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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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Specific measures usually operate to secure a basic level of pension protection for employees whose roles are compulsorily transferred from central government to private sector contractors due to the outsourcing of services. These safeguards are commonly known as ‘ Fair Deal’. Fair Deal protection—background history Fair Deal guidance first appeared in Annex A of the HM Treasury Guidance ‘ Staff Transfers From Central Government: A Fair Deal for Staff Pensions’, issued in June 1999, and was directed solely at central government departments and agencies. This initial guidance (referred to as ‘old Fair Deal’ in this Practice Note) developed over time as follows: In January 2000, old Fair Deal was annexed to, and cited in, the Cabinet Office Statement of Practice ‘ Staff Transfers in the Public Sector’ ( COSOP), which was later revised in November 2007 and December 2013. This annexing was...
ARCHIVED: This Practice Note is archived and not maintained. It considers the Public Bodies Act 2011 ( PBA 2011) and the contractual effects that should be assessed where a public body or business is impacted by it. Background On 14 October 2010, Francis Maude, the Minister for the Cabinet Office, set out in a written ministerial statement that the arrangements for public bodies required radical reform to enhance transparency and accountability, eliminate duplicated activity, and bring to an end work that is no longer necessary. In response, the PBA 2011 received Royal Assent on 14 December 2011. The Act is intended to enable the government to simplify the landscape of public bodies by, among other measures, abolishing so‑called quangos (ie quasi‑autonomous non‑governmental organisations). Quangos include non‑departmental public bodies ( NDPBs), a term commonly used by the government......
Boilerplate provisions in public sector contracts This Practice Note examines freedom of information clauses in public sector contracts. For further detail on what contracting authorities and other interested parties should be aware of when deploying boilerplate terms in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations. Public procurement reform The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 ( PA 2023). See: Procurement Bill [ HL]— LNB News 12/05/2022 14 and Procurement Bill receives Royal Assent— LNB News 26/10/2023 81. From 24 February 2025, the principal provisions of PA 2023 are in force, and procurements commenced on or after that date must proceed under PA 2023. Earlier procurements remain governed by the existing public procurement framework, including: Public Contracts Regulations 2015 ( PCR 2015) and Procurement Practice Notes ( PPNs) Utilities...
This Practice Note This Practice Note clarifies the meaning of applicable law—sometimes, depending on context, called governing law, proper law or the choice of law—namely the law applied to resolve a dispute between parties. It does not encompass procedural law. It identifies which applicable law regime operates in the courts of England and Wales ( English courts). The regime engaged will differ according to whether the dispute is contractual or non-contractual and, for contractual matters, whether the parties selected the applicable law via a choice of law (governing law) clause, including any subsequent variation of that agreement. In a world where international travel, trade and communication are routine, cross-border complications arise with ease. Parties conclude contracts daily across different countries and continents. Goods and services move across frontiers, and individuals suffer accidents outside the states where they ordinarily live and work. When a claim has a...
This Practice Note offers practical guidance on executing simple contracts and deeds by third-party individuals or bodies corporate (chiefly companies formed under the Companies Act 2006 ( CA 2006)) acting pursuant to a power of attorney, and outlines how such parties should sign in this context. It considers the following: who can grant a power of attorney, who can act as an attorney, the formalities for executing simple contracts or deeds under a power of attorney. It does not cover: the execution of powers of attorney themselves (see Precedent: Power of attorney for commercial transactions); the execution of documents by other authorised signatories of organisations (see Practice Note: Executing documents—deeds and simple contracts). We have created a comprehensive, interactive collection to help users identify and work through the concepts and common issues when executing documents. Each section or phase contains practical guidance, precedent clauses and Q& As relevant to that section, helping users work...
This Practice Note gives a concise overview of the matters to address at the outset of a dispute. Begin by identifying whether there is a dispute resolution procedure or clause, and evaluate the extent to which it governs the dispute in hand. Where it is engaged, consider: the procedural and substantive requirements of that clause the governing law that applies to the clause which courts (if indeed it is a court) hold jurisdiction over the dispute For further detail on these points, see Practice Note: Dispute resolution clauses—what and why. For general guidance on alternative dispute resolution ( ADR) and the various forms of dispute resolution clauses, see: ADR and dispute resolution clauses—overview. Pre-action obligations A pre-action protocol sets out the steps that must be taken, for any claim within its scope, before court proceedings are issued. For information on the specific...
