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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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Registration can have an important effect on the priority of competing security interests. In general terms, there are two broadly distinct methods for recording security interests: registration in relation to the asset that is charged, and registration against the person granting the security This Practice Note addresses specifically the first approach, where the charged property is land situated in England or Wales. For guidance on how registration over other types of asset influences the priority of security interests, see the following Practice Notes: Effect of registration on the UK Ship Register on priority of security interests Effect of registration on the UK Register of Aircraft Mortgages on priority of security interests, and Effect of registration at IP registries on priority of security interests Making an entry at an asset registry will, in most cases, have a direct bearing on the order of...
Beginning with the latest entries, the following sets out particulars of real-world schedules applied in selected Part 26A restructuring schemes across 2021–2022, illustrating the length of notice allowed between issuing the......
ARCHIVED: This Practice Note is archived and no longer maintained. For further details, please refer to 2024: Key dates for restructuring and insolvency professionals [ Archived]. Last updated: 20 September 2023 January 2023 Date Event 31 January 2023: The six-month transition beginning on 1 August 2022 for overseas entities to secure registration concludes. Restrictions recorded on the title registers for qualifying estates owned by overseas entities take effect. See Practice Note: The register of overseas entities and its impact on loan transactions ( Economic Crime ( Transparency and Enforcement) Act 2022). February 2023 Date Event 6 February 2023: Second Reading of the Retained EU Law ( Revocation and Reform) Bill in the House of Lords. See: LNB News 26/01/2023 34 and LNB News 30/01/2023 71 and News Analysis: Retained EU Law ( Revocation and Reform) Bill-impact for restructuring and insolvency. 6 February 2023: The...
2022: Key Restructuring & Insolvency cases [ Archived] ARCHIVED: This Practice Note is archived and no longer maintained. Pickering v Hughes [2022] EWHC 3359 ( Ch) - 23 December 2022 - Unfair prejudice petition under section 994 of the Companies Act 2006. A long‑running family unfair prejudice claim did not succeed. Re Lehman Brothers International ( Europe) (in administration); Grant v FR Acquisitions Corporation ( Europe) Ltd [2022] EWHC 3366 ( Ch) - 23 December 2022 - Part 36 and administrators’ offer. The court confirmed Part 36 applied to an Administrators’ offer. Re Veon Holdings BV [2022] EWHC 3473 ( Ch) - 21 December 2022 - Principles for determining class composition in schemes of arrangement. Class composition for schemes considered. Kaye v Lees [2022] EWHC 3326 ( KB) - 21 December 2022 - Breathing Space...
Where the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246, apply to the purchase of a business (or part of a business) and its assets, TUPE 2006 operates to pass the contracts of the relevant employees to the purchaser. TUPE 2006 also confers particular safeguards for employees regarding dismissal and alterations to terms and conditions, imposes duties to inform and consult about the transfer, and requires the seller to provide specified employee liability information to the buyer. For further detail, see: TUPE and asset purchases-overview. Practice Note: Share purchases-employment warranties, disclosure and indemnities. Practice Notes: Asset purchases-employment due diligence issues acting for the buyer and Asset purchases-employment due diligence issues acting for the seller. Relationship between due diligence, warranties, disclosure and indemnities The buyer’s starting position in any asset acquisition is the maxim caveat emptor (let the buyer...
Impact of national insolvency on domestic or foreign arbitration ( England and Wales) This Practice Note reviews how insolvency proceedings begun in England and Wales influence arbitration obligations where one of the parties is insolvent. The IBA toolkit on insolvency and arbitration Drawing on the National Report for England and Wales within the IBA Toolkit on Insolvency and Arbitration ( IBA Toolkit), and reproduced with permission, this Practice Note summarises key guidance. The IBA Toolkit offers direction to parties, counsel and arbitrators when an arbitration participant is also in insolvency proceedings in one or more jurisdictions. Alongside the England and Wales Report, the IBA Toolkit includes multiple other National Reports. For clarity, the National Report informing this Practice Note is not intended to constitute legal advice tailored to particular facts. Non-application of EU Recast Regulation on Insolvency following Brexit This Practice Note addresses insolvency cases commenced after 11 pm on 31...
Part 26A restructuring plans have been in place since 26 June 2020 (see Practice Notes: Part 26A restructuring plans: history, rationale and scope and Frequently asked questions ( FAQs) on the restructuring plan). For an in-depth review of key metrics from 2024 RPs and commentary from leading figures in the restructuring community, see News Analysis Market Insights Trend Report-trends in Part 26A restructuring plans in 2024. Case tracker Notable Part 26A restructuring plan ( RP) cases heard by the courts in England (and Scotland) include the following, shown with the most recent first: Waldorf Production UK Plc - 5 May 2026 (sanction hearing, second plan); Mr Justice Michael Green. Despite numerous objections from the dissenting creditor, HMRC, the court applied cross class cramdown and sanctioned the plan, thereby dismissing the challenge on jurisdiction to cram down HMRC: HMRC contended that where it had refused to...
