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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 offers guidance on assessing vertical arrangements that fall outside The Competition Act 1998 ( Vertical Agreements Block Exemption) Order 2022 ( VABEO). It mainly draws together and summarises the CMA guidance on vertical restraints (2022 Guidance). Readers should already be familiar with VABEO and the Chapter I prohibition in section 2 of the Competition Act 1998 ( CA 1998). For a fuller treatment of VABEO’s availability, including the 30% market share thresholds and the hardcore and excluded restrictions, see Introduction to the application of Chapter I to vertical agreements and The Competition Act 1998 ( Vertical Agreements Block Exemption) Order 2022. More generally, see Chapter I prohibition. Starting position Where vertical agreements lie beyond the VABEO safe harbour, for example where the 30% market share thresholds are surpassed or hardcore or excluded restrictions are present, there is no general...
CASE HUB ARCHIVED -this archived case hub reflects the position as at the judgment date of 2 February 2023; it is no longer maintained. See the timeline for further details. Case facts Outline Appeal brought against the General Court’s judgment of 23 September 2020, which rejected an action for annulment of the Commission’s decision concerning Spanish aid for the purchase of ships ( SA.21233). Latest developments On 2 February 2023, the Court of Justice delivered its decision, partially annulling the Commission’s decision. In particular, the Court of Justice held, amongst other things, that the General Court’s analysis rested on the mistaken assumption that only the investors-rather than the economic interest groups ( EIGs)-could be treated as beneficiaries of the advantages arising from the tax measures at issue. Consequently, the General Court misjudged the question of selectivity. The ECJ sent the case back to the General Court. The General Court then...
What does this Practice Note cover? This Practice Note sets out an overview of debt securities and highlights the principal features of the main forms of debt securities commonly found in the capital markets, drawing attention to the key characteristics of the primary types typically encountered... What are debt securities? In the context of the debt capital markets, the expression 'debt security' denotes a financial instrument, tradable on the capital markets, which evidences a debt obligation. The word 'security' when used in this way is therefore distinct from 'security' in the sense of a 'security interest', such as a mortgage or charge, see Practice Note: Types of security. Issuing a debt security is a common alternative to borrowing funds by way of a loan. For further information on loan financing, see: Types of lending—overview. For a comparison of debt issuance and loans, see Practice Note: Debt...
Pre- IP completion day and transitional position in relation to proceedings in England and Wales and EU enforcement This Practice Note outlines the pre- IP completion day and transitional landscape for proceedings in England and Wales and EU enforcement, addressing the meaning of maintenance for international enforcement in an EU Member State, the relevant inward and outward procedures, the role of Central Authorities and the relevant statutory provisions, with regard to the implications of Brexit. It also provides practical guidance on the Maintenance Enforcement Business Centre. At 11pm ( GMT) on 31 December 2020, the transition/implementation period following the UK’s withdrawal from the EU ended. At that moment (termed ‘ IP completion day’ in UK law), key transitional measures expired and substantial changes took effect across the UK’s legal regime, with consequences for practitioners addressing enforcement issues. Under its...
The international enforcement of financial orders is not a routine aspect of day-to-day practice. Consequently, reported decisions are scarce. Published case reports are therefore comparatively limited in number. Nonetheless, a multitude of conventions, regulations, statutes and statutory instruments render this a particularly intricate field. In certain jurisdictions, several statutory pathways exist for enforcing an order; in others, none; and there may even be differences between regions within a single state. The consequences of the UK’s departure from the EU ( Brexit) must also be factored in. At 11pm ( GMT) on 31 December 2020, the transition/implementation period entered into after the UK’s withdrawal from the EU ended. That moment—termed ‘ IP completion day’ in UK law—brought key transitional measures to a close and ushered in material changes across the UK’s legal framework and procedure. These shifts have ongoing...
ARCHIVED-this archived case hub reflects the position at the date of the decision of 16 February 2023; it is no longer maintained. See further, timeline. Case facts Outline A national reference from Spain seeking clarification on, amongst other matters, the quantification of damages for breaches of Article 101 TFEU. Latest developments On 16 February 2023, the Court of Justice issued its judgment. It held, amongst other things, that Article 101 TFEU must be read as not preventing national rules which stipulate that, where a claim is only partly upheld, costs are borne by each party, each bearing half of the common costs. Departing from Advocate General Kokott’s opinion, the Court clarified that any information asymmetry between the parties is not factored into the assessment of whether a national court may estimate the harm caused by the...
