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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 explains Ofcom’s remit across electronic communications networks and services, radio spectrum, broadband, and online safety. Established by the Office of Communications Act 2002, Ofcom’s key functions and duties largely arise under the Communications Act 2003 ( CA 2003). With the Online Safety Act 2023 ( OSA 2023), Ofcom additionally regulates online safety, gaining further responsibilities and powers. Accordingly, Ofcom exercises regulatory oversight of: electronic communications networks, services and use of radio spectrum television and radio services, including television reception licensing and oversight of video-sharing platforms competition across communications markets online safety For guidance on Ofcom’s role under OSA 2023, see Practice Note: The Online Safety Act 2023. EU regulation and Brexit Ofcom’s creation was driven in part by EU requirements that Member States appoint a competent authority to perform tasks allocated to national regulatory authorities ( NRAs) by the...
Use of the radio spectrum in the UK, Channel Islands and Isle of Man is overseen by Ofcom under the Communications Act 2003 ( CA 2003) and the Wireless Telegraphy Act 2006 ( WTA 2006). This Practice Note sets out Ofcom’s roles and obligations in spectrum regulation, together with spectrum licensing and enforcement. Ofcom’s functions and duties In exercising its functions, Ofcom’s primary duty is to further the interests of citizens on communications matters and to further the interests of consumers in relevant markets, where appropriate by promoting competition. The electromagnetic spectrum is the span of wavelengths or frequencies across which electromagnetic radiation extends. Among other things, that duty therefore requires Ofcom to secure the optimal use of the electromagnetic spectrum for wireless telegraphy. When performing its tasks, Ofcom must, in all cases, have regard to the principles of transparency,...
This Practice Note offers practical guidance on how premium rate services ( PRS) are regulated in the UK. Its principal source is the Regulation of Premium Rate Services Order 2024 (the PRS Order), SI 2024/1046. Information, entertainment and related services delivered over electronic communications networks, with charges recovered through a user’s telephone bill, are classified as PRS and supervised by Ofcom. What are PRS? The expression ‘ PRS’ is defined in section 120(8) of the Communications Act 2003 ( CA 2003) and refers to interactive services for which a charge is imposed on a customer’s mobile or landline bill. These services can be reached by several communications methods, including SMS text, digital television, or voice calls by phone; typical examples include donating to a charity by text or ringing a chatline. Certain PRS are described as ‘controlled PRS’ ( CPRS). CPRS are regulated by Ofcom and are...
Telecommunications in the UK is governed by both sector‑specific regulation and the general framework of competition law. This Practice Note explains how Ofcom, the UK’s national regulator, undertakes market reviews of the telecoms sector, with a particular emphasis on the Physical Infrastructure and Business Connectivity Markets, and the Wholesale Fixed Telecoms Market Review. Ofcom’s powers Ofcom has powers under the Communications Act 2003 ( CA 2003) to assess defined markets, judge whether competition is effective, and impose suitable remedies where competition issues are found. Several of these powers originated in European directives transposed into UK law. The most recent is Directive ( EU) 2018/1972, which establishes the European Electronic Communications Code ( Recast), implemented in December 2020. Those powers continue to apply because the implementing measures are EU‑derived domestic legislation and now sit within assimilated law. For further detail on the European...
This Practice Note offers practical guidance on Ofcom’s General Conditions of Entitlement (the General Conditions), as published by Ofcom. Together, they constitute the overarching regulatory rules set by Ofcom that govern the provision and operation of electronic communications networks ( ECNs) and electronic communications services ( ECSs) within the UK market. Brexit The General Conditions stem from Ofcom rules based on principles from European directives, with those principles largely enacted in the UK through the Communications Act 2003 ( CA 2003). They remain in step with the European directive governing telecoms across the EU because Directive ( EU) 2018/1972—the European Electronic Communications Code—was transposed into UK law in December 2020 ahead of IP completion day (11.00 pm on 31 December 2020). The provisions implementing the European Electronic Communications Code continue to have effect and operate as assimilated law (see Practice Note:...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note is archived and no longer maintained. It addresses the scenario in which the UK and the EU do not conclude an agreement on jurisdiction following the UK’s exit from the EU. Across the implementation period starting on exit day (ie the date the UK leaves the EU), the provisions of the withdrawal agreement will apply. For guidance on the implementation period and the effect of the withdrawal agreement on jurisdiction, see Practice Note: Brexit implementation period—jurisdiction [ Archived]. The Note assesses the impact of the UK departing the EU on exit day without a deal on jurisdictional issues in UK court proceedings that involve EU Member States. Exit day has the meaning assigned by section 20 of the European Union ( Withdrawal) Act 2018, as amended......
