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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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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...
CASE HUB ARCHIVED This archived case hub records the position as at the decision date of 22 November 2024; it is no longer being maintained. For more, see timeline, commentary and related cases. Case facts Outline European Commission Article 101 TFEU and/or Article 102 TFEU investigation into Apple Inc’s App Store policies and their effect on competition in music streaming and e-books/audiobooks ( AT.40652). Latest development On 22 November 2024, the Commission closed its investigation after the complaint brought against Apple by an e-book and audiobook distributor was withdrawn. Parties Apple Inc ( Apple); Apple is a US-based company. It designs, manufactures and markets personal computers and related personal computing and mobile communication devices, together with a variety of associated software and services......
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 Case C‑847/19, Achemos Grupė and Achema v Commission - an appeal against the General Court’s ruling in Case T‑417/16, which rejected an application to annul the European Commission’s decision of 20 November 2013. That decision found that aid for constructing the Lithuanian LNG Terminal at the Klaipéda Seaport complied with State aid rules ( SA.36740). Latest developments On 29 April 2021, the Court of Justice delivered its judgment, dismissing the appeal in its entirety. Parties Applicants: Achemos Grupé UAB ( Vilnius, Lithuania) Achema AB ( Jonava, Lithuania) (together, the Applicants) Defendant: European Commission Background Background to the dispute On 18 January 2007, the Lithuanian Parliament endorsed the 2008–2012 national energy strategy, flagging the need to explore establishing a liquefied natural gas terminal at the Klaipéda Seaport (the LNG...
CASE HUB ARCHIVED -this archived case hub sets out the position as at the judgment dated 29 April 2021; it is no longer being maintained. See the timeline for further details. Case facts Outline Case C-890/19 Fortischem v Commission-an appeal challenging the General Court’s ruling in Case T-121/15, which rejected a bid to annul the Commission’s decision of 15 October 2014. That decision concluded, amongst other findings, that a Slovak chemical undertaking, Novácké chemické závody ( NCHZ)- Fortischem’s predecessor-had benefitted from unlawful State aid during its bankruptcy proceedings ( Case SA.33797). Latest developments On 29 April 2021, the Court of Justice delivered its judgment, dismissing the appeal in full and thereby confirming the Commission’s 2014 decision. Parties Applicants: Fortischem a.s. ( Fortischem) Defendant: European Commission Background On 22 July 2009, the Commission imposed a €19.6m fine on Novácké chemické závody, a.s. v konkurze ( NCHZ) for its role in a cartel in the...
The moratorium under IA 1986, Pt A1 The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) introduced several major reforms to insolvency law, among them a new standalone moratorium. This moratorium is an insolvency procedure through which directors of insolvent companies, designated members of insolvent limited liability partnerships ( LLPs), and those at risk of insolvency, may secure a 20 business day moratorium. Located in the Insolvency Act 1986, s A1 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 1A.1, it is intended to give otherwise viable businesses breathing space to restructure or attract fresh investment without creditor action. Its overarching purpose is to preserve viable enterprises while they reorganise or secure backing, away from immediate creditor pressure. An insolvency practitioner is appointed as the 'monitor'. Day-to-day control remains with the members, making it a...
This Practice Note is aimed at law firms within scope of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. It sets out the expectation to appoint a board-level (or equivalent) individual to take responsibility for the firm’s compliance with the MLR 2017. This function is commonly referred to as the money laundering compliance officer ( MLCO) or board-level person. Not every firm must appoint an MLCO. Sole practitioners are not required to do so, and other practices need only make an appointment where: they fall within the scope of the MLR 2017, and having regard to the size and nature of the business, it is appropriate to designate an individual Where a firm does appoint an MLCO, see Precedents: MLCO and nominated...
1. What is the applicable legislation? Areas subject to the screening requirement are outlined in: the Law on the Protection of Objects Important for Ensuring the National Security of the Republic of Lithuania (the Law on National Security) Resolution of the Government No. 556 ( Resolution 556), identifying the categories of economic activity regarded as strategically significant for national security Resolution of the Government No. 746 ( Resolution 746), setting out the catalogue of protection zones for equipment and property important for national security (the Protection zone(s)) Resolution of the Government No. 1540 ( Resolution 1540), prescribing the procedure for preliminary screening EU Regulation 2019/452 (the EU FDI Screening Regulation), laying down the framework for the screening of FDI into the European Union (the EU) 2. Which government or other body (or bodies) reviews foreign...
