Featured documents
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:
Most recent Practice notes
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note This Practice Note examines force majeure within the context of English law and the circumstances in which a force majeure event may bring a contract to an end, addressing the burden of proof, construction of force majeure clauses (including the operative verb), procedural obligations, and how to challenge the validity of a force majeure clause. See also Practice Notes: Force majeure clause analysis—a practical guide Force majeure—key and illustrative decisions For assistance when giving notice of a force majeure event, see Precedent: Force majeure notice. Force majeure clauses came under intense scrutiny in light of ‘world events’, such as the coronavirus ( COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022, on which see: Force majeure and current world events below......
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
When deciding how a deed or contractual agreement should be signed, the execution block to use will vary according to: the type of document (for example, a contract or a deed) who is signing on behalf of the entity (the company itself, an administrator, liquidator, administrative receiver, receiver, nominee or supervisor) Type of document Broadly, documents fall into two groups: agreements/contracts, which require valuable consideration deeds, for which consideration is not needed Deeds are instruments that: state on their face that they are intended to take effect as a deed are properly executed as a deed Because deeds must be executed in the presence of a witness to be binding, they carry a stronger presumption of validity than instruments simply signed by the parties, or those under seal. The witness should ideally be independent (not the party’s solicitor,...
Introduction This Practice Note outlines and explains, in particular, escheat, bona vacantia (ownerless property) and the power of the Crown, or a Royal Duchy, to disclaim bona vacantia on the dissolution of a company where the relevant asset is a freehold estate in land. It further addresses the impact and consequences of a disclaimer of onerous freehold land by a liquidator, a trustee in bankruptcy, or the Official Receiver. Escheat Paramount lordship of the Crown The doctrine of escheat has its roots in the long-standing feudal arrangements for holding land. Within that framework, all land across England, Wales and Northern Ireland is, in the last resort, held by the Crown: this is the principle of paramount lordship. Nevertheless, others may hold a legal estate in land; the more modern expression of this appears in section 1 of the Law of Property Act 1925 ( LPA 1925), which...
The main directors’ duties The principal duties of directors, originally shaped by case law, were codified for the first time in sections 171–177 of the Companies Act 2006 ( CA 2006). These general statutory obligations are summarised in the Practice Note: Directors’ duties—scope, nature, interpretation and application. The Chartered Governance Institute ( CGI) has likewise issued guidance on directors’ duties. See: The Chartered Governance Institute guidance on directors’ general duties......
Who is the supervisor and what is the supervisor’s role in a company voluntary arrangement ( CVA)? The supervisor is a pivotal figure within a CVA. For broader guidance on CVAs, see Practice Note: Company voluntary arrangements. Once creditors approve a CVA proposal, the supervisor’s duty is to ensure the arrangement is carried out in strict accordance with its terms. The role must be performed by a licensed insolvency practitioner ( Insolvency Act 1986, s 1(2); Insolvency ( England and Wales) Rules 2016, SI 2016/1024, r 2.3(1)(i)). An earlier provision ( IA 1986, s 389A) would have allowed other individuals to be authorised solely to act as nominees or supervisors in voluntary arrangements, but it was never utilised. Section 389A was repealed by the Deregulation Act 2015 and replaced by a regime permitting the partial authorisation of insolvency...
Directors’ duties—fundamentals For the first time, the key duties of directors formulated by the courts were expressly set out in statutory form in sections 171–177 of the Companies Act 2006 ( CA 2006), thereby consolidating existing judge‑made principles. A full account of these statutory obligations—referred to as the general duties—can be found in Practice Note: Directors’ duties—fundamentals. The first four general duties are set out below: a duty to act in line with the company’s constitution and to use conferred powers solely for their proper purposes as intended by that constitution a duty to act, in good faith, in the manner the director believes is most likely to promote the company’s success for the benefit of all members collectively, while, in doing so, having regard to various factors a duty to exercise independent judgment a duty to exercise...
