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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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Types of application The applications most frequently brought under the Cross- Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030 include: recognition applications (art 15) applications for interim relief (art 19) applications for relief (art 21) applications to open English insolvency proceedings (art 11) applications to take part in English insolvency proceedings (art 12) applications seeking access to the English courts (art 9) applications to unwind antecedent transactions (art 23) The Civil Procedure Rules ( CPR) govern all cases pursued under the CBIR 2006, SI 2006/1030, and such matters are treated as multi-track proceedings (see CBIR 2006, SI 2006/1030, Sch 2, para 30). If any inconsistency or conflict arises between the CPR and the CBIR 2006, SI 2006/1030, the latter will prevail and take priority (see Dalnyaya Step LLC (in liquidation); Cherkasov v Nogotkov ( Official Receiver of...
Once hailed as a demonstration of the English knack for bending the most rarefied ideas to commercial ends, floating charges are now widespread and, in practice, almost indispensable to finance deals. This Practice Note flags the key distinctions between the laws of Scotland and England concerning floating charges, looking in particular at their make-up, the rules on registration, and the mechanisms for enforcement in each jurisdiction. It concentrates on the status of a ‘qualifying floating charge’ as that expression is defined in the Insolvency Act 1986 ( IA 1986), and how the concept operates across both Scotland and England. The floating charge Although fixed securities give a lender priority ahead of floating charge holders and unsecured creditors, they are confined to the identified asset over which they are granted and limit the borrower’s freedom to deal with that asset without the fixed security holder’s...
When a company has been struck off the register, it can, in some cases, be reinstated by applying to the court for an order under the Companies Act 2006. This Practice Note outlines the process for restoring a company to the register through a court order... Why restore a company to the register? Where a company has been removed from the register, an interested party may apply to the court to have it restored. Common motivations for restoration include: enabling a claim to be pursued against the company addressing assets the company owned at dissolution that passed as bona vacantia situations where the registrar struck the company off while it was still trading If the registrar initiated the striking-off, the applicant should assess whether the simpler, quicker administrative restoration route is available as an alternative to the court process......
What does this Practice Note cover? This Practice Note offers an overview of the clearing of over-the-counter ( OTC) derivative contracts under UK EMIR. It covers: what clearing OTC derivative contracts entails the reasons for clearing OTC derivatives the types of OTC derivative contracts subject to the mandatory clearing obligation who is obliged to clear who is exempt from the clearing duty how clearing works under the principal and agency models the documentation required for a clearing relationship the concept and mechanics of indirect clearing What is OTC derivative clearing? When an OTC derivative trade between two counterparties is centrally cleared, a central counterparty ( CCP) positions itself between the original parties to the transaction. Once the parties have agreed the OTC trade, the CCP becomes the buyer to every seller and the seller to every buyer....
The role and functions of a liquidator A liquidator must be a licensed insolvency practitioner, authorised by a recognised professional body, and must hold appropriate authorisation. Put simply, the liquidator’s role is to safeguard the company’s assets, ensure they are realised into value, and distribute the proceeds to the company’s creditors and, where any balance remains, to the company’s contributories. The liquidator must carry out this role strictly in line with the duties imposed and powers conferred by the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Liquidators owe a duty to promote the interests of creditors and contributories generally, as a whole, and are required to exercise a high level of care and skill. They must at all times act impartially and independently. A liquidator acts as the company’s agent, albeit in a way...
This Practice Note This Practice Note outlines what qualifies as an administration expense and highlights leading case law. In an administration, such expenses are paid out of the company’s assets in administration in a defined order: after fixed charge creditors but before preferential creditors, floating charge holders and unsecured creditors This sequence of priorities (the ‘waterfall’) was modified by the Corporate Insolvency and Governance Act ( CIGA 2020) where the administration is preceded by a moratorium under Part A1 of the Insolvency Act 1986 ( IA 1986). Various types of expense are identified by IA 1986 and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. The IR 2016, SI 2016/1024 also set out, with specificity, the payment priority to be applied to the different categories of expense. Consequently, a creditor seeking to improve their position must not only...