ARCHIVED: This Practice Note has been archived and is not maintained For the latest Brexit News Analysis, please see: News Analysis- Brexit collection. Lexis Nexis has released News Analysis across a range of topics addressing Brexit’s implications. Key highlights are presented in the tables below. For Brexit News Analysis from the withdrawal period, see: News Analysis-withdrawal- Brexit collection [ Archived]. You can receive Brexit news updates and analysis by signing up for alerts. See Q& A: How do I sign up for Brexit alerts? Brexit News Analysis 2020 Q4 31/12/2020 UK– EU data flows, adequacy and regulatory changes from 1 January 2021 - The EU– UK Trade and Cooperation Agreement ( TCA) features a section on data flows and personal data protection, offering welcome news for data protection practitioners preparing for the end of the transition at 11 pm on 31 December 2020 ( IP...
CASE HUB ARCHIVED This case hub reflects the position as at the decision of 20 April 2021; it is no longer maintained. See further, timeline and commentary. Case facts Outline: a European Commission investigation under Article 101 TFEU into a cartel affecting cross‑border rail freight transport services using blocktrains ( AT.40330). Latest development On 20 April 2021, the Commission adopted its infringement decision after the three companies settled with it and admitted their role in the cartel. Aggregate fines of €48.59m were imposed. The penalties per company were: ÖBB - no fine (immunity granted) DB - €48,324,000 (reflecting a 45% leniency reduction and a 10% settlement discount) ( NB: DB’s fine was uplifted by 50% as it had previously been held liable in Cargo ‘blocktrains’ ( AT.40098)) SNCB - €270,000 (including a 30% reduction)......
1. What is the applicable legislation? There is no single statute, nor a unified framework, regulating foreign direct investment ( FDI) in Latvia. Nonetheless, certain fields are subject to investment limitations. The principal legislation is the National Security Law of the Republic of Latvia 2002 (as amended) ( National Security Law 2002). In early 2017, the National Security Law 2002 was revised to introduce a regime that requires Government consent for particular changes affecting companies of national security importance. The regime’s requirements are elaborated in Cabinet of Ministers Regulation No. 311, ‘ Procedure for Preventing Threats to Commercial Companies, Societies and Foundations of Importance to National Security’. Another sphere where foreign investment is curtailed is the acquisition of land, especially agricultural and forest land. These constraints have been shaped through various enactments, including the Law On Land Privatisation in Rural Areas 1993 (as...
Early stages of adjudication are extremely time-sensitive: an adjudicator has to be named within seven days of the referring party’s Notice of Adjudication, and the matter must likewise be sent to the adjudicator within that window. Moreover, construction agreements often require appointment via an application to an adjudicator nominating body ( ANB), and that can only occur once the Notice of Adjudication has been issued. Consequently, the procedural steps for appointment have to be wrapped up briskly. In addition, where-as is usual-the chosen adjudicator insists the parties accept bespoke terms and conditions of appointment ( T& Cs), there is little time for scrutiny. Even so, the adjudicator’s T& Cs should not be overlooked. It matters not only that parties grasp their exposure to the adjudicator’s fees and expenses, but also that they know their rights and duties should the process deviate from the...
Since 26 June 2020, companies have been able to use Part 26A restructuring plans under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Implementation is underpinned by the applicable Practice Statement (see Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)) and by Explanatory Notes issued by the Department for Business, Energy and Industrial Strategy (now the Department for Business and Trade). These provisions represent a permanent reform of the UK’s restructuring and insolvency regime and a valuable addition to its toolkit. What are the practical implications? The Part 26A restructuring plan equips distressed, yet fundamentally viable, businesses with the means to pursue a rescue. It enables a company to bind all creditor classes-junior as well as senior-even where they vote against, by deploying the cross-class cram down ( CCCD) mechanism. The court may impose that cram down so long as...
