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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:
Most recent Practice notes
Continuing significance of domicile Within English private international law and the succession of a deceased person’s assets, domicile remains a pivotal consideration, even with the transition to a residence‑based system for determining inheritance tax ( IHT) liability from 6 April 2025. For details on the tax position relevant to administering estates that include overseas assets, see: Tax in relation to foreign assets. Common law and civil law principles affecting foreign estates Personal representatives ( PRs) will encounter foreign estate issues where assets are held abroad, where the deceased was situated overseas or maintained connections abroad (such as nationality, residence or domicile), and where beneficiaries are outside the UK. PRs handling cross‑border matters need familiarity with the practical principles for administering the estate of a foreign domiciliary with UK property, and with the main considerations where a person domiciled in England and Wales dies leaving foreign assets. For...
Where an executor cannot obtain a grant of probate to the testator’s Will, a fixed hierarchy applies for others to do so by seeking a grant of letters of administration (with Will annexed). See Practice Note: Applications for letters of administration with Will annexed. After the executor, those next in priority under NCPR 1987, r 20 are persons with an interest in the residuary estate. Whether a residuary gift has been made can be ambiguous, particularly when the Will has not been professionally prepared. It is therefore necessary to consider what amounts to a gift of residue. Is there a residuary gift? Typically, a Will contains an express disposition of the residue. There are familiar indicators in the language used, and it is generally accepted that many forms of wording can denote the whole or remainder of the testator’s real and personal property,...
When a grant of letters of administration with Will annexed will be made A grant of letters of administration with Will annexed is issued when a Will is proved by someone other than an executor. This presupposes the testator left a valid Will and did not die wholly intestate. There are defined circumstances in which such a grant will be made, including where: the Will appoints no executor every appointed executor, or the sole one, died during the testator’s lifetime, or survived but died without proving the Will-often occurring where spouses appoint each other and make no provision for a substitute the sole or all appointed executors have renounced probate, or, having been cited to accept or refuse probate, have not appeared to the citation the purported appointment of an executor is void for uncertainty the court,...
Current probate fees The following charges presently apply: Application for a grant of probate or letters of administration where the estate exceeds £5,000 net: £300 (note special exemptions below). Duplicate or second grant for the same deceased: £21. Entry or extension of a caveat: £3. Standing search application: £3. Deposit of Wills: £23. Inspection of a Will or other document held by the registry: £23. Copies: For a document relating to a named individual: £16 per copy, certified or not (the £1.50 fee applies before 17 November 2025). For documents of individuals not named in the request, supplied electronically: £1.50 per copy, certified or not. Settling documents: £5 per...
This Practice Note monitors key milestones in the rollout of the Online Safety Act 2023 ( OSA 2023), which received Royal Assent on 26 October 2023 and partly commenced on that date (see OSA 2023, s 240). The main obligations and duties under OSA 2023 will not fully apply until Ofcom issues final versions of all relevant codes of practice and accompanying guidance. Publication is staggered, with the earliest applicable duties starting from the end of 2024. This Practice Note follows these developments. It captures consultations, related guidance and announcements, but does not cover Ofcom’s enforcement activity, which is addressed separately. See Practice Note: Online Safety Act 2023-enforcement tracker. For broader information on OSA 2023, see: Practice Note: The Online Safety Act 2023 Complying with the Online Safety Act...
Role of the court The High Court exercises jurisdiction over probate and letters of administration, encompassing all contentious and non-contentious matters relating to: testamentary causes and matters the grant, amendment or revocation of probate and letters of administration, and the real and personal estates of deceased persons Probate jurisdiction The probate jurisdiction of the High Court is divided between the Family Division and the Chancery Division (and the County Court). The Family Division handles non-contentious, or common form probate work, while the Chancery Division deals with contentious, or solemn form probate. See Practice Note: What are common and solemn form probate? Probate jurisdiction- Family Division The key issues are: whether a document is admissible to probate who is entitled to a grant of representation whether a grant already issued should be revoked Right of interpretation- Family Division When granting...
Potential claims against personal representatives Personal representatives ( PRs) can be exposed to liability in numerous ways, whether through actions taken or failures to act during the administration of an estate, or in respect of debts left by the deceased. See Practice Note: Personal representatives-liability. Such exposure may exist irrespective of whether PRs were named in the deceased’s Will or came to the role through the priority order on an intestacy. A frequent difficulty, irrespective of appointment under a Will or entitlement by priority on an intestacy, arises when a beneficiary issues a claim after distribution because they were unknown to the PRs and the family at the time. A bequest to ‘my children’ may look unequivocal, yet the deceased might have had an additional child, entirely undisclosed and not discoverable by routine enquiries (for example, where no members of the deceased’s family knew of that...
