the methods by which a petitioning creditor must serve the bankruptcy petition on the debtor. It does not cover service of any other documents within insolvency proceedings. For further guidance on issuing a bankruptcy petition or what to expect at the bankruptcy hearing, see: Creditors’ bankruptcy petitions—grounds and documents required for presentation Bankruptcy petitions—process and procedure post-presentation of the petition The general rule—personal service of the bankruptcy petition on the debtor The general rule is that a sealed copy of the bankruptcy petition must—unless the court orders substituted service—be served on the debtor personally by an officer of the court, the petitioning creditor, the creditor’s solicitor, or a person...
This Practice Note examines the enforcement of standard security over heritable property in Scotland. Legal framework The regime governing enforcement of standard securities sits in, and is derived from, Part II of the Conveyancing and Feudal Reform ( Scotland) Act 1970 ( CFR( S) A 1970). The statutory framework originally set out in the CFR( S) A 1970 has been significantly modified for securities over properties used for residential purposes, principally by the following: Mortgage Rights ( Scotland) Act 2001, and Home Owner and Debtor Protection ( Scotland) Act 2010 When considering enforcement of any standard security, the reference point is the security instrument itself and, in particular, the operation and application of the ‘ Standard Conditions’ contained in CFR( S) A 1970, Sch 3. From an enforcement standpoint, normally the key Standard Conditions to note in practice are: Standard Condition 9—which defines the...
This Practice Note This Practice Note examines how a mortgagee may enforce its security after an event of default in a ship finance deal and, in particular, addresses: the mortgagee’s entitlement to take possession of the vessel private disposal of the vessel by the mortgagee arrest of the vessel and sale by the court (a judicial sale) maritime and possessory liens Where the vessel’s owner commits an event of default, amounts secured by the ship mortgage will typically become immediately due and payable. If those sums are not remitted, the mortgagee can enforce the security, seek to sell the ship, and recover the outstanding indebtedness. For the mortgagee to secure the highest level of protection in the UK, the ship mortgage ought to be registered against the vessel at the UK Ship Registry and, where the mortgagor is a body corporate under the Companies Act 2006 ( CA 2006), it should also be...
Summary A secured creditor enjoys a range of remedies through which it can realise value from its security. Even so, it remains prudent for any such creditor to work through a series of checks before exercising those powers. The secured creditor will, unsurprisingly, be driven by the goal of maximising the prospect of being repaid in full, and will want to be sure that taking enforcement action is the most appropriate means of achieving that aim. Where a decision to proceed is reached, the security holder must then determine which enforcement route offers the most effective and efficient way to meet the overall objective. This Practice Note sets out the main issues that a secured creditor should examine before deciding to enforce its security. is there a workable alternative to enforcement, eg a consensual restructuring of the debt or a voluntary programme of...
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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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