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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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This Practice Note examines the usual defences that can be advanced before the courts of England and Wales (the English courts) when seeking recognition and enforcement of a foreign judgment. For the principles governing common law enforcement, consult Practice Note: Enforcing foreign judgments—common law principles. To assess whether common law governs enforcement of a particular foreign judgment, see: Which regime applies to enforce a foreign judgment?—checklist. The common defences to enforcement of a foreign judgment A judgment that is prima facie enforceable in the English courts may still be refused if the judgment debtor shows that one or more enforcement defences applies. These (often overlapping) defences include: recognition in England would offend natural justice. See: Breach of natural justice defence below the foreign judgment was procured by fraud on the part of the judgment creditor or the foreign court. See: Fraud defence below ...
This Practice Note outlines the key features of the UK public offers and admissions to trading regime that commenced on 19 January 2026. It explains the rules for making public offers and securing admission of securities to trading in the UK, together with the prospectus obligations under the updated regime. The emphasis is on provisions relevant to the debt capital markets. The new UK public offers and admissions to trading regulatory framework A fresh regulatory system for UK public offers and admissions to trading—covering when a prospectus is needed and what it must contain—took effect on 19 January 2026, displacing the earlier EU-derived framework. From that date, Assimilated Regulation ( EU) 2017/1129 (the UK Prospectus Regulation), the FCA’s Prospectus Regulation Rules sourcebook ( PRR), and parts of Part 6 of the Financial Services and Markets Act 2000 were repealed. The new...
The Financial Services Enforcement Database The Financial Services Enforcement Database holds comprehensive detail on every substantive FCA and PRA Final Notice and, when available, Decision Notices, from 2014 onwards. Users can search and refine results by the regulator ‘ PRA’ and/or by keyword, as well as by rule breach, sector, date, seriousness, aggravating and mitigating factors, level of financial penalty, and additional steps such as referrals to the Upper Tribunal. This Practice Note explains the Prudential Regulation Authority’s ( PRA) approach to gathering information for an enforcement investigation. It describes the PRA’s statutory powers to compel the provision of information and the production of documents, and identifies limits on those powers under: FSMA 2000, s 413 on disclosure of legally privileged materials; FSMA 2000, s 175 concerning banking confidentiality; and FSMA 2000, s 348 regarding disclosure of confidential information by the...
This Practice Note This Practice Note considers applications brought within matrimonial or civil partnership proceedings concerning a child who is over 18. It explains key concepts, the limits on the court’s powers, and the distinct factors relevant to claims for future financial provision, provision where the child is already 18, and applications made by adult children. It also condenses the position on applications for failure to maintain, financial relief following an overseas divorce, and claims under Schedule 1 to the Children Act 1989 ( Ch A 1989) after a financial order. For material of general relevance to all claims for financial provision for a child over 18, see Practice Note: Financial provision for children over 18—general principles. For detailed guidance on applications under Ch A 1989, Sch 1, see Practice Note: Financial provision for children over 18— Schedule 1 to the Children Act 1989. If the...
The corporate interest restriction ( CIR) rules are extensive and technically demanding. This Practice Note serves as a primer to the CIR and points readers to further detail in related materials: Practice Note: Corporate interest restriction—glossary of key terms, explaining key expressions and concepts used across the legislation Practice Note: Corporate interest restriction—the main rules, providing an in‑depth overview of the core operative provisions Practice Note: Corporate interest restriction—administration, covering procedural matters, including the interest restriction return Practice Note: Corporate interest restriction—elections, outlining the various elections a group may include in its interest restriction return The regime has applied since 1 April 2017. The principal provisions appear in Part 10 of the Taxation ( International and Other Provisions) Act 2010 ( TIOPA 2010), with associated administrative rules in TIOPA 2010, Sch 7A. HMRC guidance is set out in the Corporate Finance Manual, beginning at...
UK status From 31 January 2020 (exit day), the UK ceased to be an EU Member State. Under the Withdrawal Agreement, there was an implementation period when EU law continued to apply in the UK. As of 1 January 2021, the principal operative elements on automatic recognition in Regulation ( EU) 2015/848 ( OJ L141/19), the Recast Regulation on Insolvency, no longer apply to the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency). Other Member States still give effect to the EU Recast Regulation on Insolvency where its criteria are met. EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency made substantial changes to Regulation ( EC) 1346/2000 (the EC Regulation on Insolvency). For the full text of the EU Recast Regulation on Insolvency, click here. Although the EU Recast Regulation on Insolvency entered into force on 26 June 2015, most...
