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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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The position of an employee on a company's insolvency The default principle is that an employment contract is an agreement between the employer and the employee. Owing to its personal character, if either party changes, the existing contract would usually end. Were that always true when a company’s status alters because of an insolvency event, every employment contract would automatically cease. That is not always advantageous for either the workforce or the business, so employment terms can operate differently on insolvency. In practice, the treatment of an employment contract depends on the company’s specific circumstances, including whether it continues to trade. It also varies according to the particular insolvency process, as indicated below. Reference should be made to the relevant provisions of the Insolvency Act 1986 ( IA 1986) noted below. Employees’ positions are also protected, to a degree, by the Transfer of...
Steps prior to appointment The authority to appoint an administrative receiver sits with the holder of a floating charge, provided the following criteria are met: The security under which the administrative receiver is appointed must be a floating charge that extends over the company mortgagor’s assets, or a substantial proportion of those assets; The floating charge must be dated earlier than 15 September 2003......
Applicable legislation A limited partnership is wound up using the approach applied to an ordinary partnership, which in essence tracks and broadly mirrors the unregistered company winding‑up procedure (see SI 1994/2421, art 8 and Sch 4, and Practice Note: Winding‑up a general partnership as an unregistered company). The liquidation of any corporate partner, and the bankruptcy of any individual partner, take place under the standard insolvency regime, but with adjustments made and given effect by the Insolvent Partnership Order 1994 ( IA 1986, s 136(4) as modified by SI 1994/2421, Sch 4). The Insolvency ( Miscellaneous Amendments) Regulations 2017, SI 2017/1119, revise the rules for limited partnerships to bring them into line with the insolvency procedures applicable to other entities following wider reforms. Of particular relevance to limited partnerships, SI 2017/1119 updates the Insolvent Partnerships Order 1994, SI 1994/2421 ( IPO 1994),...
The moratorium is integral to any administration aimed at saving a company or enabling the restructuring of a business. This Practice Note explains what the moratorium is, how it applies in practice, and the considerations the court will assess when faced with an application to lift it. The purpose of the moratorium The objective of the moratorium is to provide the company or its administrators with breathing space to develop and implement proposals, and to examine the position of the company, its business and its assets. As outlined in the section below, ‘ The effect of the moratorium’, it imposes a stay on proceedings, actions and other steps against the company or its property for the relevant period, save with the consent of the administrator (if appointed) or with the court’s permission (leave). Within administration there are two forms of moratorium: the moratorium and the interim...
2026: Key Restructuring & Insolvency cases Name of parties and citation(s) Re Esken Ltd ( Overseas Company Number FC041629) [2026] EWHC 495 ( Ch) Judgment date 6 March 2026 Subject Overseas company: shift from administration to VCL notwithstanding section 221 of the Insolvency Act 1986 ( IA 1986) Name of parties and citation(s) Mc Fadzean v Martinez and another [2026] EWHC 426 ( Ch) Judgment date 27 February 2026 Subject The ex-bankrupt’s request for leave to sue her former trustees in bankruptcy under IA 1986, s 304 failed, as she did not demonstrate a reasonably meritorious cause of action...
Case details and analysis This Practice Note sets out, in a concise table, a summary of the 2026 leading and/or illustrative judgments from the courts of England and Wales on disputes involving cryptoassets (cryptocurrencies, non-fungible tokens ( NFTs)), smart contracts and digital securities. For prior decisions, see Practice Note: Cryptoassets for Dispute Resolution lawyers—key and illustrative decisions [ Archived]. For general guidance on cryptoassets in a dispute resolution context, see: Practice Note: Cryptoassets for Dispute Resolution lawyers Practice Note: Crypto and digital assets—what are they and how do they work? Practice Note: Digital assets—legal status and development Issues in cryptoasset related civil claims—checklist and related content To remain current with the work of the UK Jurisdiction Taskforce (established under the Law Tech Delivery Panel), whose aim is ‘to demonstrate that English law and the jurisdiction of England and Wales together provide a...
