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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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The Insolvency Act 1986, s A1 ( IA 1986) The Insolvency Act 1986, s A1 ( IA 1986) sets out a mechanism allowing directors of insolvent companies, or those likely to become insolvent, to secure a moratorium. The initial period is a 20 business day period, with scope for extension in defined circumstances. The regime is underpinned by the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 1A.1. Its purpose is to give otherwise viable businesses breathing space to reorganise or attract fresh investment without the pressure of creditor enforcement. The statutory architecture for this moratorium was added to IA 1986 by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), expedited in response to the coronavirus pandemic. An insolvency practitioner acts as ‘monitor’, supervising compliance, while the directors continue to manage day-to-day operations, albeit within...
What is a moratorium? Part A1 of the Insolvency Act 1986 ( IA 1986) sets out a mechanism by which directors of companies that are insolvent, or at risk of becoming insolvent, may obtain a moratorium. The moratorium runs for an initial period of 20 business days and can be extended in several ways: by the directors with or without creditors’ consent, by the court on the directors’ application, while a proposal for a company voluntary arrangement ( CVA) is pending, and by the court in other proceedings. Its purpose is to give viable businesses time to restructure or source new investment without certain creditor action. Oversight is provided by an insolvency practitioner acting as a ‘monitor’, although the directors continue to run the business day to day (a...
This Practice Note outlines key points to bear in mind when someone intends to start a claim against a company subject to a company voluntary arrangement ( CVA). It does not address the process for placing a company into a CVA, the overall impact of a CVA, or the avenues for challenging one. For further reading on these areas, see: Practice Note: In what circumstances can a CVA be proposed and by whom? Practice Note: The CVA proposal and procedure Overview: Company voluntary arrangements Practice Note: Proprietary claims Practical issues to consider before bringing a claim against a company subject to a CVA Is the claimant bound by the CVA? The initial question for any claimant is whether they are bound by the CVA’s terms and, as a result, are likely prevented from pursuing a claim. In broad terms, a...
Introduction This Practice Note sets out a concise outline of the applicable tests for cashflow and balance sheet insolvency under section 123 of the Insolvency Act 1986 ( IA 1986). It focuses, in particular, on the position in light of the Supreme Court’s leading judgment in BNY Corporate Trustee Services v Eurosail- UK 2007-3BL (the Eurosail decision)... The two tests IA 1986, s 122(1)(f) permits the court to wind up a company that cannot meet its debts (see Practice Note: Compulsory liquidation—issuing a petition). Under IA 1986, s 123(1)(e), a company is deemed unable to pay its debts if it is proved to the court’s satisfaction that it cannot pay debts as they fall due (the ‘cashflow insolvency’ test). In addition, under IA 1986, s 123(2), a company is likewise deemed unable to pay its debts if it is proved to the court’s...
When a chargeholder reviews how to enforce security granted by a company, they will usually weigh two principal routes: appointing a fixed charge/ LPA receiver or appointing an administrator. The eventual choice will be driven by a mixture of legal and commercial considerations. This Practice Note sets out some of the main distinctions between the two routes that might influence which route is selected. For guidance on the circumstances in which the chargeholder can make such appointments, see Practice Notes: administrator—see Practice Notes: Out-of-court administrator appointments—who can appoint and in what circumstances? and Court appointments—who can apply and in what circumstances? receiver—see Practice Note: Procedure relating to appointment of LPA or fixed charge receiver(s) Where floating charges were created before 15 September 2003, the chargeholder may, in narrowly defined situations, appoint an administrative receiver. For more detail, see Practice Notes: Procedure relating to the...
A pre-pack administration sale—some basic principles A pre-pack is the pre-arranged sale of a company’s business, assets, or both, executed immediately after the company enters administration. On appointment, the administrator finalises the deal swiftly to avoid the expense of trading in administration. This route is often chosen to preserve value where the glare of a formal insolvency could depress asset prices, notably goodwill. The buyer is lined up and the sale terms settled before appointment, though the intended administrator is typically involved beforehand. Compared with a conventional corporate disposal, pre-packs involve markedly less due diligence. Warranties and guarantees are uncommon to non-existent, and assets are transferred on an as-seen basis (for an illustrative administration sale agreement, see Precedent: Asset purchase agreement—administration sale). Independent, formal valuations of assets and goodwill are required, and any bid must align with those valuations......
