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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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Market Standards and Lexis+® UK Practical Guidance Market Standards and Lexis+® UK Practical Guidance outline how shareholders voted at the annual general meetings ( AGMs) of FTSE 350 companies as the 2024 AGM season drew to a close, and assess the matters companies should consider as they head towards the 2025 season. Commentary is woven throughout by Will Chalk, Partner, Ashurt, and the piece ends with closing observations from Wilma Rix, senior associate, Linklaters, and Pete Fowler ( Chief Operating Officer, Lumi Global)......
This Practice Note outlines the structure and substance of a prospectus prepared under the UK public offers and admissions to trading regime that commenced on 19 January 2026. It addresses (1) the overarching content obligations for a prospectus, (2) the constituent elements of a prospectus compiled as a single document or as multiple documents, (3) the baseline information standards, (4) the mechanism of incorporation by reference, and (5) the simplified disclosure route for secondary issues. This Practice Note concentrates on matters most pertinent to the debt capital markets. In summary A fresh regulatory framework for public offers and admissions to trading of securities in the UK, setting out when a prospectus is needed and what it must contain, took effect on 19 January 2026, supplanting the earlier regime derived from EU law. From 19 January 2026, Assimilated Regulation ( EU) 2017/1129 (the UK...
TUPE—key points The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( SI 2006/246) have applied since 6 April 2006. They give effect to Directive 2001/23/ EC, the Acquired Rights Directive ( ARD). As a result, courts and employment tribunals must interpret TUPE purposively so that the Directive’s aim—protecting employees when a business transfers—is fulfilled. EU-derived measures, including much of TUPE that implement the UK’s obligations under EU law (such as implementing the ARD), continue to operate within the UK’s domestic legal order as assimilated law. For further information, see Practice Note: Assimilated law. TUPE has a broad reach. TUPE can bite when a client acquires something that comes with staff attached—whether it appears to be an asset or an activity rather than a whole business—so that those workers’ rights are safeguarded. For instance, purchasing a shopping centre will typically involve cleaners, security...
This Practice Note considers the geographical reach of the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006), and how TUPE 2006 operates on transnational (cross-border) transfers, for example in the context of offshoring or nearshoring outsourcing arrangements. For wider guidance on international outsourcing, see Practice Note: International outsourcing. EU-derived rules, including substantial elements of TUPE 2006 introduced to fulfil the UK’s obligations under EU law (such as the duty to implement Directive 2001/23/ EC, the Acquired Rights Directive ( ARD)), that applied in the UK at the end of the Brexit transition period/ IP completion day remain in force within the domestic legal order as assimilated law. For more detail, see Practice Note: Assimilated law. Initial considerations Where a dispute or claim concerns an employee working entirely or partly overseas and/or employed by a non- UK employer, two core questions must be...
The Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 On a relevant transfer, TUPE 2006 effects a statutory novation of transferring employees’ contracts: the transferee steps into the transferor’s shoes. This Practice Note outlines the rights, powers, duties and liabilities that pass, and treats the transferor’s acts or omissions as those of the transferee in relation to transferring staff. For fuller guidance on: what amounts to a relevant transfer under TUPE 2006, see Practice Notes: TUPE—business transfers and TUPE—service provision changes who counts as transferring employees, see Practice Note: TUPE—transfer of employees the duty to inform and consult about a relevant transfer, see Practice Note: TUPE—information and consultation how TUPE 2006 protects transferring staff against contractual variations and dismissal, see Practice Notes: TUPE—variation of contract terms and...
FORTHCOMING CHANGE: A government consultation held from 16 May 2024 to 11 July 2024 invited feedback on several proposals, notably: (1) to ‘reaffirm’ that protection under TUPE 2006 applies only to employees and not to ‘limb (b)’ workers, in order to dispel ‘uncertainty’ arising from the 2019 employment tribunal ruling in Dewhurst v (1) Revisecatch Ltd t/a Ecourier (2) City Sprint ( UK); and (2) to remove the requirement to divide employees’ contracts between different employers when an undertaking is split between more than one incoming business. For added detail, see: Employees defined, below, under the heading ‘ Proposals for reform’, and Two or more transferees, or transfer of only part of a business, below, under the heading ‘ Proposals for reform’. In October 2024, the Labour government’s policy paper Next Steps to Make Work Pay confirmed it would open a call for evidence to take a...
This Practice Note reviews the principal procedural aspects of family proceedings that engage trust assets, including the issue and service of proceedings. It also explains the steps required to add a trustee or a third-party beneficiary to the case, highlights evidential considerations, and summarises the court’s powers to compel a non-party to provide disclosure. Initial considerations Where either party holds or benefits from a trust interest, the applications made and the ensuing procedure will depend on the circumstances, which determine which of the three principal approaches to trust assets should be adopted, namely: considering trust assets as a resource available to one party—see Practice Note: Introduction to trusts within financial proceedings— Trusts as a financial resource the court exercising its power to make a variation of settlement order under section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil...
