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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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ARCHIVED : This archived Practice Note explored what leaving the EU meant for dispute resolution practitioners in Scotland. It now sets out the status of proceedings concerning civil and commercial disputes after the close of the Brexit implementation period on 31 December 2020. For the most part, the implications for Scotland are the same as for the remainder of the UK overall. Broadly, the consequences for Scotland mirror those across the wider UK, and this Note should be read alongside the fuller England and Wales guidance, see Practice Note: Brexit post implementation period-considerations for dispute resolution practitioners [ Archived]. The sections below outline how EU law and international Conventions apply within the UK, together with a synopsis of the Scottish position on applicable law, jurisdiction, cross-border process, and the recognition and enforcement of judgments. For guidance on principal topics in Scottish civil...
Advertising and marketing- Germany- Q& A guide [ Archived, 2021 edition] This Practice Note offers a Germany-focused Q& A on advertising and marketing, featured in the Lexology Getting the Deal Through series by Law Business Research ( October 2021). Authors: DLA Piper- Beatrice Brunn; Dr. Stefan Engels. 1. What are the principal statutes regulating advertising generally? Germany does not have a single, comprehensive advertising law. The Unfair Competition Act ( UWG) is the primary framework governing market behaviour, with specific relevance to advertising. Its purpose is to protect consumers, competitors and other market participants from unfair commercial practices. In addition, numerous sector-specific rules apply to the promotion of particular products and services, and across various communication channels. Certain professional guilds have also issued codes of conduct to preserve their integrity; these bind only their members. Further requirements or constraints may depend on the medium used....
1. What is the applicable legislation? The key statute regulating foreign investment in Argentina is Law No. 21,382, as amended (the Law). Its central rule affirms that foreign investors are afforded the same legal standing and rights as local investors. Other measures can also shape foreign investment, including bilateral investment treaties that protect the assets of nationals of particular countries, rules governing companies operating in Argentina, and, more recently, foreign exchange controls. As a rule, prior governmental authorisation is not required to launch a new venture or purchase an existing business, save for certain specific activities noted below and those falling under merger control regulations. 2. Which government or other body (or bodies) reviews foreign investments? The Ministry of Economy is charged with overseeing implementation of the Law. Depending on the sector, relevant regulatory authorities may likewise supervise foreign investment activity. 3. What is the scope of the...
ARCHIVED - this archived case hub sets out the position as at the judgment of 29 September 2021 and is no longer updated. NOTE - appeals were filed before the Court of Justice in Cases C- 757/21, C- 759/21 and C- 786/21. See the timeline and related/relevant cases. Case facts Outline Actions before the General Court sought annulment of the Commission’s decision of 21 March 2018, which found a cartel exchanging sensitive information to align future conduct and avoid price rivalry in the market for electrolytic capacitors (used to store electrical energy), and levied fines totalling €253.935m ( AT.40136). Latest development On 29 September 2021, the General Court rejected the applications and upheld the Commission’s fines. Parties Applicants: Nec Corporation ( Nec) Nichicon Corporation ( Nichicon) Tokin Corp (...
See also Practice Note: Loss of congenial employment Boyd v Hughes [2025] EWHC 435 ( KB) - Horse rider and stable hand. The claimant, employed by the defendant in roles as rider and stable hand, suffered a serious right arm injury after coming off a cantering horse. In setting the level of the award, the court took into account two matters: first, it was unlikely she would have continued professional riding beyond 50, meaning the accident deprived her of about a further ten years; second, her subsequent occupation working with dogs and being outdoors retained some congenial aspects. This was her passion from age 18 and, unlike many jobs, it was a vocation. Although her career ended early, the curtailment was confined to a relatively short period given her age. Because there was an overlap with loss of...
ARCHIVED This hub is archived and shows the state of affairs as at the judgment dated 27 September 2021; it is not being updated. Note-an appeal has been filed to the Court of Appeal. See the timeline, commentary and connected cases. Case facts Summary of the CAT’s ruling concerning (i) a collective proceedings order sought by Mr Le Patourel, seeking permission to serve as class representative to pursue opt-in collective proceedings under section 47B of the Competition Act 1998; and (ii) BT’s cross-application to strike out the CPO bid. Latest development On 27 September 2021, the CAT delivered its judgment, deciding that (i) the Proposed Class Representative’s CPO application should be granted; and (ii) BT’s attempt to strike out and/or summarily dispose of the claim should not succeed. Parties Applicant: Mr Justin Le Patourel (the Proposed Class Representative; PCR): the PCR acts for roughly 2.3m BT...
When applications can be determined without a hearing This Practice Note sets out when a court may decide applications without an oral hearing-often called paper applications or an application on the papers. It outlines which kinds of applications are apt for disposal without a hearing and describes the process for asking for a paper determination. It also gives guidance on reading and applying the relevant CPR provisions. Depending on the court where your case is progressing, you may need to consider extra requirements-see the section Court specific guidance below. The default position is that matters are heard orally in public ( CPR 39.2(1)). Even so, certain applications can be resolved entirely on the documents with no hearing at all. This is variously described as: determining an application on the papers application on the papers applications on documents orders without...
