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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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Basic principles Owing to the versatility of schemes of arrangement (schemes) (see Practice Note: Benefits of schemes compared to other processes), together with their ability to bind every creditor within the affected classes of a scheme compromise, and the shortcomings perceived in certain domestic restructuring tools in some overseas jurisdictions, schemes are frequently deployed to restructure foreign companies or English companies with substantial assets or creditor bases outside the UK (see Practice Note: Establishing jurisdiction and sufficient connection). Yet, absent recognition, a scheme may have little practical effect, or the scheme company may remain vulnerable to being subject to an overseas insolvency procedure. Consequently, advisers should address recognition questions from the outset of the scheme process. For proceedings issued on or after 31 December 2020, the operative elements of the EU Recast Regulation on Insolvency dealing with automatic recognition, and the EU Brussels I...
Application Section 426 of the Insolvency Act 1986 ( IA 1986) is, in practice, most often invoked by overseas courts submitting inbound requests to the English courts, serving as a safety net where the following do not bite: The UNCITRAL Model Law on Cross- Border Insolvency as given effect by the Cross- Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030 (see Practice Note: When does UNCITRAL (implemented by the Cross- Border Insolvency Regulations) apply and what are the effects?). For instance, where the office-holder is not a foreign representative (eg a receiver). Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency]......
In England and Wales, bankruptcy is the formal mechanism by which a court or the bankruptcy adjudicator makes a bankruptcy order against an individual. Although a company can proceed to voluntary liquidation without the court’s involvement, only the court or the adjudicator can place an individual into bankruptcy. The route available to a debtor’s creditors follows a set procedure, which may include a pre-action step (the statutory demand), and is taken under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. The Practice Direction on Insolvency Proceedings ( PDIP) applies as well. Types of bankruptcy petition and who can present one creditors' petition—any creditor, whether acting alone or with other creditors, who is owed a liquidated, undisputed sum meeting or exceeding the bankruptcy limit (for petitions presented on or after 1 October 2015,...
Some categories of proceedings in the Court of Session must begin by lodging a petition. This Practice Note explains the procedure applicable to petitions. For information on: other procedural routes in the Court of Session and the sheriff courts in Scotland, see Scottish DR: courts and civil procedure—overview, which links to detailed guidance other aspects of Scottish civil litigation, see the following Overviews, which link to more detailed guidance: Scottish DR: prescription and limitation—overview Scottish DR: starting a claim—overview Scottish DR: case management and evidence—overview Scottish DR: expenses and funding—overview Scottish DR: civil appeals and judicial review—overview Scottish DR: claims and...
Varying priority between security interests Competing security interests arise where multiple creditors hold security over the same asset or pool of assets. Establishing the order of priority between those interests dictates the sequence in which each secured creditor may claim against the charged property on enforcement or in an insolvency. If the enforcement proceeds are insufficient to discharge all secured debts in full, priority becomes crucial, as one or more creditors may not recover everything owed if the company cannot meet any shortfall from other assets. In such scenarios, occupying a higher-ranking position plainly offers significant benefits... Priority between security interests is set by general law, but the parties can alter that ranking by agreeing a contractual priority regime in a deed of priority or an intercreditor deed... What are the advantages of entering into a contractual priority...
This Practice Note considers when a person is ‘connected’ with a company under section 249 of the Insolvency Act 1986 The concept of being ‘connected’ is central to antecedent transaction claims that an office-holder may pursue to reclaim any transfers of a company’s property made before a formal insolvency process, for the benefit of creditors. The purpose is to ensure ‘connected’ individuals do not gain from such dispositions. By way of clarification: For transactions at an undervalue, the office-holder usually carries the burden of proving the company was unable to pay its debts at the time of, or because of, the transaction; however, if the deal was with a connected person, a rebuttable presumption arises that the company was unable to pay its debts at the relevant time, unless the contrary is demonstrated. Where a company has granted a preference to a person connected with it (other than by...
What is a CFA? A conditional fee agreement ( CFA) is an arrangement with a professional providing advocacy or litigation services under which their fees and expenses, in whole or in part, are payable only when certain specified conditions arise. CFAs commonly include provision for a success fee. In short, a CFA is taken to provide for a success fee where, in defined circumstances, the amount of the applicable fees is increased above the figure that would have been due if payment were not restricted to those circumstances. For a fuller discussion of success fees, see the section ‘ Success fees’ below and the Practice Note: Conditional fee agreements—success fees. Note that particular provisions, including those relating to success fees, apply when a CFA is used in personal injury, clinical negligence and mesothelioma claims, and these are not covered in this Practice Note. For those...
