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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 addresses the causation issues that frequently arise in hand-arm vibration syndrome ( HAVS) claims, also known as vibration white finger ( VWF). This Practice Note will refer to HAVS. It provides practical guidance on handling such claims, including a survey of the leading case law on causation, the difficulties around diagnosis, the value of photographic evidence and the claimant’s account of symptoms, apportionment of liability, and the overlap with carpal tunnel syndrome ( CTS). For guidance on liability and quantum, including the significance of the defendant’s date of knowledge of the risk and limitation considerations, see Practice Note: Hand-arm vibration syndrome ( HAVS) or vibration white finger ( VWF)—liability and quantum. Diagnosis Causation is challenging because there is no definitive diagnostic protocol, and methodologies vary considerably between experts. The position is further complicated by the fact that individuals may exhibit similar...
This Practice Note considers responsibility for incidents on school premises, drawing on case law to show which elements can, in practice, separate a winning claim against a school or its proprietors from one that fails. These elements encompass duty of care, vicarious liability, contributory negligence, foreseeability of consequences, causation and proximity, the child’s age, disposition and mental capacity, the standard of supervision expected in a school, and whether at the material time the child was within the school’s care or control. Accidents happen in schools Children are frequently hurt with no fault attributable to any person. By their very nature they are young and inexperienced. Likewise, they cannot expect to pass through life avoiding all risk; and when they do take a risk—often, through lack of life experience, unknowingly or misjudging its extent—they may, on occasion, be injured despite care being taken. Accidents do occur and 'not...
This Practice Note sets out the criminal offences under the Child Abduction Act 1984 ( CAA 1984), and also considers electronic tagging and the Law Commission’s recommendations for amending the offences under the CAA 1984... Criminal law The CAA 1984 created the child abduction offences. Subject to the specified exceptions, a person connected with a child under 16 commits an offence by taking or sending that child out of the UK without the requisite consent......
Under section 6 of the Fraud Act 2006 ( Fr A 2006), it is a criminal offence for any individual to possess, or to keep under their control, any item intended for use in the commission of, or linked to, fraud. The constituent elements require proof that the defendant: had possession of, or control over, an article, for use in carrying out, or in relation to, any fraud. For the purposes of Fr A 2006, s 6, ‘fraud’ includes fraud by false representation, fraud by failing to disclose information, and fraud by abuse of position under Fr A 2006, ss 2–4. See Practice Notes: Fraud by false representation and Fraud by failure to disclose and abuse of position. The Explanatory Notes to Fr A 2006 explain that the wording of this offence is drawn from the offence of ‘going equipped’ in section 25 of the...
An employer may choose to set a dress policy for several reasons, including: presenting a polished, professional look that reflects the organisation’s brand; requiring a uniform; and/or complying with health and safety obligations Employers have considerable freedom in framing a dress policy, but in reality that latitude is tempered by: the need to apply comparable standards to all staff and to base them on a genuine business need, to minimise the risk of successful discrimination claims; and broader employee relations considerations, since the employer will want a policy that is broadly acceptable to most employees This Practice Note examines: relevant statutory and non-statutory guidance on dress codes the discrimination risks and practical considerations that can arise in relation to a dress code specific aspects of attire an employer may wish to include in a dress policy how to...
If a Will is sensible, in standard form and appears to have been properly signed, the following presumptions arise: due execution capacity knowledge and approval Presumption as to due execution The court will assume due execution where a Will looks, on its face, to be correctly executed, relying on the maxim omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This can be overturned, but only with very strong proof. The court demands the most cogent evidence to conclude a Will was not executed in accordance with the Act when it appears regular and clearly embodies the testator’s wishes. Judges are slow to reject such apparent compliance on extraneous material, since memories of events years earlier are often unreliable. To do otherwise would risk defeating the testator’s intentions, which they took care to formalise in a manner that...
Warranty and indemnity ( W& I) insurance in M& A transactions W& I insurance can be used in private company sales and purchases, whether the deal is a share sale or an asset sale. The buyer or the seller may arrange cover for losses arising from breaches of the seller’s warranties or indemnities set out in the relevant share purchase agreement or asset purchase agreement (the acquisition agreement), including any tax indemnities under a tax covenant. Although chiefly applied in private company M& A, it may on occasion feature in public company transactions where the target or its shareholders provide warranties. As well as allocating risk, parties frequently use the policy tactically: a bidder in a competitive auction can separate its offer from rivals, and sellers can reduce sums locked in escrow and realise proceeds more quickly. In the UK and other...
