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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note summarises a number of illustrative cases addressing applications for freezing injunction. It offers an overview of the array of factual settings and questions that can emerge around these orders, with a particular emphasis on rulings issued from 1 January 2025 onwards. For significant and illustrative judgments handed down before 2025, see Practice Note: Freezing injunctions—key and illustrative decisions (2020–2024) [ Archived]. Be aware that the CPR provisions governing interim injunctive relief, including freezing orders, were amended with effect from 6 April 2025. In particular, CPR 25 underwent substantial revision and the related Practice Directions, including the specimen draft freezing order formerly set out in Annex A to Practice Direction 25A, were revoked. A new model order for a freezing injunction took effect on 6 April 2025 in its place. The reforms were not designed to bring about any material change to the...
At a convening hearing held in May 2024, Project Verona Limited sought approval for a Part 26A restructuring plan ( RP). The principal points, in brief, are outlined in the summary below (capitalised terms not explained here have the meanings given in the convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. Name of plan company Project Verona Limited (the Company), a wholly owned subsidiary within a wider group (the Group) led by Tasty Plc, is the plan company. Industry sector Restaurants sector. Place of debtor’s incorporation and jurisdictional factors England & Wales jurisdiction. The Company executed a deed poll under which it accepted responsibility for certain liabilities owed by the Group......
Although every litigation funding agreement ( LFA) and the papers that sit alongside it differ by funder and the nuances of the dispute being financed, certain core points must still be tackled through the various stages of negotiation, in any event. This Practice Note forms part of a concise series by Tanya Lansky and Tets Ishikawa, Managing Directors at Lion Fish Group Ltd, intended to equip those involved in the negotiation and assessment of LFAs and related documents with clearer insight into the key considerations. Co-funding As the market has matured and inflation has pushed up funding budgets, it is now far more commonplace for funders to spread the investment exposure in any given case with one or more peers. Some funders agree to the full LFA and later novate or dispose of sub-participation interests over a portion of their exposure to other funders or...
While private sector defined benefit pension schemes ( DB schemes) have been dwindling over time, more than 5,000 such schemes still persist within the private arena, collectively covering upwards of nine million members in total. Fears about deficits and attempts by employers to sidestep obligations have notably created an intricate mix of regulation and legislation, increasingly requiring lenders and their advisers to carefully factor DB schemes in from the very start of any deal and throughout both any restructuring and any insolvency process. The Pensions Act 2004 ( Pe A 2004) empowered the Pensions Regulator ( TPR) to issue contribution notices or financial support directions to those connected to or associated with the scheme employer, ultimately rendering them responsible for providing backing or finance to underfunded DB schemes (the so‑called ‘ Moral Hazard’ powers). In addition, Pe A 2004 brought in a...
This Practice Note sets out information and practical guidance on the EU rules for non-performing loans ( NPLs), which create obligations when selling, buying or delivering credit services relating to NPLs. It provides: an overview of the regime, including why it was introduced and the dates from which it applies details of sellers’ obligations, identifying which entities are in scope and the information that must be supplied details of purchasers’ obligations an outline of the requirements placed on credit servicers The Practice Note also points out areas where the rules are uncertain. Terms shown in italics in this Practice Note are defined in the NPL Directive and explained further below. There is no equivalent legislation in the UK at present. However, the EU rules affect non‑ EU purchasers of NPLs, so they will impact the loan market and market...
Deal Debrief Fitness First Clubs Limited applied for a Part 26A restructuring plan ( RP), holding a convening hearing in May 2023 and a sanction hearing in June 2023. The principal points are set out below (capitalised terms not defined here carry the meanings given in convening and sanction judgments). This Deal Debrief sits within our Restructuring plans collection. For an in-depth review of metrics from RPs lodged in 2023, plus commentary from leading lights in the restructuring world, see Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]......
Banking regulation— Ghana— Q& A guide This Practice Note provides a jurisdiction-specific Q& A overview of banking regulation in Ghana, published within the Lexology Getting the Deal Through series by Law Business Research (law as at 10 February 2023). Authored by WTS Nobisfields— Theophilus Tawiah. 1. What are the principal governmental and regulatory policies that govern the banking sector? Over the past three years, the Bank of Ghana ( Bo G) has rolled out reforms across the banking landscape to reinforce stability and restore confidence in the financial system. As a result, a number of banks and specialised deposit-taking institutions ( SDIs) saw their licences revoked. The Bo G has confirmed that the programme of banking and SDI reforms has now concluded. That said, the Government will maintain a policy direction that introduces suitable mechanisms to reduce financial system instability and respond to emerging risks through strong...
Useful websites for restructuring & insolvency lawyers Industry bodies The Insolvency Service Institute of Chartered Accountants of England and Wales Insolvency Practitioners Association Insolvency Lawyers’ Association R3 City of London ......
