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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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This Practice Note considers and sets out: the responsibilities, remit and scope, obligations and authority of an insolvency practitioner ( IP) who has been formally appointed to act as trustee in bankruptcy (trustee) the safeguards in place to ensure the trustee performs their functions, obligations and duties as required by law For further guidance on situations where the official receiver ( OR) serves as trustee, please see Practice Note: Official receivers—personal insolvency. The role and functions of a trustee A trustee must hold a licence from a recognised professional body, be suitably qualified to act properly, and maintain at all times an adequate bond, which effectively operates as insurance for creditors. Broadly, the trustee’s task is to collect and realise the assets in the bankruptcy estate, and to review, determine and admit creditors’ claims. Where the estate’s value allows, the trustee will declare a dividend to...
A company voluntary arrangement ( CVA) proposal, or any alteration to it, cannot be approved by the company or its creditors if it would interfere with a secured creditor’s ability to enforce its security, unless that secured creditor agrees. In practice, where significant secured creditors or major landlords are involved, it would be atypical to advance a CVA without prior dialogue with them before circulating the proposals (see Practice Note: CVAs—landlord issues and remedies). In addition, where a CVA is put forward within 12 weeks of a moratorium ending under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), those owed unpaid moratorium debts and priority pre-moratorium debts effectively hold a veto: neither the company nor the creditors may sanction the CVA unless those liabilities are discharged in full, unless the relevant creditors consent. CIGA 2020, Sch 3, para 4 protects...
Read this Practice Note alongside Practice Note: Schemes of arrangement—convening hearing and sanction hearing, bearing in mind the distinct function assumed by the court when assessing jurisdiction at each stage. Jurisdiction— England and Wales—statutory provisions The Companies List within the Business and Property Courts of England and Wales derives authority to approve a scheme of arrangement from Part 26 of the Companies Act 2006 ( CA 2006) and the Insolvency Act 1986 ( IA 1986). Under CA 2006, s 895(1), the procedure in Pt 26 applies to schemes proposed between a company and: its creditors, or any class of them; or its members, or any class of them CA 2006, s 895(2) provides that the term ‘company’ includes: a company within the meaning of CA 2006; and any company liable to be wound up under IA 1986 IA 1986, s 221 confirms that any...
A receiver commonly operates as the mortgagor's agent in collecting income and in disposing of the assets in respect of which that receiver has been appointed. This Practice Note considers the effect of bankruptcy or liquidation on the position of the receiver as agent of the mortgagor, and the consequences of a receiver losing that agency in that capacity in practice. The receiver's status is important because it affects: the potential liability of both the receiver and the appointing mortgagee for acts carried out by the receiver, and for omissions by the receiver to do those acts how any documentation is structured, ie whether the receiver enters into an agreement as principal, or as the mortgagor's agent Where the receiver cannot act as the mortgagor's agent, they will either act as principal or, less preferably from the mortgagee's point of view, as the...
Ambatovy Minerals SA and Dynatec Madagascar SA applied for two Part 26A restructuring plans ( RPs) at an initial convening hearing in September 2024, followed by a second convening hearing in October 2024. The principal points are outlined below (capitalised terms not defined here have the meanings given in the convening judgments). This Deal Debrief forms part of our Restructuring plans collection. For a deeper review of key metrics from RPs filed in 2023 and commentary from leading voices in the restructuring community, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023. Name of plan companies Ambatovy Minerals SA ( Ambatovy) and Dynatec Madagascar SA ( Dynatec) (together, the Companies) Industry sector Mining Place of debtor’s incorporation and jurisdictional factors The Companies were both incorporated in Madagascar. Contracts governed by English law......
This Practice Note reviews proprietary claims and remedies, explaining the processes of following and tracing assets at common law and in equity to reclaim property held by another—most often encountered in complex fraud matters or where the immediate defendant is insolvent. It also addresses exceptions to tracing and the potential for a right of subrogation to recover a proprietary interest, including: good faith purchaser for value chains of transactions backwards tracing Quistclose trusts What are proprietary remedies? General principles A proprietary remedy (or proprietary claim) attaches to identified property, rather than creating a personal remedy such as a claim for damages. This does not exclude money or a debt owed from being the relevant property; both can be the subject of a proprietary claim, as illustrated by the decision in Lipkin Gorman v Karpnale (see below)......
This Practice Note covers: rejection of a creditor’s proof of debt by an office-holder the rule against double proof guarantees The rules governing proof of debt are set out in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, rr 14.2–14.25, and apply whether the claim arises in administration, winding-up, or bankruptcy. For key authorities and related content, see Practice Note: Proof of debt—key cases. Rejection of proof Office-holders must seek to identify all debts and liabilities of the insolvent, and deal with every proof of debt submitted by admitting it, rejecting it, or calling for additional evidence in support. An office-holder may admit or reject a proof of debt for dividend, in whole or in part. In adjudicating whether to admit or refuse a proof, the office-holder acts in a quasi-judicial capacity that does not differ from the...
