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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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What is operational resilience? This Practice Note outlines the key operational resilience requirements that apply to UK financial services firms. Operational resilience is the capacity of firms, and the financial sector, to prevent, adapt, respond to, recover from, and learn from operational disruption. It goes further than business continuity and disaster recovery and is a strategic priority for regulators around the world. Operational resilience-in-scope firms The summary below sets out the categories of firms within scope of the UK operational resilience regime and the applicable rules and guidance from the PRA, FCA and Bank of England. Banks, building societies, and PRA-designated (ie systemically important) investment firms: PRA/ FCA/ Bo E joint paper: Building operational resilience: Impact tolerances for important business services PRA Policy Statement PS6/21: Operational resilience: Impact...
Introduction to the Intellectual Property Enterprise Court The Intellectual Property Enterprise Court ( IPEC) sits as a sub-list within the general Intellectual Property List ( Chancery Division). It is designed to open up access to justice in IP disputes for small- and medium-sized enterprises ( SMEs) that might otherwise struggle to bring or defend a claim. IPEC also serves as a venue for lower-value IP cases to be resolved at proportionate cost, ensuring litigation remains manageable for parties with modest resources. The Intellectual Property List comprises two sub-lists: the Patents Court and the IPEC. It forms part of the Business and Property Courts of the High Court, which were established on 2 October 2017. For further details about the Business and Property Courts, see Practice Note: Business and Property Courts, and for commentary on their introduction in IP matters, see News Analysis: Framework of...
This Practice Note monitors the development of UK legislation brought forward under the legislative programme linked to the UK’s departure from the EU. It also features a Brexit SI database that compiles details of both draft and made secondary legislation related to Brexit. Quick links Use the links below to go directly to the relevant section or tracker. Practice area trackers Follow the links below for trackers focused on Brexit legislation across specific practice areas: Commercial Corporate Crime Dispute Resolution Employment Energy Environment Financial Services Information Law Intellectual Property Life Sciences Local Government Pensions Property R& I Tax For further updates and guidance tailored to individual practice areas, see: Brexit collection......
Expert determination is a form of alternative dispute resolution ( ADR). This Practice Note outlines expert determination for technical or contract interpretation disputes. It describes the process, addresses how the parties agree to select or appoint the expert, and considers the expert’s jurisdiction. It also covers the binding effect of the expert’s decision, as well as procedure, limitation and potential claims against experts. For general guidance on ADR and other options, see the following Practice Notes: What is ADR? Which form of ADR? What is expert determination? Expert determination is a binding mechanism where an independent expert in the relevant discipline decides a dispute between parties in accordance with provisions they have agreed. It is most often used where an existing agreement provides for referral of a particular issue to an expert. It is especially suited to technical disputes, such as: Rent...
What is smart metering? For an introduction to smart meters, see also Practice Note: What is a smart meter? In Great Britain, licensed electricity and gas suppliers are required under their supply licences to take all reasonable steps to roll out smart meters to domestic and small business customers. The programme is expected to lower customers’ energy bills, boost energy efficiency, and make it simpler to switch energy supplier. The UK government views smart metering as a crucial instrument for a low‑carbon economy, reaching net zero emissions by 2050, and realising ambitions for an affordable, secure and sustainable energy supply chain. The smart meter roll‑out has been extended on several occasions since the Electricity Act 1989 and Gas Act 1986 were amended to place duties on licensed suppliers to complete it. There have also been multiple reviews and publications on progress, including National Audit Office...
Under English law, binding agreements may arise orally, in writing, or by deed. This Practice Notice explores when a deed is required or preferable, and the formalities that must be observed to ensure validity. What is a deed? When a deed is required Formalities (1): in writing Formalities (2): face value Formalities (3): execution Formalities (4): delivery Escrow Witnessing Variation Failure to comply with formalities and other defects Reform For details on executing deeds in jurisdictions outside England and Wales, see Practice Note: Execution of deeds—jurisdictional guide. We have created a comprehensive, interactive collection to help users identify and navigate concepts and common issues in executing documents, including deeds. Each phase includes practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution...
This Practice Note outlines how the UK regulates artificial intelligence ( AI) under its National AI Strategy, spotlighting the proposed pro-innovation approach to AI regulation set out in the UK White Paper, and providing an overview of the relevant approach and guidance across key sectors. For more on AI and its regulation, see Practice Notes: Artificial intelligence and machine learning—an introduction to the technology Artificial intelligence—data protection Artificial intelligence—explainability Artificial intelligence—intellectual property Artificial intelligence in the workplace Artificial intelligence in the EU—the key legal issues Contractual considerations for the procurement of artificial intelligence—checklist To track major legal developments relating to AI, see Practice Notes: UK artificial intelligence—tracker and EU Artificial intelligence—tracker. The UK’s National AI Strategy AI is a swiftly developing technology with significant potential to reshape industries, drive economic growth, and influence many parts of society. The...
