Featured documents
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
The rules regarding Scottish electronic documents and their execution are contained in: Requirements of Writing ( Scotland) Act 1995 ( RW( S) A 1995) Assimilated Regulation ( EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (as amended by the Electronic Identification and Trust Services for Electronic Transactions ( Amendment etc) ( EU Exit) Regulations 2019) ( UK e IDAS) Land Registration etc ( Scotland) Act 2012 ( LRE( S) A 2012) Electronic Documents ( Scotland) Regulations 2014, SSI 2014/83 Land Registration etc ( Scotland) Act 2012 ( Commencement No 2 and Transitional Provisions) Order 2014, No 41 ( C 4) (2014 Order) Land Register of Scotland ( Automated Registration) etc Regulations 2014, SSI 2014/347 Legal Writings ( Counterparts and Delivery) ( Scotland) Act 2015 ( LW( CD)( S) A...
Statutory moratorium Putting an administrative receiver in place does not, in itself, trigger a statutory moratorium. Accordingly, a company’s creditors may either issue or continue any court proceedings against the company. Floating charge On appointment, any floating charge over the company’s assets crystallises immediately. Consequently, the company cannot deal with, dispose of, or manage assets caught by that charge. As a floating charge must extend over the whole or substantially the whole of the company’s assets, the administrative receiver will, in effect, assume and exercise the directors’ executive powers and functions. Employees As a general principle, employees are not instantly affected by the appointment of an administrative receiver. Employment contracts do not end automatically on appointment, and do not terminate by default......
Part 26A restructuring plan deal debrief— ED& F Man Holdings Ltd ED& F Man Holdings Ltd sought approval for a Part 26A restructuring plan, with the convening hearing held in February 2022 and the sanction hearing in March 2022. The headline points are set out below (capitalised terms not otherwise defined take the meanings used in the convening and sanction judgments). This deal debrief sits within our Restructuring plans collection. For in‑depth analysis of key metrics from RPs filed 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]. Plan company: ED& F Man Holdings Ltd (the Company) Industry sector: Agricultural products Place of incorporation and jurisdictional factors: England The Company entered into a Deed of Contribution for the benefit of its...
Legislation tracker This tracker outlines consultation papers, primary and secondary legislation, and guidance linked to the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023), which obtained Royal Assent on 26 October 2023. It lists all pertinent primary legislation and statutory instruments associated with ECCTA 2023, including the ECCTA Bill as it moved through parliament. The Protection and Disclosure of Personal Information ( Amendment) Regulations 2025 Status: Draft – not yet in force. This instrument will broaden the circumstances in which individuals may apply to the Companies House registrar to shield personal information that appears on the public register. Once protected, the registrar must not make the relevant details publicly available. The Register of People with Significant Control ( Amendment) Regulations 2025 Date: 18...
The conflict in Ukraine spurred the Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022), forming part of the UK government’s response. The Bill was hurried through Parliament in March 2022, completing every stage within five Parliamentary sitting days. EC( TE) A 2022 aims to stop the UK property market being used to store, hide or launder criminal proceeds and wealth, and to deliver greater openness about the ultimate owners of property and assets held in the UK. The Act is divided into three principal sections. Part 1 introduces substantive new primary legislation for registering overseas entities. Part 2 adjusts existing proceeds of crime laws relating to unexplained wealth orders. Part 3 amends the Policing and Crime Act 2017 to implement changes to the sanctions framework. EC( TE) A 2022, Pt 1, which brings in the overseas entities regime, will be of...
DSTBTD Limited (an SME) pursued a Part 26A restructuring plan, with a convening hearing in June 2025 and a sanction hearing in August 2025. The principal points are outlined below (capitalised terms not defined here have the meanings given in the sanction judgment). This Deal Debrief sits within our Restructuring plans toolkit. For a deeper review of key metrics from the RPs filed in 2024 and commentary from leading lights in the restructuring sphere, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024. Name of plan company DSTBTD Limited trading as Distributed (the Company). Industry sector Technology and information support services. Place of debtor’s incorporation and jurisdictional factors The Company was incorporated in England and Wales. Legal counsel involved The Company: Mr Andrew Mace of Tanfield Chambers (instructed by Lewis Silkin LLP). Other advisers involved Turnaround adviser: Tony Groom of K2 Business Partners drafted the RP...
