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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 sets out practical guidance on the correct execution of simple contracts and deeds by administrative receivers... Quick view The summary below outlines the execution formalities relevant to administrative receivers and points to the location of matching precedent execution clauses. For more detail, navigate to the document type using the links in the first column... Document type: Simple contracts By the company ( Companies Act 2006, s 43(1)(a)): Using the company’s common seal, applied by the administrative receiver under the power in the debenture under which they are appointed — Execution clause—administrative receiver—contract ( Option 2). By the administrative receiver’s signature under the power granted in that debenture, signing in the presence of a witness — Execution...
Need for valuations The valuation test sits at the heart of deciding (i) whether a restructuring plan ( RP) forced on dissenting classes via cross-class cramdown ( CCCD) is fair, and (ii) what outcome the relevant alternative would produce for creditors/members if the RP is not approved. When the RP mechanism was introduced through the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), the government acknowledged that valuation is frequently a flashpoint in restructurings (see Practice Notes: Types of valuation for R& I lawyers and Where the value breaks and negotiating strength). The design aims to strike the best possible equilibrium between safeguarding creditors’ interests and limiting disputes. In practice, the government considered that, in many situations, ongoing dialogue and bargaining between a company and its creditors would narrow gaps in perceived value of the company sufficiently to avoid challenges. The...
Background to Financial Services and Markets Act 2023 The Financial Services and Markets Act 2023 ( FSMA 2023) delivers significant reforms to the UK’s regulatory architecture for financial services. It cancels retained/assimilated EU-derived rules in this field and empowers HM Treasury, alongside the financial services regulators, to substitute them with measures tailored for UK markets, building on the UK’s established regulatory model (see Practice Note: The Financial Services and Markets Act 2023—essentials). The accompanying Explanatory Notes explain that FSMA 2023 preserves the UK’s status as a competitive marketplace with strong regulatory standards by, among other steps, giving the Bank of England ( Bo E) new instruments to lessen risks arising from the failure of critical financial institutions. FSMA 2023 obtained Royal Assent on 2 June 2023, yet different provisions commence on varying dates, as indicated in section 86 and in subsequent...
This tracker provides a summary of the applicable legislation and guidance, and case law on the issue of out-of-court appointments of administrators and e-filing This resource distils the relevant law, guidance and authorities concerning out-of-court administrator appointments and e‑filing. Reported decisions are grouped by the route used for the proposed appointment: directors under IA 1986, Sch B1, para 22 a qualifying floating charge-holder ( QFCH) under IA 1986, Sch B1, para 14 Many issues in the cases below were addressed by the Temporary Insolvency Practice Direction Supporting the Insolvency Practice Direction 2021 ( MIPD 2021), which applies after 30 September 2021. MIPD 2021 remains operative unless amended or revoked and offers an indefinite answer to conflicting authorities on the timing of administration appointments using the CE file. From 1 October 2025, CPR PD 5C ( CE‑ File electronic filing and case...
This Practice Note cites: the Insolvency Act 1986, referred to as IA 1986, and the Companies Act 2006, referred to as CA 2006 What is a scheme of arrangement? A scheme of arrangement is a compromise, approved by the court, between a company and its creditors and/or members. Its scope can encompass any matter that the company and its members or creditors could not otherwise settle among themselves; the scheme mechanism enables such a compromise to be implemented without securing support from every interested party. Owing to their adaptable nature, schemes are frequently used in complex restructurings and have been successfully deployed in several notable restructurings, including Telewest, Tele Columbus Group and British Vita. The main benefits of schemes include: there is no requirement to establish insolvency, so steps can be taken early at the first indications of distress (and schemes can address...
What is an interim order? An interim order ( IO) is a judicial order that stops legal action from starting or continuing against a debtor intending to propose an individual voluntary arrangement ( IVA). This also prevents a creditor from presenting a bankruptcy petition. Securing an IO is no longer required to submit an IVA proposal. The IO’s role is to afford the debtor time to develop the arrangement without harassment or demands from the debtor’s creditors. It is comparable, although not identical, to the statutory moratorium that occurs within other parts of the insolvency regime, for example administration. Its purpose is to create breathing space for careful consideration of proposals without undue creditor pressure......