This Practice Note considers receivers appointed under the Law of Property Act 1925 ( LPA 1925) or by an express power in a charge (for ease of reference, both are referred to in this Practice Note as LPA receivers, or simply receivers). This Practice Note does not address administrative receivers, nor receivers appointed by the court. VAT issues for receivers A receiver’s principal task is the collection and application of monies that come to them during their appointment. The factual circumstances may, in practice, be straightforward or intricate, depending on the nature of the property over which the receiver is appointed, the powers conferred by the mortgage deed under which the receiver is appointed, and the appropriate steps the receiver must take to maximise the return to the appointing mortgagee. A receiver, as a general rule, ordinarily controls the property in question for which they are...
What does this Practice Note cover? This Practice Note sets out the key distinctions between ISDA documentation subject to New York law and that governed by English law. For International Swaps and Derivatives Association ( ISDA) papers, these two choices of law are the most frequently adopted, notably where parties from separate jurisdictions wish to settle on a governing law acceptable to both. The ‘ Cross- Border Multi- Currency ISDA Master Agreement’ is intended to be fully effective and enforceable under either selection of law. That position has been achieved not only through meticulous drafting, but also through ISDA’s influence in pressing national legislators to enact legislation that supports the cross-border market for financial transactions concluded on its standard terms. Consequently, across the ISDA Master Agreement, the Schedule and related documents, there tends to be minimal divergence, aside from the additional terms agreed in Part 5 of the...
This Practice Note concentrates on the compulsory removal of an administrator from office and the appointment of an alternative office-holder. Situations where an administrator vacates office for other reasons are mentioned only in passing. The statutory provisions dealing with removal and replacement are set out in paragraphs 87–99 of Schedule B1 to the Insolvency Act 1986 ( IA 1986) and in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, rr 3.62–3.70. This Practice Note does not consider applications to terminate an administration; for that, see Practice Note: How an administration comes to an end— Application to court to end administration. Who may substitute/remove? Where the administrator was appointed out of court by the company or its directors and there was no holder of a qualifying floating charge over the company’s property ( QFCH), the creditors may, by a...
2015: Key Restructuring & Insolvency cases [ Archived] This Practice Note is archived and no longer being maintained...
Introduction This Practice Note considers how the obligation on certain bodies under Part 21A of the Companies Act 2006 ( CA 2006) to collect and deliver to Companies House details of their ‘persons of significant control’ ( PSCs) may affect lenders and secured creditors (together, finance parties). It opens with a high-level outline of the elements of the PSC regime most pertinent to a finance party’s viewpoint, before going on to provide: a synopsis of key considerations and risks for finance parties clarity on when a finance party could be brought within scope of the regime the implications for secured parties of a restrictions notice being served and ways to reduce those risks, and developments to keep under review Overview of the PSC regime This section offers a concise summary of the PSC regime, drawing attention to points of...
What is a liquidation stay? A liquidation stay, when operative, broadly mirrors a moratorium or interim moratorium in administration under paragraphs 43 and 44 of Schedule B1 to the Insolvency Act 1986 ( IA 1986). For more on the administration moratorium, see Practice Note: The moratorium in administration. While the stay is in place, no claim or proceedings may be started or carried on against the company or its property without the court’s permission. Any proceedings allowed may proceed only on such terms as the court chooses to impose. This Practice Note considers when the liquidation stay takes effect, what it does, and the factors the court weighs when deciding whether to lift the stay or, where apt, to impose it. When the liquidation stay applies, its purpose and effect Unlike the moratorium or interim moratorium in administration, a liquidation stay does not arise...
ISDA documents The 1992 and 2002 editions of the ISDA Master Agreement (together, the Master Agreements) are standard-form documents issued by the International Swaps and Derivatives Association, Inc ( ISDA). Within this Practice Note, any reference to a Section of a Master Agreement or a Part of a Schedule should be read as a reference to the 2002 ISDA Master Agreement and its Schedule, unless stated otherwise. For general guidance on negotiating ISDA Master Agreements, see: Introduction to negotiating ISDA documents. Section 6— Early Termination Section 6 ( Early Termination) of the Master Agreement explains the consequences that follow the occurrence of an Event of Default or a Termination Event, as described in Section 5 (see Practice Note: Scope of the ISDA Master Agreement— Section 5 ( Events of Default and Termination Events)). It also sets out the way the close out netting mechanism operates after an Event of...