This Practice Note reviews the Hague Convention on Choice of Court Agreements, which governs both jurisdiction and the recognition and enforcement of judgments. It outlines the scope of the Hague Convention on Choice of Court Agreements and the need for an international case anchored by an exclusive choice of court agreement. It also examines issues lying outside the Convention’s reach, whether by specific exclusions within the text or through declarations made by contracting states. The Practice Note considers how the Hague Convention on Choice of Court Agreements applies in the UK. An explanatory report on the Hague Convention on Choice of Court Agreements by Trevor Hartley and Masato Dogauchi supplies detailed commentary on each article. When did the Convention come into force? The Hague Convention on Choice of Court Agreements was concluded on 30 June 2005 and was first ratified by Mexico, followed by the EU. In...
This Practice Note explores the deployment of consumer reviews (including fake reviews and concealed incentivised reviews) and their treatment as a banned unfair commercial practice under the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024). It also examines obligations set by the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing ( CAP Code). Introduction Consumer reviews are vitally important in guiding individuals on whether to purchase a product or obtain a service. When used appropriately and in line with the law, they deliver detailed insight into the authentic experiences of others and can be harnessed by businesses to demonstrate credibility and reliability to prospective customers alike. When misused, they may manipulate search rankings, mislead consumers about a product’s genuine efficacy, or otherwise create a deceptive overall impression that could influence a consumer’s transactional decision. Although reviews can appear both online and...
Overview This Practice Note examines core considerations in Saa S and hardware/software maintenance SLAs. It centres on availability (uptime) and break/fix fault resolution, and covers: scoping and defining the service levels absolute versus endeavours obligations customer responsibilities exclusions service credits termination rights It also flags common drafting and negotiation issues shaped by the service model (eg supplier‑hosted Saa S or a customer’s on‑premise system). It should be read alongside these Precedents: Service Level Agreement ( Availability (uptime) service level for Saa S) Service Level Agreement (hardware/software fault resolution support services) Where SLAs are required for other categories of service levels, much of the approach remains consistent—particularly around absolute versus endeavours commitments, service credits and termination rights. The general Precedent: Service level agreement provides a suitable...
This Practice Note is a practical guide to auditing and assessing your outsourced IT service delivery. Such a review may take place before entering a new IT outsourcing arrangement, or under an existing outsourcing agreement pursuant to benchmarking provisions. Background to the review of IT services Technology refresh is vital for boosting efficiency and staying competitive. Historically, organisations would complete a full IT refresh roughly every five to seven years (shorter in some sectors), with smaller, interim development initiatives between major refresh cycles. For further detail on legacy IT refresh, see Practice Note: Legacy IT systems. The long-standing appeal of IT outsourcing lies in reducing both financial outlay and staffing devoted to operating and enhancing IT operations and infrastructure, so those resources can be redirected to other strategic priorities. In addition, the emergence of new...
This Practice Note considers IP issues specifically in relation to fintech. It addresses fintech and intangible assets, fintech IP strategy, copyright, open source software, brand protection, trade secrets, the impact of artificial intelligence ( AI), and practical steps. Fintech refers to technology applied to financial services and can encompass, for instance: software for electronic payments using conventional currency, such as software implementing protocols for atomicity, consistency, isolation and durability ( ACID) transactions (with ‘ ACID’ describing a set of transaction properties) software facilitating transactions via a blockchain distributed ledger quantum hardware and software enabling ‘quantum money’ trained machine learning systems for automated lending decisions for consumers or businesses trained machine learning systems supporting pension fund management software driving automated trading of securities and/or derivatives software a business uses to automate price setting of its goods or services in...
Explainability has become a key pillar of ethical, responsible artificial intelligence ( AI) and is now a common expectation within developing AI laws and rules. This Practice Note explores the explainability of AI, covering: What AI explainability means Why explainability matters Regulatory guidance on explainability The legal context for explainability Practical approaches to deliver explainability For more on AI, see Practice Notes: Artificial intelligence and machine learning—an introduction to the technology Artificial intelligence—data protection Artificial intelligence—intellectual property Artificial intelligence in the EU—the key legal issues The AI project lifecycle—a quick guide Negotiation guide— AI contracts Contractual considerations for the procurement of artificial intelligence—checklist For AI contract clauses, including issues of explainability and transparency, see: AI clauses— Warranties. For a timeline of key legal developments on AI, see Practice Notes: UK artificial...
