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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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A discussion with Lerisha Naidu, Partner, Angelo Tzarevski, Partner, and Sphesihle Nxumalo, Director Designate, from the South African office of global law firm Baker Mc Kenzie on core themes around merger control in Rwanda. 1. Have there been any recent developments regarding the Rwandan merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Rwanda? Rwanda’s competition framework is set out in Law No 36/2012 of 21/9/2012 concerning Competition and Consumer Protection (the Competition Law). Notifications are submitted to the Rwanda Inspectorate, Competition and Consumer Protection Authority ( RICA). A proposed amendment to the Competition Law was tabled in 2019, but it has not yet been passed, and any implications for merger assessment remain uncertain. At present, there are no pressing or ‘hot’ merger control matters in Rwanda. Rwanda belongs to the Common Market for...
The Companies Act 2006 ( CA 2006) sets out that a private company limited by shares may approve resolutions either: at a general meeting of its shareholders, or by written resolution, following the procedure laid down in the CA 2006 Any clause in a company’s articles of association that attempts to prevent a resolution being passed by written resolution is of no effect. The CA 2006 also preserves the common law rule of unanimous consent, meaning shareholders may reach a decision without observing the statutory procedures otherwise required to pass a resolution......
This Practice Note explores the pitfalls that may emerge in personal injury cases stemming from dog attacks and bites, with emphasis on responsibility under the Animals Act 1971 ( AA 1971) and at common law for negligence. It underscores the significance of proof of a dog’s prior behaviour, the particular factors relevant to guard dogs, and the principal considerations when evaluating entitlement to a Criminal Injuries Compensation Authority ( CICA) award. Dog’s previous behaviour For the majority of canine claims, what the dog has done before is decisive. In negligence, the claimant must demonstrate that the defendant ought to have foreseen a risk of harm and taken reasonable measures to avert it. Where the owner had no basis to expect the conduct complained of, liability cannot be made out. The animal’s background will likewise matter in a personal injury action advanced under AA 1971, s 2(2), where it is...
This Practice Note considers the ways a partnership created under the Partnership Act 1890 can be terminated through dissolution ordered by the court. A partnership may come to an end by: dissolution (see Practice Note: Ending a partnership—what is dissolution?) insolvency (see: General partnerships and insolvency—overview) Dissolution by the court Here, the focus is on dissolution of a PA 1890 partnership pursuant to a court order. For other routes to dissolve a firm, see Practice Note: Ending a partnership—dissolution otherwise than by the court. For more detail, see: Actions between partners: introduction: Atkins Court Forms Vol 29(1) [15]. Grounds for dissolution by the court Where the court orders dissolution, it is almost invariably a general, rather than a technical, dissolution (see Practice Note: Ending a partnership—what is dissolution?). Nevertheless, instead of directing a winding up with a sale of all partnership assets after...
This Practice Note sets out guidance on the scope of inspection within disclosure under Part 31 of the CPR in civil litigation. It also explains how the relevant CPR provisions should be interpreted and applied. Advisory note: this Practice Note refers to Retained Regulation ( EU) 2016/679 ( UK GDPR), which took effect in England and Wales on IP completion day (31 December 2020 at 11pm). For background, see Practice Note: Brexit—implications for data protection [ Archived]. Depending on the court hearing your case, you may need to consider further requirements—see: Court specific guidance. This Practice Note should be read alongside the materials listed below. It does not cover the disclosure and inspection obligations under the disclosure scheme used in the Business and Property Courts; for that, see: Disclosure Scheme ( Business & Property...
An interactive guide from us covers restructuring plans under Part 26A of the Companies Act 2006. A restructuring plan is a...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background use only. Some links may no longer point to the provisions as they stood when this guidance was issued. For details on earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. When do the changes come into force? Changes to the Civil Procedure Rules ( CPR) took effect on Sunday, 1 October 2017. The three Making documents came into force on the following dates: 89th update: 8 August 2017 90th update: 8 August 2017 91st update: 31 August 2017 Regarding the pilot schemes, these commenced as follows: Practice Direction 51Q—the County Court advisers pilot scheme. This applies to claims begun in the County Court Business Centre and the County Court Money Claims centres ( CCMCC) since 29 July 2017. It is contained in the 89th...
