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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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Impact of national insolvency on domestic or foreign arbitration ( England and Wales) This Practice Note reviews how insolvency proceedings begun in England and Wales influence arbitration obligations where one of the parties is insolvent. The IBA toolkit on insolvency and arbitration Drawing on the National Report for England and Wales within the IBA Toolkit on Insolvency and Arbitration ( IBA Toolkit), and reproduced with permission, this Practice Note summarises key guidance. The IBA Toolkit offers direction to parties, counsel and arbitrators when an arbitration participant is also in insolvency proceedings in one or more jurisdictions. Alongside the England and Wales Report, the IBA Toolkit includes multiple other National Reports. For clarity, the National Report informing this Practice Note is not intended to constitute legal advice tailored to particular facts. Non-application of EU Recast Regulation on Insolvency following Brexit This Practice Note addresses insolvency cases commenced after 11 pm on 31...
This Practice Note This Practice Note explores the meaning and functions of choice of court agreements in the family law sphere, including their use in applications to stay proceedings and when construing marital or civil partnership agreements. It considers the position of such agreements before and after IP completion day (11 pm on 31 December 2020) in relation to: Council Regulation ( EC) No 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( Brussels II bis, also known as Brussels IIA) Regulation ( EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( Brussels I Recast) Council Regulation ( EC) No 4/2009 ( EU Maintenance Regulation) The Lugano Convention on...
CASE HUB ARCHIVED This archive records the position as at the judgment of 9 June 2021 and is no longer updated. For further details, see the timeline, commentary and related/relevant cases. Case facts Outline An action for annulment was lodged before the General Court against the European Commission’s decision of 26 April 2020 approving a German State-backed loan in favour of Condor, a German charter airline, to compensate for damage arising from the Covid-19 outbreak ( SA.56867). Latest developments On 9 June 2021, the General Court upheld the appeal and annulled the Commission’s decision, concluding that the statement of reasons was inadequate. In light of the economic and social conditions brought about by the Covid-19 pandemic, the Court stayed the annulment pending the Commission’s adoption of a new...
Part 26A restructuring plans have been in place since 26 June 2020 (see Practice Notes: Part 26A restructuring plans: history, rationale and scope and Frequently asked questions ( FAQs) on the restructuring plan). For an in-depth review of key metrics from 2024 RPs and commentary from leading figures in the restructuring community, see News Analysis Market Insights Trend Report-trends in Part 26A restructuring plans in 2024. Case tracker Notable Part 26A restructuring plan ( RP) cases heard by the courts in England (and Scotland) include the following, shown with the most recent first: Waldorf Production UK Plc - 5 May 2026 (sanction hearing, second plan); Mr Justice Michael Green. Despite numerous objections from the dissenting creditor, HMRC, the court applied cross class cramdown and sanctioned the plan, thereby dismissing the challenge on jurisdiction to cram down HMRC: HMRC contended that where it had refused to...
This Practice Note offers a primer on EU law. It is written for lawyers who are new to, or lack familiarity with, EU law, especially trainee solicitors. It outlines the institutions, the institutional architecture, core principles, and mechanisms for enforcing EU law, with signposts to the pertinent provisions in EU legal sources. The focus of this Practice Note is to deliver a high-level overview of EU law. Detailed treatment of substantive areas of EU law falls outside the scope of this document. For a summary of the EU Law module, see Practice Note: EU Law-new starter guide. EU institutional framework The EU is a supranational polity. It is not a state, nor a federation like the United States, nor merely an intergovernmental forum such as the United Nations. It is truly distinctive. Its design fits no classical legal category and its...
