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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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A bankrupt is normally discharged from bankruptcy twelve months after the start of the process, in the ordinary course of events, unless the court orders that discharge to be postponed because the bankrupt has not co-operated with the official receiver ( OR) or the trustee in bankruptcy (trustee)—see section 279 of the Insolvency Act 1986 ( IA 1986). Upon discharge, the disqualifications and restrictions attaching to an undischarged bankrupt come to an end without undue delay. For more detail on what those disqualifications and restrictions comprise, see Practice Note: The immediate effects of a bankruptcy order on the bankrupt. What are bankruptcy restrictions orders and why they were introduced? In bankruptcies that are not merely the product of honest misfortune—but stem from misconduct or recklessness by the bankrupt—it is thought right that the bankruptcy disqualifications and restrictions should continue beyond one year, to...
Effect of a bankruptcy restrictions order The effect of a bankruptcy restrictions order ( BRO) is to place extensive limits on a bankrupt. These mirror the constraints in force before discharge from bankruptcy, and there are further prohibitions beyond insolvency law, e.g. not serving as a local councillor. Where a bankrupt is made subject to a BRO, those limits persist for the length of the BRO, irrespective of whether discharge has occurred. Failing to observe a BRO is a criminal offence. Anyone breaching a BRO may face prosecution and can be fined, imprisoned, or both. Further information on the restrictions arising from a BRO is outlined below. Duration of a BRO A BRO under the Insolvency Act 1986 ( IA 1986) may run from two to fifteen years. The period imposed in any case is set by reference to the seriousness of the...
This Practice Note considers the position regarding the diligence of attachment in Scotland This note addresses how attachment operates within Scottish diligence, setting out the relevant position and context. For further guidance: on other types of diligence in Scottish civil procedure, consult Practice Note: Enforcement in Scottish civil litigation, which in turn connects to detailed guidance on a number of forms of diligence available in Scotland on the counterpart in England and Wales, see Introduction to enforcement—overview, which provides a general outline and links to more detailed guidance on various aspects of domestic enforcement in England and Wales on cross-border enforcement, refer to Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners, which offers an overview and signposts more detailed guidance on multiple aspects of cross-border enforcement This Practice Note does not address land attachment or residual attachment; for those, see...
Atento UK Limited and Atento Luxco 1 sought approval for two Part 26A restructuring plans ( RPs), with a convening hearing in October 2023 and a sanction hearing in November 2023. The principal takeaways are set out below (capitalised terms not defined here have the meanings given in the convening and sanction judgments). This deal debrief sits within our Restructuring plans collection. For a list of deal debriefs from 2020 to the present, see Practice Note: Part 26A restructuring plan deal debriefs. For a detailed review of key metrics from the RPs submitted in 2023, together with commentary from leading figures in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Atento UK Limited ( Atento UK) and Atento Luxco 1 (the Issuer) (together, the Plan...
What is After-the- Event insurance? In litigation, the losing side is usually ordered to meet part of the winner’s legal costs (known as adverse costs). This creates particular difficulties for insolvency practitioners ( IPs) who, when pursuing claims, face potential cost exposure and, without creditors’ consent, often have little or no practical recourse to the insolvent estate to satisfy any adverse costs liability. After-the- Event ( ATE) insurance exists to address this risk: if an IP advances a claim that ultimately fails, the ATE insurer will pay the adverse costs as a claim under the policy, normally up to a fixed limit and subject to the policy’s terms and conditions. What will ATE insurance cover? The primary role of ATE insurance is to insure against adverse costs. Cover can also be taken for the risk of not recovering one’s own...
This Practice Note explores the difference between assignation and subletting of commercial leases in Scotland, the requirement for a landlord’s consent, and the respective remedies available to a landlord and a tenant where the other party breaches its obligations under the lease concerning assignation or subletting. It relates exclusively to commercial leases in Scotland and does not deal with residential or social housing tenancy arrangements. Assignation and subletting Assignation and subletting are two avenues a tenant may use to introduce a new tenant into the lease arrangement. The tenant might opt for these avenues because it no longer needs to occupy the premises (or a portion thereof) yet is not entitled under the lease terms to terminate. This Practice Note considers the contentious issues that can arise when a tenant asks its landlord to approve an assignation or a sublease. The principal...
This Practice Note concentrates on the intellectual property ( IP) rights dimensions of asset purchase deals, alongside broader, routine questions that frequently arise in the asset purchase context and in related transactional planning. The analysis is primarily from the buyer’s standpoint, while also signposting seller-focused concerns where appropriate and timely. For a comprehensive checklist of points to review, see Asset purchase transactions— IP issues—checklist, which collates the principal items. The Note spotlights issues relevant to buying assets within a business that holds valuable IP, rather than the takeover of a technology, software or web-based enterprise (where IP sits at the heart of the operation and would necessitate a fuller suite of IP‑specific enquiries and protections tailored to that model). For tailored guidance on acquiring a software business, see Practice Note: Buying a software business—key considerations, and for further discussion of IT matters within...