This Practice Note outlines the nature of waiver and release within commercial contracts, distinguishes between them, and summarises the clauses that address waiver (commonly called a ‘no-waiver’ clause) and release. The waiver clause is widely recognised as a boilerplate provision aimed at preventing unintended waivers of legal rights from taking effect, including the right to terminate after a breach of contract. What does ‘waiver’ mean? In contract law, ‘waiver’ may carry different senses, but most often describes a concession granted by one party whereby it does not demand strict performance by the other of a contractual duty, whether before or after any breach of the term being waived. For discussion of other potential meanings, see: Waiver: Halsbury’s Laws of England [251]. Types of waiver Express Implied from conduct In either case, it must amount to an unequivocal representation arising from a positive and...
This brief overview explains the steps for voluntarily removing a company from the companies register under section 1003(1) of the Companies Act 2006 ( CA 2006). It excludes removals initiated by the Registrar of Companies, which are addressed in Practice Note: The Registrar's powers to strike off a defunct company. For an in‑depth examination of the statute, case law and process regarding striking off a company, see Practice Note: Voluntary striking off and dissolution. For a practical, step‑by‑step outline of the procedure for striking off a company, refer to Flowchart: Voluntary striking off—flowchart. Check that the voluntary strike off procedure is suitable Before making the strike off application, the company’s management and/or advisers should assess whether the process is appropriate. It is typically only appropriate for a solvent company with comparatively simple affairs and assets that are...
Procedure for applications when using VFS or TLS This Practice Note outlines the process for applications made through Visa Facilitation Services Global ( VFS) or TLScontact ( TLS), the Home Office’s designated commercial partners for submitting entry clearance from overseas and for in-country applications to extend leave or settle in the UK. VFS handles applications lodged abroad, whereas TLS is responsible for those submitted within the UK. Where the ‘ UK immigration: ID check’ or ‘ EU Exit: ID Document Check’ apps are used, no commercial partner takes part. For more detail on applying from abroad, see Practice Note: Procedure for applying from overseas. For applications made in the UK, see Practice Note: Procedure for applying online in the UK. The ID check app is being expanded to additional visa routes and its availability will grow over time. Important note: although this Practice Note...
Need for valuations The valuation test sits at the heart of deciding (i) whether a restructuring plan ( RP) forced on dissenting classes via cross-class cramdown ( CCCD) is fair, and (ii) what outcome the relevant alternative would produce for creditors/members if the RP is not approved. When the RP mechanism was introduced through the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), the government acknowledged that valuation is frequently a flashpoint in restructurings (see Practice Notes: Types of valuation for R& I lawyers and Where the value breaks and negotiating strength). The design aims to strike the best possible equilibrium between safeguarding creditors’ interests and limiting disputes. In practice, the government considered that, in many situations, ongoing dialogue and bargaining between a company and its creditors would narrow gaps in perceived value of the company sufficiently to avoid challenges. The...
This Practice Note sets out clearly and clarifies precisely what amounts to unlawful eviction, when and how it can arise in a civil context, the civil remedies on hand and available, and any knock-on causes of action. Unlawful eviction Unlawful (or illegal) eviction is defined by the Protection from Eviction Act 1977 ( PEA 1977) and constitutes a criminal offence in law. A claim for unlawful eviction occurs where a landlord, or any other individual, removes or seeks to remove a residential occupier from their home and occupation without using the lawfully prescribed process. A ‘residential occupier’ means a person living in the premises as a residence, whether under a contract or by virtue of any enactment or rule of law that gives them a right to remain in occupation or limits another’s right to recover possession of the premises. This definition extends to tenants and...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background information only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulator for the US securities sector. As part of its remit, FINRA runs the largest dispute resolution forum in that market. It addresses monetary and commercial disagreements involving investors, brokerage firms and individual brokers, including conflicts within and between firms and brokers. Matters are handled through FINRA’s own arbitration system. FINRA maintains two Codes of Arbitration Procedure: Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules) — governing arbitrations between investors and industry parties; Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules) — governing arbitrations between industry parties. This note addresses the Customer Code only. For the Industry Code procedure, see Practice Note:...