ARCHIVED This Practice Note is archived and no longer maintained. It highlights the key dates for restructuring and insolvency professionals in 2025, including appeal court hearings, consultation deadlines, events and the commencement of insolvency-related legislation. January 2025 1 January 2025 — The Financial Services and Markets Act 2023 ( Commencement No 4 and Transitional and Saving Provisions) ( Amendment) Regulations 2023 ( SI 2023/1382) are made under FSMA 2023 in connection with Brexit. They commence, on this date, provisions of FSMA 2023 requiring the Bank, Financial Conduct Authority, Prudential Regulation Authority and Payment Systems Regulator to have regard, when exercising their functions, to the need to contribute towards the Secretary of State’s compliance with section 5 of the Environment Act 2021. See: LNB News 15/12/2023 53. 6 January 2025 — Chief ICC Judge Briggs...
2024: Key Restructuring & Insolvency cases [ Archived] ARCHIVED: This Practice Note remains archived and is no longer maintained...
ARCHIVED : This Practice Note has been archived and is not maintained. For cases from 1 January 2025 onwards, see Practice Note: Tracker of Part 26 scheme/ Part 26A restructuring plan hearing dates 2025. This tracker records selected hearing dates taken from the High Court, Insolvency and Companies Court ( Chancery Division) daily cause list from 1 January 2024 onwards, listed most-recent first, for: 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) Note that solvent schemes of arrangement for internal corporate reorganisations, take-over or merger schemes are covered here. See News Analysis: Market Standards Trend...
2020: Key Restructuring & Insolvency cases [ Archived] Name of parties and citation(s) Judgment date Subject Analysis SSF Realisations Ltd ( In Liquidation) v Loch Fyne Oysters Ltd [2020] EWHC 3521 ( Ch) 21 December 2020 Whether a company’s payment to its sole shareholder complied with Part 23 of the Companies Act 2006 Where unlawful distributions meet insolvency ( SSF Realisations Ltd ( In Liquidation) v Loch Fyne Oysters Ltd) ING Bank NV v Banco Santander SA [2020] EWHC 3561 ( Comm), [2020] All ER ( D) 120 ( Dec) 21 December 2020 Which instrument governs jurisdiction—the Insolvency Regulation or Brussels I ( Recast)? To be heard in England or not—is...
January 2019 1 January 2019: The CPRC authorises a two-year disclosure pilot commencing on 1 January 2019 (see LNB News 01/08/2018 44). 1 January 2019: IFRS 16, the new accounting standard on lease accounting, comes into force and establishes a single accounting model for lessees (see News Analysis: Finance Bill 2019 and accounting changes for leases). 1 January 2019: Under section 6 and Schedule 1 of the Financial Services ( Banking Reform) Act 2013 ( FS( BR) A 2013), certain UK financial institutions with significant retail and small and medium-sized enterprise ( SME) banking activity must ring-fence specified services for retail and SME depositors, within a separate legal entity from this date, which cannot conduct designated wholesale and investment banking activities (see the commencement provisions in the Financial Services ( Banking Reform) Act 2013 ( Commencement No 12) Order 2018, SI 2018/1306 mentioned at LNB News...
January 2018 1 January 2018 SIP 6 A new edition of SIP 6— Deemed consent and decision procedures in insolvency proceedings—takes effect from 1 January 2018, replacing the interim SIP 6 in force from 6 April 2017. Unlike the interim version, the updated SIP extends to LLPs, as the Insolvency ( Miscellaneous Amendments) Regulations 2017 now apply the Insolvency ( England and Wales) Rules 2016 to LLPs. For further details, see LNB News 07/12/2017 87. Note that SIPs 8, 10 and 12 have been withdrawn for all appointments in England and Wales since 6 April 2017, though they continue under certain special insolvency regimes. See the ICAEW website for more information. SIP 11 A revised SIP 11— The handling of funds in formal insolvency...
2018: Key Restructuring & Insolvency cases [ Archived] This Practice Note is archived and is no longer being maintained. Sleight (as trustee of the estate of Jillian Paula Mascall deceased) v Crown Estate Commissioners [2018] EWHC 3489 ( Ch), [2018] All ER ( D) 111 ( Dec) Judgment: 19 December 2018 Subject: Vesting orders after disclaimer Lexis®PSL analysis: May a trustee in bankruptcy seek a vesting order once a disclaimer has been made? ( Sleight (as trustee of the estate of Jillian Paula Mascall deceased) v Crown Estate Commissioners) Bakhshiyeva (in her capacity as the foreign representative of the OJSC Internationl Bank of Azerbaijan) v Sberbank of Russia [2018] EWCA Civ 2802 Judgment: 18 December 2018 ...