The moratorium under IA 1986, Pt A1 The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) introduced several major reforms to insolvency law, among them a new standalone moratorium. This moratorium is an insolvency procedure through which directors of insolvent companies, designated members of insolvent limited liability partnerships ( LLPs), and those at risk of insolvency, may secure a 20 business day moratorium. Located in the Insolvency Act 1986, s A1 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 1A.1, it is intended to give otherwise viable businesses breathing space to restructure or attract fresh investment without creditor action. Its overarching purpose is to preserve viable enterprises while they reorganise or secure backing, away from immediate creditor pressure. An insolvency practitioner is appointed as the 'monitor'. Day-to-day control remains with the members, making it a...
Since 26 June 2020, companies have been able to use Part 26A restructuring plans under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Implementation is underpinned by the applicable Practice Statement (see Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)) and by Explanatory Notes issued by the Department for Business, Energy and Industrial Strategy (now the Department for Business and Trade). These provisions represent a permanent reform of the UK’s restructuring and insolvency regime and a valuable addition to its toolkit. What are the practical implications? The Part 26A restructuring plan equips distressed, yet fundamentally viable, businesses with the means to pursue a rescue. It enables a company to bind all creditor classes-junior as well as senior-even where they vote against, by deploying the cross-class cram down ( CCCD) mechanism. The court may impose that cram down so long as...
2021: Key Restructuring & Insolvency cases [ Archived] Elser v Sands [2022] EWHC 32 ( Ch) - 22 December 2021: Material irregularity at a creditors’ meeting; votes were set aside on that basis ( Elser v Sands). AFM (1932) Ltd v Belisco Estates Ltd [2021] EWHC 3460 ( Ch) - 21 December 2021: The court unpacked a complex web of dealings to test proper grounds for payments; the Insolvency and Companies Court notes that ‘nothing is as it seems’ in The Great Gatsby and Insolvency ( AFM (1932) Ltd v Belisco Estates Ltd). Magan v Wilton Management Ltd [2021] EWHC 3393 ( Ch) - 17 December 2021: Bankruptcy order annulled pursuant to section 282(1)(a) of the Insolvency Act 1986 ( IA 1986) ( Magan v Wilton Management Ltd). Re Bulb Energy Ltd [2021] EWHC 3680 ( Ch) - 15...
This document is archived and no longer maintained. This Practice Note outlines the amendments to the Recast Regulation on Insolvency introduced by the Brexit SI-the Insolvency ( Amendment) ( EU Exit) Regulations 2019, SI 2019/146-which take effect from IP completion day (31 December 2020). Broadly, the key operative rules on automatic recognition cease to apply from IP completion day (see Practice Note: Brexit-impact on Recast Regulation on Insolvency). For a working redline illustrating the effect of SI 2019/146 on the Recast Regulation on Insolvency from IP completion day (note that these are not official texts but act as helpful tools), see News Analysis: Brexit SI analysis: redline of Recast Regulation on Insolvency 2015/848 as amended by the Insolvency ( Amendment) ( EU Exit) Regulations 2019, SI 2019/146. Although Brexit SI 2019/146 has amended the articles of the Retained Recast Regulation on...
Joint and several liability notices under the Finance Act 2020 The Finance Act 2020 ( FA 2020) introduced powers enabling HMRC, in specified insolvency-related circumstances, to hold certain individuals personally responsible for tax debts or particular tax penalties owed by companies or LLPs, on a joint and several basis, by issuing a joint and several liability notice ( JSLN). Those potentially caught include: directors, shadow directors and other individuals involved in managing a company participators in a company members or shadow members of a limited liability partnership ( LLP) These measures were developed as part of efforts aimed at ‘tackling the small minority of taxpayers who deliberately abuse the insolvency regime in trying to avoid or evade their tax liabilities, including through the use of phoenixism.’ HMRC’s guidance summarising the JSLN provisions reflects this, while emphasising the...
What is the key Brexit SI impacting CBIR 2006? This material is archived and no longer maintained. The effect of the principal Brexit SI for R& I-the Insolvency ( Amendment) ( EU Exit) Regulations 2019, SI 2019/146-is widely acknowledged with respect to the Recast Regulation on Insolvency, Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19) ( EU Recast Regulation on Insolvency), see Practice Note: Brexit-impact on Recast Regulation on Insolvency. Less commonly noted is the effect that the Brexit SI also has on the Cross- Border Insolvency Regulations 2006, SI 2006/1030, which give effect to the UNCITRAL Model Law on Insolvency in UK law (see Practice Note: When does UNCITRAL (implemented by the Cross- Border Insolvency Regulations) apply and what are the effects?). What are the main changes to CBIR 2006? As shown by the mark-up noted below, there are, as...