The legal technology landscape is changing at pace, spawning a fresh vocabulary of AI-related terms and expressions. For those who are not product developers or software engineers, it is useful to clarify what these phrases mean. This Practice Note is intended to help legal professionals gain a clearer grasp of key Artificial Intelligence ( AI) concepts. For further detail on the technology underpinning AI, see Practice Note: Artificial intelligence and machine learning—an introduction to the technology. The Basics Algorithm: a coded series of instructions within software that resolves a problem or executes a computation. Artificial Intelligence ( AI): computer software and systems capable of exhibiting human intelligence. They can learn, plan, reason, or handle natural language as they operate, rather than relying only on pre-programmed tasks; for example, speech recognition, computer vision, translation between natural languages, and other mappings of inputs. In the UK and EU,...
ARCHIVED : This Practice Note has been archived and is no longer maintained. Rationale In any cross-border matter that triggers a formal insolvency process, practitioners examine the potential jurisdictions for commencing proceedings, weighing the pros and cons of each option. The doctrine of centre of main interests ( COMI) within Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency], together with the UNCITRAL Model Law on Cross- Border Insolvency (see UNCITRAL Model Laws—overview), means that, where time allows, advisers may engage in forum shopping to shift a company’s COMI (wherever it is incorporated) to a jurisdiction offering a more advantageous restructuring or insolvency framework (see Practice Note: Forum shopping and practical ways to move COMI). European states may accordingly adapt their legislation, in particular to enable stays, cram down and debtor in...
ARCHIVED : This Practice Note is archived and no longer maintained. For 2024 scheme/plan hearing dates, see Practice Note: Tracker of Part 26 scheme/ Part 26A restructuring plan hearing dates 2024. This Practice Note captures key hearing dates featured in the High Court, Insolvency and Companies Court ( Chancery Division) daily cause list from 13 September 2022 onwards, shown with the most recent first, for: Part 26 schemes of arrangement, typically solvent schemes; generally internal corporate reorganisations, take-over or merger schemes Part 26 schemes of arrangement, creditor/member schemes (see: Schemes of arrangement—overview) Part 26A restructuring plans (see Practice Note: Part 26A restructuring plans: history, rationale and scope) Part VII transfer schemes: insurance business transfer schemes under Part VII of the Financial Services and Markets Act 2000 (see Practice Note: Insurance business transfer schemes) It is notable that the majority of the hearings listed below concern solvent schemes of...
ARCHIVED : This Practice Note has been archived and is no longer maintained. It records selected hearing dates, whether proposed or listed, appearing in the High Court, Insolvency and Companies Court ( Chancery Division) daily cause list from 1 January 2025 onwards, with the most recent shown first, for: Part 26 schemes of arrangement, including creditor/member schemes (see: Schemes of arrangement—overview) Part 26A restructuring plans ( RPs) (see Practice Note: Part 26A restructuring plans) For 2026 listings, refer to Practice Note: Tracker of Part 26 scheme/ Part 26A restructuring plan hearing dates 2026. For 2024 listings, see Practice Note: Tracker of Part 26 scheme/ Part 26A restructuring plan hearing dates 2024 [ Archived]. For details of the outcomes of key creditor/member scheme or Part 26A plan hearings, and any judgments delivered, consult Practice Notes: Part 26A restructuring plan case tracker and Schemes of...
ARCHIVED: This Practice Note has been archived and is not maintained. What is the IPA? The Insolvency Practitioners Association ( IPA) is an approved professional body responsible for granting authorisation (licensing) to insolvency practitioners ( IPs) pursuant to the Insolvency Act 1986 ( IA 1986). It is the sole recognised regulatory body devoted exclusively to insolvency. For more details, please consult the IPA website for further information. What is the Insolvency Practitioners' Handbook? The 12th edition of the Insolvency Practitioners' Handbook 2024 ( England, Wales, Scotland and Northern Ireland) consolidates, in a single handy volume, the principal guidance and codes that IPs—and those preparing for insolvency exams—need readily to hand. Parts of the handbook may also assist solicitors in practice, particularly section 2 on Statements of Insolvency Practice ( SIPs) in the UK. For more on SIPs, please see our Practice Note: Statements of...
This Practice Note considers the interaction between the statutory moratorium under Schedule B1 to the Insolvency Act 1986 ( IA 1986), which prevents most creditor or third-party actions against an insolvent company in administration, and the right of a secured creditor to enforce its security over the company’s secured asset by appointing a fixed charge receiver For an overview of the administration moratorium, see Practice Note: The moratorium in administration. This note focuses solely on how that moratorium interfaces with a secured creditor’s ability to appoint a fixed charge receiver over the secured asset. It does not cover other enforcement avenues open to the secured creditor. Nor does it address consequences for a lender’s ability to appoint a receiver where a ‘stand-alone’ moratorium under IA 1986, Pt A1 is in force. In that scenario, save for limited exceptions, court permission must be obtained before taking...
