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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 a suspensive condition? A suspensive condition places the parties’ duties to perform a contract on hold until that condition has been purified (or, where the terms allow, waived), see Practice Note: Suspensive conditions in missives transferring Scottish property. Precision is essential; poor wording can trigger unforeseen and unwelcome outcomes. For further information, see: Suspensive conditions in missives: Stair Memorial Encyclopaedia [27]. Aside from dealing with title matters, most suspensive conditions concern non-conveyancing issues, for example: compliance with the relevant tax regime planning issues transfer of employees site investigations compliance with environmental law This Practice Note outlines universal considerations for drafting any suspensive condition and then addresses particular points relevant to commonly used suspensive conditions. Universal drafting considerations Who is to benefit from the suspensive condition? The condition must make clear which party is intended to benefit, otherwise it may operate to the...
CASE HUB (date of judgment—23/04/2015) See further: timeline commentary related/relevant cases ARCHIVED — this preserved case hub reflects the position at the date of the decision of 23 April 2015; it is no longer maintained. Case facts Outline An appeal was lodged by LG Display and LG Display Taiwan challenging the General Court’s ruling which, on the merits, upheld the Commission’s decision of 8 December 2010 finding an infringement and levying a €215m fine on LG Display and LG Display Taiwan (jointly and severally, but cut to €210m by the General Court) for their alleged participation in a cartel concerning the supply of liquid crystal display ( LCD) panels (the ‘ LCD cartel’). On 23 April 2015, the Court of Justice rejected the appeal in full, thereby endorsing the infringement finding and the penalty, as trimmed by the General Court, to €210m. The case...
The Copyright, Designs and Patents Act 1988 ( CDPA 1988) grants the copyright holder in the UK the sole authority to undertake a variety of acts in relation to any copyright work. Where those specified acts in the CDPA 1988 are carried out by someone other than the owner, without consent, this may amount to an infringement of the owner’s exclusive rights. Status of EU copyright law in the UK As of 31 January 2020, the UK ceased to be a Member State of the EU. In line with the Withdrawal Agreement, an 11‑month transition or implementation period followed, ending on 31 December 2020 ( IP completion day), during which EU law continued to apply across the UK. Thereafter, EU legislation made or brought into force after that date is not binding on the UK. For pre‑existing measures, the legal position...
Practice Note This Practice Note reviews the range of administrative tasks and post-trial steps that arise once a civil trial concludes. These include managing documents produced during the proceedings, appealing the final outcome, exploring settlement discussions, rectifying errors in the judgment, making consequential orders, recovering costs, considering funding, seeking interim relief, and enforcing the judgment where there is non-compliance. It offers guidance on interpreting and applying the relevant CPR provisions. Depending on the court in which the matter is heard, additional requirements may apply—see: Court specific guidance. Post-trial issues Following conclusion of a civil trial, legal practitioners must attend to several administrative matters, including: Court bundles and counsel briefs—paper bundles will usually need to be collected from the court and from chambers, although the court may sometimes retain a set; confirm the position with the court in question Cancelling services—if the trial finishes earlier than...
Civil justice reform Refer to our Practice Note, Civil justice reform in Scotland—virtual hearings and electronic submission of documents, for up-to-date guidance on the rules and practice of the Scottish civil courts concerning virtual hearings and the electronic signing, sending and lodging of documents. The Practice Note sets out the steps for advancing a civil claim in Scotland from the lodging of defences through to the fixing of a substantive hearing (whether a legal debate or a proof/proof before answer/jury trial). Scottish civil procedure features a range of distinct procedural regimes, shaped by the type of claim and the forum. Many of these regimes focus on case management. The Practice Note examines the particular procedural rules for the following common procedures in both the Court of Session and the sheriff court: ordinary actions personal injury actions commercial...
This Practice Note explains how the court may alter periodical payments (maintenance) orders, outlining its treatment of variation applications and the considerations it will take into account. The Note surveys both the court’s methodology on variation requests and the relevant considerations guiding its evaluation. Guidance is given on timing and on circumstances permitting recovery of payments already made. It also addresses the timing of a variation request and identifies situations permitting a claim for repayment of maintenance, such as the payee’s remarriage or entry into a later civil partnership, or the payer’s death. Authority to alter financial orders arises under section 31 of the Matrimonial Causes Act 1973 ( MCA 1973) and Schedule 5 to the Civil Partnership Act 2004 ( CPA 2004), in particular CPA 2004, Sch 5 Pt 11. When a variation is sought, the court need not revisit the case de novo...
