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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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AGPS Bondco plc sought a Part 26A restructuring plan ( RP) at a convening hearing in February 2023, followed by a successful sanction hearing in April 2023. That sanction order was subsequently set aside by the Court of Appeal in January 2024 (see News Analysis: Adler appeal—restructuring plan sanction order overturned ( Re AGPS Bondco plc)). The key points appear below (capitalised terms not defined herein are as defined in the convening and sanction judgments). This Deal Debrief forms part of our Restructuring plans collection. For a detailed analysis of key metrics from RPs filed in 2023, and commentary from leading lights in the restructuring world, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company AGPS Bondco plc (the Company) Industry...
Unlawful payments—general position When a company goes into liquidation or administration, dealings concluded prior to the opening of the insolvency proceedings can be scrutinised by the liquidator or administrator and, where the conditions are met, set aside by the court. This presents a hazard for creditors, who may find themselves in the unenviable position of having to repay company monies despite being properly owed those sums, and thereafter fall to be an unsecured creditor for that amount in any subsequent liquidation or administration, seeking to secure a dividend alongside other unsecured creditors. In these circumstances, the causes of action available to an administrator or liquidator can include: transactions at an undervalue preferences transactions to defraud creditors property dispositions after the commencement of the winding up The prospect of these transactions subsequently being unwound is greater where the company is insolvent or verging on insolvency. This Practice Note will consider only...
What is third party litigation funding? Third party funding ( TPF) is now a significant element of the UK litigation landscape. This Practice Note addresses TPF obtained by a litigant under a litigation funding agreement ( LFA) with a commercial litigation funder, or another person who finances the case yet is not a party to the proceedings. A commercial funder’s objective is to invest for a prospective return, whereas a litigant typically seeks TPF either to pursue litigation they could not otherwise afford (thereby facilitating access to justice), or to manage their own financial exposure to the costs of bringing a case. Lord Justice Jackson, who led the 2010 Civil Litigation Costs Review, characterised TPF as funding provided by someone with no pre-existing interest in the dispute, commonly arranged on terms that: the funder is paid from any sums recovered as a result of the...
This note outlines how a Limited Liability Partnership ( LLP) may enter administration and identifies the scope of the administrator’s powers. This Practice Note does not extend to Limited Partnerships (see Practice Note: Limited partnership insolvency). Applicable legislation The Limited Liability Partnerships Act 2000 ( LLPA 2000) established LLPs and should be read together with the Limited Liability Partnerships Regulations 2001 ( LLPR 2001), SI 2001/1090. Under LLPR 2001, the Insolvency Act 1986 ( IA 1986) and Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, are applied to LLPs. The Limited Liability Partnership ( Amendment) Regulations 2005, SI 2005/1989, introduced the current administration regime for LLPs. Accordingly, IA 1986, Sch B1 applies to LLPs. The Statements of Insolvency Practice ( SIPs) also apply to LLPs (see Practice Note: Statements of Insolvency Practice—a quick guide for further information on...
The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, introduced a refreshed framework for decision-making across all insolvency processes with effect from 6 April 2017. The specific requirements governing how decisions are taken are contained in IR 2016, SI 2016/1024, Pt 15. Qualifying decision procedures There are five procedures in section 246ZE of the Insolvency Act 1986 ( IA 1986) by which a convenor may seek a decision under IA 1986 or IR 2016 from creditors: correspondence electronic voting virtual meeting physical meeting any other decision-making method that permits all entitled creditors to participate on an equal basis For further guidance on these procedures, voting within a decision procedure, the requisite majorities and how to challenge a decision made by a convenor or chair, see the Practice Notes: The...
This Practice Note summarises the Scottish route to securing a civil recovery order in the Court of Session, pursuant to Part 5, Chapter 2 of the Proceeds of Crime Act 2002 ( POCA 2002). It does not address the Sheriff Court civil recovery processes. For guidance on the corresponding England and Wales position, see Practice Notes: Civil recovery orders under the Proceeds of Crime Act 2002 and Civil recovery under POCA 2002—procedure. Statutory framework Under POCA 2002, Part 5, enforcement bodies may commence civil proceedings to recover property, cash, or—following the provisions commencing in November 2024 via Schedule 9 to the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023)—a cryptoasset derived from, or intended for use in, unlawful conduct. See our E& W Practice Note: Civil recovery orders under the Proceeds of Crime Act 2002. This Practice Note concerns Court of Session civil...
