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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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Ground rent ‘ Ground rent’ typically describes a modest or nominal sum payable under a long lease that has been granted for a premium. Ground rent is payable by the tenant to the landlord (most often yearly or bi-annually). It is distinct from a service charge and is not meant to reimburse the landlord for expenditure. Properties that can attract ground rent include houses and flats, as well as commercial land and buildings. From 30 June 2022, the Leasehold Reform ( Ground Rent) Act 2022 ( LR( GR) A 2022) limits the level of ground rent a landlord of an individual dwelling may lawfully charge a tenant under a ‘regulated lease’ (as defined in LR( GR) A 2022, s 1) (a Regulated Lease)—see: What is a ‘regulated lease’? For a Regulated Lease, ground rent is regarded as capped at the specified lawful...
This Practice Note This Practice Note sets out the key considerations when selecting an appropriate procurement route for a construction scheme. It examines time constraints, the nature and scope of the works, quality control, and the need for cost certainty. Time available before commencement and the overall programme length Characteristics and extent of the works Approach to maintaining quality Level of price certainty required In some instances, external influences determine the procurement route or the form of contract, such as funding requirements or a developer’s policy of always using the same approach. Alternatively, an architect may have identified a preferred method in light of a project’s character and complexity. Where a selection is still open, the decision should be taken carefully, with due regard to all relevant factors. It should also be recognised that the form of contract cannot be...
Note— To check whether notification thresholds in Kosovo and worldwide are met, see: Where to Notify. 1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Also, are there any other ‘hot’ merger control issues in Kosovo? The Republic of Kosovo ( Kosovo) adopted the Law on Protection of Competition, No. 08/ L-056, effective 22 June 2022 ( Competition Act 2022). Filing thresholds were revised; a notification is now required if: the combined worldwide turnover of all undertakings concerned exceeds €20 million in the financial year before the concentration, with at least one undertaking posting local turnover in Kosovo above €1m; or at least two undertakings each have local turnover in Kosovo exceeding €3m In parallel with the Competition Act 2022, new members joined the decision-making body of the Kosovo...
This Practice Note has been prepared and authored by Anne Redston, Barrister. It represents solely her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. Most judicial review ( JR) claims about tax must be taken to the Administrative Chamber of the High Court’s Chancery Division. Some may instead be made straight to the Upper Tribunal ( Tax and Chancery Chamber). JR tax claims pursued in the High Court are considered in the Practice Note entitled Judicial review in tax cases at the High Court. This Practice Note discusses: JR claims that can, in appropriate cases, be commenced directly in the Upper Tribunal ( UT) JR claims that must be moved from the High Court to the UT, and those that may, where appropriate, be moved to the UT the applicable procedure for JR applications brought in the UT The degree to which the...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment of 13 November 2020 and is no longer maintained. See the timeline and commentary for more... Case facts Outline JD Sports plc appealed against the Competition and Markets Authority’s decision of 6 May 2020, which prohibited the completed acquisition by JD Sports Fashion plc of Footasylum plc and required the full divestment of Footasylum plc (i.e. to unwind the transaction)... Latest development On 13 November 2020, the CAT delivered its judgment, rejecting claims that the CMA erred in how it assessed whether the deal was likely to lead to an SLC. Nonetheless, the CAT partially upheld JD Sport Fashions plc’s appeal by quashing the CMA’s phase 2 decision to the extent it relied on the CMA’s analysis of the anticipated effects of the Covid-19 pandemic on: the relevant markets; the merging parties and/or the merged entity; and the...
What does this Practice Note cover? This Practice Note outlines the principal provisions that apply to both the 1992 ISDA Master Agreement ( Multicurrency— Cross Border) (the 1992 Agreement) and the 2002 ISDA Master Agreement (the 2002 Agreement), together with their accompanying schedules. Unless indicated otherwise, any reference here to the master agreements (the ISDA master agreement) should be read as a reference to both the 1992 and 2002 Agreements. For a comparison of the two forms, see Practice Note: ISDA documentation—comparison of the 1992 and 2002 master agreements; for the broader ISDA documentation framework, see Practice Note: Derivatives— ISDA documentation framework. The key concepts underpinning the ISDA master agreement The ISDA master agreement rests on three core concepts, outlined briefly below: single agreement flawed asset close-out netting Single agreement Under ISDA’s documentation architecture, every derivative transaction between a pair of...
Cross-border issues emerge whenever an individual holds assets in more than one jurisdiction, faces capacity difficulties while living in or visiting another jurisdiction, or has a nationality, habitual residence, or domicile that connects them to a different jurisdiction. In an ever more globalised world, such challenges are increasingly frequent. In any case with an international element, it will be necessary to determine: Which court has jurisdiction over the person Which state’s laws will be applied Whether orders made in one state will be recognised by the authorities of another state Whether any private mandate intended to operate on incapacity exists and if it will be effective elsewhere Hague Convention XXXV on the International Protection of Vulnerable Adults The Hague Convention XXXV on the International Protection of Vulnerable Adults was formally concluded at The Hague on 13 January 2000, aiming to bring...
