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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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This Practice Note addresses the 2023 Rules for Expedited Arbitrations of the Stockholm Chamber of Commerce ( SCC) Arbitration Institute (the 2023 SCC Expedited Rules). The 2023 SCC Expedited Rules govern relevant arbitrations begun on or after 1 January 2023, unless the parties have agreed to the contrary. They are designed for straightforward disputes or those with comparatively modest amounts in issue. They are available for both domestic and international cases. The procedure The provisions for an expedited arbitration largely mirror the ordinary 2023 SCC Rules. However, there are notable distinctions, including: When starting an arbitration under the 2023 SCC Expedited Rules, the claimant must lodge a complete Statement of Claim, rather than merely a brief Request for Arbitration (a key hallmark of the 2023 SCC Expedited Rules) As under the 2017 SCC Expedited Rules, the expedited regime provides only for a sole...
This Practice Note addresses the following areas: headline conditions for save as you earn ( SAYE) arrangements and option grants the legal framework setting the requirements for SAYE options what the exercise price must be how market value is established effect of changes to share capital specifics of share restrictions limits on the transfer of an SAYE option situations where an SAYE option must be exercisable exercise after the bonus date when must the option be exercisable prior to the bonus date? timing for exercise further occasions when an SAYE option may be...
A limited company is permitted to hold, or to transact in, its own shares, provided the conditions in the Companies Act 2006 ( CA 2006) are satisfied. Such shares are kept in treasury and are known as the company’s treasury shares. For guidance on how, and why, a company might repurchase its shares to be held in treasury, see Practice Note: Buying back shares into treasury. The rules governing treasury shares are contained in CA 2006, ss 724–732. Breaching any of these provisions (other than CA 2006, s 730—see Practice Note: Cancellation of treasury shares) constitutes an offence by the company and every officer of the company who is in default. A person found guilty of that offence is, on conviction, liable to a fine. Dealing with treasury shares A company may simply retain its treasury shares (see Practice Note: Holding treasury...
This Practice Note examines how sale and leaseback arrangements are structured, the reasons for adopting them, and the principal points to negotiate in the leaseback documentation... What is a sale and leaseback? A sale and leaseback enables a real estate owner to release capital whilst retaining occupation and use of the property. the disposal by a business of part or all of its property interests in exchange for a cash lump sum; and the concurrent grant back to that business of leases of those properties it still needs to run its operations Sale and leaseback is also commonly used to place property into a self‑invested personal pension or a small self‑administered scheme, which falls outside the scope of this note. See Practice Note: Buying property from a SIPP or SSAS. Certain Islamic finance structures operate in a closely comparable manner to sale and...
NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol) covers collisions taking place on or after 31 May 2021, in circumstances where the sum claimed for the injuries does not exceed £5,000, and the overall claim value is capped at £10,000 in total. The small claims track threshold for personal injury arising from a road traffic accident has been lifted to £5,000 in respect of damages relating to pain, suffering and loss of amenity, subject to certain exceptions. For comprehensive information on the RTA Small Claims Protocol, including situations in which it does not apply, see Practice Note: The road traffic accident small claims protocol and Checklist: The RTA small claims protocol—key features checklist......
Practice Note This Practice Note assists with identifying the applicable law for harmful events occurring on or after 1 January 2009. It outlines the special rules for particular heads of claim under Regulation ( EC) 864/2007 on the law governing non-contractual obligations ( Rome II). These include product liability, unfair competition and restraints on free competition, environmental harm, intellectual property ( IP) rights, industrial action, unjust enrichment, negotiorum gestio (agency without authority), culpa in contrahendo (fault in forming a contract), and insurance. See also the Practice Notes: Rome II—scope, exclusions and general provisions, and Rome II—the general rule and its displacement. For UK application, consult Determining applicable law in non-contractual disputes—overview. Aids to interpretation judgments of the Court of Justice recitals at the start of Regulation ( EC) 864/2007 ( Rome II), offering explanations and additional information such as definitions; where uncertain, the relevant Article...