2017: Key Restructuring & Insolvency cases [ Archived] This Practice Note is archived and no longer under maintenance...
January 2017 Date Event 15 January 2017 The consultation on the administration regime for financial market infrastructures concludes. For more detail, see News: Government consults on administration regime for financial market infrastructures ( LNB News 11/11/2016 145). February 2017 Date Event 1 or 2 February 2017 Appeal hearing ( Court of Appeal): Tchenguiz and others v Grant Thornton UK LLP and others ( LNB News 12/08/2015 125). Challenged decision: [2015] EWHC 1864 ( Comm), [2015] All ER ( D) 36 ( Jul) ( Carr J, 1 July 2015). For analysis of that ruling, see News Analysis: Icelandic banks, jurisdiction and the Lugano Convention. UPDATE: Court of Appeal ruling: [2017] EWCA Civ 83, [2017] All ER ( D) 40 ( Mar). For commentary on that result, see News Analysis: Allocation of jurisdiction for claim in winding-up process ( Tchenguiz v Kaupthing Bank HF). 8 February 2017 The...
February 2016 Date Event 2 February 2016 Hearing at Court of Appeal: Re Barons Finance Ltd (in liquidation) ( LNB News 12/08/2015 121). Judgment under challenge: [2015] EWHC 2007 ( Ch), [2015] All ER ( D) 126 ( Jul). For more detail on that ruling, see News Analyses: Putting assets out of reach of creditors and Permission to appeal— Barons Finance litigation continues. Update: Court of Appeal ruling: [2016] EWCA Civ 550, [2016] All ER ( D) 79 ( Jun)......
2016: Key Restructuring & Insolvency cases [ Archived] This Practice Note is archived and not maintained. Parties and citation(s), judgment date, subject, Lexis®PSL analysis Hawk Recovery Ltd v Hall and others [2016] EWHC 3260 ( Ch) Judgment date: 21 December 2016 Subject: Rights to possession of property Lexis®PSL analysis: Possession rights in bankruptcy ( Hawk v Hall) R v Neuberg [2016] EWCA Crim 1927, [2016] All ER ( D) 92 ( Dec) Judgment date: 15 December 2016 Subject: Confiscation orders Lexis®PSL analysis: Challenging a confiscation order ( R v...
Receiver’s duty to take reasonable care to obtain the best price reasonably obtainable This Practice Note examines the receiver’s obligation to exercise reasonable care to secure the best price that can reasonably be achieved. We explain how this operates in practice, covering the use of selling agents, when to bring the asset to market, enhancements to the property, and the measures a receiver ought to adopt during the disposal process. This Practice Note does not address the wider array of obligations that receivers may owe. For guidance on a receiver’s duties generally, see Practice Note: Roles, powers, functions and duties of an LPA or fixed charge receiver......
The sequence for distributing a company’s assets in administration is prescribed by the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. For a comparison of the payment waterfall across the various insolvency procedures, see Practice Note: Waterfall of payments—a comparative guide. The distribution framework in administration, once fixed charge holders have been paid, is summarised below. Moratorium debts and priority pre-moratorium debts CIGA 2020 inserted Part A1 into IA 1986, introducing a process that lets directors of insolvent companies, or those likely to become insolvent, obtain a 20 business day moratorium. Its aim is to give viable businesses time to restructure. If administration follows within 12 weeks of the moratorium, any moratorium debts and priority pre‑moratorium debts for which the company had no payment holiday during the moratorium, but left unpaid, will outrank all other...
Types of security Under Scots law, the range of security interests is narrower than those available in English law. The form of protection depends on the particular class of asset being charged. This Practice Note reviews the securities obtainable over particular asset types before addressing the floating charge, a form of security that may be created by Scottish companies or limited liability partnerships. Fixed security Land and buildings The recognised fixed security over real estate assets in Scotland, available to both individuals and companies, is the standard security. A standard security may be granted over an interest in land that is recorded or registered in the General Register of Sasines or the Land Register of Scotland. Note the General Register of Sasines ceased to accept, among other matters, recording of new standard securities from 1 April 2016. From that day, a borrower granting security over a...
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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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