This Practice Note outlines: the principal corporation tax implications and consequences when a UK‑incorporated company enters an insolvent liquidation process, and certain other tax considerations which arise during the course of the liquidation process Liquidation is the process of concluding, or winding up, a company’s affairs prior to its ultimate dissolution. There are two distinct and separate forms of liquidation processes: one that applies to companies that are insolvent (ie where a company’s liabilities exceed its assets, or it is unable to pay its debts as they fall due for payment) and another that applies to companies that are solvent......
SGB- SMIT Gmb H sought a Part 26A restructuring plan ( RP) at a convening hearing in April 2023, with a sanction hearing in June 2023. The principal details are set out below. Name of plan company SGB- SMIT Gmb H (the Company) Place of debtor’s incorporation and jurisdictional factors Germany The Company executed a deed of contribution......
Who can enforce? The ability to pursue enforcement against a bond issuer hinges on whether the bond issue uses a trustee or a fiscal agent. Where a trustee is appointed, the trustee will take enforcement action on behalf of all the bondholders. Where a fiscal agent is appointed, the bondholders themselves must enforce their rights against the issuer, as the fiscal agent plays no part in enforcement. The fiscal agent has no enforcement function. By contrast, the trustee acts collectively for holders when pursuing remedies. For details on the principal parties in a debt capital markets transaction, see Practice Note: Parties in an issue of debt securities. For further discussion of the differing considerations where an issue is structured with a trustee or a fiscal agent, see Practice Note: Parties in an issue of debt securities— Fiscal agent or trustee. If the bonds are issued in...
Borrowers can choose from a broad range of debt and capital structuring routes. Traditionally, senior debt (typically provided by banks) sat at the top, then mezzanine finance, followed by junior debt, each ranking ahead of unsecured creditors and shareholders/equity holders. After the 2007/8 credit crunch, businesses increasingly tapped capital markets and non-bank sources (eg private credit) to widen their funding, adding further layers of indebtedness. This Practice Note offers a straightforward overview of the different tiers of debt and security a restructuring lawyer may encounter. It outlines the financing layers and the forms of security commonly seen in practice by a restructuring lawyer. It also sketches how those tiers now sit together in practice. Capital structures and interplay between creditors Typically, external borrowings sit at the operating company ( Opco) level. The Opcos own the core business assets (eg premises, key...
Prior to the hearing of a creditors’ bankruptcy petition, certain actions are required to satisfy the procedural obligations contained in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, and the Practice Direction on Insolvency Proceedings ( PDIP). This includes measures open to the debtor or any other creditor who wishes to take part formally in the creditors’ bankruptcy petition process. Steps to be taken by the petitioning creditor before the hearing Before the bankruptcy petition is heard, the petitioning creditor must complete several procedural tasks: They must confirm that a minimum of 14 days has passed since service of the bankruptcy petition on the debtor in order to comply fully with the applicable procedural framework under IR 2016 and PDIP......
This Practice Note addresses section 304 of the Insolvency Act 1986 ( IA 1986), which confers enforcement rights on specified parties against a trustee in bankruptcy (trustee) for misfeasance or breach of trust. IA 1986, s 304 broadly mirrors IA 1986, s 212, which offers a summary recourse against defaulting directors, liquidators, administrative receivers, company officers and other named persons (see Practice Note: Misfeasance claims under section 212 of the Insolvency Act 1986)... The applicant the official receiver ( OR) the Secretary of State a creditor of the bankrupt, or the bankrupt (regardless of whether a surplus exists, or is expected, for final distribution to them) Permission Leave of the court is required if the application is brought after the trustee has obtained their release under IA 1986, s 299, or where the bankrupt seeks to bring the...
ARCHIVED : This Practice Note has been archived and is no longer maintained. From 1 October 2025, CPR PD 51O was revoked and superseded by CPR PD 5C. For guidance on CPR PD 5C, consult Practice Notes: How to use CE- File—from 1 October 2025 and When and where is CE- File applicable?—from 1 October 2025. Note: the CE- File pilot is scheduled to end on 1 November 2025. As of 1 October 2025, CPR PD 5C takes the place of CPR PD 51O and confirms CE- File as permanent. For direction on the new rules, including how CPR PD 5C differs from CPR PD 51O, see Practice Notes: How to use CE- File—from 1 October 2025 and When and where is CE- File applicable?—from 1 October 2025. This Practice Note offers assistance on construing and applying the pertinent provisions of the CPR....
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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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