Practice Note This Practice Note offers practical direction on how companies should execute documents after 6 April 2008 (being the date on which the pertinent provisions of the Companies Act 2006 ( CA 2006) took effect). It addresses the execution of deeds by companies, and the execution of simple contracts by and on behalf of companies. If advising on documents signed before 6 April 2008 (for instance, in a dispute), practitioners should consider the relevant provisions of the Companies Act 1985. Throughout, it is assumed the executing company is a private company subject to CA 2006 and that the document is in writing. For execution points relevant to other legal entities, see: Execution—overview. We have assembled a collection that serves as a comprehensive, interactive resource to help users identify and work through the concepts and common issues that arise when executing...
The role, functions, powers and duties of an administrator are prescribed in the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Although the Enterprise Act 2002 ( En A 2002) made substantial changes to the former administration framework, it did not entirely displace the previous provisions. Those powers and duties continue to govern administrations of certain bodies identified in En A 2002, s 249, including building societies and rail companies. The administrator's role and functions Only an individual qualified to act as an insolvency practitioner in relation to the company may accept appointment as administrator. The administrator’s aim is to realise one of the three statutory purposes of administration under IA 1986, Sch B1, para 3. In pursuing that aim, the administrator represents the interests of all creditors, not merely the party who made the...
Mounting piles of debt and their steady rise have caused repayment difficulties and, in certain cases, default. Thus, when countries build up unsustainable debt loads (ie when the ratio of debt to gross domestic product ( GDP) climbs so far that policy measures cannot reverse it), the need to restructure existing liabilities increases. With many banks and retail bondholders now involved, private creditors have become more numerous, largely anonymous and harder to co‑ordinate (see Practice Note: Identifying bondholders and effective communication). Types of collective action clauses ( CACs) These are provisions sometimes included in a bond issuance’s indenture and prospectus, requiring bondholders to act together to facilitate the restructuring of such instruments by overcoming co‑ordination problems (also see Practice Note: Intercreditor payment priorities and requisite majorities). There are four different types of CACs. These are: collective representation clauses (clauses intended to...
Chandlers Building Supplies Holdings Limited, alongside 12 other Turbo Group companies, pursued 13 inter-conditional Part 26A restructuring plans at a convening hearing in June 2025 and a sanction hearing in July 2025. The principal points are set out below (capitalised terms have the meanings given in the convening and sanction judgments). This Deal Debrief is part of our Restructuring plans toolkit. For detailed metrics on RPs filed in 2024 and insights from leading restructuring practitioners, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024... Name of plan companies Chandlers Building Supplies Holdings Limited Chandlers Building Supplies Limited CRS Building Supplies Limited Devondale Electrical Distributors Limited Dougfield Plumbers Supplies Limited Fairalls ( Builders Merchants) Limited Grant & Stone Limited Parker Building Supplies Limited Pennyhill Timber Ltd Rawle Gammon & Baker...
This Practice Note outlines CE- File electronic working/electronic filing (also referred to as e-working/e-filing) in the courts under CPR PD 5C. CPR PD 5C applies from 1 October 2025—for guidance on CE- File before that date, see Practice Note: Electronic working and CE- File—when and where is CE- File applicable? [ Archived]. It explains which courts use electronic working and the proceedings to which it applies. Read this Practice Note together with: How to use CE- File—from 1 October 2025—for guidance on using CE- File Electronic communication and filing of documents by email— CPR PD 5B—for guidance on electronic filing under CPR PD 5B Which courts use CE- File? The courts using CE- File are listed in CPR PD 5C, para 1.3 and include: the following Rolls Building jurisdictions at the Royal Courts of Justice in London (the Rolls Building...
This Practice Note outlines the role of the B& PCs, which determine specialist business matters and other international dispute resolution and business cases in England and Wales. Procedural guidance applicable in the B& PCs is contained in CPR 57A and CPR PD 57AA. It explains which courts sit within the B& PCs, the steps for starting proceedings in a B& PC—including electronic issue—and how to frame the claim title. It also addresses moving cases to or from a B& PC. This Practice Note should be read alongside Practice Note: Dispute Resolution—judicial practice notes and guidance, which links to further guidance issued by the judiciary from time to time and which is relevant to the B& PCs... What are the ? The B& PCs hear specialist business and other international dispute resolution and business cases in England and Wales, whether domestic or...
