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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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In today’s data-driven landscape, if you lead an in-house legal team and are not tracking what the department does, you are missing a trick. The legal function must recognise the value it creates, quantify that value and communicate it across the organisation. Sales uses key performance indicators to evidence its impact, and so do marketing and finance. In the same vein, the in-house legal team should equip itself to understand and demonstrate the value it delivers, the work it undertakes and the outcomes it enables. Of course, that is easier said than done. In-house lawyers often sidestep performance measurement and, as a result, face vague or non-measurable goals handed down without real thought as to whether they can be met. This Practice Note, alongside the Precedent: -step plan, offers practical methods to assess the legal department’s performance and show how the legal team adds value to...
Jurisdiction The probate authority of the courts arose within the Ecclesiastical jurisdiction that had operated since the fourteenth century. Yet the procedures there were wholly unlike those in their sister Courts of Chancery Law and Chancery. Notably, the Ecclesiastical Courts were guided by ‘… the demands of the law and the conscience of the Court.’ ( Wyatt v Ingram, sub nom Ingram v Wyatt (1832) 3 Hag Ecc 466; 1 LJ Ch 135). This equitable stance evolved to safeguard the deceased’s genuine final intentions against relatives’ contrary and self‑interested conduct. Prior to 1858, the authority to issue or revoke probate of wills, or letters of administration over the estates of deceased persons, rested with about 370 ecclesiastical or secular courts or officials in England and Wales, in addition to the Prerogative Courts of Canterbury and York. Following the Court of Probate Act 1857, which took effect on 11...
The High Court The Chancery Division of the High Court, functioning from 2 October 2017 within the Business and Property Courts, deals with a wide spectrum of matters, notably contentious probate work and disputes concerning estates and trusts. Practitioners commencing claims in the Chancery Division should be conversant with the Civil Procedure Rules 1998 ( CPR) and the Chancery Guide, which offers practical detail and direction not set out in the CPR or the PDs. The Chancery Guide is intended to be read alongside the CPR and PDs. In particular, CPR 57 together with the Chancery Guide, para 23, governs probate and inheritance claims, while CPR 64 together with the Chancery Guide, para 25, addresses estates and trusts. In 1862, the first Rules for Contentious Business were introduced. In 1873, the Probate Court was incorporated into the Probate, Divorce and Admiralty Division of the High...
AIFMD transparency and prospectus requirements The Alternative Investment Fund Managers Directive ( Directive 2011/61/ EU) ( AIFMD) took effect in UK national law on 22 July 2013, establishing rules on transparency and the information to be provided to prospective investors before they commit to an investment decision. For investors and an alternative investment fund manager ( AIFM), the core document is the investment prospectus (also referred to as an information memorandum). It must present all material details about the opportunity so that an investor can make a properly informed choice. This Practice Note outlines the prospectus transparency obligations in the Financial Conduct Authority ( FCA) Handbook-specifically, the Investment Funds sourcebook, chapter 3.2 ( FUND 3.2)-and examines how these principles should be applied when preparing an investment memorandum that is fit for purpose. Related materials include: Practice Note: UK AIFM...
CASE HUB ARCHIVED This hub records the position as at the judgment of 12 May 2022 and is no longer maintained. See the timeline for further detail. Case facts Outline Case C‑377/20 Servizio Elettrico Nazionale and Others - an Italian reference seeking clarification on several issues concerning the interpretation and application of Article 102 TFEU. Latest developments On 9 December 2021, the Court of Justice delivered its judgment, stating, among other matters, that when an undertaking loses a legal monopoly it must, for the duration of market liberalisation, refrain from relying on tools derived from that former monopoly-advantages competitors do not possess-to maintain, other than on its own merits, a dominant position on the newly liberalised market. The unbundled subsidiaries of the former monopolist carry a special responsibility to avoid conduct on the market that remains protected which could damage an effectively competitive structure on the...
Knowledge management Whatever its scale, a legal department ultimately exists to do legal work: giving legal advice, overseeing disputes, reviewing contracts, and more. From a legal operations viewpoint, as the leader of an in-house team, you must consider how the function can most effectively support the organisation in delivering legal services. You not only have to keep the department running smoothly and business-like; you also need to provide timely, watertight legal advice. The nature of legal knowledge, and where it resides, has expanded markedly. Critical legal information is now created and stored across internal repositories and cloud-based platforms. As an in-house lawyer, it is vital to know what your organisation’s legal data includes, where it is held, and which sources are pertinent for legal purposes. Consequently, knowledge management is a core element of operations management. But what does that actually involve? This Practice Note...