This Practice Note offers clear practical guidance on the nature of trusts and how trust assets are dealt with in family financial remedy cases. It also reviews pertinent case law, the situations in which trust property might be treated as available to a party as a financial resource, and the making of ‘judicious encouragement’ orders directed at trustees. When faced with an application for a financial remedy, the court commonly adopts three principal approaches to trusts: regarding trust income or capital as a resource accessible to either party (or refusing to do so)—see: Trusts as a financial resource using its power to vary a nuptial settlement under section 24(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) or the parallel provisions in the Civil Partnership Act 2004 ( CPA 2004)—see Practice Note: Trusts—variation of a nuptial...
This Practice Note This Practice Note examines breaches of trustees’ duties that consist solely of negligent acts or omissions, and do not extend to misapplying trust funds or infringing fiduciary duties, such as the obligation on trustees to put beneficiaries’ interests before their own. Liability for misapplying trust property and for fiduciary breaches is treated differently from liability for a negligent breach of trust, and those topics are addressed in other Practice Notes. Before considering negligent breach, it is necessary to outline how it differs from other categories of breach. In short, a trustee who commits a negligent breach of trust is liable to furnish equitable compensation, a remedy akin to a professional’s liability in negligence. This is to be distinguished from a trustee’s obligation to restore the trust where the assets have been misapplied by, for example, paying the wrong persons, making...
Examples of claims against trustees for breach of investment duties include: delay—where the trustee is slow to deploy trust capital poor investment choices—e.g. reckless exposure to high-risk, undiversified holdings unauthorised investments—such as disregarding a mandate to invest only in specified assets not investing the trust fund as required Trustees' powers of investment Trustees should confine themselves to authorised investments. They must consider both the statutory general power of investment and any extra powers, exclusions, or limits set out in the trust instrument. The “general power of investment” permits trustees to make any kind of investment they could make if absolutely entitled to the trust assets. An exception applies to “investments in land other than in loans secured on land”, which are governed by a separate provision (see “ Investments in land” below). This general power sits alongside powers conferred other than under the...
Trustee in bankruptcy’s remuneration The trustee in bankruptcy (trustee) will typically seek payment of their fees from the estate. A trustee’s remuneration constitutes a bankruptcy expense, payable in the order of priority set by the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, before any return is made to creditors. If the estate does not suffice to meet the trustee’s remuneration, and the trustee has applied skill and labour to assets the bankrupt held on trust for third parties, the trustee may, in some circumstances, obtain payment for that work from those trust assets. That, however, depends on the court’s discretion (see Re Berkeley Applegate). In Bell v Birchall, the court declined to permit a trustee of a bankrupt solicitor’s estate to recover his costs and expenses already incurred—and to be incurred—in relation to storing the...
THIS PRACTICE NOTE APPLIES TO TRUST- BASED OCCUPATIONAL PENSION SCHEMES Trustees can face personal liability if a breach of trust leads to loss for the pension scheme. This may arise where trustees: operate beyond the powers set out in the scheme’s trust deed and rules, or fail to comply with legislation or the law of trusts. Trustees should ensure that sufficient safeguards exist to protect them against personal liability. With pensions legislation becoming increasingly complex, trustees who do not seek appropriate advice and who lack the necessary knowledge and skills are liable to make errors when administering pension schemes. Directors of a corporate trustee are generally considered to have stronger protection from personal liability than individual trustees. In the absence of dishonesty, the court is unlikely to permit a claim against those directors for a breach of trust by the trustee company, mainly because of the...
This Practice Note sets out what amounts to trespass to land, including trespass relating to minerals and airspace, trespass by a tenant after a lease has ended, continuing trespass, who is entitled to bring a claim, the elements required to prove actual possession, and the potential defences to a trespass claim What is trespass? Trespass is the unauthorised presence of a person on land or buildings in another’s possession, which includes: wrongfully stepping onto it, or riding or driving over it taking control of it, or ejecting the person in possession remaining without authority once it has expired (for example, a former tenant who stays against the owner’s wishes is, subject to statutory protection, a trespasser from the date the tenancy ends. However, a tenant holding over is not a trespasser until a demand for possession is made, as trespass can only be...