This Practice Note does not derive from legislation or formal government guidance or policy; instead, it outlines how local planning authorities may handle section 106 monies in ordinary everyday practice. The context of grant funding in the section 106 process Under section 106 of the Town and Country Planning Act 1990, authorities can request financial contributions from developers towards the costs of delivering community and social infrastructure that becomes necessary as a consequence of a new development coming forward. This funding is often referred to as 'section 106 monies'. Section 106 monies can be used for facilities where new schemes have, at least in part, created the need for those facilities. See Practice Note: Planning obligations—key points. Eligibility for section 106 grant funding The section 106 grant scheme is available to all community-based organisations operating on a not-for-profit basis, including charities, community interest companies,...
Introduction This Practice Note examines liability in claims linked to laser hair removal. It sets out the legal framework relevant to such matters, including duty of care, breach, causation and quantum, and also considers regulatory requirements, professional guidance, evidential considerations and typical injury profiles. What is laser hair removal? Laser hair removal is a cosmetic treatment aimed at reducing unwanted hair using laser or intense pulsed light ( IPL) technology. These methods deliver pulses of light energy to the hair follicles, damaging them to inhibit or delay subsequent growth. As hair grows in cycles and only particular phases can be effectively targeted, several sessions are usually necessary. Claims arising from such treatment commonly fall within personal injury law in negligence. While the procedure may at times be undertaken by medically qualified practitioners, it is often carried out by therapists or aesthetic...
This Practice Note offers detailed guidance on the European Commission’s June 2021 set of the standard contractual clauses ( SCCs) for cross-border international transfers of personal data (the 2021 EU SCCs). It delivers a deeper examination of international transfers under the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), than the introductory Practice Note: EU GDPR—transfers of personal data internationally and to international organisations, and proceeds on the basis that readers already understand core concepts within the EU GDPR framework and its international transfer rules. If this area is new to you, you may prefer to consult those Practice Notes first. For basic orientation and context on the EU GDPR more generally, see Practice Note: The EU’s General Data Protection Regulation ( EU GDPR). In brief Within the EEA, data protection law aims to ensure information about living people (ie falling within the...
This Practice Note is a practical ‘how to’ on assigning rights under commercial contracts, directing you to related materials and cross-references to further content and guidance for additional reading. It sets out what assignment entails, how it is unlike novation, when assignment is suitable, the requirements for a valid assignment, further legal issues, and practical tips when passing rights under a contract in everyday practice. You cannot, strictly, assign a contract itself because, in general, the burden or obligations under a contract are not assignable. You can, however, assign the benefit, or rights, under a contract to a third party. For fuller guidance on occasions to assign contractual rights and matters to consider, see Practice Notes: Assigning contracts—common scenarios and considerations, What constitutes a valid assignment of a contract? and Drafting and negotiating an...
This Practice Note addresses practical and procedural matters that may emerge in a privacy claim. It spans multiple sequential phases of litigation, including: identifying the defendant, drafting a letter of claim, anonymising the parties, and preserving confidentiality during court hearings. Alternatives to litigation are reviewed and discussed as well. See also Practice Note: Starting a claim for misuse of private information—a practical guide. Brexit This Practice Note contains multiple references to the European Convention on Human Rights ( ECHR), which is given effect in UK law by the Human Rights Act 1998 ( HRA 1998). Brexit has produced no automatic change to either HRA 1998 or to the incorporation of the ECHR achieved through HRA 1998. The ECHR is an international treaty safeguarding human rights in states that are part of the Council of Europe, a body wholly distinct from the EU. The UK remains a...
Environmental insurance provides a practical means to manage environmental risks, relevant to day‑to‑day operations as well as numerous transactions and development schemes. For more on environmental insurance in general, please see the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Pollution legal liability insurance In a transactional setting, the pollution legal liability ( PLL) insurance product is frequently relied upon to address unknown liabilities that remain with a deal—for instance, where pollution is suspected but not identified. This offers the advantage of delivering financial confidence to......
Labour and employment— Poland— Q& A guide [ Archived, 2021 edition] This Practice Note provides a jurisdiction-specific Q& A guide to labour and employment in Poland, issued as part of the Lexology Getting the Deal Through series by Law Business Research (published: October 2021). Authors: BKB Baran Książek Bigaj— Daniel Książek; Paweł Krzykowski; Wojciech Bigaj 1. What are the main statutes and regulations relating to employment? The Labour Code is the principal legal source for employment matters in Poland, serving as the primary framework for labour law. Under the Labour Code (https://dziennikustaw.gov.pl/ DU/rok/2020/pozycja/1320), the term ‘labour law’ is taken to comprise: the provisions of the Labour Code itself; other acts of law and implementing provisions that define the rights and obligations of employers and employees; the provisions of collective bargaining agreements and other collective arrangements; and regulations and charters based on the Labour Code that set...
