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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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Many contracts include provisions on resolving disputes. At times these are simple terms stipulating litigation or possibly arbitration, sometimes also spelling out jurisdiction and the governing law. Yet a clause can instead prescribe other routes of alternative dispute resolution ( ADR) to be pursued should a dispute arise, offering an alternative to litigation or arbitration. Such provisions are often labelled ADR clauses. Parties have a number of options open to them (see below), and it is vital to appreciate the consequences of the drafting choices you make. This Practice Note reviews several clause formulations and evaluates the issues that may arise in relation to each category. The types of dispute resolution clause considered in this Practice Note are: litigation only clauses mediation clauses multi-tier clauses (escalation clauses) hybrid clauses carve-out clauses For guidance on the principal questions around the...
This Practice Note This Practice Note explores the use of non-contractual mechanisms by software suppliers to halt or restrict the operation of on-premise software in business-to-business licences, the resulting legal considerations, and the real-world impact on drafting relevant software licences. It introduces a range of disabling tools: Time bombs Logic bombs Back door/trap door Fork locks Remote control and switching off, or ‘deprovisioning’ Where a customer breaches licence terms, or fails to pay licence or support charges, the supplier can pursue legal action. Yet litigation brings expense and uncertainty, and may strain the customer–supplier relationship. As a result, a supplier may favour a more immediate, practical approach: deploying disabling devices to stop the software from running, triggered remotely or automatically by the supplier. For most developers, such features are straightforward to create and embed. Activating (or...
Declaration of a director's interests Any director who, whether directly or indirectly, has an interest in either of the following must, subject to limited exceptions, disclose to the other directors the nature and extent of that interest in line with the Companies Act 2006 ( CA 2006): a proposed transaction or arrangement with the company of which they are a director; or a transaction or arrangement already entered into by the company of which they are a director. For more detail, refer to the comprehensive Practice Note: Declaration of a director's interests—the statutory provisions. For practical help in determining precisely when an interest requires disclosure, see Flowcharts: Declaration of a director's interests—proposed transaction or arrangement and Declaration of a director's interests—existing transaction or arrangement. Some or all of the statutory rules on declaring a director's interests could also potentially extend to other companies and entities of various types;...
This Practice Note explores Directive ( EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the EU Digital Single Market ( EU DSM Copyright Directive). It provides a concise high level outline of the background to, and the individual detailed articles of, the EU DSM Copyright Directive, and highlights debate over the wording of particular provisions, such as Article 15 on rights in press publications and Article 17 on use of protected content by online content sharing service providers ( OCSSPs). The Practice Note also considers the status of the EU DSM Copyright Directive in the UK and points of divergence between the UK and the EU on key provisions. The EU DSM Copyright Directive amended Directive 96/9/ EC on the legal protection of databases ( EU Database Directive) and...
This Practice Note offers guidance on digital regulation, setting out what it means and identifying the sectors where it matters. What is digital regulation? The label ‘digital regulation’ lacks a settled legal definition. In essence, it captures the legislative and regulatory regimes governing digital technologies, online activities, and services powered by data. In practical terms, it concerns how governments and regulators control and supervise multiple areas, as outlined below: Its aims are to safeguard users, uphold fair competition, mitigate risks, and build confidence in digital ecosystems, while enabling innovation and economic development. This Practice Note introduces the components of the digital regulation landscape and directs readers to deeper materials on those topics, including certain areas subject to sector-specific regulation. Online platforms and content ‘ Platform’ is a broad label covering varied forums and capabilities, shaped by the technologies implemented and the underlying business model. From a...
ARCHIVED This archived Practice Note outlines information on the Digital Economy Act 2010 and the early use of s 97A website blocking. It is provided purely for background reference and is not being maintained. For guidance on website blocking, see Practice Note: Website blocking orders. The Digital Economy Act 2010 ( DEA 2010) obtained Royal Assent on 8 April 2010. Many measures aimed at tackling online copyright infringement, to curb unlawful file-sharing, were intended to commence on that date or in June 2010. DEA 2010 inserts new sections 124A to 124N into the Communications Act 2003 ( CA 2003). Once a supporting code, approved or made by Ofcom, is in place, qualifying Internet service providers ( ISPs) will be required to meet duties set out in that code. Those obligations will be underpinned by a code approved by Ofcom or, if no industry code is...
This Practice Note sets out a clear overview of how UK and EU legal frameworks are developing to accommodate digital bonds. It explains key terminology and the digital bond transaction lifecycle, covering the principal documents needed for issuance, with emphasis on smart contracts. It also signposts what practitioners should consider when engaging in digital bond transactions. Summary Digital bonds are now legally recognised in the UK and EU, provided the issuance structure complies with the relevant securities regime, the Prospectus Regulation and/or Regulation ( EU) 2023/1114 on markets in crypto-assets ( Mi CA), and the underpinning distributed ledger technology ( DLT) infrastructure falls within the scope of the competent regulator or sandbox. Practitioners should determine early whether an instrument is a native digital bond or a tokenised form of a traditional bond, as that choice shapes property law status, custody and settlement exposure, and...