Although every litigation funding agreement ( LFA), together with its ancillary papers, will differ according to the funder and the nuances of the funded matter being financed, there are core issues that must be addressed throughout the various negotiation stages of all litigation funding documentation. This Practice Note forms part of a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to give those negotiating and considering LFAs and their related documents a clearer grasp of the factors in play. Overriding objective Managing drawdown arrangements is an administrative task, often non-billed, and all too easily overlooked. Yet a well-defined drawdown procedure can conserve a substantial amount of time, costs and resources for all parties involved over the duration of an LFA. The principal objective of any drawdown process is to eliminate ambiguity and minimise...
Key elements of confidentiality agreements—restructuring & insolvency This Practice Note outlines what a standard confidentiality agreement in a restructuring covers, and the reasons those provisions appear. It should be read together with Precedent: Confidentiality agreement—restructuring & insolvency. Why are confidentiality agreements required? Sound information is the foundation of any effective restructuring. Directors, creditors, investors and other stakeholders require insight into the debtor company and its affairs to decide if a restructuring is feasible, how it should be structured, and which participants hold an economic interest in the result. The right balance is critical—creditors must have adequate access to data to assess the company properly, understand the drivers of its difficulties and the depth of its financial distress, and thereby be positioned to maintain support throughout the process. That visibility enables them to evaluate the company, grasp the causes of the issues and the...
The priority for distributions in administrative receivership is not clearly laid down in the Insolvency Act 1986 ( IA 1986) or, from 6 April 2017, the Insolvency ( England and Wales) Rules 2016, SI 2016/1024, and instead rests on case law. The typical order of distribution in administrative receivership is outlined below. Realisation of free assets (those not subject to a floating change) These are assets not subject to a floating change. Higher ranking security Realisations in an administrative receivership (excluding proceeds from assets caught by a floating charge) must first be used to satisfy any security that ranks ahead of the charge pursuant to which the administrative receiver was appointed. Costs of preserving and realising the assets The administrative receiver must next meet the costs of preserving and realising the assets, whether incurred by the receiver or, where the company is in liquidation, by the...
Warranty and indemnity and contingent risk insurance in distressed M& A transactions HWF undertook an in‑depth interview programme with 17 market insurers to produce a paper delivering insight and clear, extensive guidance on how warranty and indemnity ( W& I) and contingent risk insurance are applied in distressed deals, mapping the solutions available and the key requirements to obtain strategic cover. What types of insurance cover are available for distressed transactions? For distressed transactions, three insurance options can be offered: Traditional W& I cover Traditional W& I cover can be used when: the seller and/or management provide warranties under the sale and purchase agreement ( SPA) or a warranty deed ( WD) the sellers give sufficient disclosure on the contents of the warranty suite in the SPA or WD a virtual data room or comparable document repository is available for review buyer due diligence (internal or external) has been completed...
Although every litigation funding agreement ( LFA) and its accompanying papers will differ according to the funder and the nuances of the case being backed, there are core matters that must be tackled during the various stages of negotiation. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors of Lion Fish Group Ltd, designed to equip those negotiating or evaluating LFAs and their related documents with a clearer appreciation of the issues in play. Dispute resolution No party ever expects to rely on a dispute resolution clause in a commercial contract. Within the litigation funding sphere, most disagreements about the LFA are ordinarily sorted out between the participants. As a result, it is tempting to default to boilerplate wording submitting ‘to the exclusive jurisdiction of the courts of England and Wales’, or whatever the parties...
Disclaimer under the Insolvency Act 1986 ( IA 1986) by either a liquidator or a trustee in bankruptcy (trustee): From the date of the disclaimer, it fixes the rights, interests and obligations of the company or the bankrupt/the bankrupt’s estate in relation to the disclaimed property. For a bankruptcy disclaimer, the trustee is released from any personal liability for that property with effect from the start of the trustee’s appointment. Other persons’ rights or liabilities are unaffected, save to the extent necessary to free the company or the bankrupt/the bankrupt’s estate from liability. Anyone who suffers loss or damage because of the disclaimer may prove for that loss or damage in the winding-up or the bankruptcy. The following should be noted regarding how the rights, interests and liabilities of the company or the bankrupt/the bankrupt’s estate are determined and the impact on third...
General duties of directors The Companies Act 2006 ( CA 2006) sets out many, though not every, obligations placed upon directors under case law and principles of equity......
