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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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Applicable legislation Limited partnerships are established under the Limited Partnerships Act 1907 ( LPA 1907). The Partnership Act 1890 ( PA 1890), together with equitable principles and the common law relating to partnerships, also governs limited partnerships, so far as consistent with the LPA 1907... A limited partnership, like a general partnership, does not possess separate legal personality ( Re Barnard, Martins Bank v Trustee)... Insolvency law generally treats limited partnerships in the same way as insolvent general partnerships. The Insolvent Partnerships Order 1994 ( IPO 1994), SI 1994/2421, aligns the insolvency treatment of general and limited partnerships. Nonetheless, the IPO 1994, SI 1994/2421 contains certain adaptations that are specific to limited partnerships. These reflect that, for insolvency purposes, a general partner is dealt with under the same rules as a general partner in an ordinary partnership, whereas tailored provisions apply to the limited partner due to the...
What are expenses? All fees, costs, charges and any other outgoings arising during a winding up ( Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, rr 6.42 and 7.108), administration ( IR 2016, SI 2016/1024, r 3.50) or bankruptcy ( IR 2016, SI 2016/1024, r 10.148) are treated as expenses of the relevant winding up, administration or, as applicable, the bankruptcy... For liquidation and bankruptcy, the applicable provisions are IR 2016, SI 2016/1024, r 6.42 (creditors’ voluntary winding up), IR 2016, SI 2016/1024, r 7.108 (winding up by the court) and IR 2016, SI 2016/1024, r 10.149 (bankruptcy). As many of these provisions are framed in almost identical terms, the following observations apply across all three rules. Whether spending by a liquidator or a trustee in bankruptcy (trustee) qualifies as an expense of the liquidation or the bankruptcy is not a matter over...
Opening proceedings When insolvency proceedings are begun, each route has its own procedure for service of the requisite documents. The positions for bankruptcy, compulsory liquidation and administration are outlined below. Bankruptcy Where a creditor presents a bankruptcy petition, it must be personally served by that creditor (or someone acting for them) on the debtor, unless the court orders substituted service. This is addressed in paragraph 1 and the table at the end of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, Schedule 4. Service is commonly effected by the petitioning creditor, their solicitor, or authorised agent delivering a sealed copy of the bankruptcy petition to the debtor. The petition must be served at least 14 days before the first hearing, save where the court treats it as an expedited petition because: the debtor has absconded the court is satisfied the case merits an...
This Practice Note looks at how to obtain official copies of the registers and plans maintained by HM Land Registry ( HMLR) in respect of individual registered titles relating to freehold and leasehold land in England and Wales. It sets out how to obtain official copies where you have only: the title number or the property’s address the property’s location, or the name of the registered proprietor Property practitioners ought, as a matter of routine, to secure up-to-date official copies of all relevant title documents at the outset of a property transaction. Practitioners in other areas may likewise find it helpful or necessary to obtain official copies when involved in transactions concerning property......
Practice Note This Practice Note examines the court’s discretion to postpone a hearing under CPR 3.1(2)(b) and a party’s ability to seek such an adjournment. In particular, it identifies the five specific ‘ Fitzroy Robinson’ criteria the court will weigh when deciding whether to defer or bring forward a hearing, together with discussion of authorities in which the Fitzroy factors have been applied. It also addresses additional matters the court may take into account, including the timing of any adjournment request, and considers the ill-health of a party or witness and the medical evidence that must accompany an application advanced on that basis. For examples of court judgments illustrating the courts’ approach to applications to adjourn a trial, see Practice Note: —illustrative decisions. Depending on the court in which the proceedings are being conducted, the relevant court guide may contain further guidance that should be...
There is no restriction on a foreign creditor proving in an administration, liquidation or bankruptcy in England and Wales. Likewise, upon discharge from bankruptcy, an English debtor is, so far as the English court is concerned, freed from liability to foreign creditors. By contrast, under the so‑called Gibbs rule in English law (stemming from the decision in Antony Gibbs Sons v La Société Industrielle Et Commerciale Des Métaux), a foreign proceeding intended to extinguish a debtor’s obligations only releases those liabilities governed by the law of the country where that proceeding occurs, unless a creditor has submitted to the foreign process. In Re OJSC International Bank of Azerbaijan, the Court of Appeal, applying the Gibbs rule, refused to grant an indefinite continuation of the stay under article 21 of the Cross‑ Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030, which would have...