Vulnerable persons—participation and evidence in family proceedings The Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 3A, read alongside FPR 2010, PD 3AA, set out how vulnerable persons take part in family proceedings and how such individuals give evidence in those proceedings. The framework permits the court to issue ‘participation directions’ governing the engagement of a vulnerable person, protected party or child in family proceedings, and also confers a discretion to appoint an intermediary where necessary by the court. FPR 2010, SI 2010/2955, 3A.1 defines an intermediary as a person whose function is to: relay to a witness or party the questions asked of them relay to any questioner the replies provided by the witness or party, and clarify questions or answers so far as is necessary so that they are understood by the witness or party, or by the person...
This Practice Note outlines the interim remedies available to arbitral tribunals seated in France. For analysis of measures obtainable from French courts in aid of arbitration, see Practice Note: Interim remedies granted by French courts in support of arbitration proceedings. Power of arbitral tribunals seated in France to grant interim remedies Article 1468, paragraph 1 of the French Code of Civil Procedure ( FCCP) expressly vests arbitral tribunals seated in France with authority to order interim relief. It provides that a tribunal may, on terms it sets and, where necessary, backed by a fine, impose any conservatory or provisional measure it considers appropriate. On this basis, a tribunal may: Order whatever interim remedy it judges suitable; Determine the conditions governing that remedy; Attach, if required, a penalty to secure the remedy’s...
This Practice Note examines interim remedies (injunctions) available before trial in employee competition and confidentiality claims This note explores urgent pre-trial injunctions used where waiting for trial would be impracticably slow. It addresses when such relief should be sought, the speed required and the forms an interim injunction might take. It also outlines the principles guiding the court’s discretion and identifies who may properly be named as defendants. In claims seeking to uphold express or implied terms of employment in the competition and confidentiality context, remedies can be grouped into: interim measures available prior to the final hearing (addressed below), and relief obtainable after judgment on liability at the main trial Final remedies are covered elsewhere. They may comprise: damages (see Practice Note: Damages in employee competition claims) or an account of profits (see Practice Note: Account of profits in employee...
Read this Practice Note alongside Practice Notes: Privacy law—misuse of private information and Privacy law—remedies. Brexit This Practice Note makes 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 not, by itself, altered HRA 1998 or the ECHR’s incorporation through that Act. The ECHR is an international treaty that protects human rights across the member states of the Council of Europe, a body wholly distinct from the EU. The UK remains within the Council of Europe. The EU- UK Trade and Cooperation Agreement confirms that the arrangement leaves the UK’s ECHR obligations unchanged and allows the agreement to be brought to an end if either party denounces the ECHR. For further information, see: Q& A: What does Brexit mean for the Human Rights Act 1998? LNB News...
This Practice Note This Practice Note explains why independent legal advice matters for marital and civil partnership agreements. It reviews the guidance in Radmacher (formerly Granatino) v Granatino, the courts’ treatment of so‑called ‘bad advice’, and pragmatic issues, including how advice is recorded and the role of professional indemnity insurance. It also addresses practical points around documenting advice and professional indemnity cover. The strand of authority stemming from Radmacher requires a rounded assessment of whether each party appreciated the consequences of entering the agreement. That enquiry is holistic, not driven by any single element. Whether independent legal advice was obtained feeds into the analysis but, on its own, is not conclusive. Radmacher further confirmed that having the chance to obtain independent legal advice on the terms of a proposed agreement will be a factor when assessing whether an agreement is ‘fair’......
This is an alphabetical listing of links to selected application forms for UK immigration appeals, administrative review and judicial review applications. Alongside this, you will find a range of bail forms handled by tribunals. Be aware that the majority of appeals to the First-tier Tribunal ( Immigration and Asylum Chamber) for represented appellants who are not detained are now filed via the My HMCTS portal (see: Make an immigration and asylum appeal using My HMCTS). Unrepresented appellants can likewise apply online; see Appeal against a visa or immigration decision ( GOV. UK). Paper forms are permitted or required solely in specific, limited situations. The links provided point to the GOV. UK editions of the paper forms. For appeal forms for the Upper Tribunal ( Immigration and Asylum Chamber) and the Administrative Court, also see: Appeal a decision by the immigration and asylum chamber ( GOV. UK) and the...