This Practice Note introduces oil and gas joint ventures, summarising the key drivers for joining a JV in upstream projects and the chief motivations for an early exit. It also outlines the principal issues and risks typically arising on such a departure. Why are oil and gas projects sometimes structured as joint ventures? Oil and gas ventures are frequently organised as joint ventures, especially in the upstream sphere (see Upstream oil and gas-exploration and production-overview). The model is adopted for several reasons, including to: better manage ongoing capital spend and spread risk among participants, enabling involvement in larger, higher-value projects that would be unattainable alone improve access to capital funding combine resources, expertise and technology diversify and strengthen a company’s portfolio in increasingly volatile markets enter new markets and/or navigate regional regulatory requirements (e.g. a need to partner with local...
CASE HUB ARCHIVED This archived hub sets out the position as at 8 February 2022, the date the investigation was cancelled following the transaction being abandoned; it is no longer maintained. See the timeline and commentary. Case facts Outline: UK merger review concerning the completed anticipated acquisition by NVIDIA Corporation of Arm Limited’s Intellectual Property Group business. Latest developments On 8 February 2022, the CMA cancelled its phase 2 investigation after NVIDIA decided to abandon the merger. Parties NVIDIA Corporation ( NVIDIA) – a US-based provider of semiconductors and computing platforms serving a wide range of applications; through Mellanox it also supplies network interconnect products, including Smart NICs; listed on NASDAQ. Arm Limited ( Arm) – a UK-based company that develops and licences semiconductor IP built on a particular ISA to semiconductor suppliers...
Is there a Will? The initial task for the deceased’s relatives, or the personal representatives (if they are different people), is to look through the deceased’s home and paperwork for an original last Will, a duplicate, or any correspondence indicating that a Will exists. Relevant material might sit within electronic communications, so, where access can be obtained, checking the deceased’s email inbox and computer folders is prudent. It is thought that more than half of UK adults have no Will. If that remains true at death, the estate falls into intestacy. Even where a Will is in place, if it does not dispose of every part of the estate, a partial intestacy can still arise. Although securing a grant for an intestate estate is not typically difficult, the presence of a Will tends to streamline matters and clarifies what the deceased intended for family...
The tables below set out instances where courts have considered requests to adjourn interim hearings. For convenience, they are grouped into applications that succeeded and those that did not. For guidance on the overarching principles applied when an interim hearing adjournment is sought, see Practice Note: Adjourning interim hearings. For advice on applications to adjourn a trial, see Practice Note: Adjourning trial... Examples of successful adjournment applications EB Pension Fund v Froggatt [2024] EWHC 2721 ( Ch) Judgment date: 27 June 2024 Grounds: The court did not process a notice of change removing solicitors from the record, leaving the claimant without representation. The initial adjournment bid was refused without reasons and the order gave no indication an adjournment had been sought. The claimant...
A conversation with Diego Peralta Valenzuela, partner, and Vesna Camelio Ursic, senior associate, from Carey y Cía. Limitada on key issues regarding foreign direct investment ( FDI) control in Chile 1. What is the applicable legislation? Chile’s equity foreign investment framework is principally shaped by two instruments: Chapter XIV of the Compendium of Foreign Exchange Regulations of the Central Bank of Chile ( Compendium of Foreign Exchange Regulations) Law No. 20,848 The Compendium of Foreign Exchange Regulations-promulgated by the Central Bank of Chile under the authority granted by its Constitutional Organic Law-sets out the overarching rules for foreign exchange dealings. These provisions are binding on entities within the Formal Exchange Market (as defined by the Central Bank’s Constitutional Organic Law). The Compendium also extends to non-bank entities, including natural persons, and imposes certain constraints on significant cross-border exchange operations that affect Chile’s balance of...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment of 11 November 2021 and is no longer maintained. See further, timeline and relevant/related cases. Case facts Outline Appeal against the General Court’s judgment in Case T-778/19, which rejected an action for annulment of the Commission’s decision holding that aid granted by Poland to Autostrada Wielkopolska S. A., operator of the A2 motorway, was unlawful and had to be recovered ( SA.35356). Latest developments On 11 November 2021, the Court of Justice delivered its judgment, dismissing the appeal in its entirety. The Court of Justice rejected all of Autostrada Wielkopolska S. A.’s submissions alleging that the General Court erred in confirming the Commission’s correct application of the private investor test and in finding that Autostrada Wielkopolska obtained an economic advantage. None of Autostrada Wielkopolska S. A.’s arguments undermined the conclusion that the private market...
