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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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Paid holiday supports employers and staff alike by granting workers time for rest and recovery. The right to paid annual leave may arise on a statutory basis (that is, through legislation) or contractual basis (that is, through terms contained in the contract of employment)......
Testators have freedom to dispose of their estates as they wish, subject to the formal requirements for making a Will, the requirements of testamentary capacity and statute. A person may opt not to leave a Will, in which event their estate passes under the intestacy regime. Since 1938, statute has imposed artificial limits on testamentary freedom. Today, those constraints sit in the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), as amended. Its effect is that a testator—along with the Will drafter and personal representatives—must recognise that dependants may bring claims against the estate, which can sharply limit the testator’s freedom. Nor is it enough to rely on intestacy rules, as they too are open to statutory intervention under I( PFD) A 1975. Accordingly, from 1 April 1976, where someone dies domiciled in England and Wales and is...
A lack of due execution A failure to ensure due execution is a recognised basis for contesting a Will. Under CPR 57.7(4), any party asserting that a Will was not duly executed must state that case specifically and supply particulars of the facts and matters relied upon. To be effective, Wills of those who died before 1 January 1964 had to comply with the execution requirements in the Wills Act 1837 ( WA 1837). For deaths on or after that date, the Wills Act 1963 ( WA 1963) offers relief from the strictness of the earlier legislation. Amendments introduced by the Administration of Justice Act 1982 ( AJA 1982) further extend limited relief to testators who make execution errors, but only where death occurs on or after 1 January 1983. As amended, the formalities now provide that a Will is not valid...
Admitted to probate Before deciding which assets require a grant so they can be dealt with (see Practice Note: Devolution of assets and the need for a grant), it is, where there is a Will, essential first to establish whether that instrument can in fact be admitted to probate. Once that is settled, the personal representatives ( PRs) must identify and safeguard the assets ahead of obtaining a grant. In the interim, the PRs should assess how far they are able to progress the administration of the deceased’s estate before the grant is issued. The Wills Act 1837 ( WA 1837) prescribes the formalities for a valid Will capable of being admitted to probate. On the face of it, any document created by a person aged 18 or over, with full capacity, and executed in accordance with the WA 1837...
Conditions of incorporation A testator may treat as part of their Will a separate document that they have not formally executed, using the doctrine of incorporation by reference, even if that document is unattested. Before that doctrine operates, the document to be brought in must be: in existence at the time the Will is made referred to as being in existence clearly identified There are exceptions. The document need not be testamentary in form or character. The document must be in existence at the time the Will is made. It cannot post-date the making of the Will. It must already exist when the Will is executed; it cannot be something to be created later. The burden of proving the document’s identity and its existence as at the date of the Will rests on the party invoking the doctrine. In other words, the...
FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill secured Royal Assent on 18 September 2023 and is now the Powers of Attorney Act 2023 ( PAA 2023). The PAA 2023 brings amendments to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more modern lasting power of attorney ( LPA) service. The updates comprise: Regulations enabling those creating an LPA to choose to sign either digitally or in hard copy; Removing attorneys’ ability to register an LPA so that registration is restricted to the donor; Regulations setting out identification verification requirements for registration applications; A single route for registration objections to the OPG, with an expanded category of persons able to object, including third parties and not...
Cloud computing— Austria— Q& A guide This Practice Note offers a jurisdiction-specific Q& A on cloud computing in Austria, released within the Lexology Getting the Deal Through series by Law Business Research ( September 2022). Authors: MGLP Rechtsanwälte | Attorneys-at- Law—Árpád Geréd. 1. What kinds of cloud computing transactions take place in your jurisdiction? Austria has experienced steadily increasing uptake of cloud services in recent years. While under a decade ago the permissibility of using the cloud was still a lively legal debate, today the majority of Austrian companies rely on cloud propositions, from comprehensive cloud-sourcing to individual tools. Among the various Xaa S models, infrastructure-as-a-service ( Iaa S) and software-as-a-service ( Saa S) dominate. Given the high proportion of small and medium-sized enterprises, cloud storage and backup offerings, as well as cloud-based applications, are used most frequently and enjoy very strong acceptance relative to the number of...