ARCHIVED: This Practice Note is archived and not maintained. It was originally prepared for Lexis Practice Advisor®, in the US. It examines joint authorship and ownership of copyrights under US federal law, including the elements of joint authorship, the default rules that apply to joint authors, and drafting points for collaboration agreements. Joint authorship overview Before exploring the subtleties of joint authorship, it is useful to consider some fundamental copyright principles and how they relate to authorship. Basic copyright principles The Copyright Act grants authors of original works of authorship that are fixed in a tangible medium of expression a bundle of exclusive rights (ie a copyright) in their works for a period set by statute (ie the copyright term or duration). For more on exclusive rights, see Practice Note: US—exclusive rights of copyright owners [ Archived]. For more on copyright duration, see Practice Note:...
This Practice Note looks at the basic award, a constituent part of compensation in an unfair dismissal case. It explains how the figure is calculated, including: a maximum of 20 years’ service counted up to the effective date of termination; the number of weeks per year set by age bands; a week’s pay figure subject to a statutory cap; a minimum award in some circumstances (for example, trade union activities); a fixed two-week award in certain redundancy scenarios. It further covers deductions for contributory conduct (whether or not the employer knew), the consequences of refusing reinstatement, and set-off to the extent of any redundancy payment already made. For general guidance on unfair dismissal remedies, see Practice Note: Unfair dismissal...
This Practice Note sets out what undertakings—also referred to as covenants—are, and the typical undertakings seen in commercial loan agreements for an investment grade borrower. It also addresses the usual negotiation issues and areas of focus for both borrowers and lenders. Where relevant, it signposts provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee, and the Loan Market Association ( LMA) investment grade multicurrency term facility agreement with/without observation shift (the LMA facility agreement), available to LMA members on the LMA website. The LMA’s user guides (in the Documents & Guidelines section of its website) and the Association of Corporate Treasurers ( ACT) Borrower’s Guide to the LMA’s Investment Grade Agreements provide useful guidance on undertakings in LMA investment grade documentation. Registration with ACT is necessary to obtain access to their guide. For an...
Practice Note This Practice Note examines the situation where a tenant grants an underlease for a period that exceeds the tenant’s unexpired lease term, addressing the legal and commercial ramifications, the effects under the Landlord and Tenant Act 1954 ( LTA 1954) and the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995), and the associated land registration requirements. An underlease granted for a duration equal to, or longer than, the headlease functions as an assignment rather than an underlease. As a result, any underlease must be for a term at least one day shorter than the headlease. It is prudent to ensure a minimum gap of three days in routine leasing practice today......
This Practice Note examines the powers of the arbitral tribunal under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an introduction to the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. For guidance on appointing the tribunal, see Practice Note: UNCITRAL Rules—appointment of the arbitral tribunal. A core feature of the UNCITRAL arbitration framework is the authority vested in the tribunal. The UNCITRAL Rules grant the arbitral tribunal extensive powers over the management and timetable of the proceedings, evidence, the making of awards, interim measures and the allocation of costs. General power of the arbitral tribunal The tribunal may conduct the proceedings in such manner as it deems appropriate, provided it treats the parties equally and affords each party a reasonable opportunity to present its case ( UNCITRAL Rules, Article 17(1)). The broad discretion conferred on the...
There is no overall cap on the benefits a registered pension scheme may provide. Nevertheless, under the Finance Act 2004 ( FA 2004), if a scheme makes an unauthorised payment: tax liabilities will usually arise for both the individual receiving the payment and the scheme itself. For more detail, see Tax charges on making unauthorised payments, below in the worst case, the scheme could face de-registration, leading to the loss of its tax-privileged status. For more detail, see De-registration and the de-registration charge, below specific reporting obligations will apply. For more detail, see Reporting requirements and penalties, below In certain situations, HMRC may grant a discharge from some of the tax charges linked to unauthorised payments. For guidance, see Applying to HMRC for discharge from tax charges, below. Further exceptions to the standard unauthorised payments position exist and are set out in...
Conversion into sterling It is a fundamental rule that, to calculate UK tax, every item of income and gains must be presented in sterling. Where receipts are in a foreign currency, or assets are purchased or sold in another currency, those amounts must be converted into sterling. Accordingly, you need to fix a conversion date and identify the exchange rate applicable on that date... The general position is that trustees of UK resident trusts are taxed on foreign income on the arising basis. When foreign income is taxed on the arising basis, the exchange rate to use is that prevailing on the date the income arises. If the income arises regularly across the year, it is acceptable to apply an average annual rate. Where a life tenant of a trust claims relief under the foreign income and gains ( FIG)...
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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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