Practice Note People often observe that running a business involves risk, and that the greatest danger an entrepreneur faces is failing to consider risk at all. A careful organisation identifies its exposures and, where possible, controls them. This Practice Note clarifies what is meant by legal risk and sets out practical guidance for managing it. It is aimed at in-house lawyers working within UK commercial organisations. For seasoned in-house counsel, many elements of basic legal risk management will be second nature-activities you likely undertake as part of everyday work. However, as risk management evolves into a strategic business tool and expectations grow for in-house lawyers to engage actively in formal risk processes, you are encouraged to step back from a purely reactive, day-to-day approach. A proactive, strategic stance requires attention to broader legal...
This Practice Note This Practice Note examines the remedies obtainable in a judicial review raised in Scotland. For guidance on: other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland Judicial review in Scotland-grounds of challenge Judicial review in Scotland-raising a claim Judicial review in Scotland-protective expenses orders issues to weigh before bringing a civil claim in a Scottish court, and how to commence and progress a civil claim in Scotland, see: Scottish DR: prescription and limitation-overview and Scottish DR: case management and evidence-overview respectively, which provide links to more detailed guidance other facets of Scottish civil litigation, see: Scottish DR: civil appeals and judicial...
This Practice Note provides an introduction to judicial review in Scotland For guidance on: further aspects of judicial review in Scotland, consult Practice Notes: grounds of challenge remedies raising a claim protective expenses orders other core areas of Scots law and procedure, see our Scotland collection judicial review in England and Wales, see, for example, Practice Notes: Judicial review-what it is and when it can be used and Judicial review-time limits and the pre-action protocol Key HRA 1998 - Human Rights Act 1998 RCS - Rules of the Court of Session 1994 SA 1998 - Scotland Act 1998 Judicial review is the mechanism by which the Scottish courts...
Civil justice reform See our Practice Note: Civil justice reform in Scotland-virtual hearings and electronic submission of documents for guidance on the current rules and practice in the Scottish civil courts concerning virtual hearings and the electronic signing, transmission and lodging of documents. This Practice Note examines protective expenses orders ( PEOs) in the setting of judicial review claims brought in Scotland. For guidance on: other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland, Judicial review in Scotland–grounds of challenge, Judicial review in Scotland-remedies and Judicial review in Scotland-raising a claim other key areas of Scottish law and procedure, see our Scotland collection, and the closest equivalent procedure in England and Wales, see Practice Note: Protective costs orders Key: PEO- Protective Expenses Order PPD- Public Participation Directive 2003/35/ EC RCS- Rules of the Court of...
This Practice Note addresses judicial review grounds of challenge in Scotland For guidance on: other aspects of judicial review in Scotland, see Practice Notes: Judicial review in Scotland; Judicial review in Scotland-remedies; Judicial review in Scotland-raising a claim; and Judicial review in Scotland-protective expenses orders other key areas of Scots law and procedure, consult our Scotland collection judicial review in England and Wales, see, for example, Practice Notes: Judicial review-what it is and when it can be used; and Judicial review-time limits and the pre-action protocol Key HRA 1998- Human Rights Act 1998 ECHR- European Convention on Human Rights ECt HR- European Court of Human Rights Principal grounds for challenge before the Scottish courts include: illegality irrationality procedural impropriety proportionality Each of these is outlined in greater detail...
ARCHIVED This case tracker is archived and no longer maintained. It sets out a list of notable pensions judgments from 2020, grouped by topic. The entries are ordered by date and can be navigated via the Table of Contents on 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 issued on or before 31 December 2020 remain binding on UK courts and tribunals (even if the EU courts later depart from them) until the UK courts use their powers to diverge. For the most part, EU case law made after that date is not binding on the UK, although UK courts and tribunals may continue to have regard to relevant EU judgments. For more detailed information on the treatment of EU case law, see Practice Note: Retained and...
ARCHIVED : This Practice Note has been archived and is not maintained. This archived Practice Note explored how parties involved in UK public company takeovers approached the mandatory foreign direct investment ( FDI) notification framework (the NSI regime) introduced by the National Security and Investment Act 2021. The NSI regime runs alongside the existing merger control regime and replaces the government’s ability to intervene in merger inquiries on national security grounds. The Act obtained Royal Assent on 29 April 2021 and became fully in force on 4 January 2022. It reviews how companies are addressing the NSI regime within UK public company takeover transactions. For analysis of these deals and the underlying transaction documentation, see our Market Standards deal analysis tool. Our Market Standards-a guide for users offers both an online demonstration of the Market Standards database and a PDF user guide. News...
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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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