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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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STOP PRESS: ECCTA 2023 introduces identity verification for anyone submitting filings at Companies House—the reforms are expected to become compulsory in Spring 2026. For further information and indicative timing, see: Registering security at Companies House— Changes under ECCTA 2023. The scope of this Practice Note This Practice Note sets out how to register at Companies House charges created by the following entities: a company incorporated under the Companies Act 2006 ( CA 2006) (a ‘ UK company’), or a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000 ( LLPA 2000) (an ‘ LLP’) This Practice Note should be read in conjunction with the following Practice Notes: Registering security at Companies House, and Problems with registering security at Companies House—what to do next For the purposes of CA 2006, Pt 25 ( Company Charges), the term ‘charge’ includes a mortgage;...
Under the loan relationships regime, a key tenet is that a company must recognise profits and losses on its loan relationships for corporation tax in accordance with the accounting treatment applied to those relationships, provided that treatment complies with GAAP. For further detail on the overarching rules for calculating and bringing into account profits and losses on loan relationships for corporation tax, see Practice Note: Loan relationships—the tax main rules. There are, however, circumstances in which the loan relationships code requires the tax position to diverge from the profit or loss shown in the accounts. This can arise where a financial instrument within the loan relationships rules: becomes impaired, or is released (wholly or partly) In these events, the statutory position can differ from the accounting outcome shown in the profit and...
Cases in which a transfer of assets may be ordered Large insolvencies are ever more cross-border in nature. A company may maintain places of business, assets and creditors across several jurisdictions. In these circumstances, questions arise as to how the company’s assets can be most effectively preserved pending an orderly distribution to creditors, and how creditors domiciled in a particular state may be properly protected. A cost-efficient route is to have a single set of insolvency proceedings—typically in the place of incorporation—with the office-holder’s authority recognised in every jurisdiction where the company holds assets or has creditors (see Re Cambridge Gas Transportation). The strength of this approach is enhanced by relief available under the United Nations Commission on International Trade Law ( UNCITRAL) Model Law (see Practice Note: Recognition and other applications under the Cross- Border Insolvency Regulations) and, where...
A company can be struck off the register under Part 31 of the Companies Act 2006 ( CA 2006) by one of two routes available: voluntarily, by the company’s directors by the Registrar of Companies pursuant to its powers to strike off a company from the register This note summarises the voluntary strike off process. For details on the Registrar’s powers to strike off a company, see Practice Note: The Registrar's powers to strike off a company. Why apply for striking off and dissolution? Any company may apply to Companies House to be struck off the register of companies and dissolved. Some of the most common reasons a company may seek strike off and dissolution include: it is no longer in business or operation it has fulfilled the purposes for which it was incorporated its parent company is carrying out a reorganisation of its group structure and wishes to strike off and...
Introduction to common participants in the market The oil and gas sector is a major contributor to the UK economy: It supports around 152,000 jobs, both directly and indirectly It accounted for 0.8% of GDP in Q2 2015, down from a peak of 2.5% in Q2 2008 Government revenues from production in 2016/2017 were £1.2bn The UK is Europe’s second largest oil producer and the third largest gas producer Historically, the industry has been buoyant, with limited involvement from insolvency practitioners. In 2010, there were only four insolvencies in the sector. However, when oil prices fell to a record low in 2015, the number of insolvencies increased to 28 that year. Due to its maturity, the UK continental shelf is among the more expensive regions globally for oil production: before the 2015/2016 downturn, producing a barrel in the UK cost about US$40, compared with under US$5 in Kuwait. These costs have...
When a business begins to show signs of financial strain, its directors should respond promptly if they hope to deliver a successful restructuring. Timelines differ from deal to deal, and will usually lengthen where the transaction is complex, numerous stakeholders are involved, or multiple jurisdictions are in play. Nevertheless, the broader pattern is that restructurings are concluded more swiftly as participants become familiar with reviewing the range of options......
The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 On a relevant transfer, TUPE 2006 effects a statutory novation of transferring employees’ contracts: the transferee steps into the transferor’s shoes. This Practice Note outlines the rights, powers, duties and liabilities that pass, and treats the transferor’s acts or omissions as those of the transferee in relation to transferring staff. For fuller guidance on: what amounts to a relevant transfer under TUPE 2006, see Practice Notes: TUPE—business transfers and TUPE—service provision changes who counts as transferring employees, see Practice Note: TUPE—transfer of employees the duty to inform and consult about a relevant transfer, see Practice Note: TUPE—information and consultation how TUPE 2006 protects transferring staff against contractual variations and dismissal, see Practice Notes: TUPE—variation of contract terms and...