This Practice Note outlines the nature of a pension attachment order made in family proceedings (formerly known as an earmarking order) and identifies which pension benefit rights are capable of attachment and which are not. It also covers the core features of a pension attachment order, the risks and ways to reduce them, variation matters and tax effects. Key features of pension attachment A pension attachment order directs the person responsible for a pension arrangement (the PRPA) to pay a percentage of the following to the person without pension benefit rights (the non-member party), rather than to the person with pension benefit rights under the arrangement (the member-party): pension income, and/or pension commencement lump sum, and/or lump sum payable in respect of the member-party’s death A pension arrangement means an occupational pension scheme, a personal pension scheme, a retirement annuity contract, and...
Prepare the claim form The claimant must complete Form N208, setting out clearly and in full: confirmation that CPR 8 governs the procedure; the issue for the court to determine, or the relief sought together with the legal foundation for claiming that relief in the claim form; where reliance is placed on a statutory provision, identification of that enactment, for example the Inheritance ( Provision for Family and Dependants) Act 1975; if the claimant proceeds in a representative role, what that role is and how it applies; if the defendant is pursued in a representative role, what that role is. The defendants should comprise the deceased’s personal representatives and any beneficiaries who need to be joined as necessary parties. Ordinarily, residuary beneficiaries are added, as they are the most likely to be impacted by any order. It can also be...
This Practice Note surveys how mobile network operators ( MNOs) share networks and physical assets. By outlining the principal forms of infrastructure sharing, the commercial rationale, operating models, competition considerations, and likely developments, it offers a concise guide to managing legal and regulatory exposure in the UK... Although negotiating network and facilities sharing is complex, doing so can deliver meaningful gains for MNOs. Co-ordinated sharing continues to unlock notable cost efficiencies, whether through alliances with direct competitors or partnerships with independent tower operators and facilities providers. Even so, as this Note underlines, it is essential to address and control the inherent legal and regulatory risks when drafting, negotiating, and finalising such arrangements... Brexit This Practice Note concentrates on the UK market and evaluates the applicable UK competition law. The emphasis is on block exemptions that may apply to the sharing structures discussed. These...
This Practice Note explores the legal definition of marriage, including marriages between same-sex couples. It also reviews case law on capacity to marry and the procedural requirements for marriage. The principal statutory provisions are found in the Marriage Act 1949 ( MA 1949) and the Marriage Act 1994 ( MA 1994). This Note addresses both the formal steps required for a valid marriage and the ability to marry. The Marriage and Civil Partnership ( Minimum Age) Act 2022 ( MCP( MA) A 2022), in force from 27 February 2023, amends MA 1949 by raising the minimum age for marriage from 16 to 18, ending provisions that allowed 16–17-year-olds to marry with parental or judicial consent (see: LNB News 10/08/2022 22)... General principles General principles have been examined in cases concerning capacity to marry within the courts. In Re SK (vulnerable adult capacity), Wood J...
This Practice Note summarises the court’s powers when making a special guardianship order ( SGO), including decisions about a child’s surname and any removal from the jurisdiction. It also sets out what becomes of existing orders once an SGO is made and the need to consider whether to make a child arrangements order with contact provisions. Existing orders Making an SGO does not, by itself, end any order made under section 8 of the Children Act 1989 ( Ch A 1989) (an s 8 order). Before granting an SGO, the court must specifically consider whether any existing s 8 order should be varied or discharged. The governing test is whether it is in the child’s best interests for an existing order to remain operative. If a CAO with contact provisions stays in force and there is an...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect and apply. Competitions commencing on or after that date must proceed under PA 2023, while procurements started under the earlier regimes — the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011 — must continue to be run and overseen in line with those rules and procedures accordingly. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. This material concerns the Procurement Act 2023 regime. It provides practical guidance on public procurement under the Procurement Act 2023 ( PA 2023). For practical guidance on light touch contracts under the former legislation, see Practice Note: Considerations when authorities procure contracts that are not subject to the full...
CASE HUB (date of judgment—14/03/2017) See further: timeline and related/relevant cases Case facts ARCHIVED — this case hub, now archived, captures the position as at the decision dated 13 March 2017 and is no longer being maintained. Outline An appeal was lodged against the General Court’s judgment dismissing an action seeking annulment of the Commission’s decision of 24 May 2012. That decision refused Evonik Degussa Gmb H’s request for confidential treatment of information supplied by Degussa in the context of leniency, intended for inclusion in the published version of the ' Hydrogen peroxide and perborate cartel' decision......
This Practice Note outlines key legal effects of marriage. It details the spouses’ financial duties to one another and rights of occupation in relation to the family home. It considers how spouses are treated for tax purposes. It also addresses the impact of marriage on a father’s parental responsibility for his children, and sets out the position of spouses on death... A marriage can only be ended by a decree of divorce or nullity Under the law of England and Wales, a marriage may only be brought to an end by a decree of divorce/final order or by nullity. A decree of judicial separation does not end the marriage. See Practice Note: Void and voidable marriages. The Divorce, Dissolution and Separation Act 2020, in force from 6 April 2022, removed the requirement to prove one of the five facts in section 1(2) of the...
