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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 gives guidance on the scope and interpretation of section 38 of the Building Act 1984 ( BA 1984) The government signalled that BA 1984, s 38 would commence ‘alongside’ the legislative changes that took effect under the Building Safety Act 2022 on 28 June 2022, but no regulations have yet been published to commence it. Section 38 states that, where a duty set by the building regulations is breached and damage results, the breach is actionable. In effect, parties who do not comply with the building regulations may face civil liability. This Practice Note clarifies what the building regulations cover, who may bring or face claims under BA 1984, s 38, and the damages that might be recovered in a claim relying on s 38. The focus is on those regulatory provisions that prescribe standards for building work, where...
CASE HUB ARCHIVED - this archived case hub reflects the position at the date of the decision of 15 May 2023; it is no longer maintained. See further, timeline. Case facts Outline of the European Commission’s merger review into MOL Hungarian Oil and Gas Plc’s proposed purchase of OMV Slovenija. The deal gives rise to horizontal overlaps in the retail fuel supply market. Latest developments On 17 May 2023, the Commission granted unconditional clearance to the proposed transaction, albeit with conditions. It accepted MOL Hungarian Oil and Gas Plc’s commitment to divest 39 fuel stations in Slovenia to the Shell Group. Parties MOL Hungarian Oil and Gas Plc ( MOL): Based in Hungary, MOL is the parent of the MOL Group, an integrated oil and gas group active in exploring, producing and refining crude oil, and distributing refined oil products. At retail level, MOL Group operates around 2,000 fuel...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C- 581/22 ARCHIVED - this archived case hub records the position as at the judgment of 22 June 2022; it is no longer maintained. See further, timeline. Case facts Outline Appeal before the General Court seeking annulment of the Commission’s decision of 11 June 2019 prohibiting the planned joint venture between Tata Steel and Thyssen Krupp AG ( Case M.8713). Latest development On 22 June 2022, the General Court delivered its ruling, dismissing the appeal in full. It held that: the Commission has a margin of discretion in conducting its economic assessments; in any event it clearly explained its reasoning and is not obliged to run every form of econometric test; technical feasibility is a necessary, but not sufficient, condition for supply-side substitutability, and it rejected pleas concerning geographic market definition, the role of imports, and the...
Bosnia & Herzegovina FDI control 1. What is the applicable legislation? Bosnia and Herzegovina presently lacks an FDI screening regime akin to those developing across Europe under the EU FDI Screening Regulation. Rather than that model, it relies on more conventional authorisation frameworks, with particular attention on the defence and media fields. Owing to the country’s administrative set‑up, foreign investment, including in areas subject to special limitations, is regulated at several tiers: Bosnia and Herzegovina (state level)-the Foreign Direct Investments Policy Act ( Official Gazette of Bi H Nos. 4/1998, 17/1998, 13/2003, 48/2010 and 22/2015) provides the overarching policy and procedural framework for foreign investment and applies throughout Bosnia and Herzegovina (the FDI Policy Act) Federation of Bosnia and Herzegovina ( FBi H) (entity level)-the FBi H Foreign Investments Act ( Official Gazette of FBi H, Nos. 61/2001, 50/2003 and 77/2015)...
A conversation with Danijel Stevanović, Partner, Nina Rašljanin, Associate, and Srdjana Petronijevic, Partner, on key issues in foreign direct investment ( FDI) control in North Macedonia 1. What is the applicable legislation? North Macedonia does not operate a foreign investment control framework mirroring those emerging across Europe under the EU FDI Screening Regulation. Instead, North Macedonia retains a classic, single-sector authorisation arrangement focused on the defence industry, akin to models typically set up in Europe during the latter half of the twentieth century. In addition, all direct investments by non-residents are subject to compulsory registration. Investments into North Macedonia (covering the defence-sector authorisation scheme and the mandatory registration of direct investments) are generally governed by the following: The Constitution of the Republic of North Macedonia; The Companies Act ( Official Gazette of RM, nos. 8/2004; 84/2005; 25/2007; 87/2008; 42/2010; 48/2010; 24/2011; 166/2012; 70/2013; 119/2013; 120/2013;...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the judgment of 15 June 2022; it is no longer maintained. See further, timeline and related cases and commentary Case facts Outline Appeal before the General Court challenging the European Commission’s 24 January 2022 decision fining Qualcomm for abusing a dominant position in the worldwide market for 4G Long‑ Term Evolution ( LTE) baseband chipsets by making substantial exclusivity payments to Apple on the basis that it would not obtain supplies from competitors ( Case AT.40220). Latest development On 15 June 2022, the General Court delivered its judgment, upholding the appeal in full. It found multiple procedural irregularities that impaired Qualcomm’s rights of defence and invalidated the Commission’s analysis of the conduct alleged against Qualcomm. Parties Appellant: Qualcomm, Inc ( Qualcomm): A US‑based business designing and marketing wireless...