Part 15 of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024 sets out how decisions are taken across all insolvency procedures... General schemes of arrangement Section 895 of the Companies Act 2006 ( CA 2006) permits a company to implement a restructuring by means of a compromise or arrangement with its creditors (or any class of them), or with its members (or any class of them). Where such a proposal is made, the court may, on application, direct that a meeting of the relevant creditors or members (including any class) be convened by any of the following: the company; any creditor; any member; or a liquidator or administrator, if appointed. ......
This Practice Note outlines the process for returning a limited liability partnership to the register through an application made to the court. Why restore an LLP to the register? Where a limited liability partnership ( LLP) has been struck off, an application can often be made to the court seeking an order for restoration to the register. Reasons for doing so include: to permit a claim to be pursued against the LLP to manage property still owned by the LLP at the point of strike-off and dissolution, which has subsequently vested as bona vacantia that the Registrar removed the LLP while it was continuing to carry on business Application of CA 2006 to LLPs An LLP is a corporate body established under the Limited Liability Partnerships Act 2000 ( LLPA). In substance, most of the legal rules applying to LLPs comprise adapted company law rather than...
R& I spotlight on matrimonial law Bankruptcy specialists frequently face circumstances where bankruptcy and matrimonial proceedings unfold in tandem. In some cases, one spouse commences bankruptcy with the purpose of undermining the other spouse’s financial claims arising on divorce, or to defeat those claims. Principal legislation The Matrimonial Causes Act 1973 ( MCA 1973) sets the framework governing the divorce regime in England and Wales. It was later amended and updated by the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020), introducing the concept of ‘no fault’ divorce for fresh applications formally lodged on or after 6 April 2022. For applications initiated before 6 April 2022, divorce could proceed only where one party alleged the marriage had irretrievably broken down, relying upon ‘facts’ such as the other’s adultery, unreasonable behaviour or abandonment, or where the parties had lived apart for two years and...
What is a CVA? A company voluntary arrangement ( CVA) is a form of insolvency that permits a company to enter a binding agreement with its creditors to compromise unsecured debts or otherwise agree how its affairs are handled. The directors continue to run the business, under the oversight of an insolvency practitioner. Retailers, particularly those with extensive property portfolios, frequently adopt so‑called ‘landlord CVAs’ to reset rental commitments and shut loss‑making stores. This note outlines how property law and landlord and tenant considerations may emerge under such a CVA. It highlights provisions commonly included in CVAs and explains how they tend to work in practice. Nevertheless, each CVA will vary according to the precise terms proposed. It is therefore vital to examine the CVA proposal carefully to assess its effect on creditors. This note does not provide detailed guidance on the...
What is a CVA? A company voluntary arrangement ( CVA) is a binding deal between a company and its creditors under Part I of the Insolvency Act 1986 ( IA 1986). It is the corporate counterpart to the individual voluntary arrangement ( IVA). A company does not need to be insolvent to propose a CVA. Brought in by IA 1986, Pt VIII, the CVA was a notable innovation in corporate rescue... In contrast to IVAs, CVAs were not initially the preferred route, with administrations commonly used instead, though they later regained traction for addressing landlord’s liabilities. Since the introduction of the Part 26A restructuring plan ( RP) in 2020, some mid to large companies have used RPs to compromise leasehold liabilities rather than a CVA (see the following Practice Notes)... Part 26A Restructuring plans—an introductory guide Part 26A...
This Practice Note examines the position of a security holder with an equitable mortgage or charge over land, and focuses on powers available to effect a sale of the charged property. It relates only to registered land. Mortgages and charges over land—a recap Security over land can be taken by way of mortgage or charge. Mortgage A mortgage may take one of two forms: legal or equitable. Legal mortgage of registered land A legal mortgage of registered land (whether the estate is freehold or leasehold) is created by either: a charge by deed expressed to be 'by way of legal mortgage' (commonly referred to as a 'legal charge') (section 85(1) of the Law of Property Act 1925 ( LPA 1925) (freehold) or LPA 1925, s 86(1) (leasehold)); or a charge at law of the registered estate to secure the payment of money (section 23(1)(b) of the Land...
This Practice Note considers the ways a partnership created under the Partnership Act 1890 can be terminated through dissolution ordered by the court. A partnership may come to an end by: dissolution (see Practice Note: Ending a partnership—what is dissolution?) insolvency (see: General partnerships and insolvency—overview) Dissolution by the court Here, the focus is on dissolution of a PA 1890 partnership pursuant to a court order. For other routes to dissolve a firm, see Practice Note: Ending a partnership—dissolution otherwise than by the court. For more detail, see: Actions between partners: introduction: Atkins Court Forms Vol 29(1) [15]. Grounds for dissolution by the court Where the court orders dissolution, it is almost invariably a general, rather than a technical, dissolution (see Practice Note: Ending a partnership—what is dissolution?). Nevertheless, instead of directing a winding up with a sale of all partnership assets after...