This Practice Note This Practice Note outlines the IP and competition law considerations that can surface around character merchandising (that is, licensing a character’s name or image for promoting goods or services, typically involving licences of trade marks and/or copyright) in the UK. It reviews matters arising under the Competition Act 1998 ( CA 1998). It discusses potential block exemptions and individual exemptions that could be relevant. It also explores how competition law intersects with the tort of passing off. Conceptually, linking a product or service with a character enhances its appeal in the marketplace. For licensors, beyond the royalties received, exploiting such character rights can be an essential tool for marketing and sponsorship. For a concrete illustration where IP rights were licensed for character merchandising, together with an examination of the strategic considerations, see News Analysis: What does the Barbie film mean for IP...
This Practice Note outlines the principal distinctions between mediation and litigation in England and Wales, alongside their likely benefits and drawbacks. What is mediation? Mediation is one of the most familiar and widely used forms of alternative dispute resolution ( ADR). It is a confidential procedure in which an impartial third party (the mediator) helps the parties work towards an agreed outcome to settle their dispute. For a summary of the process, see: Mediation—overview. In July 2021, the Ministry of Justice issued a ‘guide to a civil mediation’ explaining the advantages of civil mediation and how to identify a suitable mediator. Why consider mediation? There are many grounds for seeking a negotiated resolution, including: Preserving the commercial relationship between the parties Minimising the cost and duration of court proceedings Keeping the dispute confidential For general guidance on settling disputes, see Practice Note: Settling...
This Practice Note monitors key milestones in the rollout of the Online Safety Act 2023 ( OSA 2023), which received Royal Assent on 26 October 2023 and partly commenced on that date (see OSA 2023, s 240). The main obligations and duties under OSA 2023 will not fully apply until Ofcom issues final versions of all relevant codes of practice and accompanying guidance. Publication is staggered, with the earliest applicable duties starting from the end of 2024. This Practice Note follows these developments. It captures consultations, related guidance and announcements, but does not cover Ofcom’s enforcement activity, which is addressed separately. See Practice Note: Online Safety Act 2023-enforcement tracker. For broader information on OSA 2023, see: Practice Note: The Online Safety Act 2023 Complying with the Online Safety Act...
Advertising and marketing- Germany- Q& A guide [ Archived, 2021 edition] This Practice Note offers a Germany-focused Q& A on advertising and marketing, featured in the Lexology Getting the Deal Through series by Law Business Research ( October 2021). Authors: DLA Piper- Beatrice Brunn; Dr. Stefan Engels. 1. What are the principal statutes regulating advertising generally? Germany does not have a single, comprehensive advertising law. The Unfair Competition Act ( UWG) is the primary framework governing market behaviour, with specific relevance to advertising. Its purpose is to protect consumers, competitors and other market participants from unfair commercial practices. In addition, numerous sector-specific rules apply to the promotion of particular products and services, and across various communication channels. Certain professional guilds have also issued codes of conduct to preserve their integrity; these bind only their members. Further requirements or constraints may depend on the medium used....
The adtech and programmatic advertising tracker is comprised of the following sections: Legislation Bills in progress (when applicable) Acts in force Research and consultations undertaken by the UK government Regulatory action by: the Competition and Markets Authority ( CMA) the Information Commissioner’s Office ( ICO) Industry developments, including: IAB Europe, IAB Tech Lab and IAB UK Data and Marketing Association ( DMA) Incorporated Society of British Advertisers ( ISBA) ...
Advertising and marketing- Brazil- Q& A guide [ Archived, 2021 edition] This Practice Note provides a jurisdiction-specific Q& A on advertising and marketing in Brazil, issued within the Lexology Getting the Deal Through series by Law Business Research ( October 2021). Authors: IWRCF- Luiz Werneck; Talita Sabatini Garcia. 1. What are the principal statutes regulating advertising generally? the Brazilian Federal Constitution; the Consumer Protection Code ( Federal Law No. 8,078/90); the Statute of the Children and Adolescents ( Federal Law No. 8,069/90); the Brazilian Advertising Self- Regulation Code; Federal Law No. 5768/71; Decree No. 70,951/1972; Federal Law No. 5,768/71 and Decree No. 70,951/1972 regulate commercial promotions and sweepstakes; National Health Surveillance Agency resolutions. 2. Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent...