When taking enforcement action, you must first verify that the charge relied upon to appoint a receiver is effective and enforceable in practice. This Practice Note examines how validity and enforceability are affected where a charge created by a security instrument has not been filed at Companies House and/or registered at HM Land Registry. For this Practice Note, it is assumed the security instrument is properly executed as a deed and grants a charge by way of legal mortgage over the property for which the mortgagee intends to appoint a receiver. Where relevant, references to charges also encompass mortgages. This assumption underpins the analysis provided. HM Land Registry Certain dealings with a registered estate must be completed by registration at HM Land Registry—this includes the creation of a legal charge (section 27(2)(f) of the Land Registration Act 2002 ( LRA 2002)). This...
Proprietary claims Creditors frequently seek to secure proprietary claims, as these confer rights in rem (attaching to the asset itself) rather than personal rights (which bind only the individual). This distinction is especially significant when a company becomes insolvent: assets caught by a proprietary claim are excluded from the distressed company’s estate, allowing the claimant to recover in full, instead of proving as an unsecured creditor in the liquidation/administration and waiting for a dividend (which typically takes many months and is often under 50% — and occasionally almost nothing). In practice, proprietary claims jump ahead of secured and preferential creditors in the priority waterfall because the assets are ring-fenced for the benefit of the proprietary claimant. For payment waterfalls, see Practice Note: Waterfall of payments—a comparative guide......
The voting requirement As set out in Practice Note: Schemes of arrangement—process and statutory framework, section 899(1) of the Companies Act 2006 provides that the court may sanction a scheme only where, at each scheme meeting, approval is obtained by: a majority in number (the numerosity test); and creditors representing 75% in value voting in person or by proxy. From 26 June 2020, if a scheme is proposed within 12 weeks of a moratorium under the Corporate Insolvency and Governance Act 2020, those owed moratorium debts and any pre‑moratorium debts for which the company did not benefit from a payment holiday during the moratorium effectively possess a veto, as the court may not sanction a scheme that makes provision in respect of such creditors without their consent (see Practice Note: Moratorium). For guidance on the methodology used to determine the correct...
This Practice Note outlines the main formats an offer to settle a dispute may take, including open offer letters, Calderbank (without prejudice save as to costs) ( WPSAC) letters and Part 36 offers; it assesses their respective pros and cons, the implications for costs exposure, and how to draft these offer letters. For wider guidance on without prejudice communications, including Calderbank ( WPSAC) letters, see Practice Notes: Without prejudice communications, Without prejudice explained and Without prejudice—exceptions to protection from admissibility... Although this Practice Note only summarises the core features of Part 36 settlement offers, comprehensive guidance on making, receiving, varying, accepting and rejecting a Part 36 offer, together with detailed precedents, is available at: Part 36 offers—overview... For advice on making an offer or recording a settlement, and on drafting settlement agreements, see Practice Notes: • Settling disputes—how to document a settlement • Settling...
Introductory observations Claims for knowing receipt (sometimes termed ‘unconscionable receipt’) and dishonest assistance are often grouped as ‘accessory liability’ because they target a defendant implicated in causing the claimant’s loss in an ancillary or secondary capacity. Liability may arise by dishonestly helping another to breach a trust or fiduciary obligation owed to the claimant, or by receiving trust property with knowledge that it follows a breach of trust or fiduciary duty. In this way, the defendant’s potential responsibility is secondary to the principal wrongdoing of the breach. That said, Lord Burrows in Byers v Saudi National Bank considered that a personal claim in knowing receipt is materially different from the accessory nature of a dishonest assistance claim ( Byers is discussed further below). Dishonest assistance and knowing receipt claims frequently emerge where there has been some fraudulent or wrongful conduct in which the...
General A rent deposit is a sum lodged by a tenant on taking a lease, serving as security against unpaid rent and other breaches of the lease. It is commonly required where a lease is granted or assigned and the incoming tenant cannot demonstrate adequate financial standing to the landlord. A deposit might be provided instead of, or alongside, a guarantee to bolster the tenant’s covenant strength. In commercial leasing, it is routine for a rent deposit to be held either by the landlord or by an independent stakeholder. For broader guidance on commercial rent deposits, see Practice Note: Rent Deposit Deeds— Commercial Leases. That Practice Note examines how a landlord may deal with rent deposits when a corporate tenant enters an insolvency procedure (with a principal focus on administration). The landlord’s position is largely determined by the manner in which the deposit is...
Once secured creditors have been satisfied, the trustee in bankruptcy (trustee) must allocate the remaining estate in line with the prescribed order of payment. Expenses To begin with, the trustee must meet the costs and expenses of the bankruptcy. The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 10.149 specify that bankruptcy expenses are payable from the bankrupt’s estate in this order: expenses or costs which: are properly chargeable to, or incurred by, the official receiver ( OR) or the trustee in safeguarding, realising or recovering any of the bankrupt’s assets, or otherwise relating to the conduct of legal proceedings which the OR or trustee has power to bring or defend (whether the underlying claim forms part of the bankrupt’s estate or not) concern the...