An interactive guide from us covers restructuring plans under Part 26A of the Companies Act 2006. A restructuring plan is a...
This Practice Note presents an overview of the principal points concerning a members’ voluntary liquidation ( MVL) from a dispute resolution perspective. What is a MVL? An MVL is the procedure by which a company, via a resolution of its members, elects to cease its operations and progress towards dissolution. Throughout the process, a licensed insolvency practitioner, authorised by a recognised professional body, must be appointed as the company’s liquidator. An MVL is usually chosen where a solvent company has fulfilled its purpose and the members no longer wish to keep it as a corporate vehicle. It is also adopted where members intend to realise their investment in a solvent company. For further reading, see Practice Note: What is a members’ voluntary liquidation and when is it typically used? If the company is insolvent, an alternative route is required, such as a creditors’ voluntary...
Updated for the UK by the Practical Guidance Team. A debtor-in-possession ( DIP) is required to run the enterprise, act as a fiduciary or trustee for the bankruptcy estate, and put forward a reorganisation proposal that creditors can accept. These responsibilities are supported by the DIP’s management team, its board of directors, and appointed insolvency solicitors. Advisers should be aware that where the Bankruptcy Code refers to acts of the trustee, those provisions equally cover the DIP while the debtor controls its operations and no trustee has been installed to administer the estate. In broad terms, a voluntary Chapter 11 case proceeds through a comparable, standard sequence of steps......
Where a fixed charge receiver acts for the seller in disposing of a property, the overriding aim is a ‘clean deal’. This means that, on completion, both the receiver and the appointing mortgagee will know the exact sum due to the mortgagee after deducting sale costs and expenses, with no post-completion claims against: the receiver (and the mortgagee where the mortgagee is transferring the property—see Practice Note: Overreaching by a mortgagee) the net sale proceeds payable to the mortgagee This outcome is secured by transferring risk to the buyer and excluding the receiver’s personal liability. Sales information pack and pre-contract enquiries Buyers should recognise that, as the receiver is not the property owner and may have been appointed only recently, the receiver will hold very limited information about the asset. The position is especially challenging where the property is let and has been managed by the...
Senior lenders typically insist not only on superior security over junior creditors, but also on the juniors being subordinated to them—ie the order of claims against the borrower is altered so junior lenders accept their debts will not be settled until amounts due to the seniors have been discharged. It is likewise used to push any intra-group loan repayments behind the servicing of liabilities owed to third-party financiers. As a rule, creditors nearest the principal asset-holding entities (called ‘ Opcos’ here, though depending on the structure this might instead be a ‘ Propco’) wield the greatest influence over any restructuring/insolvency, so their ultimate dividend tends to be larger. The three main types of subordination are: contractual subordination — both senior and junior finance provided to the same borrower structural subordination — seniors fund the Opcos, while juniors lend at Holdcos level ...
R& I spotlight on environmental law What are the main laws and regulations governing this area? There are three principal sources of environmental law that an insolvency practitioner ( IP) should understand and which may give rise to personal liability for the IP. These are: contaminated land legislation (the Contaminated Land Regime) other regulatory regimes (expanded below) third party civil claims Contaminated Land Regime Local authorities have obligations under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) to: inspect their areas for contamination identify land as contaminated require clean-up where appropriate Where contaminated land is determined, the initial duty to remediate falls on Class A persons. These include: the original or later polluter— Class A ‘causers’ anyone who knowingly allows contamination— Class A ‘knowing permitters’ (ie a person aware of...
Background to the contaminated land regime (the regime) The framework for contaminated land appears in Part 2A of the Environmental Protection Act 1990 ( EPA 1990). This statutory scheme addresses the remediation of land contamination that presents an unacceptable risk to human health or the environment. Local authorities are required to determine contaminated land through a risk‑based methodology. The competent enforcing authority—ordinarily the local authority, though in specified circumstances the Environment Agency ( EA) or Natural Resources Wales ( NRW)—must locate those responsible for the pollution and compel them to investigate, evaluate and remediate the land to a state appropriate for its existing use......
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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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