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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 the restriction in Chapter V of the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), and Chapter V of the EU General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), concerning the movement of personal data beyond the UK or the EEA or to international organisations. ‘ Assimilated law’ is the term applied to retained EU law ( REUL) that continues to have effect after the close of 2023. Re-labelling REUL (and related expressions) as assimilated law signals a shift in its standing and handling under UK law, meaning it is, in general, to be read in line with ordinary domestic rules and principles. From 1 January 2024, REUL is treated as ‘assimilated’ within domestic law because, in broad terms, it is divested of EU-derived...
STOP PRESS From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) now apply. Any procurement launched on or after that date must proceed under PA 2023, while procurements started under earlier regimes must continue to be run and administered under those rules, including: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has refreshed its standard contract suites, templates and guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract, issued alongside the PA 2023 ‘go-live’ on 24 February 2025. This Practice Note will be updated shortly to capture these changes. In the interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, Government model contracts updated for Procurement Act 2023 ‘go-live’— LNB News 24/02/2025 29, and Cabinet Office updates PPN 013: Using standard...
This Practice Note considers the impact of Part 1 of the Automated and Electric Vehicles Act 2018 ( AEVA 2018), and the recommendations made in the Law Commissions’ Automated Vehicles: joint report, on the UK’s motor insurance framework, looking at: The current structure of motor insurance How AEVA 2018 and the Law Commissions’ joint report evolved Which categories of automation fall within AEVA 2018 Duties of the relevant legal stakeholders The present approach to primary and secondary liability under AEVA 2018 The extent of liability envisaged by AEVA 2018 Applicable limitation periods Retention and disclosure of data Continuing reform This Practice Note excludes AEVA 2018, Pt 2, which deals with provisions for charging electric vehicles. For an overview of key milestones and details on the evolution of the autonomous vehicles regime, see Practice Note: UK...
This Practice Note is intended chiefly for brands looking to work with social media influencers (or other talent) on social promotions and advertising in the Netherlands. It also serves influencers and brand owners involved in advertising. It outlines the principal rules, codes and guidance, labelling and disclosure obligations, together with sanctions and oversight where disclosure is insufficient. It additionally addresses subsistence of copyright in sponsored material and key terms commonly found in the relevant agreements. Influencer endorsement—key regulations, codes and guidelines In broad terms, influencer endorsement is a marketing practice by an advertiser designed to prompt influencers to speak about a product or brand, at times following specific instructions from the advertiser. The influencer receives consideration for this activity, whether as payment or benefits in kind (for example, discounts or free products or services). A recurring difficulty is separating advertising (to which...
This Practice Note is primarily for brands looking to collaborate with social media influencers (or other talent) for targeted social campaigns and promotional advertising in India. It covers: Applicable legislation and guidelines Influencer Guidelines Enforcement of ASCI Guidelines Liability of endorser under the Consumer Protection Act, 2019 How ASCI Guidelines for Celebrity Advertising address influencer advertising Numerical threshold to be categorised as influencers Due diligence obligations on influencers Guidelines on Misleading Advertisements Influencer agreement—form and content Disparagement Applicable legislation and guidelines In India, influencer advertising is principally governed by the following. First, the Consumer Protection Act, 2019 safeguards consumer rights and addresses the accountability of any person endorsing goods or services. Secondly, the Advertising Standards Council of India ( ASCI), a respected self-regulatory organisation, issued the ASCI Guidelines for Celebrity...
This Practice Note outlines the issues to address when incorporating business-to-consumer ( B2C) standard terms and conditions. It reviews the relevant common law principles, how terms are incorporated online, and the effect of the unfair terms provisions in the Consumer Rights Act 2015 ( CRA 2015) on producing enforceable terms. EU case law before and after Brexit This Practice Note cites a number of EU decisions interpreting Directive 93/13/ EEC ( OJ L 95/29), the EU Unfair Terms in Consumer Contracts Directive ( EU UTCCD), which the CRA 2015 re-implemented into UK law. Broadly, EU judgments issued on or before 31 December 2020 remain binding on UK courts and tribunals (even if the EU courts later depart) until UK courts choose to diverge. Accordingly, UK courts and tribunals must take into account any criteria provided by the Court of Justice when assessing fairness or...
October 2022 saw the Information Commissioner’s Office ( ICO) unveil ICO25, a three-year strategy running to October 2025, intended to drive openness and, in turn, bolster legal and regulatory clarity for organisations, especially those with a commercial stake in processing personal data and innovating in this field. This Practice Note offers a pragmatic digest of that mission, and sets out how advisers can support those they counsel to plan and prepare, based on what is currently known about forthcoming themes. It highlights practical steps professionals can take to align plans with the anticipated direction of travel during the period. It assumes readers are conversant with all facets of data protection law, including the regulator’s role and the scope of the supervisory authority too. Those less familiar may wish to begin with Practice Note: The Information Commissioner’s Office ( ICO). The UK data protection law...