Practice Note This Practice Note outlines the distinct regimes applying to overseas companies in relation to registering security at Companies House. The relevant regime depends on when the security came into being. In brief, from 1 October 2011 onwards, overseas companies have not been obliged to register security over UK assets at Companies House; however, they must keep an internal register of charges and mortgages as part of their books and records. Overseas companies are, nonetheless, required to be recorded in the Register of Overseas Entities and to supply particulars of their beneficial owners and managing officers where they acquired land in the UK on or after 1 January 1999. Acquisitions and specified dispositions, including granting security, will not be entered at the Land Registry if the Overseas entity is not listed in the Register of Overseas Entities. For further...
Out-of-court appointments—background Before the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, a ‘ Notice of Appointment’ for an administrator did not have to state the precise date and time of the appointment. IR 2016 altered that position. Under r 3.24 ‘ Notice of appointment after notice of intention to appoint’ and r 3.25 ‘ Notice of appointment without prior notice of intention to appoint’, the notice must include a statement that, as applicable, the company or the directors have appointed the named individual as administrator of the company, and it must also set out the date and time at which the appointment is made. This is distinct from the date and time recorded by the court upon the filing of the appointment documents, as contemplated by IR 2016, SI 2016/1024, r 3.26(3). In consequence,...
For comprehensive analysis of the regulation, consenting and incentivisation of the net zero energy transition under the laws of England and Wales, refer to: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. The textbook offers thorough treatment of matters addressed in this Practice Note. What is the ‘ Supplier of Last Resort’ ( So LR) regime? Where the Office of Gas and Electricity Markets ( Ofgem) withdraws a supply licence (typically due to insolvency), it may designate a ‘supplier of last resort’ ( So LR) on an individual basis to assume the supply of gas and/or electricity to the failed supplier’s customers. The objective is to safeguard those customers by maintaining uninterrupted continuity of supply and services. This framework is chiefly embedded in the Standard Conditions of the supply licences held by Great Britain’s ( GB’s)...
This Practice Note summarises notable cases and related materials concerning material adverse change clauses ( MAC) in a financing context. The cases are arranged by theme and cover: interpreting a MAC clause acceleration based on a MAC clause Interpreting a MAC clause Names of parties: BM Brazil I Fundo De Investimento EM Participacoes Multistrategia v Sibanye BM Brazil ( Pty) Limited [2024] EWHC 2566 ( Comm) Judgment date: 10 October 2024 Case summary: Following drilling that triggered a blast, a mine slope in Brazil shifted by up to two metres, with the ground moving as a single block. The central issue was whether this amounted to a ‘material adverse effect’ under the definition in the share purchase agreement for the company owning the mine, allowing the buyer to withdraw. Butcher J concluded it was not a ‘material adverse event’...
This Practice Note sets out an overview of the principal legal papers used to bring a loan portfolio disposal to completion and highlights the usual negotiating stances taken by sellers and buyers. For a primer on loan portfolio disposals and a sample pathway these transactions often follow, see Practice Note: Introductory guide to loan portfolio sales. For an outline of some of the core matters that can arise on loan portfolio sales, see Practice Note: Loan portfolio sales—key issues. The market’s approach to documentation for portfolio disposals is not entirely uniform; however, over the last decade a number of recurring features and conventions have developed, which are considered in this Practice Note. Key documents used in portfolio sales The documents most frequently encountered in loan portfolio sales include: Confidentiality agreements Sale and purchase agreement Disclosure letter ...
STOP PRESS: The Loan Market Association ( LMA) has issued revised editions of the standard terms and conditions for Par and Distressed Trade Transactions, the complete suite of Funded Participation and Risk Participation Agreements, and the Secondary Debt Trading Documentation User Guide, effective from 17 March 2026. The changes include the removal of LIBOR references, updates to IBOR rate definitions and the Target2 definition, and refreshed ERISA representations incorporating additional exemptions from the prohibited transaction rules under ERISA and the US Internal Revenue Code. The refreshed materials are available exclusively to LMA members via the LMA’s Documentation Hub. In the London market, secondary debt trades are commonly documented using the LMA’s recommended form documents. The LMA’s secondary debt trading suite was developed to standardise and simplify the sale of loan assets and to establish a consistent settlement process. The use of common...