Scope of this Practice Note The Financial Services and Markets Act 2023 ( FSMA 2023) originated as the Financial Services and Markets Bill ( FSMB), which was presented to the House of Commons and received its first reading on 20 July 2022. This Practice Note outlines the background to FSMA 2023, gives a high-level summary of FSMA 2023 and highlights its principal reforms. It also explains how FSMA 2023 aligns with the Retained EU Law ( Revocation and Reform) Act 2023. Background to the FSMA 2023: the implementation of financial regulatory reviews FSMA 2023 is designed to implement the conclusions of the government’s Financial Services Future Regulatory Framework Review ( FRF Review) and the regime for central counterparties ( CCPs), together with other updates to modernise the UK regulatory regime. In delivering those further updates, FSMA 2023 also seeks to implement outcomes from...
September 2021 30 September 2021: Temporary curbs on winding-up petitions and statutory demands lapse, replaced by fresh measures from 1 October 2021 (see below). See Practice Note: Corporate Insolvency and Governance Act 2020—temporary changes to corporate statutory demands and winding-up petitions [ Archived], Corporate Insolvency and Governance Act 2020 ( Coronavirus) ( Extension of Relevant Period) ( No. 2) Regulations, SI 2021/718 and Corporate Insolvency and Governance Act 2020 ( Coronavirus) ( Amendment of Schedule 10) ( No. 2) Regulations 2021, SI 2021/1091. 30 September 2021: The relaxation of eligibility criteria for companies seeking a moratorium ends ( Corporate Insolvency and Governance Act 2020 ( Coronavirus) ( Extension of the Relevant Period) Regulations 2021, SI 2021/375). 30 September 2021: Coronavirus Job Retention Scheme closes. See Practice Note: Coronavirus Job Retention Scheme (extended version 1 May to 30 September 2021) [...
Company voluntary arrangements ( CVAs) are regularly employed by companies to deliver a restructuring (see: Company voluntary arrangements—overview) and have been used to compromise landlord liabilities (see News Analysis: A hat trick of leading decisions on creditor cramdowns—treatment of landlord groups in New Look, Regis and Virgin Atlantic). The Insolvency Service’s July 2024 statistics reported that CVAs were 64% higher in June 2024 than in June 2023, though volumes still sat below historic levels. This may reflect the rising preference for Part 26A restructuring plans to compromise landlord liabilities (see News Analysis: Market Insights Trend Report—trends in Part 26A restructuring plans in 2024 and Practice Note: Part 26A restructuring plan—key cases). Case tracker Key CVA cases since January 2021 include (most recent first): Robinson Webster ( Holdings) Limited — 30 January 2026 — Lord Justice Holgate and Mr Justice Mould — A CVA cannot...
Introduction The UK ceased to be an EU Member State on exit day (31 January 2020). Pursuant to the Withdrawal Agreement, it then entered an implementation period during which EU law continued to apply. In short, EU rules continued to bind the UK throughout that interval, before the period finally ended there. That period has concluded, and the Insolvency ( Amendment) ( EU Exit) Regulations 2019 ( Brexit SI 2019/146), SI 2019/146 altered the Recast Regulation on Insolvency with effect from 11 pm on 31 December 2020, stripping out the principal operative provisions on automatic recognition. The policy underpinning Brexit SI 2019/146 was that leaving the EU should not curtail access to the UK courts (so certain jurisdictional rules are preserved), yet keeping unilaterally the substantial remainder of the EU Recast Regulation on Insolvency would have been unsuitable because it rests on...
Different definitions of COMI The phrase ‘centre of main interests’ ( COMI) frequently features in cross-border restructuring and, under the frameworks outlined below, (i) is defined in slightly varied ways and (ii) produces different consequences: Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency ( EU Recast Regulation on Insolvency) operating between Member States (see Practice Note: Recast Regulation on Insolvency as between Member States—main, secondary and territorial proceedings) (and which formerly applied to the UK pre- Brexit), where COMI determines which courts may open ‘main proceedings’; the Assimilated Regulation ( EU) 2015/848 ( Assimilated Recast Regulation on Insolvency) (previously called the Retained Recast Regulation on Insolvency) as it applies in the UK post- Brexit, where COMI governs which courts may open ‘ COMI proceedings’ (see further discussion of effects below); the UNCITRAL Model Law on...
ARCHIVED : This archived Practice Note summarises a number of key and/or illustrative cases relevant to freezing injunction applications, with particular focus on the period 1 January 2020 to 31 December 2024. It is not maintained and is for background information only. For illustrative decisions from 1 January 2025 onwards, see Practice Note: Freezing injunctions—illustrative decisions (2025). For general guidance and links to detailed content concerning freezing injunctions, see: Freezing injunctions—overview. Case details and analysis Court of Appeal Isabel dos Santos v Unitel S. A. [2024] EWCA Civ 1109 News Analysis: Good arguable case—no longer arguable in freezing order cases? ( Isabel dos Santos v Unitel) Judgment date: 30 September 2024 The Court of Appeal’s ruling in these proceedings addressed two central points relevant to applications for freezing injunctions. First, the Court of Appeal appeared to close the...