This Practice Note explains funding of Scottish civil litigation under the Civil Litigation ( Expenses and Group Proceedings) ( Scotland) Act 2018 ( CL( EGP)( S) A 2018). For guidance on: judicial expenses and taxation in Scotland—see Practice Note: Judicial expenses and taxation in Scottish civil litigation group proceedings in Scotland—see Practice Notes: Group procedure in Scottish civil litigation—authorisation and permission; and Group procedure in Scottish civil litigation—procedure after permission granted the closest equivalent provisions in England and Wales—see Funding arrangements—overview, which in turn links to detailed guidance on various aspects, including Practice Notes on LASPO: Recovery of costs insurance premiums, Damages-based agreements ( DBAs) and Conditional fee agreements—success fees Key: CL( EGP)( S) A 2018— Civil Litigation ( Expenses and Group Proceedings) ( Scotland) Act 2018 (also referred to as the ‘ Civil Litigation, etc Act 2018’) CR( S) A 2014—...
This Practice Note outlines how the Scottish criminal courts sentence health and safety offences. For guidance on the sentencing of health and safety offences in England and Wales, see Practice Notes: Sentencing organisations for health and safety offences and Sentencing individuals for health and safety offences. See also Practice Note: Health and safety fines over £1 million—tracker, which summarises UK prosecutions for health and safety offences that resulted in fines exceeding £1m being imposed. Objectives of sentencing and punishment The over-riding aims in such cases are: to secure a safe environment for the public to impose punishment that sufficiently reinforces that message to the offender, and to deter would-be offenders Where the offender is a corporate body (or similar), the message should be evident not only to those managing the company, but also to those who own it as...
Process and effect Liquidation, or winding up, is the method by which a company’s affairs are concluded and the company’s existence is brought to a close. When a company enters liquidation: its trade stops, although it may need to be continued for a short period during the winding up (for example, to enforce any valuable agreements) its assets are realised, meaning converted into a liquid form the resulting proceeds are paid out to those entitled A liquidator must perform this role in accordance with the duties imposed and powers given to them under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016, SI 2016/1024. For more details, see Practice Note: Role, powers, functions and duties of a liquidator......
This Practice Note reviews recent judgments in which the courts have examined whether a parent may authorise their child’s confinement which, in the absence of valid consent, would otherwise amount to a deprivation of liberty. What is deprivation of liberty? Article 5 of the European Convention on Human Rights ( ECHR) safeguards the right to personal liberty and provides that no person should be deprived of that liberty in an arbitrary manner. The protection under Article 5 of the ECHR applies to people of every age. Article 5(1)(e) permits, among others, the lawful detention of 'persons of unsound mind' and minors for the purpose of educational supervision, in accordance with a procedure laid down by law. Article 5 also requires specified safeguards for anyone deprived of their liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the...
This Practice Note sets out guidance on the construction and application of the relevant provisions of the CPR. Depending on the court in which your case is underway, you should also remain alert to any additional provisions—see: Court specific guidance. CPR PD 57AB addresses both the shorter trials scheme and the flexible trials scheme, and took effect on 1 October 2018, following a successful pilot conducted under CPR PD 51N in the Rolls Building only. It applies to claims issued on or after 1 October 2015 within the Business and Property Courts. This Practice Note confines itself to the flexible trials scheme. For direction on the shorter trials scheme, see Practice Note: Business and Property Courts—shorter trials scheme. For wider guidance on how the Business and Property Courts operate, see Practice Note: Business and Property...
This Practice Note explains what vicarious liability claims involve, with particular emphasis on the relationship between employer and tortfeasor in such matters. It examines the circumstances in which responsibility can flow from an employee’s wrongdoing, irrespective of any blame attaching to the employer at all. It also offers guidance on claims grounded in negligence or breach of statutory duty, including those brought in practice under the Protection from Harassment Act 1997 ( PHA 1997). In personal injury litigation, a claimant will usually try to prove fault—negligence or breach of statutory duty—on the part of the named defendant, for example the employer. However, an alternative path is frequently open: namely, holding the employer vicariously liable for the acts or omissions of its worker or agent. Nature of vicarious liability Broadly stated, under the doctrine of vicarious liability, an employer bears liability for an...
This Resource Note summarises the principal provisions of Rule 10 of the City Code on Takeovers and Mergers (the Code) and signposts relevant materials, commentary and guidance from the Panel on Takeovers and Mergers (the Panel), together with Lexis+® UK analysis and resources, to deliver practical guidance on how Rule 10 should be interpreted and applied. Materials featured in this Resource Note include: the Code’s detailed Notes, which explain how the Rules are intended to be implemented, together with relevant Appendices addressing specific issues Practice Statements issued by the Panel Executive (the body that undertakes day‑to‑day takeover supervision and regulation) ( Executive), giving informal guidance on how the Executive typically interprets and applies the Code Panel Statements published by the Panel ( P/ S) and Panel Instruments Public Consultation Papers ( PCP) and Response Statements ( RS) published by the Panel ...
