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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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ARCHIVED: This archived Practice Note is no longer updated and is supplied solely for background and reference purposes only. What is the background to the changes? The coronavirus ( COVID-19) outbreak, together with the ensuing lockdowns and social distancing rules brought in by the UK government, has had a significant impact on companies and the wider economy. On 20 March 2020, ministers ordered the closure of businesses such as restaurants, pubs and leisure centres, and by 23 March 2020 a nationwide lockdown was in place, putting vast areas of the private sector into a deep freeze. Compulsory shutdowns have imperilled the finances of many once-viable firms, and for enterprises already under pressure they proved to be the final straw. To soften the economic fallout of coronavirus and keep the economy on basic life support, the government rolled out a suite of...
ARCHIVED: This archived Practice Note, which reviews the tax measures introduced by the government in response to the coronavirus pandemic and other tax steps of particular relevance, is not updated and is provided for background information only The government introduced a series of measures in response to the coronavirus ( COVID-19) crisis, either specific to the UK tax regime or administered by HMRC. HMRC also published a business support finder tool to help businesses and the self-employed swiftly identify what financial assistance was available. See: Find coronavirus support for your business. For ease of use, this Practice Note is divided into: EMPLOYMENT SELF- EMPLOYMENT TRADING LOSSES VAT STAMP TAXES INTERNATIONAL TAXES MANAGEMENT AND LITIGATION INCENTIVISED...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explores how temporary COVID-19 measures affect dispute resolution. It is intended to help dispute resolution practitioners grasp changes to civil court procedures and processes during the pandemic, and how those shifts, and the pandemic, may influence their practice and individual cases. It addresses the practical impact of coronavirus on key litigation steps and concepts. Read alongside: Coronavirus ( COVID-19) civil court specific guidance—dispute resolution [ Archived], giving further guidance for particular courts SCCO guidance for detailed assessment from 1 August 2020 This Practice Note provides ‘matter-neutral’ guidance on the procedural effects of the coronavirus for dispute resolution in England and Wales. For substantive and ‘matter-specific’ consequences of the coronavirus, see: Contract breach and termination— Coronavirus ( COVID-19) and contractual...
Overview This Practice Note outlines key characteristics of covenant loose and covenant lite financings and considers certain risks that investors in these facilities may encounter. It assumes a degree of familiarity with leveraged finance terminology and documentation. For introductory material on leveraged finance financial covenants, see Practice Note: Leveraged finance—financial covenants. For an introductory guide to acquisition finance, see Practice Note: Introductory guide to acquisition finance. The Glossary of acquisition finance terms and jargon may also be helpful... Terminology Traditional ‘covenanted’ facility European leveraged facility agreements have traditionally included a package of financial covenants designed to monitor the borrower‑group’s financial performance against a base case financial model. The full suite typically comprises the following covenants: Leverage — this is the ratio of the group’s total [net] indebtedness to its earnings before interest, tax, depreciation and amortisation ( EBITDA ). The leverage ratio gauges the group’s...
This Practice Note outlines the roles, authority, duties and liabilities of court-appointed receivers designated under the Proceeds of Crime Act 2002. For further explanation on these types of receiverships generally, refer to Practice Note: Court-appointed receivers—when a court will appoint a receiver and who may be appointed. Powers Where a receiver is appointed under s 48 of the Proceeds of Crime Act 2002 ( PCA 2002) following a Restraint Order made under that section, the court making the order may confer the following powers on the receiver: take possession of the property manage or otherwise handle the property commence, continue or defend any legal proceedings relating to the property realise sufficient property to meet the receiver’s remuneration and expenses Receivers appointed under ss 48 and 50 PCA 2002 may, by order of the court, enter any premises in England and Wales to: ...
Although suppliers are usually unsecured creditors (unless a valid retention of title ( ROT) claim is established), they can be central to achieving a turnaround or a pre-pack sale. Equally, winning customer support is often a crucial ingredient of a workable turnaround business plan. This Practice Note sets out how a company facing financial difficulty should engage with different types of suppliers and customers, as well as how to respond to ROT claims advanced by suppliers... Suppliers The initial due diligence carried out on the company should identify those suppliers that are critical to ongoing trading—namely, sole providers of essential goods or services, or situations where moving to alternatives would entail lengthy lead times (for example, credit card machines, IT systems, or computer and accounting software often embedded within the business). The company ought to prioritise outreach to these suppliers through a...