This Practice Note This Practice Note examines when parties may consent to prolong or modify a deadline prescribed by the CPR, practice directions or a court order, and summarises the court’s stance on granting extensions of time. It does not cover extensions connected to service of the claim form, service of the particulars of claim, or the service of evidence in claims brought under CPR 8. For guidance on extending time for service of the claim form, see: Extending time for service of the claim form—principles; Extending time for service of the claim form—making an application; and Extending time for service of the claim form—illustrative decisions. For extending time for service of the particulars of claim, see Practice Note: Service of the particulars of claim. For extending time for service of evidence in a Part 8 ( CPR 8) claim, see...
This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...
This Practice Note This Practice Note offers practical guidance on correctly and properly executing simple contracts and deeds for Law of Property Act receivers ( LPA receivers) or fixed charge receivers. Appointing an LPA/fixed charge receiver is a remedy available to the chargee (ie the holder of security over property) and is the remedy of a chargee. LPA/fixed charge receivership is not an insolvency process and does not necessarily, of itself, mean the chargor (ie the person who granted the security) is insolvent. An LPA/fixed charge receiver must be a natural person (ie a company cannot be a receiver) but need not be an insolvency practitioner or hold any other particular qualification. Unlike a liquidator, administrator or trustee in bankruptcy, an LPA/fixed charge receiver does not take control of the company as a whole (and, for an individual, does not control the...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by limited liability partnerships ( LLPs). See also Precedents: Execution clause—limited liability partnership—contract and Execution clause—limited liability partnership—deed. For commentary on establishing an LLP, see Practice Note: Forming a limited liability partnership. We have created a collection that serves as a comprehensive, interactive tool to help users pinpoint and navigate the concepts and common issues that arise when executing documents. Each stage or phase supplies practical guidance, precedent clauses and Q& As relevant to that part. For further details, see: Execution collection. The law Before 1 October 2009, the execution formalities applicable to LLPs were contained in the Companies Act 1985. From 1 October 2009, LLPs have been governed by the Companies Act 2006 ( CA 2006) by virtue of, and as modified by, the Limited Liability...
This Practice Note addresses: the purpose and consequences of events of default in facility agreements common events of default in facility agreements continuing events of default the distinctions between an event of default, a default and a potential event of default Where relevant, it signposts provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee and the Loan Market Association ( LMA ) investment grade multicurrency term facility agreement with/without observation shift ( the LMA facility agreement ) (available to LMA members on the LMA website). The purpose of events of default Lenders usually prefer not to depend on general contract law to secure a remedy where a borrower breaches a loan agreement. Major breaches—such as failing to honour payment obligations or breaking financial covenants—may signal financial stress and call for prompt action to protect the lender’s investment....
Most lending deals involve the use of formal legal opinions issued by counsel. Commonly, they are required as a necessary condition precedent to funding, or before the finance documents are executed and put into effect. The recipient, most often the lender, receives confirmation of specified legal issues connected with the loan transaction at hand. While widely encountered across numerous lending structures, they can be challenging in both legal and practical terms, and should therefore be negotiated and settled at the earliest possible stage of the transaction process, during initial stages of the process itself......
Security over land Security can be taken over real property by means of a mortgage or a charge, with the form selected typically hinging on the importance of the land to the borrower’s business or its relevance to the arrangement and the circumstances of the particular transaction in question. If the land is a key asset, or the facility funds acquisition or development, funders tend to insist on a charge by way of legal mortgage. Where the property is of lesser importance, they may accept an equitable mortgage or charge. Lenders frequently take a debenture, combining fixed and floating security over all the borrower’s assets, capturing its rights, title and interest in the real property it owns. A charge by way of legal mortgage is usually included within the debenture, though it can also be set out as a standalone security document, or as a...