The timeline below is illustrative—often highly ambitious—and draws together the steps usually followed in a standard secondary debt trade; in practice, it is rarely met in full. A failure to keep to this timetable does not constitute a contractual default. The approach for par debt and distressed debt is broadly the same, though the table flags certain specific differences. This timetable assumes the parties will use the Loan Market Association ( LMA) secondary debt trading suite to document their transaction. For more on the paperwork used in secondary debt trades, see Practice Note: Overview of the key documentation in a typical secondary debt trade. Timeline of a typical secondary debt trade T = Trade date. All references to days are to business days. Pre-trade date To minimise delay between the trade date and the settlement date: The buyer and seller determine their respective...
This Practice Note delivers practical guidance on the valid execution of simple contracts and deeds by liquidators. A liquidation may be: insolvent (where a company cannot meet its debts or its liabilities exceed its assets), or solvent It may be initiated by court order (compulsory liquidation) or out of court (voluntary liquidation). For information on each type, see: Compulsory liquidation—overview Creditors' voluntary liquidation ( CVL)—overview Members' voluntary liquidation ( MVL)—overview Quick view The outline below summarises execution formalities relevant to liquidators and indicates where corresponding precedent execution clauses are located. For fuller detail, navigate to the document type via the links in the first column. Simple contracts: May be made by the company (see section 43(1)(a) of the Companies Act 2006 ( CA 2006)). Under the...
This Practice Note sets out, in outline, the procedural steps that arise following the appointment of a receiver for an Isle of Man company or any other corporate entity whatsoever. In this note, we seek to offer guidance herein on: which persons or bodies must be told of a receiver’s appointment when that notice must be given what papers the receiver is required to lodge the continuing filing duties after appointment what notices are needed on a receiver’s resignation or the end of the receivership, and the particular receivership obligations for protected cell companies The different corporate entities Isle of Man law provides a broad range of distinct corporate forms and structures available as appropriate. To deliver as full and comprehensive a guide as we can, this note sets out the applicable requirements for receivers appointed in relation to each of the...
What does this Practice Note cover? The International Swaps and Derivatives Association, Inc. ( ISDA) is the trade body for actors in the derivatives market. It has created standard forms for derivatives, and these are used to record the vast majority of over‑the‑counter ( OTC) derivative dealings. This Practice Note sets out the principal ISDA papers used in a typical OTC derivatives transaction, the overall structure, and how each piece connects to the others. The key documents are: master agreement schedule credit support document (only where the parties require collateral or security to be provided) confirmation Documentation framework ISDA ISDA is a global association representing participants in the international, privately negotiated OTC derivatives marketplace. Its members include derivatives dealers, corporates, law firms, and others, and are listed on the ISDA website. ISDA has published standardised derivatives...
What does this Practice Note cover? This Practice Note considers: typical dispute categories arising from derivative contracts key case law connected to those categories practical pointers for practitioners when drafting derivative contracts to head off later disputes processes available to resolve disagreements over derivatives contracts The nature, principal types and main applications of financial derivatives are outlined in Practice Notes: The nature of financial derivatives and Types of derivatives. Derivative contracts often generate disputes between the parties who enter into them. Common categories of derivative disputes Derivatives may trigger a variety of disagreements. As with any situation where parties negotiate, conclude and perform (or fail to perform) a contract, claims may concern: negligent misstatement, deceit or breach of section 2 of the Misrepresentation Act 1967 ( MA 1967) regarding false or misleading statements made before the contract was entered into (for more...
Section 245 of the Insolvency Act 1986 ( IA 1986) Under section 245 of the Insolvency Act 1986, liquidators and administrators may set aside certain floating charges where: the charge was granted within the relevant time; in specified situations, the company was insolvent when it was made, or became insolvent because of the transaction giving rise to it; all or part of the consideration for creating the charge was not supplied at the same time as, or after, the charge was created. The provision is designed to stop creditors gaining an unfair edge over others, such as trade creditors, when the company’s capacity to meet its debts is uncertain. It is akin to a preference claim, but what is unwound is the security over the indebtedness, rather than the repayment itself. In Re Comet Group Ltd (in...
What happens when a debtor dies? Someone may pass away while insolvent. An estate is insolvent when its value does not suffice to discharge all debts and liabilities in full. In such cases, the estate’s administration is regulated by the Administration of Insolvent Estates of Deceased Persons Order 1986 ( DPO 1986), SI 1986/1999. It applies to estates of the insolvent deceased, including where death follows the presentation of a bankruptcy petition or the making of a bankruptcy application. Its main effect is to adapt the Insolvency Act 1986 ( IA 1986). The interaction between DPO 1986, SI 1986/1999 and IA 1986 is examined in Re Estate of Platon Elenin (aka Boris Abramovich Berezovsky). What should happen to the insolvent estate? Unless a bankruptcy order exists (or a bankruptcy petition has been presented or an application made), an insolvent estate must be managed in one of three...
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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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