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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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Scope of this Practice Note This Practice Note centres on the approach taken by EU authorities and regulators (ie, the European Banking Authority ( EBA) and the European Securities and Markets Act ( ESMA)) in this area. It further sets out background on what is meant by cryptoassets, along with the distinctive challenges these assets present for regulators and oversight. For information on the approach adopted by UK authorities and regulators, see Practice Note: UK regulation of cryptoassets. For additional material on how supranational bodies address these issues, see Practice Note: Supranational approach to the regulation of cryptoassets. This Practice Note should also be read alongside Practice Note: Web 3.0, digital assets and cryptoassets—essentials, which covers: What are cryptoassets? Common terms associated with cryptoassets Development of cryptoassets Characteristics of cryptoassets Considerations for businesses looking at...
Developers, manufacturers and distributors in digital health—spanning m Health apps and any associated Software as Medical Device ( Sa MD), artificial intelligence ( AI) system or Artificial intelligence as a Medical Device ( AIa MD)—must meet stringent data protection regulations in tandem with regulatory compliance across the entire lifecycle, from development through to commercialisation This Practice Note concentrates on data protection and privacy issues for m Health (mobile health) and also considers the tighter safeguards governing the collection of an individual user’s health data. It does not cover broader life sciences regulatory matters, such as those relating to medical devices What is m Health? For related guidance, see: Practice Note: Digital health—regulation of m Health apps and medical software. Practice Note: Mobile app development and data protection. Practice Note: Digital health—data protection and privacy case studies, including wearables and AI...
Meditech scenario on database right and database copyright This training scenario sits alongside Precedent: Rights in databases—training materials, as companion guidance. It is intended to support newcomers in applying what they have learnt, and in developing a fuller, more confident understanding of the topic. Background facts: Meditech delivered a health screening service to Custech through an internet-based analysis and reporting platform. A medical device captured a patient’s reading, and those readings were stored as patient data for later reference. The patient data were then entered into the platform using a web-based processing system, and subsequently reviewed by a qualified professional who chose from a range of menu options. These menus corresponded to variables held within a database system within the platform. The database comprised a series of classifications of relevant physical characteristics, such as resting heart rate, as recorded by the device. For each...
This Practice Note outlines and explores the overarching principles that govern the advertising and promotion of medicinal products, together with the associated rules on how the pharmaceutical industry engages with healthcare professionals ( HCPs). Introduction to the advertising and promotion of medicinal products To safeguard public health, the advertising and promotion of medicinal products is subject to strict regulation and close oversight. The general rules for advertising and promoting medicinal products are: it is forbidden to advertise any medicinal product that does not hold a marketing authorisation ( MA) promotion of an authorised medicinal product must align with the particulars in the summary of product characteristics ( Sm PC) linked to the MA promotion of authorised medicinal products must not mislead and should foster the rational use of the product, presenting information objectively and without overstating its...
This Practice Note offers guidance on the Media Act 2024 ( MA 2024), enacted to modernise the regulation of public service broadcasters ( PSBs) in light of smart TV technologies and the expansion of video-on-demand ( Vo D). It outlines the principal legislative measures and evaluates what they mean for businesses. It further highlights the consequences for the regulator, Ofcom, arising from the broader powers granted to it under the Act. Background to MA 2024 In April 2022, a White Paper titled Up next—the government’s vision for the broadcasting sector (the White Paper) was laid before Parliament by the then Secretary of State for Digital, Culture, Media and Sport ( DCMS). On the same day, the government issued its response to the Digital Radio and Audio Review. Commissioned in 2020, the Digital Radio and Audio Review examined the regulatory framework for radio and audio and...
ARCHIVED This archived Tracker helps determine whether a state is a signatory to the Lugano Convention 2007 and if it has taken effect in that state. The EU has refused the UK’s request to accede to the convention in its own capacity. It is not updated and is provided purely for background. For fuller guidance on the extent to which the Lugano Convention 2007 will, after IP completion day (ie 31 December 2020, at 11 pm) and notwithstanding the EU’s rejection of the UK’s accession, still be applied by the courts of England and Wales, as well as by the courts of the remaining contracting states in matters involving a UK element, see the following Practice Notes: Brexit post implementation period—considerations for dispute resolution practitioners [ Archived]— Jurisdiction Lugano Convention 2007—application to the UK post IP completion day...
FORTHCOMING CHANGE : On 13 October 2025, the Ministry of Housing, Communities and Local Government ( MHCLG) opened a consultation on enhancements to the Local Government Pension Scheme ( LGPS) in England and Wales. Among other measures, it sets out a reset of Fair Deal protections, bringing the scheme into line with the 2013 Fair Deal guidance and phasing out the use of ‘broadly comparable’ pension schemes for future outsourcing, except in limited exceptional cases. Rather than relying on admission bodies, a new default ‘deemed employer’ approach would allow all staff compulsorily moved under TUPE to keep uninterrupted LGPS membership, with the original Fair Deal employer remaining accountable for pensions. These safeguards would roll forward through re-tenders and later transfers, protecting access for ‘protected transferees’ and, where the employer chooses, for new starters on the contract. For members currently in broadly...
