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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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Ad hoc arbitration An ad hoc arbitration is any arbitral process where the parties have not chosen an institution to manage it. This gives parties latitude over how the arbitration is run, but provides less outside assistance throughout the process. It can be faster than institutional arbitration, though not if the parties encounter problems constituting or running the tribunal at any stage. Many parties and their lawyers are accustomed to this and do not believe an institution would bring benefit to their arbitrations. Arbitration clauses can be revised once a dispute has arisen, or even after an arbitration has begun, to take the proceedings out of institutional hands and have them proceed on an ad hoc footing instead, should they so choose. Without an institution supervising tribunal appointments under its rules, the parties may nominate an appointing authority in case their...
Why is it necessary to perfect security? When a creditor takes security, it will be concerned with three issues: whether the security binds the security provider (ie whether it has been validly created)—see: Taking security—overview whether the security is enforceable against third parties whether the security has the intended priority over other creditors with competing interests in the same asset(s)—see: Priority of security—overview ‘ Perfecting security’ refers to the actions taken after the security is created to ensure it is enforceable against third parties such as creditors, liquidators and administrators. The expression is also used in a wider sense to cover steps that enhance or protect the creditor’s position, for example by obtaining a legal interest or ensuring the priority of its security......
Double tax treaties or conventions ( DTTs) Double taxation treaties, also called conventions ( DTTs), possess a twofold character. They operate both as: agreements between nations (the contracting states) under the discipline of international law, and elements of the contracting states’ domestic legal systems Accordingly, a DTT functions concurrently at the international level and within national legislation. Consequently, they are interpreted through both international and domestic public law, with the canons of international public law prevailing where conflicts arise. This duality has led courts in different jurisdictions to craft their own interpretative approaches. In any dispute, the international layer outranks domestic interpretative rules. This has seen judges adopt varying techniques of construction across jurisdictions. Countries embed international agreements into national law in distinct ways: some automatically give a treaty domestic legal force upon signature and ratification, so it immediately becomes part of national...
The Commission holds extensive investigatory powers to enforce EU competition law and pursue antitrust infringements, including cartels. Among these, it may require undertakings and associations of undertakings to provide all necessary information... Two types of request for information ( RFI) Article 18 of Regulation 1/2003 provides for two forms of request for information ( RFIs): Simple RFIs, which are voluntary—recipients are not obliged to reply; if they choose to respond, they may leave some questions unanswered. However, they must not submit false or misleading information. A simple RFI should: state the legal basis and the purpose of the request identify the information sought, including documents containing that information set the time-limit for providing the information ...
Recovering the costs of a detailed assessment Following a detailed assessment, the receiving party is entitled to recover the costs of the detailed assessment proceedings ( CPR 47.20(1)) as a general rule. There are, however, two clear exceptions: where any Act, any of the rules in the CPR, or any relevant practice direction provides otherwise; or where the court makes some other order. Any such variation may apply to all, or only a proportion, of the costs of the detailed assessment proceedings. When addressing the question of costs connected with the detailed assessment, the court will typically summarily assess those costs at the conclusion of the proceedings in question ( CPR 47.20(5)). In some cases, costs may nonetheless be incurred after the detailed assessment has concluded. The issue of whether such later costs are recoverable was considered in Bloomsbury Law Solicitors v Macpherson (2017), an appeal heard by Warby J...
Confidentiality is often portrayed as a fundamental feature of arbitration and a key reason why parties select it over court litigation. In reality, however, confidentiality is not automatic; it depends on a combination of national laws, judicial decisions and the relevant arbitral rules. It should not be presumed, and parties should consider an express agreement to achieve the level of protection required. For further guidance on confidentiality in arbitration, see the Practice Notes: Arbitration and confidentiality at common law ( England and Wales) and Confidentiality in international arbitration. Most leading arbitration rule-sets include confidentiality provisions in some form, so it is essential to identify the applicable terms in each case. This Practice Note highlights the principal confidentiality clauses in those rules, listed...