Key provisions of the Act On 25 June 2020, after fewer than 40 days in Parliament, the Corporate Insolvency and Governance Act 2020 ( CIGA 2020) obtained Royal Assent. This legislation, which reforms UK insolvency law, largely commenced on 26 June 2020. CIGA 2020 is aimed at assisting companies and other entities to remain solvent where they encounter financial difficulty due to the coronavirus crisis. Among other matters, CIGA 2020 introduces the following: Introduction of a company moratorium — directors of insolvent companies, or those likely to become insolvent, can obtain a 20 business day moratorium to allow viable businesses time to restructure or seek fresh investment without creditor action (that is, to provide breathing space). The moratorium can also be extended. It is supervised by an insolvency practitioner acting as a ‘monitor’, while directors retain control of day-to-day management (a...
This Practice Note offers guidance for the commercial practitioner on identifying when a company is encountering significant financial distress. It also condenses the key matters to prioritise to steady the business whilst evaluating the options available to the company, and outlines considerations for a business trading with a company in financial difficulty... Establishing serious financial difficulty Signals can usually be detected in a company’s financial statements and management accounts, as well as in communications with major suppliers and debt providers (eg banks, supplier statutory demands, etc). If the board fails to deal with these indicators, they will, in most cases, result in a value‑destroying formal insolvency of the company... Warning signs heightened competition causing loss of key customers and tighter margins an outmoded business model due to technological advances or shifts in customer demand/revenue channels weak cash...
This Practice Note is designed to offer guidance to employers on recognising issues with insolvent contractors and on ways the employer may take precautionary steps to protect itself in advance. For details and information on the steps to follow where the contractor has become insolvent, see: Employer steps to take if contractor becomes insolvent—checklist......
This Practice Note explores frequent challenges arising from insolvency within the construction sector. It examines the implications and usefulness of adjudication as a route to recovery where insolvency may be looming, and offers practical pointers on actions to take if a party becomes insolvent. The guidance is general in nature and will not suit every construction insolvency scenario, and it should be weighed carefully against the specific facts of each case. Accordingly, this Note should be read in context and not as a one-size-fits-all solution. Introduction to the construction industry and construction procurement Construction schemes typically involve numerous contributors performing distinct functions across procurement and delivery. A non-exhaustive set of participants includes: employer—the person or organisation seeking delivery of the project and engaging professionals to perform the works. The employer may be from the public or private sector and is often referred to as ‘the...
Spotting the early symptoms of client insolvency First and foremost, a consultant should stay vigilant about the client’s financial condition Pay attention to continuing rumours about the client’s position, whether reported in the press or spread by word of mouth Monitor official communications to shareholders and the stock market, for example profit warnings Identify any unexpected or uncommercial omissions from the employer’s project Remain aware of the employer’s non-payment or late payment to the contractor or other parties, on this scheme or on other schemes run by the employer If the employer suspends the scheme without sufficient explanation or a sound commercial rationale, this may indicate reluctance to fund further work Substantiate concerns by obtaining a Dun & Bradstreet search/report, which should disclose, for instance, any unsatisfied court judgments against the...
Deal Debrief At the May 2024 convening hearing, Consort Healthcare ( Tameside) Plc sought approval for a Part 26A restructuring plan ( RP); however, the RP was paused after the court made an order for security for costs against the Company. On 10 December 2024, following a settlement with the NHS Trust, the Company notified that it was formally bringing the RP to an end. Capitalised terms not otherwise defined here have the meanings given in the convening judgment... This Deal Debrief sits within our Restructuring plans collection. For an in‑depth review of key metrics from 2024 RP filings and commentary from leading figures in the restructuring sphere, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024......
The appointment of an administrative receiver does not, by itself, bring about an automatic statutory moratorium. Accordingly, creditors may still commence or continue legal proceedings, whether new or existing, against the company to which the appointment relates. Further, appointing an administrative receiver causes the floating charge, pursuant to which that receiver was appointed, to crystallise in law......
The winding up of a company is treated as having begun on the day the winding-up petition is presented. While a prescribed template for a winding-up order no longer exists, the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 7.20 — and, with altered provisions in r 7.32 where the winding up follows the termination of an administrator’s appointment or there is a company voluntary arrangement ( CVA) supervisor — set out the following particulars that must appear: the case identification details the judge’s name and title issuing the order the petitioner’s name and postal address the petitioner’s capacity entitling them to present the petition (for example, the company, a creditor, or a regulator) the date the petition was lodged an order that the company be wound up by the court under the Insolvency Act 1986 ( IA 1986) a statement confirming whether the...
