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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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What are cryptoassets and why are they frequently involved in criminal activity? For the purposes of this Practice Note, we use the following meaning of a cryptoasset: information recorded on a blockchain that has been attributed particular features so that the information is treated as a stand-alone asset. For more, see Practice Note: Web 3.0, digital assets and cryptoassets-essentials. Cryptoassets exhibit qualities that make them especially prone to criminal involvement. The most significant is arguably the decentralised model and the ecosystem in which they typically operate (namely, a standard permission-less blockchain). Consider this illustration: to send money electronically, you effectively engage a third-party intermediary to carry out the transfer. That entity logs details of the transaction, most notably the identities of the payer and the payee. It will also usually be regulated and therefore obliged to monitor, report and/or deter financial crime, including money...
STOP PRESS : The Financial Conduct Authority ( FCA) has released policy statement PS25/12, setting out definitive, final rules to bolster the safeguarding regime for payment and e-money firms. Flowing from consultation paper CP24/20, these reforms seek to cut deficits in customer funds and secure swifter, more complete returns should a firm collapse. The FCA has additionally issued draft changes to ‘ Payment Services and Electronic Money— Our Approach’, which will be revised to mirror the new framework. The new rules, together with the corresponding updates to the Approach Document, come into force on 7 May 2026. ( See: LNB News 07/08/2025 11 and News Analysis: FCA’s broad proposals aim to protect customer funds). Ipagoo decided that the Electronic Money Regulations 2011 ( EMRs 2011), SI 2011/99 do not impose a statutory trust over relevant funds; rather, they instead confer a...
This Practice Note sets out Q& As on liability management exercises ( LMEs) and liability management transactions ( LMTs), with emphasis on loan and credit agreements. For discussion of liability management in respect of investment grade bonds, see Practice Note: Liability management of bonds. What is an LME? The label LME can cover several different concepts. In summary: For the purposes of this Practice Note alone, and for clarity: LMEs include LMTs; LMEs describe a borrower using flexibility in the finance documents (sometimes inadvertently granted by lenders) to reshape its capital structure, thereby obtaining additional and/or cheaper debt or lowering leverage; and LMEs do not involve any formal or court-led restructuring tools or processes (eg Part 26A restructuring plans ( RPs) or Part 26 Schemes of Arrangement) and are therefore a form of out of court restructuring. Commonly, the debtor and a small cadre of...
Practice Note and IA 1986 This Practice Note uses the Insolvency Act 1986, abbreviated as IA 1986. The table outlines the main corporate insolvency procedures from a dispute resolution perspective. Administration A short-term measure for a company facing financial distress. The purpose is to give the administrator time to attempt a rescue, pursue a restructuring, or deliver a better return for creditors than an immediate winding up. Appointment: effected out of court by a qualifying floating charge holder, the company’s directors or the company itself, or by court order (an administration order). Combination: administration can operate alongside a company voluntary arrangement ( CVA) or a scheme of arrangement. Effect on proceedings: entry into administration imposes a broad moratorium on court proceedings and legal processes, covering proceedings, execution and distress. It applies to both existing and new proceedings, which may only continue or be...
Role The role of credit rating agents ( CRAs) is to deliver an independent, analytical view of the likelihood of payment default, by assessing multiple factors that guide investors on whether to commit to specific securities. Capital market investors are highly sensitive to risk, and some are constrained by their internal constitutional documents from investing in lower grade instruments. As a rule, the greater the investment risk, the higher the return (interest/coupon) demanded by investors. Ratings may apply to both the company issuing the instruments and the instruments themselves. An issuer’s debt can be rated apart from the issuer, for example where the issuer is a special purpose vehicle created solely for the issuance, or where the debt benefits from credit enhancements (eg a guarantee) that lift it above the issuer’s own standing rating. For example, the following can be rated: the issuer senior...
This Practice Note highlights key authorities and related material concerning section 365 of the Insolvency Act 1986 ( IA 1986). That provision permits search and seizure in respect of property within a bankrupt’s estate, and any books, papers or records about the estate or the bankrupt’s affairs that are required to be delivered up to the office-holder. The cases are grouped by topic and cover: the bankrupt’s duties content of the application full and frank disclosure test to be applied the order safeguards the warrant For further reading on this subject, see the following Practice Notes: Basic principles-the delivery-up of information and property to the insolvency office-holder Seizure of a bankrupt’s property under section 365 of the Insolvency Act 1986 The bankrupt’s duties Names of parties: Re Djurberg (a bankrupt); Hyde v Djurberg [2022] EWHC 1534 ( Ch),...