This Practice Note functions as a reference point to contrast the principal provisions of the current UK framework for medical devices; the EU framework as set out in the Medical Devices Regulation ( MDR), Regulation ( EU) 2017/745, and the In Vitro Diagnostic Medical Device Regulation ( IVDR), Regulation ( EU) 2017/746, respectively; and the proposed UK reforms. On 25 November 2021, the Medicines and Healthcare Products Regulatory Agency ( MHRA) closed its public consultation on proposed updates to UK medical device regulation (see: LNB News 16/09/2021 90). The government’s reply was published on 26 June 2022. It also confirmed an intention to advance the vast majority of proposals, which collectively underpin the comparisons in this Practice Note. See News Analysis: A closer look at MHRA’s proposals on future regulation of medical devices in the UK. Progress in laying the new...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C-738/22 ARCHIVED This archived case hub sets out the position as at the judgment of 14 September 2022 and is no longer being maintained. For further detail, see the timeline and commentary. Case facts Outline An action was brought before the General Court contesting the European Commission’s decision of 18 July 2018, which found Google had abused a dominant position by imposing anti-competitive conditions on device manufacturers and mobile network operators to reinforce the dominance of its search engine, and levied a fine of €4.34bn. Latest developments On 13 July 2022, the General Court handed down its judgment, largely rejecting the appeal but setting aside one element. It determined that Google’s revenue sharing arrangements with manufacturers did not constitute abuse because the Commission made errors in applying the as-efficient competitor test. The Court also identified a...
Introduction This Practice Note outlines the international and UK frameworks for the control of mercury. The Minamata Convention on Mercury (the Convention) applies at the international level, Assimilated Regulation ( EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury (the GB Mercury Regulation) applies at GB level, Regulation ( EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury (the EU Mercury Regulation) applies in Northern Ireland, and the Control of Mercury ( Enforcement) Regulations 2017, SI 2017/1200 (the UK Mercury Regulations 2017) apply at UK level. The Minamata Convention The Convention is a worldwide treaty aimed at safeguarding human health and the environment from mercury’s adverse impacts. It prohibits new mercury mines, requires the phase-out of existing mines, and both phases out and phases down mercury use across a range of...
Assimilated Regulation ( EC) 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer Entry into force: 20 November 2009; applied from 1 January 2010 ( Article 31). England and Wales implementation: Ozone- Depleting Substances Regulations 2015, SI 2015/168. Subject: Protection of the ozone layer. What are ozone-depleting substances? Ozone-depleting substances ( ODS) are human-made chemicals that damage the stratospheric ozone layer, which shields the earth from harmful ultraviolet radiation. They include chlorofluorocarbons ( CFCs), halons, hydrochlorofluorocarbons ( HCFCs), carbon tetrachloride and methyl bromide. ODS have been used in refrigerators, air conditioners, fire extinguishers, aerosol propellants, solvents and as blowing agents for insulation foams. Background to the GB ODS Regulation The UK is a party to the 1985 Vienna Convention for the Protection of the Ozone Layer and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. The Vienna...
The Scale-up route This pathway allows UK companies that have achieved recent rapid growth to secure a Home Office sponsor licence so they can hire highly skilled people who are neither British nor Irish and who possess the expertise required to help the Scale-up business keep expanding and thriving. It is described as a points-based route, and officially entered the Immigration Rules as Appendix Scale-up on 22 August 2022. A notable hallmark of the Scale-up route is that it begins as a sponsored route (covering the first six months) and then converts to an unsponsored route thereafter. A sponsor is accountable for each sponsored worker only for the initial six months, in relation to migrant sponsorship duties and responsibilities, yet must otherwise remain compliant for the full term of the licence overall. Accordingly, two distinct sets of criteria may...
Introduction to the Trade Remedies Authority On 29 April 2021, the UK brought the Trade Act 2021 (the Act) into effect. The Act created the UK’s Trade Remedies Authority ( TRA) and allocated to it specified functions. It also provided for implementing international trade agreements negotiated by the UK, and for the gathering and disclosure of trade-related information. The TRA was constituted as an independent, non-governmental body to furnish the Secretary of State with advice, support and assistance in relation to: the conduct of an international trade dispute the Secretary of State’s trade-related functions the functions of the TRA This advice, support and assistance also encompasses trade remedies. The TRA is charged with investigating trade remedies concerning dumping, subsidies and safeguards. Most TRA functions are conferred by the Taxation ( Cross-border Trade) Act 2018 ( T( CT) A 2018). T( CT) A 2018, Sch 4 Pt 1 sets out the...
This Practice Note sets out how to work out time periods for carrying out steps mandated by the Civil Procedure Rules ( CPR), any related practice directions, or by a court judgment or order. It also addresses what is meant by clear days and business days. It does not cover the specific CPR deadlines for particular actions. For guidance on the deadlines for filing and serving statements of case in England and Wales, see Practice Note: Time limits for filing and serving statements of case in England and Wales. The importance of calculating time periods correctly Parties must adhere to time limits set by the CPR, practice directions and the court’s orders. These include deadlines for filing and serving documents and for other stages in the claim, such as: filing statements of case; giving disclosure; exchanging witness...