Director disqualification A number of routes exist for removing a person from office as a director of a limited liability company. Most frequently, this occurs by reason of ‘unfit conduct’ while serving as a director of an insolvent company, pursuant to section 6 of the Company Directors Disqualification Act 1986 ( CDDA 1986). That said, further and less commonly used provisions within CDDA 1986 and the Insolvency Act 1986 ( IA 1986) also permit the disqualification of a company director. Whichever statutory route is relied upon, the effect on the disqualified individual is broadly identical and is explained in more detail in Practice Note: What is prohibited for a disqualified director? By virtue of CDDA 1986, s 7, applications for a disqualification order under s 6 are made either by the Secretary of State for Business and Trade ( So S) or, on the So S’s...
The Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015) SBEEA 2015 received Royal Assent on 26 March 2015, introducing a suite of amendments and legislative clarifications aimed at ensuring the UK remains recognised internationally as a dependable and fair environment for business, while unlocking new chances for small enterprises to innovate and compete. These measures deliver a range of changes to companies and insolvency legislation. In this Practice Note we examine the provisions concerning directors’ disqualification, and how SBEEA 2015 specifically affects the Company Directors Disqualification Act 1986 ( CDDA 1986). The provisions impacting the CDDA 1986 appear in SBEEA 2015, ss 104–111 (note: we do not comment on SBEEA 2015, ss 112–116, which set out the position in Scotland and Northern Ireland). As to commencement, in accordance with SBEEA 2015, s 164(1), these provisions take effect ‘on such day as a...
Commencement of disqualification order and undertaking Section 1(1) of the Company Directors Disqualification Act 1986 ( CDDA 1986) provides that a disqualification order must state a specified period, and further that, unless the court directs otherwise, the period of disqualification begins at the end of 21 days starting on the date of the order. This built‑in 21‑day grace has applied since April 2001, following changes introduced by section 5(2) of the Insolvency Act 2000. It offers a brief interval for a director to put their affairs in order while still holding office, yet without incurring any penalty for breach. The court retains a discretion to delay when the order takes effect if it considers it appropriate, but in practice will exercise that power only in truly exceptional circumstances. That discretion concerns postponing commencement beyond the 21‑day point. For example, where a defendant can show that the...
Where does the value break? Early in restructuring talks, the parties commission valuations of the business to identify where the value breaks (see Practice Note: Types of valuation for R& I lawyers). That valuation shows: which tranche(s) of debt is impaired which creditors are plainly out of the money and therefore have no place at the restructuring table which creditors sit close to the break and may contest the valuation the probable division between equity and debt instruments in the company after the restructuring who will be asked to inject further funds in return for a post-restructuring stake which creditors may wish to buy out the senior creditors to avoid enforcement and the resulting impairment of their debt Creditors in the tranche at the value break will generally expect a larger slice of equity in the restructured entity, compensating their impairment and encouraging them to back a...
What does this Practice Note cover? Derivatives are a staple of structured finance, appearing in many guises (eg swaps, options and forwards). They are commonly deployed to reshape the cash flows an issuer receives from the underlying asset pool into the revenue profile required to meet payment obligations on the securities issued to finance that asset. In practice, these arrangements align asset cash flows with liability profiles. This Practice Note sets out the main categories and purposes of derivatives in structured finance transactions. It also describes their uses within structured finance transactions, including: interest rate swaps currency rate swaps credit default swaps credit linked notes total return swaps A variety of institutions, such as banks and insurance companies, may serve as the swap counterparty in a structured finance transaction......
Three companies in the Deep Ocean Group applied for three Part 26A restructuring plans ( RP), with a convening hearing in December 2020 and a sanction hearing in January 2021. The principal points are outlined 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 an in-depth review of key metrics from the RPs filed in 2023 and commentary from leading figures in the restructuring world, refer to Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan companies Deep Ocean I Ltd ( DO1) Deep Ocean Subsea Cables Ltd ( DSC) Enshore Subsea Ltd ( ES) Together, the Plan Companies. Industry sector Subsea construction work Place of debtors’ incorporation and jurisdictional factors Each of the Plan Companies is...
The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, set out a refreshed framework for decision-making across all insolvency processes from 6 April 2017. The specific mechanics appear in IR 2016, SI 2016/1024, Pt 15. Although IR 2016, SI 2016/1024 describes decisions to be taken by creditors and the steps creditors must follow, r 15.2(3) provides that these decision procedures also apply, with appropriate adjustments, to contributories where they are called upon to decide. Where a decision is sought from contributories, voting value is determined by the percentage of voting rights in accordance with IR 2016, SI 2016/1024, r 15.39... The qualifying decision procedures There are five procedures by which the person seeking a decision (the convener) may obtain one under sections 246ZE and 379ZA of the Insolvency Act 1986 ( IA 1986): by...
Popular documents
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 ]...
Discover more from LexisNexis