Membership of the European Union has expanded progressively since the founding states originally created the European Coal and Steel Community in 1952, and then later set up the European Economic Community and the European Atomic Energy Community in 1958. Below is a list of all the 27 EU Member States, their official language(s), and the year each acceded. Note that the United......
Archived This Practice Note is archived and is not being updated or maintained. It addresses whether CPR 11’s provisions govern the assessment and procedure for a jurisdictional objection founded solely on Regulation ( EU) 1215/2012, Brussels I (recast). Impact of UK’s departure from the EU After exit day (ie 31 January 2020), the UK formally assumed the status of a third country for the purposes of Regulation ( EU) 1215/2012, Brussels I (recast). Owing to transitional terms in the Withdrawal Agreement agreed by the UK and the EU, the UK continued to be subject to Regulation ( EU) 1215/2012, Brussels I (recast) throughout the implementation period, which started on exit day and concluded on IP completion day (ie 31 December 2020, at 11 pm). The situation after IP completion day calls for analysis of those particular provisions of Regulation ( EU) 1215/2012, Brussels I (recast) that may...
Practice Note This Practice Note examines the two rules used to decide which courts have jurisdiction to hear a dispute about immovable property. The two rules are, in substance, the counterpart of one another. They are the: ‘immovables rule’-an English legal principle that foreign courts have no jurisdiction over immovable property situated in England ‘ Moçambique rule’-applied to decide whether the courts of England and Wales ( English courts) have jurisdiction at common law to determine a dispute about property located in another jurisdiction What is the immovables rule? The ‘immovables rule’ is a distinct category of private international law within English law. Comparable rules, under different names, appear in several other national common law systems, for example Canada and the United States of America. What links these rules is their use in disputes involving rights to, or interests in, immovable property. The rules provide that such...
ARCHIVED: This Practice Note is archived and is not being maintained. It acted as a reference resource to track EU– UK divergence in legislation and guidance relevant to the life sciences sector from the close of the Brexit implementation period (eg 31 December 2020) following the UK’s decision to leave the EU, through to 2023. Where relevant, it also highlighted principal areas of divergence within the UK itself (between Great Britain ( GB) and Northern Ireland ( NI)). For the purposes of this Practice Note, ‘divergence’ means differences in legislation, guidance or mandated standards arising after IP completion day (11 pm on 31 December 2020). A parallel framework that is identical or materially the same would not amount to ‘divergence’. See also the related Practice Notes: Post- Brexit transition period-the regulation of medicinal products What does IP completion day mean for Life...
Practice Note This Practice Note sets out a timeline of leading Court of Justice of the European Union ( CJEU) rulings (formerly ECJ) interpreting “waste” under the Waste Framework Directive 2008 ( WFD). It outlines the central question, the judgment and its link to the definition of waste, the waste cases cited, and the principal decisions later relying on each ruling. For further detail on the definition of waste and other core WFD provisions, refer to Practice Note: EU Waste Framework Directive-snapshot. Vessoso and Zanetti 1990 Key issue Whether substances or items capable of economic reutilisation amount to waste. Ruling Waste encompasses substances or objects that can be economically reutilised. The concept of waste does not assume that a holder, by discarding a substance or object, aims to preclude all economic reutilisation by others. Waste cases cited None Key cases...
Personal representatives ( PRs) may pass assets to beneficiaries using any route that would be open for a lifetime disposal of the same property. There is also one transfer route unique to PRs: the assent... Assent of pure personalty An assent signals that the PRs do not need a particular asset for administering the estate and that it may pass to the beneficiary named in the testator’s Will... No formality is required for an assent of pure personalty. It can be... in writing given orally inferred from conduct An assent brings the gift into effect for the beneficiary. Where necessary, additional steps to convey the legal title must still be satisfied. Once a valid assent has been made, the PRs then hold the asset on trust pending completion of those further requirements... For certain items, a verbal assent, or simply allowing the...
The residuary estate Under Section 33 of the Administration of Estates Act 1925 ( AEA 1925), the residuary estate means the balance of money and any investments currently standing in place of it, together with any unsold portion of the deceased’s estate which is not needed to settle funeral, testamentary and administration costs, debts, other liabilities, and pecuniary legacies. The residue is not confined to cash; it commonly embraces further property that remains neither sold nor distributed during administration. After all liabilities (including tax) and legacies have been discharged, the personal representatives ( PRs) must identify the contents of the residue, namely the assets or sum left to be shared among the residuary beneficiaries. To determine the residue, the PRs should first: finalise the tax position, and address administration expenses Income tax to the date of death Completing the tax return If the PRs have been unable to use the Tell Us Once...
