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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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Economic Crime and Corporate Transparency Act 2023—limited partnerships On 22 September 2022, the government introduced the Economic Crime and Corporate Transparency Bill (the Bill). It obtained Royal Assent on 26 October 2023, becoming the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023). In addition to multiple reforms affecting a company’s filing duties at Companies House, ECCTA 2023 updates several elements of the framework governing an English limited partnership ( LP). For a wider overview of these changes, see Practice Note: Corporate transparency reform—changes to the limited partnerships regime. Among the forthcoming amendments are provisions establishing a court process to reinstate an LP that has already been dissolved. To implement this, ECCTA 2023, s 141 will insert new sections 23–25 into the Limited Partnerships Act 1907 ( LPA 1907). This Practice Note gives a concise summary of the procedure described in those...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES When revising or updating a scheme booklet, the following matters ought to be taken into account: Compliance with disclosure requirements Trustees of occupational pension schemes are legally obliged to provide prospective members and recent joiners with certain core details about the scheme. This duty to disclose is most commonly met by issuing a comprehensive scheme booklet. Accordingly, any review of the booklet should confirm that it includes every element of the basic scheme information that must be provided. From 6 April 2014, the basic information to be disclosed has been prescribed by the Occupational and Personal Pension Schemes ( Disclosure of Information) Regulations 2013, SI 2013/2734. For more detail, see Practice Note: Disclosure requirements applicable to occupational and personal pension schemes from 6 April 2014 — Basic scheme information, and Checklist: Basic scheme information from 6 April 2014 —...
From 6 April 2015, when pension freedoms came in, amendments were made to legislation and the Financial Conduct Authority’s rules compelling trustees, managers and providers of both contract- and trust-based pension scheme arrangements to supply members holding flexible benefits (that is, money purchase or cash balance benefits) with relevant details about their retirement choices and options. Practice Notes Retirement communications in occupational DC schemes Retirement communications in FCA-regulated pensions In response to industry worries about the absence of a safety net or 'second line of defence' for individuals who decline Pension Wise guidance and might therefore select poor value options, the FCA, the Pensions Regulator and, later on, the Department for Work and Pensions exercised their powers in 2015/16 to mandate that pension providers and trustees of occupational pension schemes offering flexible benefits issue suitable retirement risk warnings to scheme members who have...
Statute limits the amount that can be recovered from tenants of dwellings by way either of service charges (which include insurance rent) or administration charges In all instances, a landlord may recoup only what is reasonable, even if the lease states otherwise. The right to forfeit a lease for non-payment is also governed by statute, but falls beyond the scope of this Practice Note (see Practice Note: Statutory limitations on the landlord’s right to forfeit a long residential lease). Sections 18–25 of the Landlord and Tenant Act 1985 ( LTA 1985) set out the limits on, and reasonableness of, service charges, the ability to request a summary of relevant costs, and the implications of a change of landlord or an assignment, and they create an offence for failure to comply. These rules apply to all dwellings and cover all residential leases, except where LTA 1985, s 26...
What is a rent guarantee? A rent guarantee is a vendor’s inducement on an investment asset with unoccupied accommodation (eg a vacant store in a shopping centre or an empty floor within an office block). It can arise where a scheme is newly constructed and the developer has not placed tenants in every unit by completion, or where an existing unit becomes empty between exchange and completion. A rent guarantee might also be deployed if a tenant is not paying the full rent or has entered insolvency. It promises the purchaser a steady stream of rental income for the void space, effectively mirroring the rent that would have been payable if let. A seller may put a rent guarantee on the table when the premises are expected to let shortly after completion (eg there is an interested occupier or the space is in strong...
Introduction This Practice Note offers rapid links to our Planning materials relevant to varied renewable energy and storage schemes across England and Wales. Arranged by project/technology category, it provides an at a glance pathway into our Planning practical guidance pertinent to the particular project you are undertaking and working on. Renewables Generation and Storage Projects Project/ Technology Type Key of relevance to your specific project......
Practice Note This Practice Note explains which categories of High Court maintenance orders can be entered on the Family Court register for enforcement, when such entry is suitable, and the steps required to achieve it. It also outlines a party’s enforcement choices, including seeking a change to the method of payment and applying to cancel the registration of the order. The unified Family Court, which commenced on 22 April 2014, replaced the earlier three‑tier family jurisdiction (family proceedings court, County Court and High Court), although the High Court keeps exclusive authority for a limited class of matters (the reserved jurisdiction). As a result, since the creation of the single Family Court, it is no longer possible to register a County Court order in a magistrates’ court for enforcement. Certain periodical payments orders issued by the High Court may instead be registered in the Family Court so they can be...