CASE HUB ARCHIVED This archived case hub reflects the position at the date of the judgment of 2 September 2021; it is no longer maintained. See further, timeline. Case facts Outline Case C‑57/19 Commission v Tempus Energy and Tempus Energy Technology-an appeal against the General Court’s ruling in Case T‑793/14, which had upheld an action to annul the Commission’s decision ( SA.35980) finding that a UK capacity market aid scheme was compatible with EU State aid rules. Latest development On 2 September 2021, the Court of Justice delivered its judgment, setting aside the General Court’s decision and dismissing Tempus’s original appeal. Parties Appellant: European Commission (the Commission) Defendant: Tempus Energy Ltd, Tempus Energy Technology Ltd (hereafter, Tempus Energy) Market(s) The electricity capacity market. Background On 23 June 2014, the UK notified the Commission seeking State aid clearance for a 10‑year period to support capacity providers in the electricity market in Great Britain (the...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C-492/21 ARCHIVED -this archived case hub reflects the position at the date of the judgment of 2 June 2021; it is no longer maintained. See further, timeline. Case facts Outline An application for annulment before the General Court contesting the European Commission’s decision of 4 December 2017, which approved compensation granted by Italy to public hospitals in the Lazio Region ( Case SA.39913). Latest developments On 2 June 2021, the General Court delivered its judgment and dismissed the appeal in full. In particular, it held that: the allegation that the Commission’s decision was tainted by an inadequate statement of reasons could not be upheld; and the Commission did not err in determining that Italian healthcare services were not provided by an undertaking and, consequently, the remuneration of public healthcare services did not involve state aid within...
Post-market surveillance Post-market surveillance refers to manufacturers’ ongoing oversight of medical devices to confirm they remain safe and effective for patients once authorised and placed on the market. Its aim is to detect whether corrective or preventive safety actions are needed. While the former regulatory framework under the medical device directives did impose compliance duties, it faced criticism for lacking rigour in tracking safety when products are actually used by patients, and for failing to feed that experience adequately into the official safety profile and continuing authorisation. The device scandals involving Poly Implant Prothése ( PIP) breast implants in the early 2000s, followed by a widespread hip implant crisis that harmed hundreds of thousands of patients across multiple countries, exposed the shortcomings of a safety certification regime unevenly carried out by different Notified Bodies, and triggered a comprehensive overhaul of medical device...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C- 466/21 ARCHIVED - this archived case hub sets out the position as at the judgment of 19 May 2021 and is no longer being updated. See further, timeline Case facts Outline Action for annulment before the General Court against the European Commission’s decision of 31 July 2017, which concluded that Germany’s public support to Frankfurt- Hahn airport did not amount to unlawful State aid ( Case SA.45765) Latest developments On 19 May 2021, the General Court delivered its judgment, partially upholding the appeal and, consequently, setting aside the Commission’s 2017 decision Parties Applicants: Deutsche Lufthansa AG (hereafter, Deutsche Lufthansa) Defendant: European Commission (the Commission) Background Frankfurt- Hahn is a regional airport in the Land of Rhineland- Palatinate, about 120 km west of Frankfurt/ Main. In 2016, it handled roughly 2.6 million passengers and 72,600 tonnes of freight. The...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C- 441/21 ARCHIVED -this archived case hub reflects the position at the date of the judgments of 19 May 2021; it is no longer maintained. See further, timeline, commentary and relevant/related cases Case facts This hub is retained for reference only and mirrors the status as at the General Court’s judgments of 19 May 2021. It is not updated. For more detail, consult the timeline, commentary and related matters. Outline Actions for annulment were brought by Ryanair against European Commission decisions dated 10 June 2020, 13 July 2020 and 31 July 2020, which cleared three State aid measures in Portugal, the Netherlands and Spain to assist airlines during the Covid-19 crisis ( Cases SA.57369, SA.57659 and SA.57116). The proceedings are registered as Cases T-465/20 Ryanair v Commission, T-628/20 Ryanair v Commission and T-642/20 Ryanair v...