What is a rescue buyout? A company or business in a rescue scenario is typically facing potential financial strain, for example when it: has a short-term inability to meet its debts, or lacks capital or alternative finance to support medium to long-term development In private equity terms, following the 2007–2008 credit crunch, many funds actively sought to acquire troubled companies, with the intention of engineering turnarounds and folding them into their portfolios. This sort of distressed investment is counter-cyclical and can be a practical way to spread risk and balance exposure within a portfolio. By contrast, incumbent private equity investors backing distressed businesses could themselves become targets if a portfolio company moved into the ‘zone of insolvency’. The following types of company are commonly viewed as suitable for turnaround by private equity firms, in particular those that: need operational and financial...
This Practice Note This Practice Note collates relevant judgments on the National Security and Investment Act 2021 ( NSIA 2021) and monitors transactions where the UK government has stepped in on national security grounds......
This Practice Note sets out the function of a notary, the process for notarising a document, and the concept of legalisation. For further detailed guidance, consult the following Practice Notes: notaries notarisation legalisation We have assembled a comprehensive, interactive collection to assist users in identifying and navigating concepts and recurring issues arising on the execution of documents. Each stage includes Practical Guidance, Precedent Clauses and Q& As tailored to that phase. For more details, see: Execution collection. Notaries A notary is a qualified lawyer whose principal role is to authenticate and certify signatures and documents, whether intended for use overseas or as certified copies. Notaries also administer and take oaths and affirmations, and may undertake certain reserved activities under the Legal Services Act 2007, including commercial and property matters, as well as family and private client work (but not...
This Practice Note outlines what a statutory demand is and what it is intended to achieve in corporate and personal insolvency, assuming the debtor is located in England and Wales. The statutory demand—the general position A statutory demand (in both corporate and personal contexts) is a formal request for a debt—either immediately payable or due at a specified future time—served on the debtor by one or more of their creditors. Across both regimes, if the debtor, within 21 days of service, does not pay the sum, does not satisfy it or provide security to the creditor’s satisfaction, or does not take the proper steps to stop the creditor acting further upon it, a presumption of insolvency arises on an inability to pay basis in respect of the debtor. Where the debtor is an individual, an unanswered statutory demand supplies a creditor with one of only two bases on which a...
Company voluntary arrangement ( CVA) A company voluntary arrangement ( CVA) is a binding contract between a company and its creditors. A CVA proposal must include one or both of the following: paying a lump sum instead of a larger debt or other obligation; and/or providing for less than the full release or discharge of creditors’ debts However, a CVA cannot be used to change the rights of secured creditors, or to alter a preferential creditor’s priority, unless the affected creditors agree. For any CVA put forward within 12 weeks of the end of a moratorium under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), the holders of any unpaid moratorium debts and priority pre‑moratorium debts effectively have a veto: neither the company nor the creditors may approve the CVA unless those debts are paid in full, unless the creditors consent; CIGA 2020, Sch 3,...
This Practice Note outlines leading cases and related materials on obtaining the company’s property, books, papers or records under section 234 of the Insolvency Act 1986 ( IA 1986). The cases are grouped by subject area and cover: the applicant getting in the company’s property disputes over ownership the court’s discretion office-holder immunity For more detail on this area, see Practice Notes: Basic principles—the delivery-up of information and property to the insolvency office-holder Getting in the company’s property under section 234 of the Insolvency Act 1986 The applicant Smith ( Administrator of Cosslett ( Contractors) Ltd) v Bridgend County Borough Council [2001] UKHL 58, [2001] All ER ( D) 118 ( Nov) (8 November 2001): IA 1986, s 234 provides a swift, summary mechanism enabling an office-holder to fulfil their functions and gather assets that the company appears...
This Practice Note sets out the principal tax considerations where creditors move to enforce security over the assets of a distressed company or corporate group. Related Practice Notes in this series address tax issues concerning: acquisitions of distressed debt, and debt restructurings (ie waivers, debt/equity swaps or renegotiations) In addition, Tax and distressed debt—checklist of points to consider distils the main tax points to bear in mind when dealing with distressed debt in general. This Practice Note reviews the enforcement routes open to creditors of troubled businesses and the consequences that may follow. For a detailed look at the loan relationships provisions on debt releases, see: Loan relationships—impairment and debt releases Loan relationships—impairment and debt releases: connected companies Types of enforcement As explained in Practice Note: Tax and distressed debt—debt restructurings, lenders will frequently engage in a...
The Pensions Regulator (the Regulator) The Regulator is an arm’s-length public body set up under the Pensions Act 2004 ( Pe A 2004). Its authority to impose contribution notices and financial support directions appears in Pe A 2004, ss 38–50. Although the Act does not use the label, these provisions are widely known as the Regulator’s ‘moral hazard’ powers. Their purpose is to counter the ‘moral hazard’ arising from the Pension Protection Fund ( PPF): the possibility that corporate groups might organise their structures so as to heighten exposure within their pension schemes, comfortable that the PPF would intervene if the employer entered insolvency. The principal moral hazard tools—and the only ones exercised so far—are the power to issue a contribution notice ( CN) and the power to issue a financial support direction ( FSD). A CN compels the recipient to pay a...