This Practice Note offers an overview of the Internet Corporation for Assigned Names and Numbers ( ICANN) and explores practical routes for safeguarding brands, including through domain and trade mark protection strategies online. An introduction to ICANN ICANN administers the domain name system which, for many years, previously comprised only roughly 20 generic top-level domains (g TLDs) such as .com, .biz and .net. After the launch of ICANN’s New Generic Top Level Domain Name Programme, over 1,200 additional g TLDs were rolled out from late 2013 onwards in all. That cohort featured .xyz, .top, .loan and .club, alongside certain well-known brands, eg .bmw and .hotmail. The new g TLDs are open to general public registration (eg company.inc). As a result, available domain endings expanded by more than 1,200; for instance, ‘amazon’ might be secured as amazon.shop, amazon.books, amazon.music and similar options. Adoption of the various new g TLDs is,...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements launched on or after that date must proceed under PA 2023, while those initiated under earlier regimes must continue to be run and managed under those rules, including: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has also refreshed its standard contract document suites, templates and guidance for the government’s Model Services Contract, Mid‑ Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go‑live’ on 24 February 2025. This Practice Note will be updated shortly to reflect these changes. In the meantime, see: News Analysis: Procurement Act 2023 ‘go live’—what happens next? Government model contracts updated for...
This Practice Note considers common matters that frequently arise when drafting and negotiating endorsement agreements in England and Wales. In a standard endorsement deal, a brand typically retains a well-known public figure to promote its goods or services. That promotion can cover a broad range of activity, such as TV adverts, print adverts, public appearances, and promotional posts on social media. What is an ‘endorser’? An endorser is a person, usually a public figure—celebrity, sportsperson, or subject matter specialist—who grants use of their name, image, persona, or reputation to a product, service or brand under a commercial arrangement. Endorsers are engaged to boost brand visibility, credibility and consumer confidence by publicly aligning with a product, whether either via direct promotion or association. They may feature across traditional advertising channels (television, print, out-of-home and digital media), serve as brand ambassadors, or take part in various events, PR...
FORTHCOMING CHANGE: On 24 May 2024, the Digital Markets, Competition and Consumers Bill secured Royal Assent, was enacted as the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024), with some provisions commencing immediately. The unfair commercial practices regime in DMCCA 2024, Part 4, Chapter 1 took effect on 6 April 2025, disapplying and substituting the equivalent rules in the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 ( CPUTR 2008) from that date. However, sections 232, 234 and 235, which concern consumers’ rights to redress, have not commenced; until they do, Part 4A of CPUTR 2008 continues to regulate redress. The strengthened consumer protection enforcement powers likewise began on 6 April 2025. Measures still pending include the repeal of the Alternative Dispute Resolution for Consumer Disputes ( Competent Authorities and Information) Regulations 2015 ( Consumer ADR...
Digital Business— Austria— Q& A guide [ Archived, 2021 edition] This Practice Note presents a country-focused Q& A on e‑commerce in Austria, issued within the Lexology Getting the Deal Through series by Law Business Research ( January 2020). Authors: DORDA— Axel Anderl; Andreas Zahradnik; Bernhard Müller; Paul Doralt; Christian Schöller; Elisabeth König; Nino Tlapak 1. How can the government’s attitude and approach to internet issues best be described? The newly elected Austrian administration has stated it will: extend its broadband agenda, including 5G deployment; uphold the EU’s net neutrality; create and back an Austrian Cloud aligned with the GDPR and data protection norms; bolster the Austrian Data Protection Authority; endorse the PSI Directive and the Open Data Directive; prioritise AI and blockchain; and advance digitalisation and technological...
This Practice Note outlines the core principles for recovering damages arising from contractual breach. It addresses the compensatory purpose of damages; categories covering pecuniary and non-pecuniary loss; nominal damages; damages available under the Sale of Goods Act 1979 ( SGA 1979); the operation of default damages clauses; contractual mechanisms for remedying a breach; and the availability of interest. As stated by Baron Parke in Robinson v Harman, the party who suffers loss through breach should, in terms of damages, be placed in the position they would have occupied had the contract been performed... Compensatory function of damages for breach of contract The ordinary role of contractual damages mirrors that in tort: they are compensatory (see, for example, British Westinghouse v Underground Electric Rlys). The purpose is to make good the actual loss sustained by the innocent party and, so far as money can achieve it, to place them in...