This Practice Note considers completing the acknowledgment of service form It explains which version of the form should be used (there are multiple) and offers practical pointers on completing it, including the rules that govern how it must be signed. It also outlines the position where a defendant wishes both to defend the claim and to contest the court’s jurisdiction. For an overview of the principles underpinning the acknowledgment of service, see Practice Note: Acknowledgment of service-principles... Depending on the court where the case is being heard, the relevant court guide may prescribe particular requirements that must be met. For guidance, see: - Court specific guidance below... The rules on acknowledgment of service are contained in Part 10 for Part 7 claims and in Part 8 for Part 8 claims. Part 10 was entirely replaced on 6 April 2022 and Practice Direction 10 was deleted in full,...
This Practice Note This Practice Note provides a concise overview of the principal recent digital initiatives ( Directives, Regulations and Codes of Conduct) that organisations should bear in mind when trading, marketing or delivering services within the EU, or where they are established in the EU. It addresses developments relating to: Artificial Intelligence ( AI) Data Online platforms Online content Liability and safety Privacy and cybersecurity It encompasses EU rules or codes adopted recently, alongside legislative proposals that are still progressing. The measures are presented in chronological order. This Practice Note excludes digital initiatives tied to consumer law. For details on key EU consumer protection instruments, including the Digital Content and Services Directive ( EU 2019/770), the Sale of Goods Directive ( EU 2019/771), the EU Omnibus Directive ( EU 2019/2161) and the EU...
It is relatively common for a company that has created a charge over its assets to lodge a formal statement at Companies House asserting the charge has been satisfied when, in reality, it has not in fact been satisfied. Such a filing might be submitted by the company mistakenly—for example, under the misapprehension the liability has been settled in full—or it might be filed dishonestly to facilitate access to additional funding or credit. There have also been cases where entries at Companies House recorded that security had been released without the knowledge or awareness of the relevant company or the security holder concerned. For further detail and background, see News Analyses: Additional caution required for insolvency practitioners relying on Companies House filings and Update for insolvency practitioners on Companies House filings. The key questions that arise are: whether an incorrect filing of a...
Practice Note: Priority between security interests This Practice Note provides illustrations of how the rules on priority may operate in practice with reference to the relevant English law principles. It complements, and should be read alongside, our other Practice Notes on priority. New examples are added to this Practice Note on a regular basis. If you encounter a priority issue in practice that you would like us to cover, please use the Lexis Ask function to inform us. Practice Note: Priority between security interests outlines the rules on priority from a more technical standpoint and should be consulted for the black letter law that supports the practical examples in this Practice Note. It is important to recognise that English law priority rules are complex and are widely acknowledged not to be clear in every respect. Outcomes can also be influenced by the parties’...
Registration can have an important effect on the priority of competing security interests. In general terms, there are two broadly distinct methods for recording security interests: registration in relation to the asset that is charged, and registration against the person granting the security This Practice Note addresses specifically the first approach, where the charged property is land situated in England or Wales. For guidance on how registration over other types of asset influences the priority of security interests, see the following Practice Notes: Effect of registration on the UK Ship Register on priority of security interests Effect of registration on the UK Register of Aircraft Mortgages on priority of security interests, and Effect of registration at IP registries on priority of security interests Making an entry at an asset registry will, in most cases, have a direct bearing on the order of...
What does this Practice Note cover? The US New York Stock Exchange (the NYSE, or the Exchange) is the largest stock exchange globally by market capitalisation. Established in 1792, it is situated in New York City. This Practice Note considers the regulatory and procedural requirements relevant to listing debt securities on the NYSE. Reasons for listing debt securities Issuers commonly seek a listing to access a broader universe of investors and to meet market practice and expectations within the jurisdictions where the offering of the debt securities is conducted. Many investors apply investment criteria that permit investment only in listed securities, offering additional comfort on disclosure and governance obligations. Listed securities enjoy higher status in the market, reflecting adherence to recognised disclosure and governance standards. They also tend to be more liquid, allowing investors to exit their positions more readily if...
Practice Note This Practice Note summarises significant authorities and commentary for debt capital markets practitioners. The decisions are grouped by subject area and include: Bonds as negotiable instruments Contractual and tortious obligations in debt securities transactions Majority bondholders binding minority holders Standing and enforcement rights of beneficial owners Actions against and rights of trustees, agents and intermediaries Interpretation of trust deed clauses Interpretation of non-trust deed clauses Insolvency and restructuring Jurisdiction, governing law and agency in international bond disputes No action clauses Misrepresentation Prospectus issues Rating Bonds as negotiable instruments Names of parties: Edelstein v Schuler & Co [1902] 2 KB 144 Judgment date: 9 May 1902 Case summary: Several bearer debenture bonds—some issued in England by an English company and others abroad by foreign companies—were taken from the plaintiff by his clerk. 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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