What options are available when deciding how to fund litigation? Litigation funding, in its broadest sense, means reviewing every way to finance the different costs of pursuing a claim through trial, enforcement and ultimate recovery as appropriate. These routes may include one or more of the following practical mechanisms: the litigating IP pays some or all costs on a standard private client basis, i.e. meeting costs from money available in the insolvent estate (if any) as they fall due and are incurred solicitors are instructed under a conditional fee agreement ( CFA) or damages-based agreement ( DBA), or via a split approach where part of their fees accrue on that basis and part are paid as they arise by agreement counsel is engaged on a CFA or DBA, or on a mixed model with some of their fees accruing on that basis and some paid as they are...
Unless its articles of association state otherwise, a company is taken to possess an implied authority to share profits with its members. This authority is implied rather than expressly conferred, save where the articles exclude it, and it concerns distributions of profit to members in their capacity as shareholders. One such distribution is a dividend, which a company may make to its members. Indeed, dividends are the distribution most frequently used by companies; in practice, they are the standard way profits are returned. That said, no company is legally bound to declare a dividend unless the rights attached to its shares require it, and any obligation must arise from those rights. A member’s entitlement to any dividend arises from the shares they hold—dividend rights are attached to a particular class of the company’s shares, not to the individual personally. A company may not...
This Practice Note explores how to commence proceedings in the Technology and Construction Court ( TCC). It focuses on the principles drawn from West Country Renovations v Mc Dowell—reflected in the Technology and Construction Court Guide, para 1.3.2—on deciding whether to issue in the High Court in London, the High Court outside London, or the County Court. It should be read alongside Practice Note: Where to start a civil claim, which provides general guidance on the appropriate venue for civil claims. What types of claims are suitable for the TCC? The kinds of disputes managed by the TCC are described in the Technology and Construction Court Guide, para 1.3. High Court or County Court? Both the High Court and the County Court handle TCC work. As the TCC sits within the Business and Property Courts ( B& PCs), any relevant guidance issued for the B& PCs must also be...
Duty to keep estate accounts Section 25 of the Administration of Estates Act 1925 ( AEA 1925) states that personal representatives ( PRs) must, if the court asks, provide an account of the estate’s administration. Sensible practice is for PRs to maintain running accounts throughout, so they can evidence that the estate has been managed correctly and properly. On finishing the administration, PRs ought to supply complete accounts for the residuary beneficiaries to receive with their distributions. Where an estate requires more than two years to complete, an interim account should be prepared, and annual interim accounts where the process spans several years. The estate accounts must also be open for inspection, upon request, by any beneficiary or creditor. If PRs fail to give information to those with a proper entitlement to it, an application can be brought by originating summons in the...
CORONAVIRUS ( COVID-19): For Wills made on or after 31 January 2020, the formal rule requiring a valid Will to be witnessed by two witnesses covers both physical and virtual presence, enabling remote witnessing via video conference. For the latest guidance on this temporary measure (which applies to Wills made up to and including 31 January 2024), see Practice Note: Coronavirus ( COVID-19)—remote witnessing of Wills [ ARCHIVED]. Note that the guidance below concerns WA 1837 in its original, unchanged form. Statement of the privilege Section 11 of the Wills Act 1837 ( WA 1837) provides that any soldier in actual military service, or any mariner or seaman at sea, may dispose of his personal estate without formalities; in other words, the Will need not be in writing or, if written, need not comply with the usual execution requirements in WA 1837, s 9. This has been...
This Practice Note examines the service of particulars of claim. It sets out the prescribed periods for service under CPR 7.4, together with the alternative deadlines that may apply in particular courts or to particular kinds of claim. It also considers practical issues and includes some illustrative cases. Contained within the claim form Where the particulars of claim are included within the claim form itself, they are treated as served at the moment the claim form is served. Distinct factors apply when fixing the date on which service of the claim form occurs. For guidance, see Practice Note: Service of the claim form—time periods for service. Questions can arise about whether the particulars have, in truth, been incorporated into the claim form. That situation arose in Al- Hasani v Nettler (2019), where it was argued that the claimant had not served the...
This Practice Note compiles Restructuring and Insolvency materials that examine issues arising under EU law. For broader guidance on EU law, refer to EU structure, the EU legislative process, the EU judicial system, and EU rights and policies, all found under the EU Law topic within the Public Law practice area. Recast Regulation on Insolvency ( Member State to Member State) Recast Insolvency Regulation between Member States—main, secondary, and territorial proceedings Recast Insolvency Regulation ( Member State to Member State)—determining the centre of main interests ( COMI)......