ARCHIVED : This Practice Note addresses the scenario where the UK and the EU fail to reach any accord on settlement procedures after the UK’s departure from the EU. Throughout the implementation period commencing on exit day—the date the UK leaves the EU—the provisions of the withdrawal agreement will apply. For guidance on the implementation period and the effect of the withdrawal agreement on taking of evidence, see Practice Note: Brexit implementation period—settlement [ Archived]. This Practice Note examines the implications of the UK leaving the EU without a deal for the mediation of disputes in civil and commercial matters. There are two principal UK instruments relating to a no deal Brexit and mediation. The first is The Cross– Border Mediation ( EU Directive) ( EU Exit) Regulations 2019, SI 2019/469, which sets out the revocation and saving of the Cross Border Mediation ( EU...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note, prepared in collaboration with Guy Pendell, Liz Williams and Kushal Gandhi of CMS, addresses the scenario in which the UK and the EU do not secure an agreement on jurisdiction after the UK’s departure from the EU. Throughout the implementation period beginning on exit day—the day the UK leaves the EU—the provisions of the withdrawal agreement will apply. For guidance on that period and the withdrawal agreement’s effect on jurisdiction, see Practice Note: Brexit implementation period—jurisdiction [ Archived]. This Note considers the implications of the UK leaving the EU on exit day without a deal for jurisdictional issues in UK court proceedings that involve the European Free Trade Association ( EFTA) States that are parties to the Lugano Convention 2007, namely Iceland, Norway and...
ARCHIVED : This Practice Note addresses the position that arises where the UK and the EU fail to reach arrangements for the cross-border enforcement of judgments after the UK’s departure from the EU. During the implementation period that commences on exit day—that is, the day the UK leaves the EU—the provisions of the withdrawal agreement will apply throughout that period for enforcement. For guidance on the implementation period and the effect of the withdrawal agreement on enforcement, see Practice Note: Brexit implementation period—enforcement [ Archived]. This archived note examines, in particular, the implications of a no-deal exit for the enforcement of judgments arising from civil and commercial claims under the following instruments, namely: Brussels Convention, Regulation ( EC) 44/2001 ( Brussels I), Regulation ( EU) 1215/2012 ( Brussels I (recast)), Lugano Convention 2007 and EC- Denmark...
ARCHIVED: This Practice Note is archived and not maintained. It addresses the position at the close of the implementation period after the UK’s departure from the EU. Throughout the implementation period, which begins on exit day (ie the day the UK leaves the EU), the provisions of the withdrawal agreement apply. For guidance on the implementation period and the effect of the withdrawal agreement on service, see Practice Note: Brexit implementation period—applicable law [ Archived]. This note considers the consequences of the UK leaving the EU without a deal for deciding which law governs a dispute, ie the applicable law (also referred to as governing law). The principal UK measure addressing a no deal Brexit and applicable law is The Law Applicable to Contractual Obligations and Non- Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834, which modifies two EU...
Non-fungible tokens, or NFTs, have surged into prominence in recent years. Sectors from art and gaming to finance and media have adopted them, with brands like Starbucks weaving NFTs into loyalty programmes to show real-world commercial utility and the scope to spread into other fields. They already power everything from event tickets to artworks and digital assets minted and resold in the ‘ Metaverse’. This Practice Note reviews the legal and regulatory challenges NFTs have encountered and could yet face, and addresses: Understanding NFTs Using NFTs Dealing with NFTs Intellectual property rights and NFTs Licensing NFTs Are NFTs regulated? NFTs and money laundering NFTs and tax Consumer law and NFTs Advertising regulation Data security NFTs in the court room Key practical questions to be considered in any NFT...
Introduction This Practice Note serves as a negotiation handbook for IT contracting, spanning matters linked to IT services—ranging from support through to total outsourcing—as well as software licensing and/or hardware procurement, and anything that sits between those ends. It outlines headline positions across roughly 30 of the most frequently contested points, and proposes possible middle-ground solutions and principal factors to weigh, taking into account the contract’s scope, the parties’ comparative bargaining leverage, and whether the reader represents customer or supplier. Designed as a high-level overview, it encourages readers to assess what is required for the specifics of any given transaction. Where appropriate, it signposts other Practice Notes for added detail. Its focus is limited to business-to-business dealings. For a broader look at core negotiation themes in services agreements generally, rather than IT-specific arrangements, consult Practice Note: Negotiation...
This Practice Note is a practical ‘how to’ on negotiating an influencer agreement. It summarises what counts as an influencer, why influencers are engaged for advertising, how influencer advertising is regulated, and provides an overview of the key practical and legal issues, as well as the principal points to consider when negotiating an influencer agreement. What is an influencer? The Advertising Standards Authority ( ASA) regards an ‘influencer’ as any human, animal or virtually created persona active on any online social media platform. This includes platforms such as: Facebook Instagram Snapchat Tik Tok Twitch You Tube and many others. Although labels differ across platforms or regulatory frameworks, ie ‘bloggers’, ‘vloggers’, ‘streamers’ or ‘content creators’, all fall within the scope of this ‘how to’ guide. In the UK, content is treated as an influencer ‘endorsement’ or advertising where an...