FORTHCOMING CHANGE: A government consultation held from 16 May 2024 to 11 July 2024 invited feedback on several proposals, notably: (1) to ‘reaffirm’ that protection under TUPE 2006 applies only to employees and not to ‘limb (b)’ workers, in order to dispel ‘uncertainty’ arising from the 2019 employment tribunal ruling in Dewhurst v (1) Revisecatch Ltd t/a Ecourier (2) City Sprint ( UK); and (2) to remove the requirement to divide employees’ contracts between different employers when an undertaking is split between more than one incoming business. For added detail, see: Employees defined, below, under the heading ‘ Proposals for reform’, and Two or more transferees, or transfer of only part of a business, below, under the heading ‘ Proposals for reform’. In October 2024, the Labour government’s policy paper Next Steps to Make Work Pay confirmed it would open a call for evidence to take a...
Trustee in bankruptcy’s remuneration The trustee in bankruptcy (trustee) will typically seek payment of their fees from the estate. A trustee’s remuneration constitutes a bankruptcy expense, payable in the order of priority set by the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, before any return is made to creditors. If the estate does not suffice to meet the trustee’s remuneration, and the trustee has applied skill and labour to assets the bankrupt held on trust for third parties, the trustee may, in some circumstances, obtain payment for that work from those trust assets. That, however, depends on the court’s discretion (see Re Berkeley Applegate). In Bell v Birchall, the court declined to permit a trustee of a bankrupt solicitor’s estate to recover his costs and expenses already incurred—and to be incurred—in relation to storing the...
What is a security agent? The security agent plays a pivotal role in syndicated transactions. In a syndicated loan, the security agent (often referred to as the ‘security trustee’) holds the transaction security on trust for the lenders and any other secured creditors, including hedging counterparties. Although commonly labelled a security agent, the function is not an agency role but a trusteeship. Using a trust structure to hold the transaction security offers significant benefits in syndicated lending, where the creditor group usually shifts over time as lenders transfer their loans to new lenders (see Practice Note: Introductory guide to loan transfers). The key advantages are as follows: the trust structure removes the need for security to be granted separately to each creditor, which can be costly and time‑consuming; and the security is vested in the security trustee for the benefit of the...
A moratorium under Part A1 of the Insolvency Act 1986 ( IA 1986) is a debtor in possession procedure. Although directors continue to manage the company’s affairs, an insolvency practitioner, serving as the monitor, oversees the moratorium. For further reading on moratoria, see the following Practice Notes: Moratorium—an introductory guide Moratorium Moratorium extension and termination Officer of the court The monitor appointed in a moratorium is an officer of the court. In that role, they must observe the Ex parte James duty to act with honesty and fairness. In Lehman Brothers Australia Ltd (in liquidation), the Court of Appeal confirmed that the fairness test is objective, and that the principle from Ex p James is that the court will not permit its officers to behave in a way which, though lawful and consistent with enforceable rights, fails to meet the standards that...
This Practice Note outlines: the principal corporation tax consequences when a UK‑incorporated company enters administration in the UK; and certain other tax considerations that may arise during the course of the administration Administration is a highly adaptable procedure and has become a popular means of addressing, and in many instances rescuing, insolvent businesses. It provides breathing space to enable a rescue or a restructure, or to achieve a better outcome for all creditors than would be possible on liquidation. Administration is an entirely statutory process. When reforms were introduced by the Enterprise Act 2002 ( En A 2002), inserting Schedule B1 into the Insolvency Act 1986 ( IA 1986) for administration, HMRC also brought in specific tax rules to cover certain matters, although these are not comprehensive. For fuller discussion of the administration process, see:...
At a convening hearing in January 2022 and a sanction hearing in March 2022, Smile Telecoms Holdings Limited sought court approval for a second Part 26A restructuring plan ( RP), coming after a prior plan sanctioned in March 2021 (see Smile Telecoms Holdings Limited [2021] EWHC 685 ( Ch) and Practice Note: Part 26A restructuring plan deal debrief— Smile Telecoms Holdings Limited (first plan)). The principal points are outlined below (capitalised terms not otherwise defined adopt the meanings in the convening and sanction judgments). This deal debrief sits squarely within our Restructuring plans collection. For granular analysis of 2023 RP filings and commentary from leading figures in restructuring, please refer to Practice Note: Market Insights Trend Report—trends in Part 26A restructuring plans in 2023 [ Archived]. Name of plan company Smile Telecoms Holdings Limited (the Company) Industry...
What is a Bankruptcy Restriction Order? When a person is made bankrupt (sequestrated), they are bound by restrictions under the Bankruptcy ( Scotland) Act 2016 ( Ba( S) A 2016) and other related legislation. Ordinarily, twelve months from the start of sequestration, the debtor is discharged and the limitations that apply to undischarged bankrupts no longer apply. A Bankruptcy Restriction Order ( BRO) can be imposed on a debtor following an application to the Accountant in Bankruptcy ( Ai B) (see Practice Note: Scotland: the Accountant in Bankruptcy) or to the Sheriff, and it maintains restrictions after discharge from sequestration. For commonly used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. Effects of a BRO A BRO places ongoing restrictions on the debtor for the period stipulated in the order. The Ba( S) A 2016 does not provide a...