Prosecution by The Pensions Regulator ( TPR) Occupational pension schemes operate within a dense regulatory regime, primarily supervised by The Pensions Regulator ( TPR). Numerous duties imposed on individuals-such as trustees and scheme managers-carry criminal liability. Although TPR is central to policing these standards, criminal pension matters are not confined to its jurisdiction. Other bodies, including the Financial Conduct Authority ( FCA) and the Crown Prosecution Service ( CPS), also possess authority to bring prosecutions in the pensions arena. In Scotland, this function sits with the Crown Office and Procurator Fiscal Service ( COPFS). This Practice Note summarises the principal pension-related offences for which TPR acts as the lead enforcement body, together with any statutory defences. It also covers the offences introduced by the Pension Schemes Act 2021 ( PSA 2021). For comprehensive detail on TPR’s regulatory, investigatory and enforcement toolkit, see Practice Note: The powers of the...
ARCHIVED : This case tracker has been archived and is not maintained. This archive sets out a date-ordered list of significant pensions judgments handed down in 2019. The entries are arranged chronologically and can be navigated using the Table of Contents to the left of the page. This Practice Note includes references to case law of the Court of Justice of the European Union. Broadly, EU judgments delivered on or before 31 December 2020 remain binding on UK courts and tribunals (even if the EU courts subsequently depart from them) until UK courts use their powers to diverge. Generally, EU case law made after that date is not binding in the UK, although UK courts and tribunals may still have regard to later EU decisions where relevant. For more detailed guidance on the treatment of EU case law, see Practice Note: Retained EU law and...
CASE HUB ARCHIVED This archived case hub reflects the position as at the judgment date of 12 May 2021; it is no longer maintained. See further: timeline and relevant/related cases. Case facts Outline Proceedings were brought by the Commission against Greece for non-compliance with the Commission decision of 7 December 2011, which concluded that compensation amounting to €425m, paid by the Greek Agricultural Insurance Organisation ( ELGA) to farmers for losses sustained in 2008 due to adverse weather, constituted unlawful State aid ( SA.28864). Latest developments On 12 May 2021, the Court of Justice delivered its judgment, holding that Greece, by failing to adopt within the prescribed period all measures necessary to recover the unlawful aid, and by failing to notify the Commission within that period of the steps taken to comply with the decision, breached its obligations under Article 288 TFEU and the relevant...
PI & Clinical Negligence horizon scanner- May 2021 [ Archived] ARCHIVED: This Practice Note has been archived and is no longer updated. It summarises the key legal developments relevant to personal injury and clinical negligence practitioners as at 11 May 2021. For the latest horizon scanner, please refer to PI and Clinical Negligence horizon scanning-overview. Coronavirus ( COVID-19) To keep abreast of rapid alterations to court processes and procedures prompted by the pandemic, and for industry guidance on running cases during this period-including medical examinations, service and limitation-see Practice Note: Coronavirus ( COVID-19) implications for PI and clinical negligence [ Archived]. For information on recent developments affecting PI and clinical negligence claims, see: Coronavirus ( COVID-19)- ABI further extends Statement of Intent to June 2021- LNB News 27/04/2021 51 Coronavirus ( COVID-19)- HMCTS issues updated guidance for those accessing RCJ- LNB News...
CASE HUB NOTE-appeals lodged before the Court of Justice in Cases C- 451/21 C- 454/21 ARCHIVED This archived case hub captures the position as at the judgment of 12 May 2021 and is no longer being updated. See the timeline for further details. Case facts Outline Joined Cases T- 516/18 Luxembourg v Commission and T- 525/18 Engie Global LNG Holdings and Others-applications for annulment before the General Court of the European Commission’s decision of 20 June 2018, which concluded that Luxembourg had provided unlawful State aid to Engie (formerly GDF Suez) through undue tax advantages ( SA.44888). Latest development On 12 May 2021, the General Court issued its ruling, dismissing the actions in their entirety. It determined that the Commission was entitled to: (i) prioritise the economic reality of the intra-group structure over a purely formal approach; and (ii) find that a selective advantage existed, giving rise to State aid, due to...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C- 457/21 ARCHIVED -this archived case hub reflects the position at the date of the judgment of 12 May 2021; it is no longer maintained. See further, timeline. Case facts Outline Joined Cases T- 816/17 Luxemburg v Commission and T- 318/18 Amazon EU and Amazon.com v Commission-applications seeking annulment before the General Court of the European Commission’s decision of 4 October 2017 concluding that Luxembourg granted unlawful State aid to Amazon through selective tax treatment ( SA.38944) Latest development On 12 May 2021, the General Court delivered its judgment, allowing the appeal and therefore annulling the Commission’s decision. Among other findings, the Court held that the Commission had not shown, to the requisite legal standard, that a European subsidiary of the Amazon group benefited from an undue reduction of its tax...