The framework for international arbitration in Canada Canada operates as a federation made up of ten provinces and three territories. All provinces and territories follow the common law, apart from Quebec, which is a civil law jurisdiction. Federally, and across every common law province and territory, there is specific legislation that governs international commercial arbitration: United Nations Foreign Arbitral Awards Convention Act, RSC 1985, c 16 (2nd Supp) Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp) Alberta: International Commercial Arbitration Act, RSA 2000, c I-5 British Columbia: International Commercial Arbitration Act, RSBC 1996, c 233 Foreign Arbitral Awards Act, RSBC 1996, c 154 Manitoba: International Commercial Arbitration Act, CCSM c C151 New Brunswick:...
This Practice Note outlines how the Lugano Convention 2007 functions for the recognition and enforcement of foreign judgments across borders. The convention operates between EU Member States and Iceland, Norway and Switzerland. It sets out the principal rules governing recognition of a judgment and the procedural steps for its enforcement. The Practice Note distinguishes between a declaration of enforceability and a registration order, and explains their respective effect and purpose. Challenging an order permitting enforcement is also addressed in overview. For guidance on applying the convention to the UK, see Practice Note: Lugano Convention 2007—application to the UK post IP completion day (enforcement). For guidance on applying the convention to third states, see Practice Note: Lugano Convention 2007—application to third states [ Archived]. Terminology and background In this Practice Note the following defined terms are used as follows below: Originating Court—this is the court in the...
Ramsay principle—further developments Lexis+® UK Tax thanks Nigel Doran of Macfarlanes LLP for comments on an earlier draft of this Practice Note; nevertheless, the opinions expressed are those of Lexis+® UK Tax. The Note has since been reviewed and updated by Aparna Nathan, KC, Devereux Chambers. It examines themes arising from cases where the courts have deployed the Ramsay principle to adopt a realistic assessment of the facts. For an introductory overview of the Ramsay principle, see Practice Note: Ramsay as a guide to statutory construction. The way in which the courts have approached Ramsay where transactions comprise a sequence of steps intended to operate together to secure a particular tax outcome is addressed in Practice Note: Ramsay and composite transactions. This Practice Note considers further developments that have emerged as the courts have explored how that approach should be applied across varying...
NB This Practice Note addresses legislation that is not yet in force. Its implementation has been significantly delayed, and there is currently no indication from Government as to when the proposed measures will commence. Government concerns about the scale of termination payments in the public sector have persisted for some time, and recent administrations have expressed an intention to introduce controls over such payments. Three distinct but connected legislative developments have arisen from this. The first was signposted in the Queen’s Speech in 2014, forming part of the Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015). The then coalition government explained that this initial package was designed to tackle situations where a high-earning public sector office-holder left their role, received a substantial termination payment, and then moved into another public sector role either straightaway or shortly after receiving that payment. In those...
The public sector equality duty ( PSED) Set out in Part 11 of the Equality Act 2010 (ss 149–159), the public sector equality duty ( PSED) comprises a general equality duty applying UK-wide to public bodies listed in Schedule 19 of the Eq A 2010, alongside specific duties intended to support delivery of the general duty and enhance transparency. Although the general duty is identical across England, Wales and Scotland, the specific duties made under Eq A 2010, s 153 vary. In Wales, listed public bodies must meet particular specific duties that sit alongside the UK-wide general duty. These specific duties bind listed Welsh bodies only. They do not extend to non-devolved public authorities operating in Wales. Under Eq A 2010, s 149, the general duty requires public authorities and those exercising public functions to have 'due regard' to the need...
This Practice Note summarises the offence of intentionally causing harassment, alarm or distress under sections 4A and 4B of the Public Order Act 1986 ( POA 1986), together with the lesser offence of causing harassment, alarm or distress under POA 1986, s 5. It identifies the elements of these offences and explains what must be proved. An offence under POA 1986, s 4A or s 5 is triable only summarily, whereas an offence under POA 1986, s 4B is triable either way. The elements of the offence under POA 1986, s 4A The prosecution must establish that the defendant: used threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displayed any writing, sign or other visible representation that was threatening, abusive or insulting intended to cause a person harassment, alarm or distress and, by that conduct, caused that person or...
STOP PRESS: On 1 August 2023, the Cabinet Office unveiled three new collections of standard contract documents, comprising updated templates and accompanying guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract. Further direction on adopting these standards is provided in a supplementary Procurement Policy Note ( PPN). PPN 08/23: Using Standard Contracts applies to central government departments, executive agencies and non-departmental public bodies, all of which have been urged to implement the standard contract forms ‘as soon as practicable’. Other public sector organisations are also encouraged to follow the approach set out in PPN 08/23, recommending the use of the standard contracts for all relevant procurements, rather than using bespoke contracts, unless there is an existing government framework or an industry standard contract already in place (for example, for construction projects). Where appropriate, adopting the standard contracts aligns with...