This Practice Note sets out the main digital advertising and marketing routes, such as website advertising (banners and tile ads), search engine optimisation ( SEO), social media advertising, email advertising, mobile advertising, streaming advertising, digital out-of-home ( DOOH) and virtual out-of-home ( VOOH), virtual and augmented reality advertising, affiliate marketing, and content and native advertising. It also flags the core regulatory and legislative frameworks, together with the outcomes of non-compliance. Digital, online and social media (together termed ‘digital’) cover a wide and continually expanding range of channels for delivering promotional materials. Each option carries particular benefits and drawbacks when it comes to managing legal risk. Digital technology can aid compliance by permitting closer control of campaigns than traditional media. However, this is a rapidly evolving field, with innovation frequently stretching the limits of current legislation. For fuller guidance on the topics...
A free and open source software ( FOSS) strategy and policy, supported by processes that ensure compliance, should form part of any well-structured business framework for risk management. Ideally, an organisation would establish its FOSS strategy and policy before any open source code is adopted. In practice, these are often drafted following a review of the current codebase (see Practice Note: Free and open source software—audits) and the realisation that FOSS is already in place, perhaps because suppliers have included FOSS within deliverables or internal developers have used FOSS components without properly recording their use. For an example, see Precedent: Free and open source software—policy. Why use FOSS? A FOSS strategy should also address the rationale for its adoption within the organisation. Frequently, cost savings are the primary consideration. Although most FOSS licences do not prevent charging for the software, code is commonly made...
This Practice Note This Practice Note offers hands-on advice on how the UK film and photography sectors have evolved to meet data protection requirements, grounded chiefly in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), and the Data Protection Act 2018. It further provides targeted guidance on the Information Commissioner’s Office’s ( ICO) Data protection and journalism code (the Code), as well as how data protection rules affect release agreements. This Practice Note presumes a basic understanding of UK data protection law. For an introduction to the overarching principles, see the following Practice Notes: Introduction to the EU GDPR and UK GDPR The Data Protection Act 2018 and the UK GDPR The UK media and creative industries, which generate and publish visual material depicting people, have confronted awkward choices in interpreting data protection...
This Practice Note provides an overview of the UK’s Data Protection Act 2018 ( DPA 2018). For a broader primer on data protection law in the UK, see Practice Note: Data protection law—new starter guide. The UK data protection law collection brings together wider guidance and is a suggested first port of call for research. In brief In summary, the DPA 2018 currently governs: the processing of personal data within the UK GDPR framework, complementing the core rules laid down in the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), with extra measures covering: lawful basis for processing processing on the basis of relevant international law processing special categories of personal data and criminal offence data ...
What are damages? ‘ Damages’ denotes a monetary award made by a court to make good a claimant’s loss or harm arising from a wrong for which the defendant is answerable. It is a remedy rooted in the common law, though the court may, in appropriate cases, also grant equitable damages. They differ from remedies for unjust enrichment, which address an unjust benefit obtained by the defendant regardless of wrongdoing. Accordingly, other money claims are distinct from damages, for example: repayment of sums paid by mistake; recovery where consideration has failed; or the reasonable value of goods supplied or services rendered (for these categories of claim and remedy, see subtopic: Unjust enrichment and restitution). Assessing damages As observed by the Supreme Court in Sainsbury’s v Visa Europe when assessing damages for breach of competition law: applying the compensatory principle, the court must steer between...
This Practice Note offers an introduction to cybersquatting. It involves registering a domain name that incorporates another business’s trade mark with the purpose (or consequence) of taking unfair advantage of that mark. It also encompasses typosquatting, being the registration of a domain name featuring a misspelt version of another party’s trade mark. There are several avenues to pursue action against cybersquatters, including Nominet’s Dispute Resolution Service ( DRS) and the Uniform Domain Name Dispute Resolution Policy ( UDRP)... What is cybersquatting? Also referred to as domain name squatting, it is the bad-faith registration of a domain name that matches or is confusingly similar to a trade mark or name, with the intention of profiting from the goodwill attached to that mark or name. The practice exploits the trade marks of businesses, individuals, or other entities, aiming to secure commercial benefit for the...
This Practice Note is a practical ‘how to’ resource for businesses addressing cybersquatting. It outlines what cybersquatting involves, ways to prevent it, and actions to take if it happens. It proceeds on the basis that the infringing domain is UK-based, eg .co.uk, .uk, or .org.uk. What is cybersquatting? Cybersquatting occurs where a party registers and/or uses a domain name in bad faith to exploit, or cause detriment to, another party’s rights. A domain name is a unique identifier for a particular internet resource or one or more IP addresses, eg a website. For information, see: Domain names—overview. For example, an individual might register a domain containing a well-known brand name and trade mark, intending to sell it back to the brand owner at an inflated price, or use that domain to redirect genuine customers of the brand to another site, perhaps offering a...