The Infrastructure Conditions of Contract ( ICC) The Infrastructure Conditions of Contract ( ICC) were previously known as the ICE ( Institution of Civil Engineers) conditions of contract, first issued by the ICE in 1945. In November 2014 a fresh edition arrived, titled the ‘with quantities’ version (‘ ICC with Quants’). This followed an extensive overhaul of the form and a consultation exercise, prompted by the need to modernise a contract that had seen little substantive change for more than half a century. The 2014 edition was wholly re-written and adopted a bold new drafting philosophy. It is briefer and clearer than the earlier ICE/ ICC contracts, and brought in a number of notable reforms. Chief among these is the provision that lump sum pricing becomes the default valuation method, while re-measurement remains available as an alternative. Although labelled the ‘ With...
ARCHIVED : This Practice Note has been archived and is not maintained . CORONAVIRUS ( COVID-19): Numerous arbitral organisations have responded to the coronavirus pandemic by providing practical guidance and/or revising their usual procedures and working practices. For details on how this content and related arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further information, see Coronavirus ( COVID-19) and arbitration—overview. This Practice Note outlines how to commence an arbitration under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). It also refers to the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ( ICC Note). The 2017 ICC Rules apply to any ICC arbitration commenced on or after 1 March 2017, unless the parties agree to adopt the rules in...
This Practice Note This Practice Note explores the legal and practical considerations for employers regarding hybrid working—also referred to as agile, blended or split working patterns—where employees spend part of their time in the workplace and part working remotely, whether at home or elsewhere. It can be differentiated from full homeworking, in which the individual works exclusively from home, though many organisations have long operated limited homeworking arrangements. Hybrid working developed out of the coronavirus ( COVID-19) pandemic, a period when large numbers of staff worked wholly, or largely, from home, and it is anticipated that many will continue to do so for a portion of their hours, while attending their usual workplaces for the balance. An employer’s stance on hybrid working will depend on multiple variables, most notably the nature of the organisation and its activities. For instance, an...
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment date of 13 December 2013; it is no longer updated. For further information, see the timeline and related cases. Case facts Outline Appeal by Holding Slovenske elektrarne ( HSE) to the General Court, seeking annulment or a reduction in the amount of the penalty arising from the Commission’s decision of 22 July 2009, which found an infringement of Article 101 TFEU and levied a €9.1m fine on HSE (within combined fines of €61.1m on HSE and eight other companies) for alleged participation in a calcium carbide and magnesium cartel between 2004 and 2007. Parties Applicant: Holding Slovenske elektrarne d.o.o. ( HSE) Defendant: European Commission Market(s) The EEA market for the supply of calcium carbide and magnesium to the steel and gas industries......
This Practice Note offers guidance on evidential matters arising under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). Practice Note: HKIAC (2024)—arbitration procedure may likewise be of interest. As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally apply to HKIAC arbitrations commenced on or after 1 June 2024, unless the parties agree otherwise; for HKIAC arbitrations begun before 1 June 2024, the 2018 HKIAC Rules will generally apply, unless the parties agreed otherwise. For an introduction to the HKIAC and its organisational set-up, see Practice Note: HKIAC—background to and structure of the institution. Evidence under the 2024 HKIAC Rules Under the 2024 HKIAC Rules, each party bears the burden of proving the facts relied upon in support of its case ( HKIAC 2024, art 22.1). The...
Although parties may have entered into an arbitration agreement, once a dispute materialises one party might decide it no longer wishes to arbitrate. In those circumstances, that party may issue court proceedings to resolve the dispute. The motivations can differ, for instance where three parties are involved and one is not bound by the arbitration agreement ( Section 20 of the Arbitration Ordinance ( Cap 609) ( AO)). Note: Hong Kong judgments below are not reported by Lexis Nexis®. Note: The Arbitration Ordinance ( Cap 609) abolished the previous dual track for ‘international’ and ‘domestic’ arbitrations and introduced a single framework governing all arbitration in Hong Kong, while preserving the principal features of the former ‘domestic’ regime through a set of ‘opt-in’ provisions contained in Schedule 2 of the new Ordinance. Local advice should be sought on the current approach of the Hong Kong courts to...
Copyright Copyright denotes a bundle of rights granted to creators of creative works, including: literary, dramatic, artistic and musical works broadcasts databases sound recordings typographical arrangements It encompasses economic rights that initially vest in the creator or author, and can also extend to additional, personal entitlements for authors and performers—moral rights or neighbouring rights. Moral rights are not generally harmonised at EU level and are not specifically addressed in this Practice Note. Protection arises automatically within the EU and does not require registration. Subsistence concerns the conditions for protection to come into being and apply to a work, typically relating to the nature of the work, the process of its creation, and its creator. Copyright is a national right, with domestic regimes setting out the particular formalities for subsistence in that jurisdiction. Some elements of subsistence are harmonised concepts under EU law and are...
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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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