This Practice Note explains what occurs to a lease when it is disclaimed, and considers the consequences for landlords, tenants, sub-tenants, former tenants and guarantors, together with the effect of a vesting order... Effect of disclaimer A liquidator or trustee in bankruptcy may disclaim onerous property and contracts. Where a tenant is insolvent, a lease of trading premises will typically be onerous, with unpaid rent forming part of the tenant’s debts and duties... For the steps involved in a disclaimer, refer to the Practice Note on the process by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986... When a liquidator or trustee disclaims, the tenant’s rights, interests and liabilities under the lease cease from the date of disclaimer. If the tenant alone holds any interest or bears liability in relation to the lease, it ends entirely for all...
The sequence for distributing assets in a winding up, after secured creditors (other than holders of floating charges) have realised their security for themselves, is expressly set out in the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Fixed charge holders Sums realised from assets subject to a fixed charge, as granted, are payable to the fixed charge holder, subject to deduction of the liquidator’s costs of realisation. A security that began life as a floating charge but has converted into a fixed charge, e.g. through crystallisation or a notice of conversion prior to the relevant date in IA 1986, s 387, ranks behind preferential debts. Moratorium debts and priority pre-moratorium debts The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) inserted Part A1 into IA 1986, introducing a procedure allowing directors of...
General The most recent iteration of the PDIP took effect on 3 July 2020. It supersedes earlier practice directions, practice statements and practice notes concerning insolvency proceedings, except for: the Corporate Insolvency and Governance Act Practice Direction of 3 July 2020 the Temporary Insolvency Practice Direction of 6 April 2020 the Practice Statement for schemes of arrangement concerning Part 26A of the Companies Act 2006 of 30 June 2020 It leaves the Practice Direction: Directors’ Disqualification Proceedings unaffected and should be read alongside insolvency legislation. The PDIP comprises seven sections: part one — general provisions part two — company insolvency part three — personal insolvency part four — appeals part five — Financial Markets and Insolvency ( Settlement Finality) Regulations 1999 ( Financial Markets Regulations), SI 1999/2979 part six — applications concerning the...
Immediately after the trustee in bankruptcy (trustee) is appointed, the bankrupt’s estate passes to them, and the bankrupt’s assets—often led by their home—typically represent the most significant part of the estate. On taking office, the trustee’s overriding objective is to protect and realise the value of the bankrupt’s share in any property so that bankruptcy creditors receive the proceeds in the bankruptcy estate......
This Practice Note outlines the required contents of a Part 36 offer, identifies to whom the offer must be directed, and highlights the additional stipulations for a defendant’s Part 36 proposal. It also explains how to make a Part 36 offer confined to part of the claim or focused on a specific issue within the claim. The Note addresses offers in proceedings with multiple parties, the need for a relevant period of at least 21 days, and the treatment of interest. It further considers situations involving a litigant in person, as well as the inclusion of a non-monetary element within a Part 36 offer... What a Part 36 offer must include A compliant Part 36 offer does not have to be presented in a letter; a party may instead use Form N242A ( CPR PD 36, para 1.1)......
River Island Holdings Limited sought approval for a Part 26A restructuring plan ( RP), with the convening hearing held in July 2025 and the sanction hearing following in August 2025. The principal points are outlined below; capitalised expressions not otherwise defined take the meanings given in the sanction judgment. See Re River Island Holdings Limited [2025] EWHC 2047 ( Ch) (convening) (not reported by Lexis Nexis®). This Deal Debrief sits within our Restructuring plans toolkit. For an in-depth review of key metrics from RPs filed in 2024, together with commentary from leading figures in the restructuring community, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024. Name of plan company River Island Holdings Limited (the Company) Industry sector Retail Place of debtor’s incorporation and jurisdictional factors England and Wales, together with a Deed of Contribution dated 20 June 2025......
Poundland Limited sought a Part 26A restructuring plan ( RP), with a convening hearing in July 2025 and a sanction hearing in August 2025. The principal points are set out below (capitalised terms not explained here have the meanings in the convening and sanction judgments). This Deal Debrief forms part of our Restructuring plans toolkit. For an in-depth review of the key metrics from RPs submitted in 2024, plus commentary from leading figures in restructuring, see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024. Name of plan company Poundland Limited (the Company) Industry sector Retail Place of debtor’s incorporation and jurisdictional factors The Company was incorporated in England and Wales......