CASE HUB ARCHIVED This case hub is archived and captures the position as at the judgment dated 11 November 2021; it is no longer updated. For further details, see the timeline. Case facts Outline Case C‑819/19 Stichting Cartel Compensation and Others - a preliminary reference from the Netherlands asking, among other matters, whether national courts are empowered to apply Article 101 TFEU (or at least Article 53 EEA) to agreements or concerted practices by air carriers relating to freight services on flights operated on specified dates (namely before 01/05/2004, 19/05/2005 or 01/06/2002), as well as for the period during which the transitional regime under Articles 104 and 105 TFEU applied. Latest developments On 11 November 2021, the Court of Justice delivered its judgment, agreeing with Advocate General Bobek that a party allegedly harmed by a cartel between air carriers for airfreight services on routes between airports within the EU...
CASE HUB NOTE-appeal lodged before the Court of Justice in Case C- 442/21 ARCHIVED This archived case hub reflects the position at the date of the judgment of 5 May 2021; it is no longer maintained. See further, timeline... Case facts Outline An action for annulment was brought before the General Court against the European Commission’s decision of 28 May 2018, which found that Denmark’s compensation to Post Danmark for fulfilling its public postal service duty during 2017–2019 complied with the State aid rules ( SA.47707)... Latest developments On 5 May 2021, the General Court delivered its judgment, partially upholding the appeal by concluding that the VAT exemption and the capital increase of 23 February 2017 did not amount to State aid... Parties Applicants: ITD Danske Fragtmænd ( ITD) Danske Fragtmænd A/ S ( DF) Defendant: European Commission ( Commission) ITD is a trade association under Danish law whose members are...
CASE HUB ARCHIVED -this archived case hub reflects the position at the date of the judgment of 29 April 2021; it is no longer maintained. See further, timeline. Case facts Outline Proceedings were initiated by the Commission against Spain, alleging that Spain did not, within the deadline set by the Commission, implement measures to recover aid found incompatible with the internal market. The unlawful support concerned State aid granted to Telecom Castilla- La Mancha SA. Latest development On 29 April 2021, the Court of Justice delivered its ruling, upholding the Commission’s action for failure to fulfil obligations, and holding that, upon expiry of the Commission’s time‑limit, Spain had not adopted the steps required to recover the unlawful aid. The Court of Justice also determined that Spain failed to notify the Commission, within the prescribed period after the Commission’s decision was notified, of the measures...
ARCHIVED This archived case hub captures the position as at the judgment dated 02 September 2021; it is no longer updated... CASE HUB See further, timeline... Case facts Outline Cases C‑647/19 Ja zum Nürburgring v Commission and C‑665/19 Ne Xovation v Commission - appeals against the General Court’s judgments in Cases T‑353/15 and T‑373/15, which dismissed, partly as inadmissible and otherwise as unfounded, actions seeking annulment of the Commission’s decision on aid measures granted by Germany between 2002–2012 for the Nürburgring race track ( SA.31550)... Latest development On 2 September 2021, the Court of Justice delivered its judgments, partially upholding the appeals. It found, in particular, that the Commission erred when assessing whether Deutsche Bank had secured the financing of Capricorn’s bid... Parties Appellants: Ja zum Nürburgring ( JZN) Ne Xovation, Inc ( Ne Xovation) Defendant: European Commission (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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