From the outset of UK devolution, devolved enactments have faced various legal challenges. Early cases were typically mounted by individuals invoking the European Convention on Human Rights to vindicate their rights. Since 2008, however, the emphasis has moved towards alleging that such enactments stray outside the devolved legislature’s own law-making competence. This Practice Note offers core guidance on the mechanics and rationale of these disputes, and summarises judicial treatment to date. Additionally, UK ministers may, under section 35 of the Scotland Act 1998 ( SA 1998) and section 114 of the Government of Wales Act 2006 ( GWA 2006), intervene by order in defined circumstances to prevent a Presiding Officer of a devolved legislature from presenting a Bill for Royal Assent. Any such order can itself be contested by judicial review. Part II of the Northern Ireland Act 1998 ( NIA 1998) serves a...
Practice Note The PSA is a model consultant appointment issued by the ACE ( Association for Consultancy and Engineering). This Practice Note focuses on the 2017 version (earlier ACE Agreement editions and related documents were released in 2009). The ACE PSA includes built-in guidance and is available in both digital and printed formats... ACE also issues further agreements, such as: Advisory, Investigatory and other services a sub-consultancy agreement a short form agreement an agreement intended for use by a consumer (none of which are addressed in this Practice Note) This Practice Note reviews notable provisions of the ACE PSA. It also examines the collateral warranty form designed to accompany the ACE PSA and signposts the separate ACE services schedules for civil and structural engineering and for mechanical and electrical engineering. For contemporary commentary from the time of...
The Copyright, Designs and Patents Act 1988 ( CDPA 1988) states that the author of a work is the individual who brings it into being. The creator is not invariably the proprietor of a work, though, as a rule, they hold the initial copyright unless the work is produced in the course of employment (see below), when the employer takes it. Knowing who the author is matters across much of copyright law. For instance, the duration of protection typically runs by reference to the author’s lifetime; authors may assert moral rights; and protection might not subsist at all unless the author holds the requisite qualifying status. Identifying the owner of the copyright is also crucial; as a matter of prudence, title and ownership ought to be confirmed before acquiring or taking a licence of a work. Ownership is equally central in...
Decommissioning security agreements Oil and gas operators are expected to restore the seabed to its original state (subject to limited exceptions) by permanently removing installations and/or infrastructure and securing wells. As decommissioning occurs once an asset no longer earns revenue, those primarily responsible prefund a dedicated trust so money is available when required, whether or not the contributor still exists then. Such trusts are created by a decommissioning security agreement ( DSA), a contract between two or more parties that obliges one party to establish a trust in favour of another party or parties for future decommissioning costs. The trust will hold cash or other security and is usually administered by an independent trustee. For more on decommissioning, see these Practice Notes: Decommissioning— International Law and UK Government...
This Practice Note sets out the offences that may arise under the Town and Country Planning Act 1990 ( TCPA 1990) or the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990) in relation to unauthorised development within a conservation area in England, the statutory defences available, and the penalties that may follow on conviction. It also outlines how a local planning authority ( LPA) can pursue enforcement against such unauthorised works. Issues of conservation area offences and enforcement most commonly result from the unauthorised demolition of buildings within these areas. From 4 November 2024, the legislative framework in Wales became distinct from that in England—see: Conservation area regime in Wales. Offences Undertaking (or causing or allowing) ‘relevant demolition’ without planning permission is an offence under TCPA 1990, s 196D(1). Breaching any condition or restriction attached to a...
Practice Note This Practice Note sets out the applicable practice and procedure that applies to the winding up of a company (the debtor) pursuant to a creditors’ winding-up petition. The most frequent circumstances in which such a petition is presented are as follows: a creditor has served a statutory demand on the debtor and, after the 21-day period has lapsed, the company has not paid, secured, or compounded the amount due (see Practice Note: Company statutory demand)......
This Practice Note cites case law of the Court of Justice of the European Union. For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law. What are bridging pensions? Bridging pensions are a type of pension provided by some, though not all, defined benefit occupational schemes when a member’s scheme pension begins before state pension age ( SPA). As the name implies, they function as a temporary top-up designed to bridge the gap between the point the member’s normal scheme pension is paid and a later date—typically the member’s SPA—when their state pension starts. Unequal SPAs for men and women and bridging pensions—how they interact Until plans were considered by the government to equalise the SPAs for men and women in 1993, men continued to have an SPA of 65 and women 60. Bridging pensions are...