This glossary sets out numerous expressions regularly encountered in the restructuring & insolvency sphere. Words shown in bold within definitions are themselves explained in other entries in this glossary as well. A Article X The MLIJ contains a single provision named Article X, aimed at jurisdictions that have already implemented the MLCBI, like England, or are weighing its adoption. Article X states: ‘ Not withstanding any prior interpretation to the contrary, the relief available under [insert a cross-reference to the legislation of this State enacting Article 21 of the UNCITRAL Model Law on Cross- Border Insolvency] includes recognition and enforcement of a judgment’ (see Practice Note: UNCITRAL model law on recognition and enforcement of insolvency-related judgments ( MLIJ): Article X). Asset-backed security ( ABS) A form of security anchored by asset pools, for example loans, leases, and credit card...
This Practice Note examines whether a receiver may undertake building works and, in particular, whether the receiver can finish a development left incomplete at the date of appointment. It identifies a range of points the receiver should evaluate before moving ahead with any works and deciding whether to proceed. For ease when considering these issues, and to streamline the discussion, it is assumed that: the developer is a corporate mortgagor of the property; and the mortgagor procures works in the usual way by appointing a building contractor and a professional team of architect, engineers, quantity surveyors and others (collectively, the Professional Team) References to the mortgagor include, where appropriate, the mortgagor acting through the receiver. A receiver in this context means a fixed charge receiver or a Law of Property Act...
Note This table sets out a concise overview of individual personal and debt management procedures from a dispute resolution standpoint. See Practice Note: Personal insolvency for dispute resolution practitioners: bankruptcy. Name of process, nature of process, and effect on court proceedings are summarised here. Bankruptcy Nature of process: A formal court procedure by which a debtor is discharged from liabilities they owe, with a trustee in bankruptcy usually appointed to realise the assets forming the bankruptcy estate and, where there are sufficient realisations, to distribute a dividend to creditors. An undischarged bankrupt may not act as a company director, or hold certain other positions, without the court’s leave, and must not obtain credit over £500 without first stating they are undischarged. Effect on court proceedings: The process begins when a creditor issues a bankruptcy petition in court, or when the debtor makes a bankruptcy...
The table below sets out a comparison of the features and benefits of a scheme of arrangement (see: Schemes of arrangement—overview) against two alternative procedures in England and Wales, the company voluntary arrangement ( CVA) (see: Company voluntary arrangements—overview) and administration (see: Administration—overview). Although schemes and CVAs are genuine substitutes, and cannot be pursued together, administration is a separate insolvency process that can be combined with either a scheme or a CVA (see Re Petropavlovsk plc (in administration), where schemes were used to exit the administrations). Control of process Scheme of arrangement: A scheme is not a formal insolvency process, and making a court application in connection with a scheme does not disturb the company’s management. CVA: A CVA proceeds under the oversight of the nominee/supervisor, who must be an insolvency practitioner; nevertheless, the directors remain in charge of the...
ARCHIVED This Practice Note has been archived and is no longer maintained. Set off principles In insolvency scenarios, set off is regulated in most European jurisdictions. A debtor company will often wish to invoke set off, as it cuts the dividend otherwise payable to a creditor. Creditors benefit too, as they are paid in full to the extent that set off applies. This leaves them better placed than if they had to rank pari passu as unsecured creditors alongside others. In substance, the creditor’s liability to the insolvent estate functions as a form of security. The policy rationale is fairness: a creditor required to perform an obligation in full should not receive only partial satisfaction of its claim against the insolvent estate. Observing set off rules ultimately lowers the cost of credit and the burden of regulatory capital. That said, some...
There is no definition of ‘failure’ of a company voluntary arrangement ( CVA) in the Insolvency Act 1986 ( IA 1986). The Act neither sets out when such failure is deemed to occur nor the consequences that would follow. Nonetheless, IA 1986 acknowledges that an arrangement might ‘come to an end prematurely’ (see IA 1986, ss 5(2A)(b), 6(3)). That situation is described as arising where the CVA ceases to operate because ‘it has not been fully implemented in respect of all persons bound by the arrangement’ (see IA 1986, s 7B). The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, govern CVAs and prescribe certain steps once an arrangement is terminated; within not more than 28 days of termination of the voluntary arrangement, the supervisor must give notice that the CVA has been brought to an end (see IR 2016, SI...
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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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