Background The UK has experienced rising use and creation of compounds that imitate the effects of drugs controlled by the Misuse of Drugs Act 1971 ( MDA 1971). It is recognised that these materials are hard to pinpoint and are frequently altered, which makes oversight challenging and regulation difficult in practice. They also present a significant risk to public health. For a drug to be brought under control via MDA 1971, it must first undergo a formal period of assessment by the Advisory Council on the Misuse of Drugs, which will assess the potential physical and social harms a substance may cause. While temporary class drug orders were brought in to shorten the time needed to restrict emerging substances, the categorisation of new drugs under MDA 1971 still proves slow and costly, and requires parliamentary approval. As a result, the...
This Practice Note explores how foreign law is evidenced in proceedings before the courts of England and Wales. It sets out the different forms such proof may take and the routes by which it can be presented to the court. For wider guidance on foreign law, see Practice Note: Foreign law—guide for dispute resolution practitioners. This Practice Note also refers to the decision in Mac Millan Inc v Bishopsgate Investment Trust Plc ( No 4) (1998). In some judgments, the case is cited as MCC Proceeds Inc v Bishopsgate Investment Trust... Proving foreign law Where foreign law governs a dispute and has been pleaded, it must be demonstrated as a matter of fact. In the English courts, foreign law is treated as a factual question to be resolved on the evidence. The Court of Appeal reaffirmed this approach in Bumper Development Corp v...
This Practice Note This Practice Note is the second in a trio addressing health care procurement under the Provider Selection Regime ( PSR), brought into effect by the Health Care Services ( Provider Selection Regime) Regulations 2023 ( PSR Regs 2023), SI 2023/1348, operative from 1 January 2024. It sets out the procurement routes available to relevant authorities responsible for planning, purchasing and delivering health and care services, namely the: direct award route—divided into three types of direct award most suitable provider route competitive route It also summarises the mandatory procedural obligations that apply to every procurement. Further, it highlights additional factors for relevant authorities when awarding contracts using any approach other than direct award processes A and B, namely the: Basic selection criteria Key criteria Exclusions Conflicts of...
Introduction This Introductory Guide forms part of the Lexis Nexis Introductory Guides to Property. The series is intended to help apprentices, paralegals and others grasp both the transactions commonly undertaken by a property lawyer and the legal context in which those transactions take place. This Guide focuses on Property Finance. The other Guides in the series are: Introductory Guide to Commercial Property Introductory Guide to Land Law Introductory Guide to Property Development Introductory Guide to Property Taxes Introductory Guide to Residential Property All Guides come with a Glossary of Property Terms, offering definitions and, where suitable, explanations of many words and phrases that make up the everyday language used by property practitioners. Any terms shown in bold in this Guide are defined in the Glossary. Contents What is property finance? Who provides debt finance? Terms on which debt finance is provided What factors influence a lending...
The Tenant Fees Act 2019 ( TFA 2019), effective from 1 June 2019, bars landlords and letting agents from asking tenants of certain residential tenancies in England to pay charges other than those expressly permitted. In effect, a landlord’s agent may not levy fees for viewings, referencing, inventories, or any other item not specifically allowed. The Act also sets caps on the sums that can be taken as a security or holding deposit, as well as on certain other payments. Comparable legislation for Wales, the Renting Homes ( Fees etc) ( Wales) Act 2019 ( RH( Fe)( W) A 2019), took effect on 1 September 2019. It is not the same as TFA 2019; the key differences are identified below. Tenancies affected TFA 2019 applies to any ‘tenancy of housing in England’. A ‘tenancy’ means: before 1 May 2026, an assured shorthold tenancy ( AST) under...
Scope and purpose This Practice Note is designed to support the review and/or negotiation of a drop ship agreement, and is issued alongside Precedents: Drop ship agreement—pro-customer (merchant) and Drop ship agreement—pro-supplier. The expression ‘drop shipping’ is frequently used loosely to describe a range of supply chain structures and, in theory, may occur at several different points in the chain, eg manufacturer to distributor, distributor to merchant, or manufacturer to merchant. The common thread across these variants is an arrangement enabling a merchant to trade without stock holding constraints by placing responsibility for physical inventory and fulfilment with a third party. Traditionally that third party was the goods’ manufacturer; however, with the growth of multiple platforms, it may equally be another reseller. The above Precedents reflect the classic drop shipping model where the third party is the manufacturer (or other seller) to the...
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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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