Identification of beneficial interests The personal representatives ( PRs) of an estate must establish: the beneficiary or beneficiaries who are entitled to each specific legacy the precise entitlement of each beneficiary the point in time when each legacy ought to be paid out Executor's year PRs have a minimum of one year from the date of death before beneficiaries may require any distribution. Even after that year has passed, the PRs might still not be ready to distribute the estate. Deciding to distribute Before starting to distribute legacies, PRs should assess whether distribution should be deferred because other administrative matters remain unfinished or potential issues could arise, such as: unpaid tax liabilities outstanding debts unknown beneficiaries rectification of the Will a family provision claim under the Inheritance ( Provision for Family and Dependants) Act 1975 a variation or...
This fundamentals note looks at several of the principal characteristics of limited partnerships formed in England under the Limited Partnerships Act 1907 ( LPA 1907). What is a limited partnership? A limited partnership is a type of partnership vehicle established under the LPA 1907 which, among other purposes, has been used as the standard structure for private equity funds. As with a general partnership, a limited partnership is not a legal entity but a relationship between partners; ie, unlike a body corporate, an English limited partnership does not possess separate legal personality. The LPA 1907 describes a limited partnership as comprising: one or more persons called ‘general partners’ who are jointly and severally liable for all debts and obligations of the partnership, and one or more persons called ‘limited partners’ For further information see Practice Note: The nature of a limited...
Relevant articles The Journal of International Banking and Finance Law provides a range of valuable pieces on the LIBOR transition for banking and finance lawyers, all accessible via this page... 1 January 2025 - Ending LIBOR: a landmark ruling on Tough Legacy contracts (2025) 1 JIBFL 14 Paul Sinclair KC, a barrister at Fountain Court Chambers, analyses the judgment in Standard Chartered PLC v Guaranty Nominees Ltd [2024] EWHC 2605 ( Comm). After synthetic LIBOR ceased in 2024, Standard Chartered asked the court to allow replacement of LIBOR with a comparable rate. The court held an implied term was necessary for commercial efficacy. It approved CME Term SOFR with a spread adjustment as an objective substitute for LIBOR, strengthening contractual certainty for future matters, and highlighted the value of the Financial Markets Test Case Scheme in...
Relevant news analysis ARCHIVED: This Practice Note is archived and no longer updated. The Lexis®PSL teams routinely publish commentary on the LIBOR transition, summarised in the list below. 20 December 2022 - Banking & Finance-2022 key developments round-up. This News Analysis compiles the key Banking & Finance developments from 2022 and looks forward to what may arise in 2023, spanning several areas, including the LIBOR transition. 6 December 2021 - Banking & Finance- LIBOR transition newsletter- November 2021. Welcome to the Lexis®PSL Banking & Finance LIBOR transition newsletter for November 2021, reviewing the latest global progress on the LIBOR transition. 9 November 2021 - Banking & Finance- LIBOR transition newsletter- October 2021. Welcome to the Lexis®PSL Banking & Finance LIBOR transition newsletter for October 2021, highlighting the most recent worldwide developments on the LIBOR transition over the past month. 6...
Although beneficiaries cannot ordinarily amend the terms of a testator’s Will or the intestacy rules, save perhaps through a court order following a claim under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), those who would benefit under a Will or on intestacy can agree a post-death rearrangement to alter the practical effect of the Will or intestacy provisions... instruments of variation disclaimers distributions pursuant to precatory trusts distributions from discretionary Will trusts claims under I( PFD) A 1975 Where the parties agree on a revised outcome, they often opt for a formal post-death arrangement rather than the original beneficiary making a lifetime gift, to secure tax mitigation. Subject to specified conditions, certain rearrangements can be treated for tax as if made by the deceased, thereby avoiding the risk of further...
Insolvent estate An estate is insolvent where, once all assets are realised, there is not enough to discharge in full every debt and other liability attached to the estate. An estate is not treated as insolvent if the debts and liabilities can be settled even though no legacies are payable. If an estate proves insolvent, the beneficiaries named in the Will, or those entitled on intestacy, will receive nothing, and not all creditors will be paid in full. Personal representatives ( PRs) must satisfy creditors in the prescribed order, or risk personal liability for any unpaid higher‑ranking debts. Where there is any possibility of insolvency, PRs must follow the prescribed sequence before paying any debts or liabilities. For an overview and more detail on insolvent estates, including the insolvency test and administration methods, see Practice Note: Insolvent estates and bankrupt...
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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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