This Practice Note This Practice Note addresses London Court of International Arbitration ( LCIA) arbitration proceedings conducted under the LCIA Arbitration Rules 2020 (the LCIA Rules), which took effect on 1 October 2020. For practical guidance on arbitrations under the earlier LCIA Arbitration Rules 2014 and 1998, see the corresponding Practice Notes here: LCIA arbitration—overview. As a general point, when a dispute arises, parties and their advisers should scrutinise the dispute resolution clause in the relevant agreement. If the clause mandates arbitration, they ought to confirm: any limitation period (contractual or statutory) within which the arbitration must be commenced—see Practice Notes: Limitation periods in arbitration ( England & Wales) and Foreign Limitation Periods Act 1984 any pre-arbitration steps (particularly any form of alternative dispute resolution ( ADR)) that are to be undertaken before commencing arbitration—see Practice Note: AA...
Procedural directions and timetable Once the LCAM Board has confirmed the appointment ( Article 18.1), the LCAM Secretariat passes the matter to the Arbitration Tribunal. Under the LCAM Rules, the Arbitral Tribunal enjoys broad latitude in shaping the procedure and managing the progress of the arbitration. Articles 19.1 and 19.2 provide that, subject to the Rules and any party agreement, the Tribunal may run the arbitration as it deems suitable, provided it acts impartially, pragmatically and expeditiously, while ensuring each party has an equal and reasonable opportunity to present its case. This discretion must be exercised within the framework of the LCAM Rules and any arrangements reached by the parties, and at all times the Tribunal should balance efficiency with fairness. Nevertheless, there are several key features of the LCAM Rules that both the Tribunal and the parties should keep in...
Various issues can surface when land ceases to be used for agriculture, whether through disposing of it entirely out of farming or by diversifying operations within an ongoing farming business. Overage Developers (and others) continue to purchase agricultural land while holding short- or long-term aspirations of securing planning permission for residential or commercial schemes. The difference in value with, compared to without, such consent is pronounced. Accordingly, when acting for the seller, you should evaluate including an overage (sometimes referred to as ‘clawback’) arrangement in the sale contract, so the seller, or successors in title, can share in any uplift in the land’s value that arises once planning permission is granted. For further guidance, see Practice Note: Overage—advice to clients and Negotiating overage—acting for the seller—checklist. Sporting rights Agricultural land can be burdened by sporting rights (eg shooting and fishing) held by third parties, either...
Introduction A joint study and bid agreement ( JSBA) is typically a contractual framework widely used in the oil and gas sector when several parties are weighing up a combined bid for a petroleum agreement. Ordinarily, international oil companies receive opportunities over oil and gas acreage through a host government bid round, in which the host Government encourages rivalry among industry participants for the grant of certain oil and gas exploration and production rights. Applications and bidding can also proceed ‘out of round’ on an ad hoc basis. Commonly, the host government will set out relevant deadlines, technical criteria, and procedures to be observed by interested oil companies during the bidding phase, to be followed as part of the bidding process. A JSBA is a concise, unincorporated joint venture that defines the limits within which the parties will apportion...
What is an interim order? An interim order ( IO) is a judicial order that stops legal action from starting or continuing against a debtor intending to propose an individual voluntary arrangement ( IVA). This also prevents a creditor from presenting a bankruptcy petition. Securing an IO is no longer required to submit an IVA proposal. The IO’s role is to afford the debtor time to develop the arrangement without harassment or demands from the debtor’s creditors. It is comparable, although not identical, to the statutory moratorium that occurs within other parts of the insolvency regime, for example administration. Its purpose is to create breathing space for careful consideration of proposals without undue creditor pressure......
For arbitration proceedings seated in Italy and commenced after 28 February 2023, the reformed CPC (s 818) authorises arbitral tribunals to grant interim measures where the parties have agreed in advance, including by incorporating third‑party rules within their arbitral agreement, before the start of the arbitration proceeding. The 2023 Reform The amended CPC, s 818 now provides that arbitrators may issue interim measures only if that power is expressly conferred in either: the arbitration agreement, also by incorporating third‑entities’ regulations (eg rules of national or international arbitral institutions); or a written agreement entered into before the commencement of the arbitration proceeding. As noted, this regime applies to arbitration proceedings begun after 28 February 2023. Arbitral tribunals shall have exclusive jurisdiction in relation to interim measures after the acceptance of the appointment by the tribunal. Before this moment, or if the arbitral tribunal is not expressly granted such power...
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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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