Practice Note Use this Practice Note to identify the governing law before the courts of England and Wales for harmful events that took place between 11 January 2009 and 31 December 2020. Where incidents happened outside those dates, the UK courts will apply an alternative choice-of-law regime, and the regime engaged turns solely on the date of the occurrence. If the date falls outside that span, a different regime applies, selected by reference to timing of the event. For direction on those regimes and how they interrelate, see Practice Note: Applicable law regimes. It summarises the special rules governing particular heads of claim under Regulation ( EC) 864/2007 on the law applicable to non-contractual obligations ( Rome II). The topics include product liability, unfair competition and restraints on free competition, environmental harm, intellectual property ( IP) rights, industrial action, unjust...
Prior to the coming into force of the Landlord and Tenant Act 1987, Part II ( LTA 1987), the court retained a wide-ranging jurisdiction to appoint a receiver to assume control of the management of any property (including a block of flats) whenever it was considered just and convenient to do so. Nonetheless, that power was seldom exercised in practice in relation to blocks of flats, likely owing to the expense and the frequent requirement, in most cases, and, where applicable, to evidence default by the landlord or managing agents regarding the performance of the landlord’s repairing, maintenance or insurance obligations under the lease. Part II of the LTA 1987 offers an alternative remedy by vesting power in (what are now) the First-tier Tribunal ( Property Chamber) in England and the leasehold valuation tribunal in Wales to appoint a manager to take over the...
Scope of the right to buy England Across England, the Right to Buy ( RTB) is provided for by the Housing Act 1985 ( HA 1985)... Wales In Wales, RTB (including the Preserved Right to Buy) and the Right to Acquire were ended on 26 January 2019 under section 6 of the Abolition of the Right to Buy and Associated Rights ( Wales) Act 2018, together with the Abolition of the Right to Buy and Associated Rights ( Wales) Act 2018 ( Commencement and Saving Provisions) Order 2018, SI 2018/100, art 2. From that date, no new applications were taken in Wales. See LNB News 30/01/2018 82... What is the right to buy? The RTB scheme grants qualifying secure tenants a statutory entitlement to purchase their home at a discount. Subject to conditions, a secure tenant in England may buy the freehold of a house or the lease of a flat (or a...
This Practice Note outlines a practical method for properly assessing a business-to-business commercial contract (for example, an intellectual property licence arrangement) in relation to UK VAT purposes......
Reviews in insolvency proceedings A review in insolvency proceedings is the court’s reconsideration of an order it has already made. The review mechanism, available in both corporate and personal insolvency, permits a determination to be looked at again either by the judge who issued it (see Official Receiver v Bathurst) or by a different judge (see Re W & A Glaser Ltd). The authority to revisit orders is a feature particular to the insolvency court. For corporate insolvency, the power appears in the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 12.59(1), which provides that the corporate insolvency court may review, rescind, or vary any order it has made when exercising its jurisdiction. The equivalent in personal insolvency is section 375 of the Insolvency Act 1986 ( IA 1986). That provision, mirroring the corporate regime, states that the court may...
This Practice Note sets out the key regulatory obligations that apply to a company admitted to the equity shares (commercial companies) category (sometimes also called the commercial companies category) when it undertakes, from time to time, or plans to undertake, a transaction treated as a reverse takeover under Chapter 7 of the UK Listing Rules, UKLR 7. In this Practice Note, for convenience, any reference to a listed company means a company listed in the commercial companies category. A reverse takeover is, in essence, where a listed company, or its subsidiary, acquires a business, company or assets (the target) and, by reference to a set of prescribed class tests, the target is the same size as, or larger than, the listed company, or the deal effectively brings about a fundamental change to the listed company’s business, board or voting...
This Practice Note reviews the effect of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) on pensions law. At a headline level, the immediate effect has been modest, not least because no pensions measures were ‘sunsetted’ as 2023 closed. Looking ahead, however, volatility and doubt are expected, since REUL( RR) A 2023 permits amendment, alteration, and/or replacement or restatement of retained EU law ( REUL). Importantly, the revised methodology for construing REUL, alongside broader judicial latitude to move away from it, suggests that such uncertainty may persist until lengthy litigation applies the new tests and mechanisms. From 1 January 2024, REUL still in force is generally described as ‘assimilated law’, under section 5 of REUL( RR) A 2023 (see: Assimilated law below, and Practice Note: Assimilated law), and is ordinarily to be read by...