How is an administrator’s remuneration determined? The pay of an insolvency office‑holder, whatever the capacity in which they are appointed, is set under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Office‑holders should also have regard to the Statements of Insolvency Practice ( SIPs), which provide guidance on the basis of remuneration. Where a court is asked to consider remuneration, it will apply Part Six of the Practice Direction on Insolvency Proceedings ( PDIP), and this ought likewise to be taken into account by office‑holders. as a percentage of the value of: the property with which the office‑holder has to deal, or the assets that are realised or distributed by...
This Practice Note outlines the classic fiduciary obligations owed by company directors, such as the duty to promote the company’s best interests, the twin rules against conflicts and unauthorised profits, and the equitable obligation of confidence. It also examines the remedies for contravention of those duties, and the different routes by which a director may be excused from the consequences of a breach, namely ratification, indemnity and insurance. What is a fiduciary relationship? A fiduciary duty signifies a relationship of trust, assurance or confidence between two or more persons. Although the common law imposes no inherent limit on the types of relationship that may be treated as fiduciary, certain relationships are generally fiduciary by default, eg those between trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, mortgagor and mortgagee. Other relationships will be treated as fiduciary where one...
ARCHIVED: This Practice Note is archived and is not maintained. A major overhaul of the UK listing framework took effect on 29 July 2024, abolishing the premium and standard segments and introducing a single listing category for equity shares of commercial companies. This reform replaced the earlier two-segment approach with one category for those equity shares, reshaping the overall regime. The commercial companies category is strongly disclosure-led and sits beside other categories, including shell companies, secondary listing and closed ended investment fund categories. To deliver these changes, the UK Listing Rules sourcebook came into force and the former Listing Rules sourcebook was withdrawn. For more detail see Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note describes the position before 29 July 2024 and is retained for reference purposes only. The Financial Conduct Authority ( FCA) holds a statutory power under the...
This Practice Note carefully examines the overarching principles for assessing class questions in-depth. For fuller guidance on what, in practice, could or could not split a class, please refer to: Checklist of factors which may (and may not) fracture the class in a scheme of arrangement or restructuring plan. Statute and Practice Statement Under Part 26 of the Companies Act 2006 ( CA 2006), which regulates the scheme of arrangement (scheme) procedure, and CA 2006, Pt 26A, which regulates the restructuring plan ( RP) procedure, the applicant must, at the outset, seek a formal court order to convene the relevant meeting(s) of creditors, members, or any class(es) in question, to approve the proposed scheme/ RP. Absent properly constituted meetings of the applicable classes of creditors and/or members, the court lacks jurisdiction and, at the later sanction hearing, cannot lawfully proceed to sanction the scheme/ RP....
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, signalling the first major overhaul of Scottish trusts law in more than a century since the Trusts ( Scotland) Act 1921. Most trust provisions will commence only when Scottish Ministers implement the required secondary legislation. By contrast, certain succession measures and aspects concerning the removal of trustees are already in operation. A summary of the key modernising reforms is set out in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be revised to reflect the new regime in due course. General nature of beneficiaries’ rights Under Scots law, beneficiaries are generally regarded as holding personal rights against the trustees, although in some situations their rights resemble a real right in property. Notably, the...
This Practice Note outlines the formal requirements for witnesses, covering who may witness another person’s signature on a document connected to a commercial deal, such as a deed or simple contract, as well as witnessing electronic signatures and the current approach to video witnessing in practice. For guidance on witnessing wills, see Practice Note: Validity of Wills—signature. We have created a collection that serves as a comprehensive, interactive resource to help users recognise and navigate the concepts and frequent issues and pitfalls in executing documents, including the witnessing of signatures. Each stage or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For further details, see: Execution collection. Witnessing What is the difference between witnessing and attestation? Witnessing is the act of observing the execution of a document. Attestation adds the further step of noting, on the document itself, that the witness has seen the...