This Practice Note is primarily intended for brands that are planning to work with influencers (or other talent) on social marketing campaigns and advertising promotions within China. Influencer endorsement Influencer ‘endorsement’ is chiefly governed and supervised under the Chinese Advertising Law ( CAL), which is the principal body of legislation regulating commercial advertising activities across China. The CAL applies widely to commercial advertising where commodity traders or service providers, whether directly or indirectly, present goods or services they market within China. Until 2015, the CAL contained no clauses concerning endorsements or influencer activity. When the CAL was updated in 2015, however, a definition of ‘endorsers’ and tailored provisions addressing endorser conduct were introduced. Endorsers are described in a broad, neutral manner as: ‘natural persons, legal persons or other organisations other than advertisers that recommend or demonstrate products or services in their name or image in...
This Practice Note examines initiatives centred on legacy IT estates, outlining the context for such refresh programmes—particularly within the financial services sector—and considering technology renewal via non-transformational outsourcing, cloud-based solutions, and software development/integration, together with the key issues and practical considerations for each. A technology refresh means replacing existing IT products and platforms with newer or improved alternatives to preserve capability, add or enhance functionality, boost performance and efficiency, remain aligned with cutting-edge advances, or meet evolving operational demands and process change. Where historic systems store or handle substantial datasets, data migration, along with integrity and security considerations, becomes a major workstream within the refresh. Background to legacy IT refresh projects Technology refresh is instrumental in helping organisations drive efficiencies, reduce costs, and compete in the market. Many organisations undertake a comprehensive refresh every five to seven years (shorter in some sectors), with smaller, interim...
The major arbitral institutions Leading arbitral bodies are familiar with overseeing disputes across the technology, media and telecoms ( TMT) arena. The 2016 International Dispute Resolution Survey by Queen Mary University of London and Pinsent Masons, ‘ Pre‑empting and Resolving Technology, Media and Telecoms Disputes’, found that the International Chamber of Commerce ( ICC) was used by a clear majority (64% had instructed it on TMT disputes in the preceding five years). It was followed by the World Intellectual Property Organisation ( WIPO) at 38%—especially for IP matters—and the London Court of International Arbitration ( LCIA) at 29%. As to preferences reported in the 2021 International Arbitration Survey by Queen Mary University of London and White & Case, ‘ Adapting Arbitration to a Changing World’, users most favoured: ICC (57%) Singapore International Arbitration Centre ( SIAC) (49%) Hong Kong...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note examines how the UK’s departure from the EU influences the application of Regulation ( EU) 1215/2012, Brussels I (recast), when determining jurisdictional disputes. It addresses: the applicable provisions in the Withdrawal Agreement between the UK and the EU; relevant domestic legislation, including, where relevant, transitional provisions, together with the position of the EU Commission; the implications of the UK becoming a third state as a consequence of leaving the EU. It should also be noted that other jurisdictional regimes are affected by the UK leaving the EU. For guidance, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners— Jurisdiction. For specific guidance on the position during the implementation period, see Practice Note: Brexit implementation period—jurisdiction [ Archived]......
This Practice Note explores jurisdiction agreements (choice of court agreements): what they achieve, why they are adopted, and comparable arrangements pursuing the same objective. It outlines the main categories of jurisdiction agreement together with remedies available if one is breached. For assistance distinguishing the different types, see: Determining court jurisdiction—overview. It is likewise essential to grasp the operation of any formal jurisdictional regime. For insight into which regimes may apply, see Practice Note: Jurisdiction rules. A principal regime is the Hague Convention on Choice of Court Agreements. That convention applies between the UK and other contracting states in proceedings where the parties have entered into an exclusive jurisdiction agreement... What is a jurisdiction agreement? A jurisdiction agreement is the parties’ undertaking specifying which court(s) will have authority to determine disputes that could arise between them. For clarity on the concept of...
Contract Where an agreement is entered into by two or more parties, it may include a promise or obligation undertaken by two or more of them. Any such promise may be: joint several joint and several Whether an undertaking in contract is joint, several, or joint and several is a matter of construction, depending on the parties’ intention as revealed by the terms of the contract. For example, in Rhinegold Publishing v Apex Business Development, statutory demands were issued against Rhinegold Ltd and a related company, Tannhauser Ltd, for approximately £22,000 and £31,000 respectively. A settlement agreement followed under which the parties agreed to pay the sums due, but Tannhauser did not fully comply. Although the agreement was silent on liability, the High Court decided that, on a proper reading, the parties were jointly and severally liable. As a result, Rhinegold had to meet the...