This Practice Note explores the Hague Convention on Choice of Court Agreements and how it operates when enforcing a court judgment or a judicial settlement. It addresses what counts as a judgment and a judicial settlement, the criteria for recognition and enforcement of a court judgment, including severability, together with enforcement of non-monetary orders and judicial settlements. The Practice Note also outlines the steps for recognition and enforcement, the supporting documents needed, and points specific to England and Wales. Finally, it considers the bases for refusing recognition or enforcement under the convention. For practitioners using the Convention, an explanatory report by Trevor Hartley and Masato Dogauchi offers detailed commentary on each article. It further signposts severability within judgments and the treatment of non-monetary relief and settlements under the convention. Does the Convention...
This Practice Note outlines the insolvency regime brought in by the Technical and Further Education Act 2017 ( TAFEA 2017), the Further Education Bodies ( Insolvency) Regulations 2019 ( FEBR 2019), SI 2019/138, and the Education Administration Rules 2018 ( EAR 2018), SI 2018/1135, which took effect on 31 January 2019. TAFEA 2017 establishes the structure of an insolvency framework applying to further education and sixth form colleges in England and Wales. It also introduces a special administration regime designed to protect the interests of learners where a college becomes insolvent. Background The Further and Higher Education Act 1992 ( FHEA 1992) created a new further education sector providing full-time education for 16–18 year olds and introduced a distinct corporate legal entity, the ‘further education corporation’. The Association of Colleges reports that over 95% of institutions in the sector are either further education...
Key cases on schemes of arrangement This Practice Note summarises selected authorities and linked materials on schemes of arrangement. Matters are grouped by topic and cover: Class issues Jurisdiction/sufficient connection issues Valuation issues Scheme meeting/voting and cram-down Convening hearing/sanction hearing issues Class issues Re SWS Holdings Ltd [2025] EWHC 2690 ( Ch) (sanction) — 9 October 2025. Parallel contract: the Tap Bonds (which would have sat in Class A4) were issued after the scheme meetings and so were not caught by the schemes. However, the beneficial owners directed the security trustee to execute an amendment agreement so their terms were adjusted as if bound by the SWS Scheme (see [9]–[10]). Relevant content: Practice Note: Part 26 scheme deal debrief— SWS Holdings Limited and Greensands Financing Plc (part of the Southern Water group). Re SWS Holdings Ltd [2025] EWHC 2318 ( Ch) (convening) — 2 September 2025. To avoid a...
This Practice Note explores following and tracing and addresses several of the more challenging facets of the exercise, including tracing through chains of transactions, the idea of ‘backwards tracing’, cherry-picking in tracing (mixed substitutions), and tracing in relation to digital assets. ‘ Following’ and ‘tracing’ are not causes of action in themselves, but evidential techniques for locating and identifying assets against which a claim might be brought. See Practice Note: Proprietary remedies—following and tracing. While following and tracing can sometimes be relatively simple, there are circumstances when they are especially difficult both conceptually and evidentially. A number of these issues are set out below. Tracing and chains of transactions (inference in tracing gaps) Where funds are pursued through multiple bank accounts across separate transactions, problems can arise in proving that the money that left one account is the same money ultimately sitting in a...
This Practice Note summarises key authorities and linked materials on the duty to co-operate with an office-holder under section 235 of the Insolvency Act 1986 ( IA 1986). The cases are grouped by topic and cover: scope of the duty use of information obtained enforcement For further reading on this subject, see Practice Notes: Basic principles—the delivery-up of information and property to the insolvency office-holder Duty to co-operate with office-holder under section 235 of the Insolvency Act 1986 Scope of the duty Names of parties: Webb (as joint liquidators of Eversholt Rail (365) Ltd (in liquidation)) v Eversholt Rail Ltd [2026] EWHC 101 ( Ch) Judgment date: 22 January 2026 Case summary: Liquidators must demonstrate a reasonable need for documents or information under IA 1986, ss 235 and 236. An attempt merely to recreate the...
MVL A members’ voluntary liquidation ( MVL) is widely used and highly adaptable, with the timing and approach initially shaped by the shareholders and, once a liquidator is appointed, thereafter directed by that office-holder. It can also operate as a practical instrument within a broader plan that brings a range of companies in the group into scope. The liquidator’s steps in settling the company’s affairs are intended to offer greater certainty for all stakeholders and deliver added safeguards for directors and shareholders alike. Although an MVL will generally be more expensive than dissolution or striking off, the advantages can outweigh and justify those additional costs......
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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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