Practice Note This Practice Note explores key issues for administrators concerning their personal liability and outlines steps they may take to reduce their exposure. From a commercial perspective, this is a matter of real importance for office-holders. In this context, commercial realities matter greatly. Such considerations remain central for these office-holders in practice. They have no duty to accept any given appointment. On accepting office, they do so to perform work for fair remuneration and, though they acknowledge the demands of their professional work, they are not in the business of guaranteeing an insolvent company’s liabilities or assuming personal risk. This Practice Note does not address the extent of an office-holder’s liability for breach of duty (for example, the duty to exercise reasonable skill and care in the performance of their functions, Re Charnley Davies Limited ( No 2)) or liability under...
This Practice Note: sets out the key UK tax rules that apply when a fixed charge receiver disposes of assets owned by a company, and addresses the principal questions that may arise when such steps are contemplated This Practice Note considers: the function of a fixed charge receiver matters around appointment and the receiver’s accounting periods that the company under receivership continues to bear tax liabilities withholding tax implications for the receiver whether the receiver’s fees and costs are tax-deductible VAT treatment for a company in receivership points arising where the company in receivership is non- UK tax resident, and practical considerations In this Practice Note: fixed charge receivers are referred to simply as receivers the company means the company whose charged assets are being sold the appointor denotes the creditor (or mortgagee) appointing the receiver, and it is assumed the receiver, the company and the appointor are unconnected and there is no tax avoidance...
Scots contract law Although they have separate origins, Scots contract law has, in many respects, drawn closer to the English position. English-law notions such as undue influence and anticipatory breach have been taken into Scots contract law, and some leading authorities coincide across both systems. Nonetheless, there remain important differences that it is sensible to keep in view. The aim of this Practice Note is to point out some of the key differences between Scots and English contract law in these areas......
This Practice Note examines the statutory route for presenting a winding-up petition on the just and equitable basis under section 122(1)(g) of the Insolvency Act 1986 ( IA 1986), explaining its nature and when it may safeguard minority shareholders’ interests. It outlines who may petition, which companies can be targeted, and the rationale for ordering a company to be wound up (including unfair prejudice). It also addresses the relevance of the petitioner’s own behaviour (such as delay) and the remedies available. For a guide to terminology used in this Practice Note—see the section below: Key terms encountered when applying for a winding-up on the just and equitable ground. For procedural guidance, see Practice Note: Just and equitable winding-up - the procedure. What is a just and equitable winding-up petition? A petition to wind up a company on the just and equitable ground is a...
The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024 set out the overarching framework for decision-making across all formal insolvency processes. Although decision procedures specifically appear in IR 2016, SI 2016/1024, Pt 15, company voluntary arrangements ( CVAs) are instead covered in IR 2016, SI 2016/1024, Pt 2. For a further general guide to decision-making, see Practice Note: Voting and creditors' decision procedures. Creditor claims There is no express statutory definition of ‘creditor’ in the Insolvency Act 1986 ( IA 1986) or IR 2016, SI 2016/1024 for the purposes of a CVA. For individual voluntary arrangements ( IVAs), the expressions ‘debt’ and ‘liability’ are each defined to embrace ‘debts or liabilities which are present or future, certain or contingent or in respect of an amount which is fixed or liquidated or is capable of being ascertained by fixed rules or as a...
What happens if a members’ voluntary liquidation fails and exit options An MVL will be regarded as having failed where it must be switched from a solvent winding up to an insolvent one. Should the liquidator, at any point in the MVL, conclude that the company will not satisfy its liabilities in full, with interest at the official rate, within the timeframe set out in the declaration of solvency, they are required to prepare a statement of the company’s affairs and, within seven days of that conclusion, circulate it to the company’s creditors together with a notice explaining the position. The relevant test is whether all debts (plus interest) can be discharged within the stated period, which cannot exceed 12 months from the date the liquidation began. It is not a test of balance sheet solvency. Once it becomes clear that payment in full within that...
This Practice Note outlines the main tax implications where a company implements a company voluntary arrangement ( CVA) under Part I of the Insolvency Act 1986 ( IA 1986) A CVA might come after a formal insolvency procedure—typically an administration and, in some cases, a liquidation—acting as a route out of that procedure, or it can proceed in parallel while the insolvency continues. For further detail on tax issues arising in an administration, see Practice Note: Key tax consequences of an administration. For guidance on insolvent liquidations, see Practice Note: Key tax consequences of an insolvent liquidation. An arrangement can alternatively be agreed on an informal basis, by contract, between the creditor and the debtor......
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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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