This Practice Note considers the following commercial and legal issues arising from the use of free and open source software: What is free and open source software? History Upstreaming and forking Free and open source licences Distribution of modified works (and the reciprocal effect) Linking and incorporation Software as a service ( Saa S) Compliance requirements Licence incompatibility Bare licence or contractual licence Patents Trade marks Corporate transactions Software bill of materials Software licensing to the end user Enforcement Free and open source software (sometimes called ‘ FOSS’) is a collective term for software released under a licence granting recipients the rights to use, adapt, and share it—whether unchanged or modified—without fees or royalties, with the source code made available. In contrast, the software licences most familiar to...
UK data protection law includes a right to data portability. That entitlement enables people to receive from a controller a copy of their personal data in a structured, machine-readable form. Moreover, in certain situations, people can require the controller to transmit that data straight to a different controller. This Practice Note considers the right to data portability. It presumes some familiarity with UK data protection law. For an overview of UK data protection law, with guidance on core concepts and terminology, see the UK data protection law collection. Note that there are notable parallels between the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR) and the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) and this Practice Note concentrates on the position under the UK GDPR. For details on the background to the UK GDPR and how it...
This Practice Note explores the reasons why organisations choose to rely on standard terms and conditions ( T& C, Ts& Cs, T& Cs) when trading with either other businesses (business to business or B2B transactions) or consumers (business to consumer or B2C transactions). It is designed to support the commercial practitioner in analysing the client’s position and in advising whether standard terms and conditions are appropriate for that client. Purpose of standard terms and conditions Businesses adopt standard terms and conditions for several reasons, including the following: speed consistency cost allocation of risk It is vital that businesses fully appreciate the need to put arrangements in writing where possible and to implement and maintain standard written terms that are tailored and pertinent to their particular business or trade. Importance of standard terms and conditions Standard terms and conditions, when correctly used and properly incorporated, are integral to income...
This Practice Note explores how publication operates within claims for defamation or malicious falsehood. It surveys key case law and legislation, and considers who might be primarily and secondarily accountable for publication, what amounts to publication, the nature of publication on the internet, and jurisdictional questions... Publication as an ingredient of the tort of defamation For libel or slander, it is fundamental that a defamatory statement is communicated to someone other than the claimant. A written publication occurs only once a third party has read and understood the words. An oral publication arises when a third party apprehends and understands them. In practice, a claimant often issues one claim covering multiple publications. Each communication is, in principle, a distinct publication giving rise to its own cause of action, though section 8 of the Defamation Act 2013 ( DA 2013) moderates this for...
ARCHIVED This Practice Note is archived and is no longer maintained. It addresses the position where the UK and the EU fail to conclude arrangements on jurisdiction after the UK’s departure. Throughout the implementation period commencing on exit day, that is, the day the UK leaves the EU, the provisions of the withdrawal agreement will apply. For commentary on that period and its effect on jurisdiction, refer to Practice Note: Brexit implementation period—jurisdiction [ Archived]. This Note evaluates the consequences of the UK exiting the EU without a deal when addressing jurisdictional issues before courts in EU Member States, with particular focus on how the Brussels regime would be applied. It considers practical implications for proceedings and the treatment of jurisdictional rules accordingly in practice......
This Practice Note sets out a high-level outline of key media content regulation in the EU, spanning broadcasting, social media, video-on-demand ( Vo D) services, and the press and magazines. It concentrates on rules governing material that appears on these channels—a species of oversight that has markedly grown in recent years, reflecting the drive to, for instance, tackle illegal content on social networks. The regime cited in this Practice Note applies (or is expected to apply) across the EU as a whole. That said, individual Member States may have domestic regulators empowered to set additional, territory-specific requirements, much as Ofcom supervises media in the UK. EU audiovisual regulators are listed on the European Commission website. Although the legislation discussed here does not take effect in the UK, it is still relevant to UK businesses operating in the...
ARCHIVED: This Practice Note is archived and no longer updated. It sets out an overview of the EU regime governing electronic communications (the Framework) and its principal components. It outlines the scope and substance of the key directives comprising the Framework, together with the policy themes they cover. The aim of the Framework was to deliver a harmonised system for regulating electronic communications networks and services across the EU. The European Commission has issued a complete set of Framework documents as at December 2009. The Framework has since been superseded by Directive ( EU) 2018/1972, the European Electronic Communications Code, which restates and consolidates the Framework directives (excluding Directive 2002/58/ EC (the e Privacy Directive)). Directive ( EU) 2018/1972 establishing the European Electronic Communications Code was approved by the Council of the EU on 3 December 2018, published in the Official Journal of the EU on 17...
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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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