For details on the nature of a special manager, who may appoint one and the timing of such appointments, refer to Practice Note: What is a special manager, and when to appoint one? The mechanism for appointing a special manager under the Insolvency Act 1986 ( IA 1986) is largely the same in corporate insolvency ( IA 1986, s 177) and in bankruptcy ( IA 1986, s 370). On any application, three matters usually arise: the format of the application the office-holder’s report that accompanies the application, and the security or undertaking to be provided by the special manager The application The application proceeds by way of an insolvency application under Part 12 of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, whether in personal or corporate insolvency. It should be brought in the court that has...
Opposing a winding-up petition Establishing a debt Serving a statutory demand is not a precondition to presenting a winding-up petition against a company. Long-standing authority confirms that a petition should not be brought where the petition debt is genuinely disputed on substantial grounds. It is likewise an abuse of process to attempt to deploy the winding-up court as a means of routine debt recovery (although, in Sell Your Car With Us Ltd v Sareen, the judge held that a creditor owed an undisputed sum is entitled to petition for winding-up). Consequently, a prudent creditor will usually serve a statutory demand before commencing winding-up proceedings to evidence an undisputed debt, unless a judgment debt has already been obtained. Under section 122(1)(f) of the Insolvency Act 1986 ( IA 1986), the court may wind up a company that is unable to pay its debts. See Practice Note: Can you...
Appeal work in civil proceedings sits under CPR 52 together with the related practice directions, collectively known as CPR PD 52A, 52B, 52C, 52D and 52E. PD 52A sets out the overarching rules on appeals, while PD 52B adds extra rules for appeals to the County Court and the High Court. Initiating an appeal In starting an appeal, the general framework in CPR PD 52A applies. Where the appeal is to the County Court or the High Court, the appellant must, in addition, meet the obligations in CPR PD 52B. Those provisions prescribe particular steps for filing and serving the appellant’s notice, the accompanying documents that must be lodged with the notice, applications made within the appeal, and any request to extend the time for filing. For more information, see Practice Note: Starting an appeal in a County Court or the High Court......
This Practice Note addresses challenges to orders arising in directors’ disqualification proceedings within England and Wales... Coronavirus ( COVID-19) This material includes guidance on areas affected by the Coronavirus Act 2020 and consequent alterations to court procedures and processes due to the Coronavirus ( COVID-19) pandemic. For more detail, see Practice Note: Coronavirus ( COVID-19)— Changes to the court process in insolvency proceedings. For related news, guidance and other tools to support practitioners handling restructuring and insolvency work, see: Coronavirus ( COVID-19)— Restructuring & Insolvency—overview... Statutory provisions and rules of court Appeals and reviews of orders under the Company Directors Disqualification Act 1986 ( CDDA 1986) are not subject to a single procedural code and may proceed under the Civil Procedure Rules ( CPR) or the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Paragraph 32 of the Practice Direction: Directors...
This Practice Note explores the anti-deprivation principle ( ADP), the pari passu principle ( PPP) and how these principles diverge. The anti-deprivation principle The ADP is a rule designed to stop parties contracting out of the statutory framework for the collection, realisation and distribution of an insolvent estate. It bars the removal of assets that ought to sit within that estate. In this way, it safeguards the estate’s value against attempts to bypass insolvency laws and works to ensure an insolvent estate is not deprived of property that would otherwise be available for its creditors. History The ADP has its origins in the old common law rules of bankruptcy. Although it was once labelled a fraud on the bankruptcy laws, it is now known as the ‘anti-deprivation principle’. Case law Having fallen into relative obscurity, the ADP re-emerged in a number of significant judgments. It has been examined and...
Banking regulation— Andorra— Q& A guide This Practice Note presents a jurisdiction-specific Q& A overview of banking regulation in Andorra, published within the Lexology Getting the Deal Through series by Law Business Research (law as at 31 December 2022). Authors: Cases & Lacambra— Miguel Cases; Laura Nieto. 1. What are the principal governmental and regulatory policies that govern the banking sector? Andorran banking oversight prioritises the resilience and effectiveness of banks and other domestic financial institutions operating within the financial system, with the aim of reinforcing international market confidence in Andorra’s banking industry and safeguarding the interests of clients and investors. The regulatory framework rests on the fundamental reserve of activity principle. Under this rule, only banks duly authorised by the Andorran Financial Authority ( AFA) are permitted to undertake core banking functions, including accepting deposits and other client funds, as well as issuing any form of...
This Practice Note sits within a wider suite on airline insolvency; for further detail, see: Guide to airline insolvency—introduction Guide to airline insolvency—insolvency proceedings, receivership, restructuring plans and schemes of arrangement Cross-border issues If an airline enters insolvency, the appointed insolvency office-holder, or a lessor or financier, may need to pursue asset recovery in numerous jurisdictions, influenced by the airline’s scale and global reach. For office-holders, consideration should be given to the potential application of the Cape Town Convention (see Practice Note: Guide to airline insolvency—insolvency proceedings, receivership, restructuring plans and schemes of arrangement). Where aircraft and other assets are situated in jurisdictions that have implemented the UNCITRAL Model Law on Cross- Border Insolvency, the office-holder may seek recognition and assistance in those places (see generally: UNCITRAL Model Law and Cross- Border Insolvency Regulations 2006 (...
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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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