CASE HUB NOTE-appeals lodged before the Court of Justice in Cases C- 701/21 and C- 739/21 ARCHIVED -this archived case hub reflects the position at the date of the judgment of 22 September 2021; it is no longer maintained. See further, timeline. Case facts Outline Applications seeking annulment of the Commission decisions of 25 March 2015 and 14 August 2017, which concluded that an arbitral award establishing a supposedly preferential electricity tariff did not amount to the grant of State aid to the aluminium producer Mytilinaios ( SA.38101). Latest developments On 22 September 2021, the General Court delivered its ruling, by which it allowed the appeals. Parties Applicant: Dimosia Epikhirisi Ilektrismou A. E ( DEI) - an electricity generator and supplier established in Greece and controlled by the Greek State Defendant: European Commission (the...
ARCHIVED This case hub is archived and records the position as at the judgment dated 22 September 2021; it is no longer maintained. Note-an appeal was lodged before the Court of Justice in Case C‑746/21 P. See the timeline, commentary, and related/relevant cases. Case facts Outline Appeal to the General Court against the European Commission’s decision fining Altice Europe for putting into effect its purchase of PT Portugal before notifying the deal and obtaining clearance under the EU Merger Regulation. Latest development On 22 September 2021, the General Court delivered its judgment, dismissing the action in part. It held, amongst other things, that the Commission had not erred in finding breaches of both the notification and standstill obligations in the EU Merger Regulation. However, it reduced by 10% the fine for implementation prior to...
This introductory guide for newcomers sets out the basics of data protection law for readers who are not familiar with the subject, and offers an overview of the principal elements of the UK’s general data protection framework. There are more comprehensive Practice Notes for specialists or advisers dealing with specific aspects of data protection law. For a toolkit that consolidates various key guidance on aspects of data protection, consult the UK data protection law collection. Data protection law and its purpose In short, UK data protection legislation aims to ensure information about living individuals, defined as ‘personal data’, is handled fairly and responsibly. To achieve this, the law places extensive duties and responsibilities on anyone ‘processing’ personal data, as well as on the controllers overseeing such processing. It also confers a set of rights upon those whose personal data is...
1. What is the applicable legislation? Foreign direct investment in New Zealand is regulated by the Overseas Investment Act 2005 (the Act), the Overseas Investment Regulations 2005 (the Regulations), and the Fisheries Act 1996. 2. Which government or other body (or bodies) reviews foreign investments? The Overseas Investment Office ( OIO) is the authority chiefly responsible for administering the Act. Certain categories of transactions may additionally be reviewed by the Minister of Finance, the Associate Minister of Finance, the Minister for Land Information and/or the Minister of Fisheries. 3. What is the scope of the foreign investment regime? Does it only apply to specific sectors or types of investors (eg foreign or non- EU / non- WTO)? Are there specific rules for certain types of investors (eg state-owned enterprises)? The Act applies to specified investments made by ‘overseas persons’ in: business assets exceeding defined monetary...
CASE HUB ARCHIVED This archived case hub sets out the position as at the decision date of 27 January 2022; it is no longer maintained. See further, timeline. Case facts Outline Case C-238/20 SIA ‘ Sātiņi- S’ v Dabas aizsardzības pārvalde-national references from Latvia asking, amongst other points, whether the €30,000 de minimis threshold in Article 3(2) of Commission Regulation No 717/2014 applies to compensation paid by a Member State for aquaculture losses in an area due to protected birds. Latest developments On 27 January 2022, the Court of Justice delivered its judgment holding that compensation granted by a Member State for aquaculture damage caused by birds protected under Directive 2009/147 is an advantage that may qualify as State aid if the remaining conditions are satisfied. It also confirmed that a Member State may apply the de minimis ceiling in Regulation 717/2014 to payments made for damage to...
CASE HUB NOTE-appeals lodged before the Court of Justice in Cases C- 536/19 P( I), C- 698/21 and C- 693/21 ARCHIVED This archive records the position as at the judgment of 8 September 2021 and is no longer being updated. See further, timeline. Case facts Outline An application for annulment was brought before the General Court against the European Commission’s decision of 27 November 2017 to open an in‑depth investigation into Spain’s environmental investment incentive for coal‑fired power stations ( SA.47912). Latest developments On 8 September 2021, the General Court handed down its judgment dismissing the appeal. It held that the Commission rightly considered the measure prima facie selective, since access was confined to plants primarily fuelled by coal and listed in the PNRE- GIC. Parties Applicant: Naturgy Energy Group SA ( NEG) Defendant: European Commission (the...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 8 September 2021; it is no longer maintained. For more detail, see the timeline. See further, timeline. Case facts Outline An action for annulment before the General Court challenged the European Commission’s decision of 31 October 2108, which concluded that compensation paid by Lithuania to LITGAS for delivering a mandatory volume of liquefied natural gas to the LGN terminal facility in Klaipėda complied with the applicable State aid rules ( SA.44678). Latest developments On 8 September 2021, the General Court delivered its judgment, partially allowing the appeal. Specifically, it held that, when assessing the Applicants’ complaint, the Commission had ‘objective and consistent evidence of serious difficulties’ and therefore ought to have opened an in‑depth investigation. In addition, the Court determined that the examination of compensation for certain costs was...