This Practice Note provides an introduction to the dark web. It sets out what the dark web is and surveys lawful and unlawful activities and concepts commonly linked to it. This Practice Note does not examine in detail the legal issues arising from policing or committing criminal conduct on the dark web. What is the dark web? The part of the internet labelled the dark web is often depicted by the media as a purely sinister criminal underworld reserved for drug trafficking and other illegality. The picture is more complex. The surface web, which is readily accessible to anyone, by some estimates accounts for only a small slice of the internet. The deep web—that is, the portion hidden from the public and not indexed by search engines—largely consists of pages maintained by organisations and governments and is by far the biggest segment...
Setting out contractual audit rights, together with obligations to keep contract-related records in a specified way, is a vital element of any outsourcing. Strong oversight enables the customer to confirm services are being delivered as agreed and gives the supplier a forum to evidence compliance with the contract. This Practice Note explores key matters concerning record retention and audit rights in outsourcing arrangements: Initial considerations How long should records be kept? Audit rights Consistency with other terms of the contract Supplier’s perspective For sample drafting suitable for record retention or audit provisions, see clauses 22 ( Records) and 23 ( Audit) of Precedent: Outsourcing agreement—long form. Initial considerations The parties will need to address several core questions to decide what is suitable in the circumstances: What retention obligations apply to the customer and the supplier, both under law and under their...
A range of statutory obligations regulate the acquisition, retention, examination and dissemination of private material by public authorities for intelligence purposes. These frameworks comprise: Investigatory Powers Act 2016 ( IPA 2016) Regulation of Investigatory Powers Act 2000 ( RIPA 2000) Human Rights Act 1998 ( HRA 1998) Intelligence Services Act 1994 ( ISA 1994) Security Service Act 1989 ( SSA 1989) Computer Misuse Act 1990 ( CMA 1990) Wireless Telegraphy Act 2006 ( WTA 2006) Investigatory Powers ( Interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018, SI 2018/356 The IPA 2016 is further supported by statutory codes of practice: Interception of communications: code of practice Equipment interference: code of practice Communications data: code of practice Bulk acquisition of communications data: code of practice Bulk personal...
This Practice Note addresses influencer marketing in Germany. It is written for social media talent (influencers) and for brand owners running advertising campaigns. It concentrates on labelling and disclosure obligations, the sanctions that may follow, and the way disclosure is regulated. It also looks at whether copyright subsists in sponsored material and highlights key clauses typically found in the relevant agreements. The nature of social media influencers Influencer marketing is a prevalent advertising method in which businesses engage an individual—the influencer—to endorse their products ( Higher District Court of Hamburg GRUR- RS 2020, 18139, para. 55; Zurth/ Pless, ZUM 2019, 414 (414 et seq.)). Influencers are attractive contractual and promotional partners because they may have amassed either a very large audience delivering wide reach (so‑called celebrity influencers) or a smaller, homogeneous community focused on a shared topic (so‑called...
While its prominence has dipped in recent years as developers opt for permissive licences like MIT, and notwithstanding the release of a newer edition—the GNU GPL 3.0—a large body of code is still governed by GPL 2.0. Alongside GNU GPL 3.0, it remains a contentious and much-debated licence, chiefly due to copyleft effects that clash with prevailing commercial software licensing models. Under GPL 2.0, any work that is distributed or made public which, in whole or in part, includes or is derived from the GPL programme, or any portion of it, must be licensed in its entirety, free of charge, to all third parties. Among other obligations, this means recipients must be permitted to copy, alter, and share the work, and the licensee must provide access to the source code. There is extensive argument about the events that trigger this clause. In...
This Practice Note provides an overview of the law, guidance and practice concerning the Business Protection from Misleading Marketing Regulations 2008, SI 2008/1276 ( BPR 2008), which govern business-to-business advertising in the UK. It outlines what constitutes misleading advertising, the parameters for comparative advertising, and the offences and due diligence defence under BPR 2008. For fuller guidance on the rules for comparative advertising, see Practice Note: Comparative advertising. Background BPR 2008 came into effect on 26 May 2008, implementing Directive 2006/114/ EC, the EU Misleading and Comparative Advertising Directive, into UK law. The regulations concentrate on business-to-business activity, forbid misleading business-to-business advertising, and set the conditions that comparative claims must satisfy to be lawful. At the same time, the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 ( CPUTR 2008) took effect, implementing Directive 2005/29/ EC, the EU Unfair Commercial Practices Directive ( EU UCPD) into UK law....
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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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