Key dates for Banking & Finance lawyers to look out for: 2015 [ Archived] January 2015 1: The International Swaps and Derivatives Association ( ISDA) resolution stay protocol takes effect, developed with the FSB to facilitate cross-border resolution and limit systemic risk—see ISDA press release. 1: Member states must transpose the main elements of the Bank Recovery and Resolution Directive ( BRRD)—see Bank of England publication. 1: Changes to the bank levy announced in the 2014 Budget begin to apply—see bank levy consultation paper. 2: The Eurepo index is discontinued—see ICMA press release. 6: Closing date for responses to the ring-fencing consultation. Under the PRA’s proposals, firms may seek modifications to ring-fencing rules. Views are requested on policy matters including legal structure, governance, and arrangements for continuity of services and facilities—see LNB News 06/10/2014 55 and the...
ARCHIVED: This material was issued in 2015 and is no longer being updated. STOP PRESS: A major revamp of the UK listing regime took effect on 29 July 2024, including the abolition of the premium and standard listing segments and the introduction of a......
Key dates for Banking & Finance lawyers to look out for: 2014 [ Archived] January 2014 1 Latvia moves to the euro as its national currency—see LNB News 09/07/2013 101. Equator Principles III now cover all fresh transactions—refer to Practice Note: The Equator Principles and the Equator Principles website for details. Bank levy rises as flagged in the 2013 Budget. An additional rise to the levy was set out in the Autumn Statement 2013. The full-rate levy is 0.156% on ‘short term’ liabilities, with a lower rate of 0.078% on ‘long term’ liabilities and equity—see News Analysis: Autumn Statement 2013 and HM Revenue & Customs notice. Functions previously undertaken by the African Loan Market Association are folded into the Loan Market Association—see news analysis: The Loan Market Association—2013 in review and LMA press release. The Capital...
2013: Key Restructuring & Insolvency cases [ Archived] This Practice Note is archived and is no longer maintained. Re Magyar Telecom BV [2013] EWHC 3800 ( Ch), [2013] All ER ( D) 20 ( Dec) — Judgment: 3 December 2013 — Subject: Schemes of arrangement — Lexis®PSL analysis: schemes broadened to compromise non- English debt Isis Investments Ltd v Oscatello Investments Ltd and others [2013] EWCA Civ 1493, [2013] All ER ( D) 327 ( Nov) — Judgment: 27 November 2013 — Subject: Credit institutions—proceedings pending — Lexis®PSL analysis: when is a Part 20 claim part of pending proceedings in cross-border matters? Ovenden Colbert Printers Ltd Hunt v Hosking [2013] EWCA Civ 1408, [2013] All ER ( D) 188 ( Nov) — Judgment: 15 November 2013 — Subject: Transactions at an undervalue — Lexis®PSL analysis: mounting a successful...
CASE HUB (appeals lodged by Telefonica and Portgual Telecom at the General Court in Cases T- 216/13 and T- 208/13–see Cases T-208/13 Portugal Telecom v Commission and T-216/13 Telefónica v Commission (non-compete)) ARCHIVED –this case hub, archived, sets out the position as at the decision date of 23 January 2013; it is no longer maintained......
This archived Practice Note offers a summary of the presumption in favour of sustainable development as contained in the 2012 edition of the National Planning Policy Framework (2012 NPPF). On 24 July 2018, the government issued a revised NPPF (the 2018 NPPF), which replaced the 2012 NPPF and, with it, the policy text on the presumption in favour of sustainable development set out in the 2012 NPPF. The 2012 NPPF was archived and the presumption it contained will therefore only continue to have effect in certain situations, as outlined below. For details of the presumption currently in force, see Practice Note: Presumption in favour of sustainable development. Note that the NPPF was revised again in 2019, 2021, September 2023 and December 2023, but those later updates are not addressed in this archived Practice Note. Policy context The 2012 NPPF was published on 27 March 2012 and came into...
Introduction This archived Practice Note reviews the obligation within the National Planning Policy Framework first issued in 2012 (the 2012 NPPF) to undertake housing assessments. On 24 July 2018, the government released a revised version of the NPPF (the 2018 NPPF), which from that date onwards replaced the 2012 NPPF. It altered the policy approach to establishing housing need and demonstrating housing land supply. Transitional provisions in Annex 1 to the 2018 NPPF provide that: from 24 July 2018, the policies in the 2018 NPPF should be taken into account as material considerations in the determination of planning applications development plans ‘may’ also need to be revised to reflect policy changes brought about by the 2018 NPPF The 2018 NPPF further advises that any such revisions should be progressed as quickly as possible; however, existing development policies should not be treated as out of date...
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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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