This Practice Note sets out the fundamental concepts of safeguard measures as provided in the World Trade Organisation’s ( WTO) Agreement on Safeguards and Article XIX of the General Agreement on Tariffs and Trade 1947 ( GATT 1947). It highlights the key points relevant to safeguards, including what amounts to a safeguard measure, when a Member State may deploy such measures, their content, form and duration, the domestic investigative procedure, and the need to maintain an equivalent level of concessions and obligations towards affected Member States. Introduction to safeguard measures Since the GATT 1947, Member States have had the authority to employ safeguard measures to prevent or repair serious injury to their domestic industries. These measures are not directed at unfair trade practices, such as dumping or subsidies; rather, they function as a safety value within fair trade. This safety value offers temporary relief by...
Introduction to the Before the World Trade Organisation’s ( WTO) Agreement on Trade-related Aspect of Intellectual Property Rights ( TRIPS Agreement), the General Agreement on Tariff and Trade ( GATT) 1947 already included certain provisions touching on intellectual property. These comprised: Article IX(6) concerning marks of origin. Member States must co-operate to stop the use of trade names in ways that misstate a product’s genuine origin, undermining distinctive regional or geographical product names safeguarded by legislation. Article XX(d) on the protection of patents, trade marks, copyrights and the prevention of deceptive practices. Member States may adopt or enforce measures necessary to secure compliance with laws (consistent with the GATT) relating to these protections and to curbing deceptive conduct. Article III on national treatment and the protection of domestic production. It bars Member States from introducing regulations that grant...
Insurance & Reinsurance-trackers and timelines This paper presents a catalogue of Insurance & Reinsurance trackers and timelines outlining key changes and regulatory frameworks that......
Insurance & Reinsurance- Essentials Practice Notes This document sets out the Lexis+® Insurance & Reinsurance ‘ Essentials’ Practice Notes, introducing core insurance legislation, reinsurance, principal classes of insurance and significant regulatory instruments. Insurance legislation Insurance Act 2015 Insurance Act 2015 ( IA 2015)-essentials-this Practice Note outlines the principal elements of the IA 2015, such as the duty of fair presentation and the remedies available for its breach. It also addresses damages for late payment of insurance claims under the Enterprise Act 2016. Consumer Insurance ( Disclosure and Representations) Act 2012 ( CI( DR) A 2012) A guide to the Consumer Insurance ( Disclosure and Representations) Act 2012-this Practice Note explains the context for the introduction of CI( DR) A 2012 and summarises key provisions concerning consumer insurance, including the duty of care relating to misrepresentation in consumer insurance. Third Parties ( Rights Against Insurers) Act 2010 Third Parties ( Rights Against...
This Practice Note presents the WTO’s Agreement on Import Licensing, outlining the overarching provisions that apply to all import licensing procedures, together with the particular rules relevant to automatic and non-automatic import licensing procedures. It also explains the obligation to notify the WTO Committee on Import Licensing. Introduction Import licensing can impede trade in goods. This had already been acknowledged under the General Agreement on Tariffs and Trade ( GATT) 1947. Article VIII of GATT 1947 treated import licensing in broad terms, including that: Member States recognised the need to minimise import and export formalities, and to reduce and simplify import and export documentation requirements Member States agreed, if requested by another Member State, to review the operations of their laws and regulations in light of Article VIII Member States were prohibited from imposing substantial penalties for minor breaches of customs...
This Practice Note offers practical guidance on the WTO Agreement on Preshipment Inspections. It sets out the obligations for governments that utilise preshipment inspection, including non-discrimination, transparency, protection of confidential business information and the avoidance of unreasonable delays... Introduction Preshipment inspection typically concerns the verification of the quality, quantity and price of goods prior to export. Private companies are often engaged to carry out these checks. The WTO Agreement on Preshipment Inspections recognises that such inspections may act as a barrier to trade. Accordingly, it subjects preshipment processes to selected principles and obligations drawn from the General Agreement on Tariffs and Trade ( GATT)... Scope of the Agreement on Preshipment Inspections Preshipment inspection activities encompass all actions related to confirming the: quality quantity price, including currency exchange rate and financial terms customs...
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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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