Scope of this Practice Note This Practice Note outlines the principal risks to consumers from different categories of cryptoassets and related offerings, including staking, together with the consumer protection tools currently available and/or under consideration. What are cryptoassets? Understanding unconventional forms of money and assets is hampered by inconsistent terminology. Regulators, tax authorities and commentators alternately reference digital currencies, virtual currencies, cryptocurrencies, cryptoassets and crypto tokens, without always indicating whether these labels are used interchangeably or with precise distinctions. For definitions, see Practice Note: Web 3.0, digital assets and cryptoassets—essentials. Unless stated otherwise, this Practice Note adopts ‘cryptoassets’ as defined in section 417(1) of the Financial Services and Markets Act 2000 (as amended from time to time). Under section 417, a cryptoasset means any cryptographically secured digital representation of value or contractual rights that: can be transferred, stored or traded...
ARCHIVED This Practice Note is archived and is no longer maintained. It assesses the rules on service that applied between the UK’s departure from the EU on 31 January 2020 and the end of the implementation period on 31 December 2020, which the EU refers to as the transition period. It examines whether the implementation period could be extended, whether Regulation ( EC) 1393/2007 (the Service Regulation) governed service during that timeframe, and ways to minimise uncertainty by employing process server clauses. For a swift Brexit reference tool answering key questions and providing useful updates, research tips and materials, see: Brexit Bulletin—key updates, research tips and resources. Definitions This Practice Note uses the following definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—defined in EU( W) A 2018, s 20, as 31 January...
This Practice Note explores cross-border service and claims involving digital assets, including cryptocurrency and non-fungible tokens ( NFTs). The law and procedural framework for disputes concerning digital assets remain relatively nascent and are continually developing. In relation to service, the topic is currently under consultation by the Law Commission, with new—and at times inconsistent—authorities emerging. It is therefore essential to be familiar with the present position when seeking to serve a claim form in proceedings that involve digital assets. What are digital assets? There is no settled definition of a ‘digital asset’. However, the Property ( Digital Assets etc) Act 2025, which took effect on 2 December 2025, confirms that something digital or electronic in nature can amount to property: ‘ A thing (including a thing that is digital or electronic in nature) is not prevented from being the object of personal property rights merely...
This Practice Note explores issues in multi-jurisdictional outsourcing, covering both offshore and nearshore models. Outsourced service delivery is a well‑established approach across most developed markets and is growing in developing economies. It examines matters specific to multinational or offshore arrangements, including: Initial considerations Deal structures Payment and invoicing Benchmarking Governing law Forum for resolving disputes Jurisdiction Operational issues Data protection Personnel Tax considerations Corruption, slavery and ethical issues Termination For an outsourcing contract designed for international use, see Precedent: Outsourcing agreement—long form. See also Precedent: Offshore IT outsourcing—training materials. For broader guidance on cross-border contracting, see International contracts—overview. For country-specific insight, see Doing business in key global jurisdictions—overview and Lexology Panoramic: Outsourcing. Initial considerations The expansion of international outsourcing has been enabled by suppliers building credible regional delivery centres that provide...
This Practice Note outlines details of the non-disclosure orders information scheme (formerly known as the non-disclosure injunctions information collection scheme). It clarifies what it is and when and how it operates. What is this? The non-disclosure injunctions information collection scheme (the Scheme) came into effect on 1 October 2012 as a pilot, created to gather information on non-disclosure injunctions (including anonymised orders and super-injunctions, also termed ‘privacy injunctions’). Prompted by concerns raised in Parliament and the media about the lack of dependable data on the number of super-injunctions and anonymised injunctions sought and granted in privacy proceedings, Lord Neuberger MR convened a committee. In May 2011, that committee published the ‘ Report of the Committee on Super- Injunctions’. Following this report, the following was issued: Practice Guidance—applicable when seeking interim non-disclosure orders. The Practice Guidance sets out recommended practice regarding any application for interim...
ARCHIVED This Practice Note is archived and no longer maintained. It compiles material on the coronavirus ( COVID-19) outbreak for technology, media and telecommunications ( TMT) lawyers. It is updated on a rolling basis and signposts links to: Q& As Practice Notes, Precedents and Checklists Updates and news Court of Justice This Practice Note cites decisions of the Court of Justice. For whether such judgments bind UK courts, see Practice Note: Assimilated law— Assimilated case law. Q& As How do I keep my organisation and staff secure when using video-conferencing during the coronavirus ( COVID-19) pandemic? What technology risks arise from homeworking? Can a contract be ended for frustration because of coronavirus ( COVID-19)? Will our insurance respond to coronavirus ( COVID-19)? Does my force majeure clause shield us from the economic effects of coronavirus (...
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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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