This Practice Note This Practice Note examines the impact of hyperscalers and leading cloud service providers ( CSPs) on IT outsourcing, as well as prevailing market approaches to negotiating and drafting the relevant agreements from a UK purchaser’s standpoint. We now live in an environment in which most technology and business process services are consumed on an ‘as a service’ model; that is, they are delivered through the cloud, either as a turnkey solution or by having the pertinent applications hosted offsite. Although some cloud services target discrete or niche needs, others are extensive and/or mission‑critical and may entail significant levels of contract expenditure. See Practice Note: The evolution of IT outsourcing. Accordingly, market practice is shaped by which provisions are commonly debated and how impacted contracts are framed when engaging with such providers. Against this backdrop, close attention is paid to the...
This Practice Note explores whether music compilations can attract copyright as databases. At its core, the enquiry is whether the compilation’s contents reflect the author’s own intellectual creation (explained in more detail below). Copyright subsistence in a database (often termed database copyright) is separate from the sui generis database right, which is also addressed in this Practice Note. The sui generis database right concerns legal protection for databases of any kind and stems from the Copyright and Rights in Databases Regulations 1997 ( CRD 1997), SI 1997/3032. Whether a sui generis database right exists does not settle if copyright also subsists in the same database, and vice versa. A database may benefit from one, both, or neither right. Court of Justice judgments This Practice Note cites rulings of the Court of Justice. For guidance on whether decisions of the Court of Justice bind UK courts, see...
This Practice Note sets out pragmatic guidance on moving goods among the UK, Northern Ireland and the Republic of Ireland (and between these territories and other EU Member States). It also explains what to do where consignments could be deemed at risk of entering the EU, and outlines how companies can seek authorisation to move goods into Northern Ireland. Introduction During negotiations over the United Kingdom’s withdrawal from the European Union ( Brexit), both sides recognised the need to safeguard the 1998 Northern Ireland peace settlement (the Good Friday Agreement). The challenge was devising a workable answer to the reality that the Republic of Ireland would stay within the EU single market, while Northern Ireland would leave the EU alongside the UK. The initial approach proposed that the UK, including Northern Ireland, would continue within the EU customs union until a...
As smartphones, tablets and other personal computing devices become ever more prevalent, users now expect applications (apps) they can use on those platforms. This substantial demand has enabled companies and individuals to create a wide range of apps to meet users’ needs. Nevertheless, monetising apps is not always straightforward. This Practice Note: reviews the key background and terminology related to apps sets out the different monetisation models developers have pursued for apps identifies contractual issues likely to arise in this area, and summarises other pertinent legal considerations There are numerous routes to monetising apps and, for the most part, no single solution will resolve every legal challenge that may arise. Accordingly, this Practice Note concentrates on the approaches most commonly adopted in the market. Developers should note that app monetisation is an area of rapid development and change, so care is required when selecting the most...
What are mobile payments? The phrase ‘mobile payments’ carries different meanings depending on the audience. Stripped back, it is simply enabling a customer to use a mobile device to settle a payment to another individual or business. The European Commission, in its Green Paper ‘ Towards an integrated European market for card, internet and mobile payments’, frames a mobile payment as one where the payment data and instruction are initiated, sent or confirmed via a mobile phone or device, whether for online or offline purchases of services, and of digital or physical goods. For further detail on the Commission’s Green Paper, see the EU regulatory approach to mobile payments referenced below. In the UK, the mobile payments sector is expanding rapidly, with the arrival of Apple Pay, Google’s ‘ Android Pay’ and Samsung’s ‘ Samsung Pay’. The retail payments landscape has seen major...
FORTHCOMING CHANGE: On 19 June 2025, the Data ( Use and Access) Bill obtained Royal Assent, becoming the Data ( Use and Access) Act 2025 ( DUAA 2025) and coming partly into force on that date. Parts 5 and 6 serve to amend aspects of UK data protection and e Privacy law, including the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), the Data Protection Act 2018, and the Privacy and Electronic Communications ( EC Directive) Regulations 2003, SI 2003/2426. Some DUAA 2025 provisions, covering matters such as dealing with data subject access requests and the conferring of power to make further regulations, came into immediate effect on 19 June 2025. Other provisions, addressing notices from the Information Commissioner and certain aspects of law enforcement processing, will take effect on 19 August 2025 (being two months from the date of...
The tort of misuse of private information is the chief route for enforcing privacy rights, and is relied upon to protect privacy rights, at least against defendants who are not public authorities, and is often the principal claim advanced. Yet, in any particular dispute, a claimant would be prudent and well advised to assess whether deploying alternative causes of action could reinforce their privacy case. As Lord Hoffmann remarked in Wainwright v Home Office (para [18]), there are various common law and statutory remedies for which protecting privacy is among the underlying values they secure. This Practice Note reviews six causes of action that may bear upon a ‘privacy claim’. For more information on misuse of private information claims, see Practice Notes: Starting a claim for misuse of private information—a practical guide Responding to a claim for misuse of private...
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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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