NOTE-appeal lodged before the Court of Justice in Case C- 48/22 See also timeline, commentary and related/relevant cases... Case facts Outline Appeal before the General Court against the European Commission’s decision finding an abuse of Article 102 TFEU by Google for granting its own comparison shopping service, Google Shopping, preferential placement and display in search results over rival comparison shopping sites ( AT.39740)... Latest development On 10 November 2021, the General Court delivered its judgment, largely confirming the Commission’s decision. It agreed the Commission correctly concluded Google’s conduct harmed competition and rejected Google’s claim that the existence of merchant platforms demonstrated vigorous competitive pressure. That said, the Court found the Commission had not shown that Google’s behaviour produced (even potential) anti‑competitive effects on the market for general search services, and therefore annulled the infringement finding for that market alone. Given the gravity of the breach and the...
On a person’s death, it must first be determined whether they left a Will and whether that Will is legally valid. If no valid Will exists, the deceased is intestate and their estate is dealt with under the intestacy provisions set out in Part IV of the Administration of Estates Act 1925 ( AEA 1925). Intestacy can create difficulties, including uncertainty over who will care for minor children and the distribution of assets in a manner that may not reflect the deceased’s intentions... LAW COMMISSION CONSULTATION The Law Commission for England and Wales issued a Consultation Paper in July 2017 and, after a pause in 2019, a Supplementary Consultation Paper was released on 5 October 2023. The following topics are being examined: testamentary capacity; the formal requirements for a valid will, including consideration of wills made...
What is passing off? Passing off is a common law tort that safeguards rights which cannot be, or are hard to, register as trade marks, as well as unregistered rights that have built up goodwill. Examples include: colours get-up packaging Through the law of passing off, a trader may stop others from exploiting its goodwill unfairly. It is unlawful to suggest that goods or services have an affiliation or link with another trader when no such connection exists. Passing off is a strict liability tort, so the trader’s intention is immaterial. Claims in tort, including passing off, must be issued within six years from the date the cause of action arose. For further details, see the Q& A on the limitation period for a passing off claim. This Practice Note examines, in depth, the three essential elements of a passing off claim,...
This Checklist supports those advising financial services firms on meeting the UK’s anti-money laundering ( AML), counter-terrorist financing ( CTF), and countering proliferation financing ( CPF) legal and regulatory obligations. It sits within a wider series covering customer due diligence ( CDD)-often described as ‘know your customer’ or ‘ KYC’-as required by the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs), alongside guidance issued by the Financial Conduct Authority ( FCA) and the Joint Money Laundering Steering Group ( JMLSG). This Checklist concentrates on the application of enhanced customer due diligence ( EDD), both for general higher risk scenarios and for specified circumstances involving unusual transactions, high-risk third countries, and correspondent relationships. For applying EDD to politically exposed persons, see: AML/ CTF...
This Practice Note This Practice Note offers guidance on making an application for an order under section 8 of the Children Act 1989 ( Ch A 1989), or for permission to apply for a section 8 order, using the online service and the pilot schemes operating under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, for private law children proceedings by virtue of FPR 2010, PD 36G ( Pilot Scheme: Procedure for using an online system to generate applications in certain private law proceedings relating to children) and FPR 2010, PD 36ZD: Pilot Scheme: Online system for certain private law proceedings relating to children and for certain protective orders. The pilots run only during the periods specified in those schemes (as amended). Adjustments to elements of FPR 2010 relevant to matters dealt with under the pilots are also...
Businesses must make strategic choices on an informed footing. This Practice Note explains how to spot and assess the key threats and opportunities arising from the external context in which your organisation operates and strives to survive and prosper. It is designed to help you grasp your business and the forces influencing it. You can use Precedent: Understanding business strategy-exercise for in-house lawyers to spark ideas and start productive conversations about strategy within your organisation. Global shifts Major shifts are reshaping the global economy and will continue to transform business over the coming years. It is therefore worthwhile capturing a snapshot of your understanding of the significant forces in motion. These global shifts are linked to: economic developments societal and environmental changes business and industry shifts If you have a strategy department, or a team examining future trends, you will gain valuable...
Applications in the King’s Bench Division If your case is proceeding in the King’s Bench Division ( KBD), the King’s Bench Guide will govern any application you lodge. This Practice Note sets out practical guidance on applications in the KBD with citations to the pertinent parts of the King’s Bench Guide. Its focus is the step-by-step pathway for making an application in the KBD, beginning with pre-application considerations and continuing through to the point of serving the issued application. For guidance on other aspects of the applications procedure in the KBD, see the following Practice Notes: Preparing for an application hearing in the King’s Bench Division ( KBD) Determination of applications in the King’s Bench Division ( KBD) The following general point should be noted: The King’s Bench Guide provides practical information about proceedings in the KBD, but it is not a...
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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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