Historically, arrangements labelled ‘outsourcing’ were typically understood to involve handing over an existing in‑house operation to a specialist third‑party supplier (see: Traditional IT outsourcing below). As commercial practice has shifted, the ambit of outsourcing has expanded notably, to the point where, for certain regulated activities, it may encompass any form of arrangement (irrespective of whether there is a pre‑existing internal function) under which a firm engages a service provider to carry out a process, service or activity that the firm would otherwise perform itself. In parallel, the range of services falling within IT outsourcing has broadened as organisations have exploited—and become ever more dependent on— IT to run their businesses and to secure competitive advantage. Conventionally, outsourced IT services might have been those falling within the ‘ IT department’s’ brief. These are frequently categorised in a structured manner as ‘ IT service...
IT outsourcing IT outsourcing refers to handing over information technology functions or services to an external supplier rather than running them internally. It spans numerous transaction models, each bringing its own risks and complexities. Contracts for every form of IT outsourcing need rigorous attention from customers, suppliers and their advisers to secure a fair outcome at signature and as the underlying technology advances throughout the term. When executed well, outsourcing can cut the financial and staffing burden of day-to-day IT operations and infrastructure, freeing resources for higher-value strategic initiatives elsewhere in the business. Entrust a supplier with full responsibility for a range of IT services; Engage several suppliers to manage a complex element of the business; or Retain selected services in-house while outsourcing specific components. Drivers for outsourcing typically include boosting performance, reducing costs, and bringing greater standardisation to IT products and services......
Large and public client off-payroll regime The large and public client off-payroll regime generally applies where a public body or a private sector organisation (excluding one that is 'small' or lacks a ' UK connection') hires a worker through an intermediary, such as a personal service company ( PSC), and, absent the presence of that intermediary, the engagement between the worker and the end client would amount to employment. The large and public client off-payroll regime puts the onus of determining whether IR35 applies, in effect, on the end client and, if the large and public client off-payroll regime does apply to the engagement, the duty to deduct income tax and National Insurance contributions ( NICs) rests, under the rules, with the fee-payer (i.e. the party closest, in the relevant contractual chain, to the PSC—this might be the end client where it...
Intellectual property rights ( IPR) can frequently become flashpoints and areas of dispute in outsourcing contract discussions and negotiations. Questions typically centre on the ownership and the licensing of rights, and also on the warranties and indemnities that each party seeks from the other concerning their authority to supply IPR (or provide access to it). This Practice Note addresses the following: Is intellectual property core to the deal? Categories of IPR in outsourcing arrangements Background IPR Foreground IPR Open source software New technologies including artificial intelligence ( AI) and robotic process automation ( RPA) Warranties and indemnities Handling of IPR on exit For illustrative clauses on IPR in outsourcing, refer to clause 29 in Precedent: Outsourcing agreement—long form. For a template IPR indemnity clause, see Precedents: Third party intellectual property rights indemnity...
ARCHIVED: This Practice Note is archived and is not maintained, and will not receive further updates. It outlines the consequences of IP completion day for breaches of contract and the remedies available. The implementation period created to allow the UK to move away from the EU’s laws and institutions ended at 11 pm ( GMT) on 31 December 2020. At that moment (called ‘ IP completion day’ in this Practice Note) immediate changes arose that affect contracts within the UK. This Practice Note sets out how those changes relate to breach and remedies and signposts to more detailed content and analysis where you can learn more. How does Brexit impact contract breach and remedies? The rules on making and construing contracts in England and Wales are predominantly grounded in, and developed by, the common law, which was not directly altered by IP...
This Practice Note sets the scene from an advertising and marketing perspective, rather than a purely legal one, for drafting consumer standard terms and conditions under the Consumer Rights Act 2015 in the context of non-broadcast advertising. It reviews the marketing framework within which those terms function and highlights how lawyers can enhance them. For further reading, see: Advertising law and regulation—overview. Our suite of business-to-consumer ( B2C) contract templates and drafting guidance, including ‘ Drafting contracts with consumers’ in Trading with consumers—overview and Drafting consumer contracts—checklist. Guidance on boilerplate provisions in B2C contracts: Practice Notes— Boilerplate clauses in business-to-consumer contracts—general principles and Boilerplate clauses in business-to-consumer contracts—specific clauses. Advertising regulation The primary regulator for non-broadcast advertising is the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), devised, updated and enforced by the Committee of...
The Internet of Things ( Io T) The Internet of Things ( Io T) describes everyday items—beyond laptops and smartphones—connected to the internet. Related terms include connected devices, smart objects, the internet of services, machine-to-machine ( M2M), sensor networks, the network of networks, and pervasive or ubiquitous computing. Io T applies to running shoes, buildings, cars, fridge-freezers and drones. With embedded technology, such items exchange data and interact online with each other, the user, the service provider and/or their environment, and can be monitored and controlled remotely. This Practice Note introduces Io T and considers: the technology underlying the Io T identifying the legal issues application programming interfaces ( APIs) telecommunications and electrical equipment intellectual property—overview, ownership and licensing competition law consumer protection liability and fault compliance requirements the appropriate contracting model future legal issues This Practice Note does not cover data protection, privacy or cybersecurity; these are addressed separately in Practice Note: Internet of......
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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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