This Practice Note reviews the requirements of an arbitral award under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules). The ICC Rules govern any ICC arbitration begun on or after 1 January 2021, unless the parties expressly opt for an earlier edition (for example, in the arbitration clause). For an introduction to the 2021 ICC Rules, see Practice Note: ICC (2021)—introduction to the ICC and arbitration under the ICC Rules. For links to guidance on the 2017 and 2012 editions, see: ICC arbitration—overview. Requirements of an award Once an arbitral tribunal issues an award, the parties should swiftly confirm that it complies with: the requirements of the arbitration rules under which the proceedings were conducted the law of the seat of arbitration (in England, the Arbitration Act 1996 ( AA 1996)) the laws of the...
The directors of a company are responsible for its day to day management Company directors oversee the day-to-day running of the business. Their authority to act on a company’s behalf flows from its articles of association, the Companies Act 2006 ( CA 2006), the common law and any pertinent members’ resolutions. Equally, directors’ powers are curtailed by limits in the articles, CA 2006 (notably directors’ duties and any matters reserved to the members), the common law and any relevant members’ resolutions. By contrast with members’ decision-making — undertaken by written resolutions or at a general meeting or annual general meeting — CA 2006 contains no rules on how a company’s directors take decisions. In particular, it sets out no provisions governing meetings of the board of directors (board meetings). Accordingly, the company’s articles must prescribe the framework for directors’...
FICs have long served as an estate-planning tool, and their appeal remains undiminished presently, even as corporation tax rates increase. The label FIC covers numerous structural models, deployed for many aims, and is used in practice across a broad spectrum of arrangements. This Practice Note, however, does not address the wider tax-planning possibilities linked to using a FIC in any detail. What is a family investment company? A FIC is, at its core, a company created specifically to meet the needs of, typically, a single family. As the name suggests, it is generally formed, in many cases, to hold the family’s investments, though many of the same principles can equally apply to a family trading company. Investments may take any form that a company is permitted to hold and would typically include, often, property and/or equities. Such companies will usually adopt bespoke articles of...
This Practice Note sets out practical guidance on the underlying principles of legal professional privilege as they relate specifically to criminal enquiries and prosecutions in Scotland. It should be read alongside Practice Note: Privilege in Scotland—general principles, which summarises the two main categories of legal professional privilege—legal advice privilege and litigation privilege—and also refers to waiver of privilege and common interest privilege in passing. For further commentary on the approach in England and Wales, see Practice Note: Legal professional privilege in criminal proceedings, for comparison. Legal advice privilege—who falls within definition of ‘lawyer’ in COPFS In Whitehouse v The Lord Advocate, the court considered a claim for damages arising from proceedings brought by the Crown under the Proceeds of Crime Act 2002 ( POCA 2002). A restraint order was obtained under POCA 2002, but it was subsequently recalled without any...
FORTHCOMING CHANGE : The Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first overhaul of Scots trusts law in more than a century since the key statute, the Trusts ( Scotland) Act 1921, was enacted. Provisions on trusts will only commence following secondary legislation by Scottish Ministers, while the succession measures took effect on 30 April 2024. A summary of the principal modernising reforms appears in News Analysis: Trusts and Succession ( Scotland) Bill passed. Express creation of trusts An express trust arises where the owner of assets (the truster) conveys property to trustees to hold for specified purposes for the benefit of the beneficiaries. The trust’s constitution is finalised by delivery of the trust property or the trust deed to the trustee. Trust deed ‘ Trust deed’ is defined in the Trusts ( Scotland) Act 1921 ( T( S) A 1921) as...
This Practice Note sets out the purpose and scope of . For guidance on the comparable process in England and Wales for unexpected deaths, known as coroners’ inquests, see Practice Note: The purpose and scope of coroners' inquests. Reporting of deaths and the Scottish Fatalities Investigations Unit Following a death in Scotland, burial or cremation cannot proceed until a medical certificate stating the cause of death has been issued. This document—known as the Medical Certificate of the Cause of Death ( MCCD or Form 11)—must be completed by a doctor and set out the time, date, place and cause of death, identifying any conditions directly leading to the death and any antecedent conditions. Some deaths must be notified to the Procurator Fiscal. A ‘reportable death’ is one not wholly attributable to natural causes, or one potentially due in whole or in part to natural causes but...
Created in collaboration with 4 Pump Court, this Practice Note examines in detail the responding party’s defence to a Referral Notice in an adjudication—commonly termed the Response. Its function is to present, plainly and succinctly, the respondent’s position, effectively combining pleadings, evidence, and both opening and closing submissions into a single, self‑contained submission. The Note addresses whether and when a Response may or must be served, the timetable for service, what matters it can properly cover, and offers practical guidance on drafting it, as well as signposting useful approaches. Related summaries that may assist can be found in Checklists: Key issues to consider on receipt of a Notice of Adjudication and Key issues to consider when preparing an Adjudication Response. Entitlement to serve a Response Neither the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) nor the Scheme for Construction Contracts expressly...
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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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