Orders made under the Transport and Works Act 1992 ( TWA 1992) are statutory instruments that can authorise guided transport schemes and certain other infrastructure in England and Wales. Under TWA 1992, a promoter may apply to the Secretary of State ( So S) in England or the Welsh Ministers in Wales for a TWA Order, which grants powers to construct and operate a guided transport scheme, including compulsory purchase to obtain land and rights required for the scheme. Types of scheme covered by TWA Orders railways and tramways trolley vehicle systems externally guided buses, monorails and other specified guided transport inland waterways works that affect rights of navigation in waters up to the limits of the territorial sea, including bridges, piers, barrages, tunnels and offshore wind farms In 2022, following consultation, the government confirmed it would proceed with plans to broaden the scope of TWA 1992, creating a...
Note that this Practice Note concerns only trust property comprising an interest in land. Transferring assets to a trust Assets are placed into a trust when: the trust is brought into being, or the settlor contributes further assets to it, or the trustees acquire new property or settle trust assets on new trusts A trust may arise by will, or during the settlor’s lifetime. A lifetime arrangement can be made by: a self-declaration of trust by the existing owner of the land interest, or a transfer of the land to trustees to hold on trust which, either at the outset or later, is “manifested and proved by some writing signed by a person who is able to declare such a trust”: see section 53(1)(b) of the Law of Property Act 1925 ( LPA 1925). “ Writing” includes email: see Khan v Khan For the formal requirements when...
ARCHIVED : This case tracker has been archived and is no longer maintained. It provides a list of significant pensions judgments handed down in 2020, arranged by topic. The individual items in this tracker are grouped by subject. Those subjects are listed in the Table of Contents (on the left of the page). This Practice Note contains references to case law from the Court of Justice of the European Union. In broad terms, EU judgments issued on or before 31 December 2020 remain binding on UK courts and tribunals (even if the EU courts subsequently take a different approach) until the UK courts choose to exercise their powers to depart. For the most part, EU case law created after that date is not binding in the UK, though UK courts and tribunals may still ‘have regard to’ EU judgments where relevant. For more...
This Practice Note sets out the purpose and importance of time of the essence clauses in commercial contracts. It outlines the general rule and its exceptions, and considers practical points for both supplier and customer when evaluating time of the essence provisions in supply of goods or services agreements. For a Precedent time of the essence clause with detailed drafting notes, see Precedent: clause. See also: Drafting and negotiating a time of the essence clause—checklist. For discussion of time of the essence clauses in the context of: construction contracts, see Practice Note: —construction contracts rent reviews, see Practice Note: A guide to rent review for property lawyers— When is time of the essence? Consequence of a time of the essence clause Where a contract stipulates that ‘time is of the essence’ for the performance of an obligation, there is a...
Tier 1 ( Entrepreneur) The Tier 1 ( Entrepreneur) route closed to new applicants on 29 March 2019. Thereafter, entry was limited to those who, within the previous 12 months, held leave as a Tier 1 ( Graduate Entrepreneur), or were in the Start-up route having previously held Tier 1 ( Graduate Entrepreneur) leave. Applications for that cohort closed on 5 July 2021. Individuals already in Tier 1 ( Entrepreneur) could keep their leave and apply to extend until 5 April 2023, and for settlement until 5 April 2025. For anyone who has ever held Tier 1 ( Graduate Entrepreneur) leave, the extension deadline was 5 July 2025, with indefinite leave to remain applications permitted until 5 July 2027. As a ‘legacy’ route, the category’s Immigration Rules have not been simplified. Tier 1 ( Entrepreneur) was and remains aimed at...
This Practice Note addresses several frequently asked questions that may arise when deciding whether to pursue a Third Party Debt Order ( TPDO). For guidance on what a TPDO is and the steps to obtain one, see Practice Notes: What is a third party debt order ( TPDO)? How to apply for a third party debt order ( TPDO) Does a TPDO have to be issued against a financial institution? No. You can apply for a TPDO against any third party within the jurisdiction that owes money to your debtor. This extends to an individual who is a debtor of the judgment debtor. Can a TPDO be made in respect of cryptocurrency? Following the decision in Ion Science Ltd v Persons Unknown (2020) (not reported by Lexis Nexis), the High Court confirmed that crypto assets are capable of being treated as property and can be traced and...
What is a security agent? The security agent plays a pivotal role in syndicated transactions. In a syndicated loan, the security agent (often referred to as the ‘security trustee’) holds the transaction security on trust for the lenders and any other secured creditors, including hedging counterparties. Although commonly labelled a security agent, the function is not an agency role but a trusteeship. Using a trust structure to hold the transaction security offers significant benefits in syndicated lending, where the creditor group usually shifts over time as lenders transfer their loans to new lenders (see Practice Note: Introductory guide to loan transfers). The key advantages are as follows: the trust structure removes the need for security to be granted separately to each creditor, which can be costly and time‑consuming; and the security is vested in the security trustee for the benefit of 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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