This Practice Note reviews the position under the Civil Jurisdiction and Judgments Act 1982 ( CJJA 1982) where enforcement of a foreign judgment is pursued in the courts of England and Wales, and an issue arises as to whether the judgment debtor submitted to the foreign court’s jurisdiction in the circumstances presented. The pertinent provisions of CJJA 1982, s 33 are outlined, addressing situations in which steps taken by the debtor in the overseas proceedings will not be treated as a submission to that court’s authority, and clarifying the scope of any such non-submission. Further guidance is offered on the grounds upon which a defendant might nevertheless be held to have accepted the foreign court’s jurisdiction, including: voluntary submission, submission by advancing a counterclaim, submission through an appeal on the merits of the foreign judgment, or submission by...
Cryptoassets—the basics At its most basic, cryptoassets are a type of digital currency that uses cryptography to validate transactions conducted in that currency. Functioning without a central authority, they provide near-instant, pseudonymous transfers, operating outside the conventional banking system. For further reading on the formation of cryptoassets, see: Fintech—overview Cryptoassets—overview Practice Note: Web 3.0, digital assets and cryptoassets—essentials Insolvency and restructuring in the context of cryptoassets This Practice Note examines issues an insolvency professional (including an insolvency practitioner ( IP)) may encounter when appointed to handle a cryptoasset-related insolvency. It does not address the position of cryptoassets within personal bankruptcy. Although it is broadly accepted that legal and regulatory scrutiny of cryptoassets lags behind, legislators and regulators—alert to their rapid expansion and market capitalisation—are swiftly strengthening existing frameworks or crafting new regimes. For further information, see Practice Notes: UK regulation of...
This Practice Note forms part of a wider suite of Practice Notes on airline insolvency; for additional detail, see Practice Notes: Guide to airline insolvency—introduction Guide to airline insolvency—international considerations and implications for office-holders Insolvency proceedings Commencement of insolvency proceedings concerning an airline can carry differing implications for a financier, which will turn on both the category of procedure used and the way in which it is brought. Within the UK, the processes most often encountered in airline insolvencies are administration, liquidation and receivership (acknowledging that the last is, strictly, a contractual remedy rather than a formal insolvency process). Following the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), a company may enter a standalone moratorium intended to provide limited protection from certain creditor claims and enforcement steps. To date, there have been no recorded instances of an airline entering such a...
General overview of asset sales Whether a buyer acquires assets from a solvent owner, or from a distressed seller subject to a formal insolvency process in the asset transaction context, a range of differing legal and practical issues and considerations will arise for those involved on all sides in practice. The Insolvency Act 1986 ( IA 1986) sets the rules and regulates various formal insolvency procedures affecting both corporate bodies and individuals alike in defined circumstances. In England and Wales, the principal corporate procedures are administration and liquidation in particular: if the company is in liquidation (compulsory or voluntary) and the appointed liquidator cannot sell the business as a going concern, the liquidator will realise the insolvent company’s assets—ideally as a single job lot where feasible and appropriate, otherwise piecemeal where necessary as needed—to ultimately maximise the funds available for...
Sections 242 and 243 of the Insolvency Act 1986 ( IA 1986) In Scotland, these provisions regulate the two principal forms of antecedent transaction that a company may undertake. They do not apply to individuals or to companies registered in England and Wales; for the position in England, refer to the Practice Notes on transactions at an undervalue under section 238 and on preferences under section 239 of the Insolvency Act 1986. For Scottish individual/personal debtors, consult the Practice Note on gratuitous alienations by individual debtors. For a glossary of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. Unfair preferences What constitutes an unfair preference? An unfair preference is any transaction entered into by a company, whether before or after 1 April 1986, that has the effect of giving one creditor priority over the general body of creditors ( IA 1986, s...
This is a glossary of common words and expressions used in Scottish insolvency law with the nearest England and Wales insolvency law equivalent (where relevant) Absolute insolvency Meaning: When a person’s liabilities are greater than the overall worth of their assets. Nearest English equivalent: Balance sheet insolvency. Accountant in Bankruptcy ( Ai B) Meaning: A Scottish Government agency overseeing the regulation of personal bankruptcy (sequestration and Protected Trust Deeds) in Scotland, and able to serve as trustee in sequestrations where no insolvency practitioner is appointed. It also maintains records of corporate insolvencies in Scotland (receivership and liquidations only) but does not perform the role of Official Receiver. See Practice Note: Scotland: the Accountant in Bankruptcy. Nearest English equivalent: N/ A. Accountant of Court Meaning: A court-appointed officer within Scottish Courts and Tribunals who administers funds consigned to the Accountant of Court pursuant to a Court of Session...
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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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