Dissolution A limited partnership established under the Limited Partnerships Act 1907 ( LPA 1907) may come to an end by its: dissolution, or insolvency Much of the legal framework applicable to general partnerships under the Partnership Act 1890 ( PA 1890), alongside relevant case law, also extends to limited partnerships and is drawn upon throughout this note. This Practice Note outlines what ‘dissolution’ entails for a limited partnership. With effect from 6 April 2017, the LPA 1907 was amended by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017, SI 2017/514 ( LRO). HM Treasury first released a draft of the LRO in January 2017, accompanied by an explanatory document. The LRO followed a government consultation that opened in July 2015 and closed in October 2015, proposing updates to UK limited partnership legislation to make these structures more effective vehicles for private equity and...
Effect of IVA on unsecured creditors The consequences flowing from approval of an individual voluntary arrangement ( IVA) are set out in section 260(2) of the Insolvency Act 1986 ( IA 1986). Under that provision, once an IVA is approved it: is deemed to have been made by the debtor at the moment the creditors decided to approve the IVA proposal; and binds, as if they were a party to the arrangement, every person who, in accordance with the rules, was entitled to vote when the creditors decided to approve the proposal, or who would have been so entitled had they received notice of it. An IVA becomes operative by creditor approval alone—no court order is required to bring it into effect. In legal terms, the arrangement operates as though a consensual agreement had been concluded between the debtor and each creditor at the time of...
Central to bankruptcy legislation is the principle that a bankrupt yields up their estate for the benefit of creditors in exchange for protection against those creditors' claims. The consequences of discharge are prescribed by section 281 of the Insolvency Act 1986 ( IA 1986), which, for these purposes, sets out the relevant effect. Discharge frees the bankrupt from all bankruptcy debts recognised by law. A bankruptcy debt covers any sum or liability to which the bankrupt is subject when the bankruptcy order is made, or to which they become subject afterwards as a result of an obligation assumed before the order, together with any interest accruing on those sums. This can, for instance, encompass unsecured guarantees given by the bankrupt before the order was made, even if the principal debtor is not in breach of its obligations. That said, as outlined below,...
Directors are the agents of a company who manage its day-to-day business and owe a number of duties to it The Companies Act 2006 ( CA 2006) for the first time put into statute a range of common law and equitable duties that had evolved through court decisions over hundreds of years, and it also altered company law in specific respects. Sections 171 to 177 CA 2006 set out the statutory general duties owed by a director to their company: act in line with the company’s constitution and exercise powers only for the purposes for which they were given act, in good faith, in the way the director believes would most likely promote the company’s success for the benefit of its members as a whole, while having regard to various matters (the duty to promote the success of the...
Miscellaneous fees applicable to all insolvency processes Court fees are due when initiating certain insolvency procedures and throughout an insolvency, typically for defended actions against respondents brought by insolvency practitioners. Below we outline the present court fees payable across a range of common situations arising in insolvency work. This Practice Note does not cover the fees for claims brought under CPR 7 or CPR 8. The applicable fees are prescribed by the Civil Proceedings Fees Order 2008, SI 2008/1053, as amended, most recently by the Court and Tribunal Fees ( Miscellaneous Amendments) Order 2025, SI 2025/351, with effect from 8 April 2025. The numbers shown in the left-hand columns of the tables below correspond to the paragraph numbers in the Schedule to the Civil Proceedings Fees Order 2008, SI 2008/1053. Cheques must be made payable to ‘ HM Courts & Tribunals Service’ or ‘ HMCTS’. If there is any...
Part 26A restructuring plans ( RPs) Since 26 June 2020, Part 26A restructuring plans ( RPs) have been in force by virtue of the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Section 7 and Schedule 9 of CIGA 2020 inserted a new Part 26A into the Companies Act 2006 ( CA 2006), entitled ‘ Arrangements and Reconstructions for Companies in Financial Difficulty’. The framework for their use is informed by: the applicable Practice Statement (see Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)); and the Explanatory Notes, which are admissible to assist with interpretation without any need to show that the legislation is ambiguous or unclear (per Snowden J, as he then was, in Re Virgin Atlantic Airways, applying Re Flora v Wakom ( Heathrow) Ltd). These RP provisions represent a permanent reform of the UK’s...
Popular documents
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 ]...
Discover more from LexisNexis