Forms available in Lexis+ UK Restructuring & Insolvency The Lexis+ UK Restructuring & Insolvency module provides a selection of forms helpful to restructuring and insolvency practitioners, including: HMCTS forms Insolvency Service forms Companies House forms HM Land Registry forms forms produced by the Lexis Nexis® forms committee forms published in Encyclopaedia of Forms and Precedents Lexis Nexis® forms committee In February 2017, Lexis Nexis® convened the following leading insolvency specialists to create standard-form documents for market-wide use: Chief Registrar Stephen Baister (now retired) David Leibowitz, Restructuring and Insolvency partner at Mischon De Reya Frances Coulson, Head of Insolvency and Restructuring at Wedlake Bell Jeremy Goldring KC, barrister at South Square Alison Curry, former Head of Regulatory Standards & Support at the Insolvency Practitioners Association and technical manager at Alix Partners Mark Sands, Past...
As a rule, arrangements whose purpose or consequence is to restrict, distort or impede competition are barred by Article 101(1) TFEU. Agreements with an anti-competitive object are treated as particularly high risk and are presumed to harm markets; owing to their gravity, there is no requirement to demonstrate an actual adverse impact on competition. The concept of an agreement’s object has long been one of the most contested issues in competition law, supported by extensive case law reaching back to 1966. Historically, the test for identifying an anti-competitive object was read broadly, capturing many agreements even where it appeared the parties had no such intention. This expansive approach reflected the pre-2004 regime, under which only the European Commission (the Commission) could apply the exemption in Article 101(3) TFEU. Consequently, Article 101(1) TFEU and the object test existed primarily to indicate when the...
At any one time, most practices carry a handful of aged, typically modest, residual balances tied to client matters within the firm. In the normal run of business, handling these residual balances ought to be straightforward, routine housekeeping. On occasion, though, the volume and spread of residual balances is such that a more substantial project is needed to bring them back under firm control. This Practice Note explores practical questions that can confront the project sponsor, eg the COLP or COFA, when initiating a programme to address your firm’s residual balances. It sets out the circumstances that may prompt commencing a project, how best to start and organise the work, and offers pragmatic pointers designed to lighten the project sponsor’s workload considerably. It should be read in conjunction with Practice Note: Residual balances—law firms. In what circumstances will a residual balances project be...
If a needs assessment finds an adult must move into residential accommodation, they may choose, subject to their own financial circumstances, between privately funded or local authority arrangements accordingly. Whichever setting the adult ultimately enters, the oversight and guidance governing how such ‘care homes’ operate is generally consistent. Care homes are overseen by the Care Quality Commission, as are connected services, including community provision, mental health support and care delivered at home, all of which are particularly relevant to older clients. The principal legislation for the provision of residential care is: National Assistance Act 1948 ( NAA 1948) Care Act 2014 ( CA 2014) Other legislation of interest in relation to the physical provision of accommodation in a care home can be found in: Care Standards Act 2000 ( CSA 2000) Health and Social Care Act 2008 ( HSCA 2008) Care...
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...
NOTE—to check if notification thresholds within the Republic of Ireland and across the world are satisfied, see also: Where to Notify. 1. Have there been any recent developments regarding the Irish merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Ireland? The Irish Competition ( Amendment) Act 2022 (the 2022 Act) broadened the merger control remit of the Competition and Consumer Protection Commission ( CCPC). A key reform introduced a ‘call-in’ mechanism empowering the CCPC to demand notification of sub-threshold deals where the transaction could harm competition in markets for goods or services within the Republic of Ireland/the State. Although the CCPC has not yet, to date, exercised this tool, it has stepped up scrutiny of non-notifiable deals by sending formal requests for information ( RFIs), with a view to the...
Representative of an Overseas Business Previously, the Representative of an Overseas Business route offered permission to enter and remain in the UK for staff of non- UK companies via two pathways: a senior member of staff from a foreign company with no UK footprint, sent to the UK to set up the organisation’s inaugural branch or subsidiary (‘sole representative’); or media personnel of overseas newspapers, news agencies or broadcasting organisations deployed by their non- UK employer on a long-term assignment in the UK (‘media representatives’) Under the Statement of Changes in Immigration Rules HC 1118, the ‘sole representative’ provisions ceased to accept new applicants from 11 April 2022. The sole representative rules within the Representative of an Overseas Business category now apply solely to individuals seeking to extend leave or obtain settlement via this route. From the same date, the Global Business Mobility— UK...
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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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