In most cases, the buyer’s solicitors will produce the initial draft of the share purchase agreement ( SPA). That said, alongside precedents that assume the drafter represents the buyer, we also offer precedents for those acting for the seller—useful whether the seller is preparing the opening draft or annotating the buyer’s version. Which precedent agreement to use When choosing a suitable base precedent, consider: whether to select a pro-buyer version (terms broadly favourable to the buyer, appropriate for a buyer’s first draft) or a pro-seller version (terms generally favourable to the seller, suitable where the seller drafts first or is marking up the buyer’s paper) whether completion is conditional: if conditions apply, there must be a time gap between signing of the SPA—when beneficial title in the sale shares passes to the buyer (exchange)—and completion, when legal title to the sale shares...
ARCHIVED: This Practice Note has been archived and is not maintained. It reviews which types of construction dispute are most amenable to mediation (and those for which it is less likely to be appropriate). It also draws attention to the benefits of mediation in settling construction disputes. Type of dispute Mediation can provide an effective forum for a negotiated, compromise outcome in construction disputes where: the solution is not clearly a straightforward win for either side there is genuine potential for compromise both parties can recognise the risk that their arguments may fail in court Sometimes a dispute may seem to have an evident answer, yet one party will not accept it and gives no reason. Even then, mediation can still assist. In mediation, the party unwilling to agree has the chance to share its difficulties confidentially with the mediator, which often enables the mediator to identify a middle ground that both...
Practice Note This Practice Note outlines the actions required once a pension order is made in family proceedings, mapping the principal phases and obligations: identifying the valuation date, the transfer day and the valuation day, and the rules on the implementation window under the Welfare Reform and Pensions Act 1999 ( WRPA 1999). It also addresses what happens where implementation occurs after the prescribed four-month period and highlights difficulties that may arise, such as pensions already in payment and the ‘moving target syndrome’. In contrast to pension sharing orders, pension attachment orders do not involve a complicated implementation regime; see: Pensions—financial remedy procedure— Implementation of a pension attachment order. The emphasis here is on the specific, step-by-step requirements for putting a pension sharing order into effect. Matters concerning state pensions are covered in the Practice Note: Pensions—the state pension. A clear grasp of the...
Note This Practice Note should be read alongside Practice Note: Arbitrability in international arbitration. In broad terms, arbitration is a consensual means of resolving disputes—it occurs where the parties choose arbitration instead of court proceedings or other avenues. Although there is no statutory definition, the Arbitration Act 1996 ( AA 1996) (applicable in England, Wales and Northern Ireland; England is used here as a convenient shorthand) provides that arbitration is grounded in principles that: parties obtain a fair determination of disputes by an impartial tribunal, avoiding unnecessary cost and delay parties are free to settle the procedure for their arbitration, subject to public interest requirements arbitration is a private dispute resolution process and courts should not intervene unless AA 1996 so provides Accordingly, as a general rule, any civil dispute may be referred to arbitration, provided the parties consent. However, national legal...
STOP PRESS: Abolition of non-dom regime and introduction of residence-based IHT regime The Finance Act 2025 ( FA 2025), which obtained Royal Assent on 20 March 2025, legislates to end the remittance basis and introduce a residence-based regime from 6 April 2025. FA 2025 also makes residence, rather than domicile, the principal criterion for inheritance tax exposure. Other amendments include: Changes to the rules defining excluded property status Abolition of protected settlements status for offshore trusts Revisions to overseas workday relief For details on these measures, see Practice Notes: The abolition of the remittance basis of taxation from 2025–26 and A new residence-based regime for IHT from 2025–26. See also: Finance Bill Tracking Service: Key dates ( Finance Bill 2025) and Finance Act 2025. This Practice Note examines the effect of TCGA 1992, s 86 and Sch 5, which attribute the gains of a non-resident...
What is an interim receiver? If it is shown that the debtor’s assets need protecting, the court may, at any point after a creditors’ bankruptcy petition has been presented and before a bankruptcy order is made, appoint an interim receiver of the debtor’s property under section 286 of the Insolvency Act 1986 ( IA 1986). For these purposes, the property in question comprises all assets belonging to the debtor, whether or not they would ultimately fall within the bankruptcy estate. The appointment of an interim receiver is therefore an urgent safeguard within personal insolvency to avert depletion of the estate, comparable to the appointment of a provisional liquidator in corporate insolvency. In some situations, circumstances call for active, interventionist measures to secure the debtor’s property before a bankruptcy order is made. For additional reading on provisional liquidation, see Practice Note: What are...
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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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