Introduction In practice, the expression ‘set off’ in Scotland is used as a catch‑all for mechanisms that permit a debtor to resist, in whole or in part, a payment claim by relying on obligations due to them from the creditor. The debtor may invoke three principles to their advantage: compensation retention balancing of accounts in bankruptcy Compensation Compensation denotes the rule that where each party owes the other liquid sums, the larger debt operates to extinguish the smaller, leaving the surplus payable to the holder of the larger claim. The rule is set out in the Compensation Act 1592. The Act excludes illiquid debts and contingent claims, and confines set‑off to debts that are (a) liquid, (b) immediately verifiable by writ or by oath, and (c) pleaded before judgement is pronounced. As a result, concursus debiti et crediti is required: the parties must act in the same...
Introduction and background The Bankruptcy ( Scotland) Act 1985 ( B( S) A 1985) took effect in 1986 and laid out, in detail, the processes for managing sequestration ( Scottish bankruptcy). When the Insolvency ( Scotland) Rules 1986, SI 1986/1915, were issued shortly afterwards for corporate insolvency in Scotland, they drew upon the newly enacted B( S) A 1985 provisions and tailored them for liquidation, particularly for adjudication of claims, accounting periods, and approval of the liquidator’s remuneration. Accordingly, the 1986 liquidation rules directed readers to the relevant parts of B( S) A 1985, with instructions to read ‘liquidation’ for ‘sequestration’ and ‘liquidator’ for ‘trustee’. With the advent of the ‘new’ administration regime in 2003 under the Enterprise Act 2002, the administration rules covering adjudication of claims, accounting periods and approval of the administrator’s remuneration simply...
For guidance on how Brexit affects Scottish procedure, refer to Practice Note: Table showing impact of Brexit on jurisdiction to commence insolvency/restructuring proceedings and obtain recognition in other EU Member States... The Insolvency ( Scotland) ( Company Voluntary Arrangements and Administration) Rules 2018, SI 2018/1082, alongside the Insolvency ( Scotland) ( Receivership and Winding up) Rules 2018 ( ISRWUP Rules 2018), SSI 2018/347, came into effect on 6 April 2019. This Practice Note is drafted by reference to those provisions (with the ISRWUP Rules 2018, SSI 2018/347 being the ones particularly pertinent here). It does not consider transitional provisions, on the basis that only a small number of cases are expected to remain where such measures would still apply... As in England, the appointment of a provisional liquidator is regulated by section 135 of the Insolvency Act 1986 ( IA 1986) and is pursued while the court...
This Practice Note addresses insolvent partnerships and limited partnerships in Scotland, by which is meant—for the purposes of this Practice Note— Scottish Partnerships comprising: ordinary partnerships with their main place of business in Scotland; and limited partnerships entered on the Companies House register in Scotland as a Scottish LP ( SLP). This Practice Note does not extend to limited liability partnerships ( LLPs) registered in Scotland, which are dealt with in the same manner as companies for corporate insolvency purposes. However, insolvencies of Scottish LLPs continue to be governed by the Insolvency ( Scotland) Rules 1986, SI 1986/1915. Consequently, the relevant 1986 prescribed forms still apply when handling Scottish LLPs, rather than prescribed content under the applicable 2018 Scottish rules used for corporate insolvencies (for more information, see Practice Notes on Scottish compulsory liquidation: Scotland: compulsory liquidation, Scottish creditors' voluntary...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020), effective from 26 June 2020, removes the small-company moratorium under Schedule A1 to the Insolvency Act 1986 ( IA 1986), replacing it with a new standalone moratorium. For more detail, see Practice Note: Corporate Insolvency and Governance Act 2020—moratorium and News Analysis: Corporate Insolvency and Governance Act 2020—company moratorium ( Scotland). The Insolvency ( Scotland) ( Company Voluntary Arrangement and Administration) Rules 2018 ( ISCVAAR 2018), SI 2018/1082, were laid before the UK Parliament on 15 October 2018 and came into force on 6 April 2019. The Insolvency ( Scotland) ( Receivership and Winding Up) Rules 2018 ( ISRWR 2018), SSI 2018/347, were laid before the Scottish Parliament on 14 November 2018 and likewise commenced on 6 April 2019. The existence of two rule sets reflects the devolved settlement and the...
Reviews in insolvency proceedings A review in insolvency proceedings is the court’s reconsideration of an order it has already made. The review mechanism, available in both corporate and personal insolvency, permits a determination to be looked at again either by the judge who issued it (see Official Receiver v Bathurst) or by a different judge (see Re W & A Glaser Ltd). The authority to revisit orders is a feature particular to the insolvency court. For corporate insolvency, the power appears in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 12.59(1), which provides that the corporate insolvency court may review, rescind, or vary any order it has made when exercising its jurisdiction. The equivalent in personal insolvency is section 375 of the Insolvency Act 1986 ( IA 1986). That provision, mirroring the corporate regime, states that the court may...
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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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