What does this Practice Note cover? This Practice Note describes the duties and functions of a bond trustee appointed under an English law trust deed for a bond issue. A trustee is not a feature of every bond offering. Some issues proceed without one. The issuer chooses whether to use a trustee or a fiscal agent—see Practice Note: Parties in an issue of debt securities— Fiscal agent or trustee. Bringing in a trustee has significant implications for the issuer and for bondholders (see: Reasons for appointing a trustee below). In this Practice Note, ‘bonds’ is used as a catch-all term for debt securities of all kinds (such as bonds, notes and commercial paper). Be aware, however, that alternative considerations can arise in structured finance deals. For an explanation of the difference between ‘bonds’ and ‘notes’ and the definition of ‘commercial paper’, see Practice Note: Types of debt...
at the Land Charges Department When a creditor lodges a bankruptcy petition, the court must, as promptly as reasonably practicable, send notice of the petition to the Chief Land Registrar with a request that it be entered in the register of pending actions. In addition, once a bankruptcy order is made, the official receiver must notify the Chief Land Registrar so that the order is recorded in the register of writs and orders. These records are made irrespective of whether the debtor or the bankrupt, as applicable, is known to own any real property. Both registers are kept by the Land Charges Department of HM Land Registry at its Plymouth office and are available for public inspection. An Official Search of these registers (a bankruptcy search) against a specified name should show whether, for that name, a bankruptcy petition has been presented and, where...
This Practice Note reviews the striking off of a company from the register of companies and how to manage this where a fixed charge/ LPA receivership sale involves a company-owned property at risk of strike-off and dissolution. Part 31 of the Companies Act 2006 ( CA 2006) sets out two routes for a company to be removed from the register and dissolved: voluntarily, on application by the company, and under the statutory powers of the Registrar of Companies (the Registrar) This Practice Note focuses on the latter—removal by the Registrar. Striking off by the Registrar of Companies Company not in business or operation The Registrar of Companies may commence the statutory process to remove a company where there is reasonable cause to believe it is not carrying on business or not in operation. This is commonly triggered where a company fails to make its annual...
This Practice Note explores the use of After the Event insurance ( ATE insurance) as a form of security for costs. It sits within a suite of Practice Notes addressing matters concerning security for costs under CPR 25. The other Practice Notes are listed in: Security for costs—overview. There are also CPR routes that allow for orders mirroring a security for costs order; for further detail, see Practice Note: Security for costs—equivalent orders. From 6 April 2025, amendments to CPR 25 took effect, renumbering the former CPR 25 provisions and revising some of the wording dealing with security for costs. Where relevant, this Practice Note refers to the prior version as ‘old rule 25’ and draws attention to any distinctions between the current CPR 25 and the old rule 25. As to the preconditions for the court to make a security for costs order, CPR 25.13 was...
Reasons for amending security documents and key risks Reasons for amending a security document There are occasions when parties may decide to revise existing security documentation. Typical triggers include: wanting to alter the obligations that are secured the chargee seeking to assign or novate its security following a transfer of the underlying debt adding further assets as security or changing the nature of a current charge (eg converting a floating charge into a legal mortgage) correcting an error or formally recording an agreed amendment Parties may conclude that updating an existing security document is cheaper and more straightforward than putting a fresh one in place. Key risks of amending security documents New security? Depending on the amendment, a liquidator or administrator could assert that new security has been created, with the consequence that it might be set aside (see Practice Note: Introductory guide to antecedent transaction...
This Practice Note outlines key authorities and associated materials on the acceleration of debt and the enforcement of security. The cases are grouped by subject and include: Cases on the process leading to acceleration and enforcement Cases relating to demands and events of default Cases concerning a mortgagee’s duties when enforcing by sale Cases concerning a mortgagee in possession Cases relating to the Financial Collateral Arrangements ( No 2) Regulations 2003 Cases on the process leading to acceleration and enforcement Names of parties: Miller v Cook (1870) L. R. 10 Eq. 641 Judgment date: 13 July 1870 Case summary: This authority establishes the central proposition that security must not be enforced in an oppressive fashion; accordingly, the security holder will, in almost all instances, need to give notice of enforcement and exercise remedies properly, for example by...
Administration Administration is a process intended to give a company time to breathe, aiming either at rescue or restructuring, or at securing a better result for all creditors than liquidation wherever possible. The core statutory framework for administration sits in Section 8 and Schedule B1 of the Insolvency Act 1986 ( IA 1986), together with the Insolvency ( England and Wales) Rules 2016, IR 2016, SI 2016/1024 rr 3.1–3.70, which apply in tandem. An administrator, an insolvency practitioner appointed under IA 1986, takes control of the company’s business and assets to pursue one of the three statutory purposes of administration set out in IA 1986......
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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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