When a company or an individual is served with a statutory demand, alarm bells should ring, because not dealing with that demand within 21 days (for debtors situated within the jurisdiction of England and Wales) can trigger winding-up and bankruptcy proceedings being brought against the company or the individual, respectively. Where a debt is genuinely owed by the debtor to the creditor, steps ought to be taken to pay the liability, or to reach arrangements with the creditor to settle it, failing which insolvency proceedings might be commenced. However, there are occasions when a statutory demand is served on a debtor when it should not have been—for instance, where the debt is not due, or the debtor has a counter or cross-claim that equals or exceeds the creditor’s claims, or there is some other substantial reason. When that situation arises, the debtor must...
Practice Note Produced in collaboration with Angharad Parry of Twenty Essex, this Practice Note is intended for use when identifying the governing law for contracts concluded between 17 December 2009 and 31 December 2020. For agreements made on other dates, the UK courts will apply an alternative applicable law regime. Which regime applies turns on the date the contract was concluded. For an overview of the regimes and how they interact, see Practice Note: Applicable law regimes. The Note sets out how Regulation ( EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations ( Rome I) operates in practice. Within this Practice Note it is cited as Regulation ( EC) 593/2008, Rome I, or simply Rome I. It addresses the universal application rule ( Article 2) and the scope of the...
What is marshalling? In Re Bank of Credit and Commerce International SA ( No 8) (at [231]–[232]), Lord Hoffman characterised marshalling as an equitable device for resolving competing claims between two or more creditors of the same debtor. Where one creditor can resort to more than one security or fund, and another has access to only a single security, the latter gains an equity to insist that the former looks, as far as practicable, to the security or fund that is not available to the latter, or is treated as having done so... By way of illustration, suppose C1 and C2 are each owed £1m by a common debtor, D. To secure C1’s £1m, D grants C1 charges over two assets— Blackacre and Whiteacre—each worth £1m. C2’s protection, however, is limited to a charge over Whiteacre alone. If C1 satisfies its claim out of...
Use of comfort letters in finance transactions Comfort letters are encountered in finance transactions relatively often. They take different forms, and it is important for both the lender and the comfort letter provider to understand their legal effect. They are often used where the lender is unable to obtain a guarantee (for information on guarantees, see: Guarantees—overview). They are generally issued by a parent or holding company to give 'comfort' to a lender regarding support for a subsidiary in the context of a finance transaction. Their effect can vary widely, so the parties should be clear from the outset about the type of letter being issued and whether it is intended to be legally binding on the provider. In general, they are not legally binding. It is unusual to encounter a comfort letter that is intended to be binding......
This Practice Note sets out, in broad terms, the route for petitioning the court to obtain a winding-up order on the just and equitable ground. Depending on the court handling the matter, you may need to observe additional requirements—see the section below: Court specific guidance. For definitions and key expressions used in relation to a just and equitable winding-up petition, see Practice Note: Just and equitable winding-up—what it is and when to use it— Key terms encountered when applying for a winding-up on the just and equitable ground. Preliminary considerations The focus here is chiefly on procedure where a just and equitable winding-up petition is issued as a stand-alone claim. As this is comparatively uncommon, variations in approach between, and indeed within, courts may arise, for example when listing a petition for initial directions. A request to wind up a company on the just and...
What is Companies House? Companies House is the official register for corporate information. It sits within the Department for Business and Trade (previously called the Department for Business, Energy & Industrial Strategy). This Practice Note concerns companies registered in England and Wales. To search for a company formed in Scotland or Northern Ireland, contact the relevant Companies House in Edinburgh or Belfast. Companies House’s core roles are to: incorporate and wind up limited companies review and retain in the Register of Companies information submitted under the Companies Act 2006 ( CA 2006) and related laws, including the Insolvency Act 1986 ( IA 1986) and make this data available to the public How do you carry out insolvency searches at Companies House? Before running any insolvency checks via Companies House, confirm which online third‑party search provider your firm already uses. If your...
This Practice Note offers practical guidance on correct execution of simple contracts and deeds for unincorporated associations. Unincorporated associations arise from agreement between members who come together, typically for a non-profit purpose. Examples include sports clubs or voluntary groups. For more information, see Practice Note: Unincorporated associations. We have created a collection that serves as a comprehensive, interactive resource to help users identify and navigate the concepts and common issues involved in executing documents. Each section or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For more information, see: Execution collection. Capacity An unincorporated association has no separate legal identity, meaning it cannot enter into contracts in its own name. As a result, it has no rights, cannot assume duties and cannot own property. Property said to ‘belong’ to an unincorporated association will be vested in the leading members of the...
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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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