CASE HUB ARCHIVED This archived case hub captures the position as at the judgment dated 14 June 2021 and is no longer maintained. See further, timeline. Case facts Outline An appeal by Meta Platforms, Inc. (formerly known as Facebook) against the CMA’s decision of 30 November 2021 preventing Meta’s completed purchase of Giphy, Inc. Latest development On 21 May 2021, the CAT delivered its judgment, rejecting the majority of the appeal while identifying some procedural errors by the CMA. The CAT has referred the question of any remedy to Meta and the CMA to consider. Parties Meta Platforms, Inc. ( Meta): Founded in 2002. Until 28 October 2021, it was known as ‘ Facebook’. It is the parent of a group providing a wide range of online products and services globally, including Facebook, Instagram, Messenger, Whats App, Oculus, Portal and...
P& O Ferries/ DFDS capacity sharing agreement ( Case 51099) [ Archived] CASE HUB ARCHIVED - this archive records the position as at the decision date of 5 August 2022; it is not being updated. See also the timeline. Case facts Outline An investigation under Chapter I of the Competition Act 1998 ( CA98) into a capacity sharing agreement between P& O Ferries Holdings Limited and DFDS A/ S ( Case 51099). Latest developments On 5 August 2022, the CMA announced it would accept the parties’ proposed commitments, with an additional requirement that a monitoring trustee be appointed to supervise compliance with one of those commitments. Parties P& O Ferries Holdings Limited ( P& O Ferries) DFDS A/ S ( DFDS) Background In November 2021, the CMA opened an inquiry into the companies’ capacity sharing agreement under Chapter I of the CA98. In March 2022, the CMA chose to...
Introduction This Practice Note sets out to familiarise readers with the principal ideas underpinning the law of marine insurance, noting where it coincides with, and where it diverges from, insurance law in general. The evolution of marine insurance in England, and the jurisprudence that accompanies it, can likely be followed back to the thirteenth century, when insuring ships and their cargoes emerged in step with growing maritime commerce. In origin, marine insurance law sprang from the carriage of goods and passengers by sea, extending to cover both property perils and liability exposures. The statutory definition of a marine insurance contract in section 1 of the Marine Insurance Act 1906 ( MIA 1906) is notably broad: an agreement under which the insurer promises to indemnify the assured for marine losses, namely losses arising out of a marine adventure. That expansive wording is developed further by MIA 1906,...
CASE HUB ARCHIVED This archived case hub captures the situation as at the decision date of 23 October 2024 and is no longer being updated. NOTE Appeals have been brought before the General Court in Cases T-1/25 and T-2/25. See further: timeline. Case facts Outline Commission Article 101 TFEU probe into collusion between České dráhy and Österreichische Bundesbahnen intended to stop a newcomer competing in the rail passenger transport market ( AT.40401). Latest development On 23 October 2024, the Commission adopted its infringement decision and imposed penalties totalling €48.7m. Fines per company were: CD-€31.9m ÖBB-€16.7m (including a 45% leniency reduction) Parties České dráhy ( CD): CD is the principal rail operator in the......
1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in New Caledonia? New Caledonia, a French overseas territory with enhanced autonomy from mainland France under a special status, has operated its own merger control framework and competition rules since 2014, enforced by the Autorité de la concurrence de la Nouvelle- Calédonie ( ACNC). Despite being distinct, the two systems are closely aligned, and their competition authorities cooperate extensively. In practice, the ACNC frequently relies on the French Competition Authority ( FCA)’s merger guidelines and decisional practice when issuing decisions. Although New Caledonia is not part of the European Union ( EU)-it is one of the EU’s associated overseas countries and territories under Article 198 TFEU-the French merger control rules and decisional practice mirror those applied at EU...
This Practice Note is aimed at law firms. It sets out responses to common questions on politically exposed persons ( PEPs) under the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), as amended, including: What is the difference between a domestic and non-domestic PEP? Is a member of the House of Lords (who does not hold ministerial role) considered to be a PEP under the MLR 2017? My client is a PEP, what next? How should I approach CDD requirements under the MLR 2017 for a UK-listed company which has domestic PEPs listed on its board? This Practice Note reflects the Legal Sector Affinity Group ( LSAG) AML guidance. What is the difference between a domestic and non-domestic PEP? The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) brought in...
Business asset Capital gains tax ( CGT) may fall due when you realise a gain on the disposal of all or part of a business asset. A business asset is any asset connected to a trade or business, owned by an individual or the business. Examples include: a factory farm buildings agricultural land plant and machinery a furnished holiday letting ( FHL) shares registered trade marks Business assets may benefit from CGT reliefs; investment assets do not. Reliefs can apply where the asset has been used for business purposes. Furnished holiday accommodation For a property to qualify as an FHL and benefit from CGT relief, it must be: in the UK or the European Economic Area ( EEA) furnished with sufficient furniture for use as holiday accommodation available to the public for commercial holiday letting for at least 210 days...