Advertising and marketing- France- Q& A guide [ Archived, 2022 edition] This Practice Note presents a France-specific Q& A on advertising and marketing, issued within the Lexology Getting the Deal Through series by Law Business Research ( August 2022), and archived as the 2022 edition. Authors: Bernard- Hertz- Béjot- Michel Béjot; Caroline Bouvier 1. What are the principal statutes regulating advertising generally? Advertising is governed by legislation and related implementing instruments, including decrees and ordinances that give effect to statutory provisions. For example, Toubon Law No. 94-665 of 4 August 1994 mandates and oversees the use of the French language in all advertising. Decree No. 92-280 of 27 March 1992 sets out particular rules for television advertising. There is no single advertising code; instead, various sectoral codes contain provisions on advertising in France. For instance: the Consumer Code addresses both deceptive or misleading...
This Practice Note provides a jurisdiction-specific Q& A on advertising and marketing in Russia, published within the Lexology Getting the Deal Through series by Law Business Research (published: November 2020). Authors: Gorodissky & Partners- Ilya Goryachev. 1. What are the principal statutes regulating advertising generally? The principal statute governing advertising in Russia is Federal Law No. 38- FZ of 13 March 2006 ‘on advertising’ (the Advertising Law). It: sets out definitions of advertising and participants in advertising; stipulates general requirements applicable to advertising; places restrictions on advertising of particular goods and on certain advertising types; regulates outdoor advertising and assigns powers to local authorities; and empowers the Federal Antimonopoly Service as the advertising regulator. Federal Law No. 135- FZ of 26 July 2006 ‘on competition protection’ defines unfair competition and lists its non-exhaustive forms; these provisions are likewise relevant to unfair...
The UK’s formal withdrawal from the EU took effect at 11 pm on 31 January 2020 (exit day). At that point, the withdrawal period under Article 50 TEU concluded, and the ratified Withdrawal Agreement, which set the legal terms of the UK’s departure, entered into force. On exit day, the ratified Withdrawal Agreement was released in the Official Journal of the European Union, together with the Political Declaration outlining the framework for the future relationship between the UK and the EU: Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.20, p 7-187 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.20, p 1-16 Exit day stood as a significant milestone, being the date on which the UK...
What is the World Trade Organization ( WTO)? The WTO oversees trade agreements that regulate commerce between states. It is also a venue for governments to negotiate bilateral or multilateral trade agreements and to settle trade disputes, helping countries trade with as little friction and disruption as possible. For background reading on the WTO, see: WTO— Who we are and WTO— In brief. The WTO came into being on 1 January 1995, though its trading rules are older. The General Agreement on Tariffs and Trade ( GATT) has provided a framework for global trade in goods since 1948, amended through successive negotiating rounds. Talks in the mid-1980s and early 1990s, known as the Uruguay Round, sought to extend the system to services and intellectual property. That round concluded with an agreement signed on 15 April 1994 by most of the 123...
Practice Note overview This Practice Note outlines the adtech landscape and the programmatic trading of online display advertising. It explores the tools and transactional workflows behind programmatic advertising, contrasts the various programmatic deal types, reviews pricing approaches, profiles the principal actors in the adtech ecosystem and programmatic activity more broadly, and explains the real-time bidding ( RTB) auction... See also Practice Notes: Adtech and programmatic advertising—data use Adtech and programmatic advertising—legal issues Adtech and programmatic advertising—tracker Adtech and programmatic advertising—glossary Quick view The table below summarises the subjects covered in this Practice Note, with links to the relevant sections where further detail is provided... Section Overview What is adtech? Adtech (advertising technology) describes the technologies, software and services that advertisers and publishers use to design, run, administer and optimise digital advertising campaigns, as well as the mechanisms for buying, selling, serving and targeting digital...
Sport has unquestionably evolved into a significant industry in its own right. Yet, under English law, there is no freestanding proprietary right in a sport or sporting event: a sports organisation lacks an automatic, absolute claim to all commercial income simply by virtue of organising the event. The same position applies to the specific rights typically associated with the commercialisation of sport; for example, there are no discrete sporting media rights, sponsorship rights or image rights. This Practice Note outlines the legal and contractual rights on which a sports organisation can depend, and the practical measures it can adopt to cultivate valuable proprietary rights in the sporting properties it owns or stages, and to commercialise those rights effectively... Operation and control of venues For many sports organisations, the venue where an event is held not only functions as the team’s ‘home’ and a focal point for...
This Practice Note sets out to clarify and explore the relationship between artificial intelligence ( AI) (or machine learning) and IP. What is artificial intelligence? ‘ Artificial intelligence’ describes a field of computing where machines are built to imitate human intellect - the capacities to perceive, analyse, learn, reason and draw inferences. AI has progressed from its 1950s origins to today’s highly adaptable and unprecedented form. Early thinking centred on systems encoded by developers with the know-how of human specialists, producing intricate decision trees that allowed non-experts to reach a desired outcome. A notable early instance was the Deep Blue system, engineered to trawl a data bank of possible chess moves, compiled by grandmasters, and, using the current board position, assess options and choose its next move. In more recent usage, ‘ AI’ commonly refers to machine learning, where computers adjust and improve through...
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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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