The conventions/regulations The insolvency exception features in a number of conventions/regulations, including: Lugano Convention: the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark, signed on behalf of the European Community on 30 October 2007 (the Lugano Convention), which governs disputes involving Switzerland, Norway or Iceland. Although the UK applied to join in its own right post- Brexit, the EU declined that accession. The Lugano Convention remains operative among its contracting parties. For more detail, see Practice Notes: Tracker- Lugano Convention 2007 [ Archived] and Lugano Convention 2007-general provisions in relation to jurisdiction. Hague Convention: the Hague Convention on Choice of Court Agreements (the Hague Convention), in force from 1 October 2015 onwards....
ARCHIVED: This Practice Note has been archived and is no longer being maintained. Lawyers worldwide are contending with shared issues arising from the coronavirus ( COVID-19) pandemic. Many topics are of particular relevance to Banking & Finance practitioners. This Practice Note addresses the questions most often raised in the current climate and collates key content and resources released across Lexis®PSL. It is refreshed regularly with practical guidance and analysis on the effects of COVID-19 developments. Due diligence and preliminary analysis What does the Coronavirus Business Interruption Loan Scheme involve and how can borrowers obtain access? — Q& A: What is the Coronavirus Business Interruption Loan Scheme and how can borrowers access it? Is there legislation specifically establishing the Coronavirus Business Interruption Loan Scheme? — Q& A: Is there any specific law or regulations in force that created the Coronavirus Business Interruption Loan Scheme scheme? If so, what are...
This Practice Note outlines principal cases and linked material on fixed and floating charges. The matters are arranged by subject and include: The distinctive nature of fixed and floating charges Lender issues: fixed versus floating charges Crystallisation of floating charges Qualifying floating charges The distinctive nature of fixed and floating charges Names of parties: Re Yorkshire Woolcombers Association [1903] 2 Ch 284 Judgment date: 3 April 1903 Case summary: The court articulated the classic hallmarks of a floating charge: (i) security over a class of a company’s assets, present and future; (ii) a class which, in the company’s ordinary business, is expected to fluctuate; and (iii) an understanding that, until a future step is taken by or for those with an interest in the charge, the company may continue its business in the usual manner as regards the...
Before accepting appointment as administrator, an insolvency practitioner ( IP) will typically have carried out business reviews, prepared contingency plans, and advised the company and its directors on the choices available when facing financial difficulties. For more detail on the pre‑administration stage, see Practice Note: Restructuring-initial steps. If administration is identified as a workable route, the IP will determine the administration’s purpose and the strategy required to deliver it, as well as the anticipated exit route. The statutory purposes of administration as set out in paragraph 3(1) of Schedule B1 to the Insolvency Act 1986 ( IA 1986), ranked by priority, are: rescuing the company as a going concern delivering a better result for creditors as a whole than would be expected on a winding up, or realisation of the company’s assets to enable a distribution to one or more secured or...
This Practice Note succinctly outlines redundancy within an insolvency setting and signposts to more in‑depth, relevant supporting resources. Forthcoming changes The Employment Rights Act 2025 ( ERA 2025) obtained Royal Assent on 18 December 2025 and brings in phased reforms affecting redundancy where insolvency arises. Notably and in particular, the ceiling on the protective award for non‑compliance with statutory collective redundancy information and consultation duties will rise from 90 days to 180 days from 6 April 2026. ERA 2025 also sets alternative statutory thresholds for commencing collective redundancy consultation. Further unfair dismissal changes are included, such as cutting the qualifying period from two years to six months and abolishing the cap on the compensatory award—these provisions are not yet in force. For further detail and guidance on the expected implementation timetable, see Practice Note: Restructuring & Insolvency—horizon scanner— Employees and...
When a restructuring is pursued instead of commencing formal insolvency proceedings (see Practice Note: Benefits of informal restructuring over formal proceedings), the company will often aim to secure swift standstill commitments from relevant creditors to create breathing room to shape a restructuring plan. A standstill agreement is a contract between the company and its creditors that pauses enforcement action (see Precedent: Standstill agreement). Parties The debtor company will sign, typically alongside operating subsidiaries that hold significant assets, could be exposed to formal action or risk breaching financial covenants, and, in many cases, the ultimate parent company. Other participants usually include creditors and stakeholders critical to the company’s success, eg major customers, suppliers (if the company is a key client, helpful concessions might be secured) and the pensions trustee/regulator (where there is a substantial defined benefit pensions deficit). Who is invited to...
Need for new money For numerous companies encountering financial strain, the first and most common response is to secure extra liquidity to carry the business through a downturn in results and to sidestep a more formal restructuring or formal insolvency procedure. This can occur where the enterprise is believed to be sound at its core yet experiencing a temporary dip in trading conditions. Alternatively, the request for finance may serve as a short-term bridge, giving the company and its stakeholders breathing space to evaluate the business’s current viability and the merits of a restructuring. This Practice Note considers the potential forms that fresh funding can take and the related legal issues that may arise. Ways to fund In practice, fresh capital typically arrives in one of two forms: an equity injection—new or current shareholders acquiring additional shares in the company, or a new debt...
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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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