Basic principle An individual calculates the gain or loss on a land disposal in the same manner as for any other asset. There are, however, specific rules for computing gains and losses where the individual: grants a lease assigns or surrenders a lease disposes of land that has been compulsorily purchased Leases For tax purposes, granting a lease is a part disposal because the landlord retains an interest, whether the underlying title is freehold or leasehold. Grants of leases are grouped into three types: a long lease carved out of a freehold or long leasehold interest a short lease carved out of a freehold or long leasehold interest a short lease carved out of a short leasehold interest Definition of lease For capital gains tax ( CGT), a lease includes: subleases tenancies licences any interest...
CASE HUB ARCHIVED This archived case hub reflects the position as at the judgment dated 18 May 2022; it is no longer updated. See also timeline and related/relevant cases. Case facts Outline Appeal before the General Court aimed at setting aside the Commission decision of 5 February 2019 blocking Wieland’s acquisition of Aurubis Rolled Products and Schwermetall ( Case M.8900). Latest development On 18 May 2022, the General Court delivered its ruling and rejected the appeal in full. Parties Applicant: Wieland- Werke AG ( Wieland) - a German-headquartered manufacturer and supplier of semi-finished copper and copper alloy products. Wieland spans the copper value chain from casting forms through to the sale of semi-finished goods. It produces rolled copper and copper-alloy products in Germany, the UK, the US and Singapore. Defendant: European...
The criminal regulatory landscape How does criminal law intersect with the life sciences industry? The points of contact are numerous. Beyond offences against the person and controlled drugs offences, a range of corporate or ‘white collar’ crimes can affect both individuals and companies, such as counterfeiting, criminal cartel offences, money laundering, fraud and bribery. Breaches of the sector’s regulatory framework-including rules on medical devices, and on inducements and hospitality-can equally give rise to criminal liability. Criminal investigations and prosecutions may, though do not invariably, follow. This Practice Note outlines how criminal law may operate in the life sciences arena. It addresses corporate crime liability, money laundering, fraud, anti-bribery, and inducements and hospitality in the promotion of medicinal products and medical devices, as well as enforcement. It also examines the effects of, and duties created for, life sciences businesses by the Economic Crime and...
CASE HUB ARCHIVED This archived case hub reflects the position as at the date of the judgment on 18 May 2022; it is no longer maintained. See further: timeline and related/relevant cases. Case facts Outline Appeal before the General Court seeking annulment of the Commission’s decision of 27 June 2019, which imposed a €28m fine on Canon Inc. for implementing elements of its acquisition of Toshiba Medical Systems Corporation, a wholly owned subsidiary of Toshiba Corporation, prior to clearance via a two-step ‘warehousing’ structure. Latest development On 18 May 2022, the General Court dismissed the appeal in full. It held, among other findings, that the Commission: (i) correctly treated the interim step as partial implementation of the concentration, infringing Articles 4(1) and 7(1) EUMR; (ii) made no error in imposing fines or in their calculation; and (iii) committed no procedural irregularities affecting Canon’s rights of...
Practice Note for Law Firms This Practice Note is aimed at law firms and addresses frequently asked questions on client due diligence ( CDD) for corporate clients within the anti-money laundering ( AML), counter-terrorist financing ( CTF) and counter-proliferation financing regime. It reflects the Legal Sector Affinity Group ( LSAG) AML guidance. Which CDD is required where the client is a body corporate under the MLR 2017? How should AML compliance be conducted for a listed PLC? Do CDD checks remain necessary on my client if its parent company is FCA-regulated? Under the MLR 2017, must CDD be applied to an officer instructing the firm on a corporate client’s behalf? Are a corporate client’s articles of association and memorandum of incorporation needed in all circumstances under the MLR 2017? When the beneficial owner of a private, unlisted company is known and the...
CASE HUB ARCHIVED- This archived case hub reflects the position at the date of the decision of 26 October 2022; it is no longer maintained. See further, timeline. Case facts Outline of a UK merger investigation into the anticipated acquisition by London Stock Exchange Group PLC of Quantile Group Limited. The deal featured vertical overlaps relating to the provision of post‑trade services. Latest developments On 26 October 2022, the CMA published its final report, granting unconditional clearance to the transaction. Parties London Stock Exchange Group PLC ( LSEG): The UK’s stock exchange. It operates markets that enable the raising of capital and the trading of corporate securities, provides access to a trading venue, and supplies real‑time pricing and reference information globally. Coverage spans equities, derivatives and fixed‑interest securities. Quantile Group Limited ( Quantile): Founded in 2015, it offers financial services. It has built a platform using an...
This practice note sets out two mechanisms by which trustees can reduce exposure to personal liability arising from their office: indemnities exoneration clauses in trust instruments Indemnities Trustees may reimburse themselves from the trust fund for expenses incurred in performing their trustee functions. This spans administration costs, taxes connected to the trust fund, and contractual obligations. It can also extend to the costs of actions against third parties and trust litigation, but care is needed to ensure such legal expenses are payable from the fund rather than personally. A trustee’s right to be indemnified arises only where the costs were incurred: properly, and while acting in their capacity as trustee In FMA v BBA, a case involving compromised trust proceedings, the trustees were refused an indemnity from the trust fund for costs incurred to advance their own interests rather than those 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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