Circumstances in which the duty to give reasons for planning decisions arises In 2013, the statutory obligation on local planning authorities ( LPAs) to provide reasons when granting planning permission was removed. Nevertheless, there remain situations in which a duty to give reasons for granting or refusing planning permission arises, either under specific statutory provisions or through the common law ‘filling the gap’. The main categories of planning decisions where reasons must, or may, be provided are: Decisions by the Secretary of State (including those delegated to inspectors): following an inquiry or hearing on appeals determined by written representations in relation to call-in decisions Decisions at any level on applications for...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first substantive review of trusts law in Scotland in more than a century since the principal statute, the Trusts ( Scotland) Act 1921, was enacted. The trusts provisions will commence only once Scottish Ministers make the required secondary legislation, whereas some succession measures took effect on 30 April 2024. The core updates designed to modernise the law are set out in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes covering Scottish trusts and succession will be further revised to reflect this new legislation. What is a Personal Injury (‘ PI’) trust? A PI trust is: any type of lawful trust arrangement that ring-fences sums paid as a result of personal injury to the injured individual for the injured person’s...
Introduction to special damages statistics For additional details, consult: Introduction: Butterworths Personal Injury Litigation [1]. General damages For further guidance, refer to: General Damages: Butterworths Personal Injury Litigation Service [36]. Multipliers For background materials, see Practice Note: The Ogden tables. Life expectation For explanatory notes, see Practice Note: Life expectation tables. ASHE For more information, see: Average Gross Weekly Earnings from 2015 Analysis of earnings by occupation: Butterworths Personal Injury Litigation Service [191] full-time males on adult rates: Mean gross weekly earnings (£) in 2015–2024: Butterworths Personal Injury Litigation Service [192] full-time females on adult rates: Mean gross weekly earnings (£) in 2015–2024: Butterworths Personal Injury Litigation Service [193]–[210] Nursing charge rates For supplementary material, see: Nursing charge rates. Motoring benefits and costs For expanded information, see: Motoring benefits and costs: Butterworths Personal Injury Litigation Service [231]. Prescription costs in England For additional reference, see: Prescription costs in England: Butterworths Personal Injury...
This Practice Note explores the entitlement to parental bereavement leave ( PBL) — often referred to as ‘ Jack’s Law’ — and statutory parental bereavement pay ( SPBP) created by the Parental Bereavement ( Leave and Pay) Act 2018 ( PB( LP) A 2018). It addresses who qualifies for leave, the notice rules, how parental bereavement leave interacts with other forms of statutory leave, employees’ rights and duties while away, protection from detriment, protection from dismissal, and the availability of SPBP. The Practice Note also includes best practice suggestions drawn from Child Bereavement UK. Guidance from the charity Child Bereavement UK indicates that bereavement is among the most frequent issues likely to affect employees’ performance at work; around one in ten members of staff is experiencing a bereavement at any given moment. Research conducted for Co-op Funeralcare in 2018 found that 58% of adults felt...
What do advisers need to know about access by non- British or Irish citizens to marriage and civil partnership in England and Wales? This Practice Note looks at: the steps and potential barriers for a marriage or civil partnership involving a non- British or Irish citizen following commencement of the relevant provisions of the Immigration Act 2014 ( IA 2014) which parts of the new framework may particularly interest or concern immigration practitioners Note that Lexis+® UK does not cover areas of law in Scotland and Northern Ireland that are unique to those jurisdictions. Family law is one such field. However, schemes for referral and investigation akin to the England and Wales regime discussed in this Practice Note have been in force in those jurisdictions from 2 March 2015. See in particular: Referral and Investigation of Proposed Marriages and Civil...
Ordinary power of attorney An ordinary power of attorney is a straightforward instrument that authorises an attorney to handle the donor’s financial affairs. Its scope can be as expansive or as restricted as the donor decides. Although some practitioners draw a line between a general and a limited power of attorney as separate forms of ordinary powers of attorney, the label 'general power of attorney' is now commonly used to mean 'ordinary power of attorney'. An ordinary power of attorney is automatically revoked if the donor loses mental capacity, which distinguishes it from an enduring power of attorney or a lasting power of attorney ( LPA). Powers of attorney are a species of agency, yet they differ from conventional commercial agencies because they serve to confirm to third parties that the attorney holds authority, and to define its extent, rather than to regulate 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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