Background to the energy supply company special administration regime The government established a special administration regime ( SAR) for energy suppliers in the Energy Act 2011 ( En A 2011), adopting and adapting certain provisions from the Energy Act 2004 ( EA 2004). Brought in as part of a broader package in En A 2011, the SAR aims to strengthen energy security and ensure gas and electricity continue to be delivered as cost effectively as possible where a major supplier becomes insolvent and no purchaser can be secured. To govern the procedure, the government also introduced the Energy Supply Company Administration Rules 2013 ( ESCAR 2013), SI 2013/1046, which set the technical framework for energy supply company administrations ( ESCA). ESCAR 2013, SI 2013/1046 reflects the Insolvency ( England and Wales) Rules 1986, SI 1986/1925, diverging only to the extent needed to reflect ESCA’s...
Compulsory liquidation or winding up by the court Where the Official Receiver is appointed When the court makes a winding-up order, the official receiver ( OR) takes office as liquidator. After the OR has finished their enquiries and considers the winding up practically complete, they may lodge a notice with the registrar of companies confirming that the court winding up has been concluded. A winding up is treated as complete when the liquidator has taken the company’s affairs as far as possible towards closure. The company is dissolved three months after the registrar registers that notice. Under the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 7.70, the OR must send creditors a notice of intention to dissolve before notifying the Secretary of State, under section 174(3) of the Insolvency Act 1986 ( IA 1986), that the winding up is for...
The protection of estate assets When a company or an individual embarks on a formal insolvency procedure, the appointed office-holder is obliged to call in and realise the estate’s assets, then apply the proceeds in the statutory order of priority for the benefit of creditors. In reality, the available assets are frequently inadequate to satisfy every claim in full. Faced with the failure of an insolvent company, some directors, recognising there is no prospect of rescue, may extract assets: for personal use, to meet sums owed to favoured creditors they intend to trade with in future, or to reimburse family members or other connected parties who have advanced funds to the business. Comparable behaviour can occur where an individual anticipates bankruptcy and disposes of personal assets. A subsequently appointed office-holder may seek to unwind such conduct as an antecedent...
Debt for equity swap A widely used restructuring approach is a debt for equity swap; financial creditors take shares in the reorganised corporate vehicle in return for reducing or writing off their debt claims against the company (and the remainder of the group). Many highly leveraged transactions have slender equity buffers and existing shareholders frequently end up ‘out of the money’. A debt for equity swap cuts balance sheet liabilities and lets lenders share in more of the upside after a restructuring when the business returns to profit (as equity holders, entitled to dividends once there are adequate distributable reserves) or on any subsequent sale. The valuation will indicate where the value breaks; that tranche will expect to receive the greatest equity allocation post‑restructuring (see Practice Note: Where the value breaks and negotiating strength). The corporate rescue exemption in section 322(5E) of the...
This Practice Note offers high-level guidance on debt buy-backs within loan documentation. It first outlines what constitutes a debt buy-back, then considers the issues that may emerge, and sets out how the Loan Market Association ( LMA) addresses buy-backs in its standard form documents. For fuller analysis, including structuring points, see Article: Structuring loan buybacks—(2021) 5 JIBFL 337. Buy-backs can relate to loans or bonds; however, this Practice Note addresses loan buy-backs only. For material on bond buy-backs, see Article: and the weakening of bondholder protection (2020) 5 JIBFL 310. What is a debt buy-back? In a lending context, a debt buy-back typically means the acquisition of existing debt in the secondary market by a sponsor (or a sponsor affiliate) or by a company within the borrower group in a sponsor-controlled leveraged credit......
Grounds to challenge the company voluntary arrangement An applicant may contest the approval of a company voluntary arrangement ( CVA) on one or more of the following bases: the proposal, in whole or in part, does not amount to a composition or arrangement within section 1(1) of the Insolvency Act 1986 ( IA 1986) the arrangement causes unfair prejudice to the interests of a creditor, member or contributory of the company there has been a material irregularity at, or connected with, a company meeting or the relevant qualifying decision procedure (see SIP 6) Although a CVA (or individual voluntary arrangement ( IVA)) must be challenged through the statutory framework in IA 1986, the core principles of good faith and equal treatment—foundational to the pre‑1986 bankruptcy regime—help shape the application of those provisions (see Re New Look; while New Look was due to be taken to the...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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