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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:
Most recent Practice notes
Practice Note Under section 305(2) of the Insolvency Act 1986 ( IA 1986), a core duty of the trustee in bankruptcy (trustee) is to collect, realise and distribute the bankruptcy estate. Accordingly, the trustee should act promptly to identify which assets vest, locate them, secure them, and determine the means of realisation. This Practice Note examines the categories of property interests that may pass to the trustee and the rules for assessing the scope of that interest. The focus is on how those principles operate in relation to the bankrupt’s main home. That property is usually the estate’s highest‑value asset and often gives rise to complexities, particularly if the bankrupt lives or has lived there with others. In a matrimonial or family home setting, competing claims may arise from a spouse or civil partner and, in some cases, children or other...
Capital losses arising to trustees For trustees, capital losses are computed on the same basis as for individuals (for more detail on individual losses, refer to Practice Note: CGT—utilising capital losses). Losses are offset against gains in the same year of assessment in the way that produces the most advantageous result; any amount not relieved can be carried forward and set against gains arising in later years. Carry-back to an earlier year is not permitted. Brought-forward losses need only be used against subsequent gains to the extent needed to reduce that year’s gains to the applicable annual exemption, ensuring the allowance is not wasted. A formal claim is required for losses to be allowable, usually on the Capital Gains supplementary pages of the Trust and Estate Tax Return. The general time limit for claims and reliefs is four years from the end of the...
This Practice Note examines the effect of Regulation ( EU) 1215/2012, Brussels I (recast) where same or connected proceedings are ongoing in the courts of a non‑ EU Member State (referred to as a ‘third state’). It sets out the position when duplication appears and claims correspond or are related but fall before tribunals outside the EU, and describes how such circumstances are approached in it. The pertinent provisions of the regulation are Articles 33 and 34 of Regulation ( EU) 1215/2012, Brussels I (recast). It also addresses how those provisions apply to the UK as a third state after its exit from the EU, subject to transitional terms in the Withdrawal Agreement. For general guidance on these articles, and other provisions relevant to third states—namely Articles 18(1), 21(2), 24, 25 and 26 of Regulation ( EU) 1215/2012, Brussels I...
Legal professional privilege ( LPP) safeguards the confidentiality of specified lawyer–client communications and is a fundamental right, subject only to tightly limited exceptions where it applies. A way to contest LPP is to argue that it never arose, often by invoking the crime–fraud, or iniquity, exception. This Practice Note explores that exception in greater depth. For guidance on what constitutes LPP and how it is preserved in criminal investigations, see the Practice Notes: Legal professional privilege in criminal proceedings and Maintaining privilege during criminal investigations. The crime-fraud exception When does it apply? Privilege cannot be claimed over communications made to facilitate the client’s commission of a crime or fraud, or that themselves form part of a fraudulent act. This is also referred to as the ‘iniquity exception’, a more precise term since, as stated in JSC BTA Bank v Abylasov, it is not limited to...
JCT contracts include comprehensive rules on termination, explaining the grounds on which parties may end matters and the effects that follow. Under these forms, it is the Contractor’s employment that is brought to an end, rather than the contract itself. This distinction is intended to ensure the contract’s post-termination provisions remain operative after termination. This Practice Note addresses the termination clauses in the JCT Standard Building Contract ( SBC) With Quantities 2011, 2016 and 2024 editions, found in section 8 of those agreements. Equivalent mechanisms also appear in other JCT contracts. It should be read in conjunction with Practice Note: Termination of a construction contract. Termination should always be approached with great care. If a termination is wrongful, or if the prescribed procedures are not followed precisely, the attempt to terminate may amount to a repudiatory breach of contract by the party seeking to do so....
What amounts to the conclusion of criminal proceedings? Most criminal matters conclude either with an acquittal after trial, or with conviction and sentence following a trial or a guilty plea. There are, however, several other ways proceedings can end. They sit in the following categories: Without charge, at the end of a criminal investigation a no further action decision an alternative out-of-court disposal, for example a simple or conditional caution Without a verdict, after proceedings have begun discontinuance of proceedings by the DPP (magistrates’ court and Crown Court) or by another public prosecutor ( Crown Court) — available before a summary trial begins (magistrates’ court), or before the indictment is preferred ( Crown Court) withdrawal of a charge or summons by the prosecution (magistrates’ court only) — available any time before adjudication with the court’s leave dismissal of the...
Applications in the Technology and Construction Court Where your case proceeds in the Technology and Construction Court ( TCC), the TCC Guide governs any application you pursue, and its provisions will apply to every application you make. This Practice Note sets out guidance on applications in the TCC, with cross‑references to the relevant parts of the TCC Guide and their corresponding provisions. It concentrates on the step‑by‑step process of making an application in the TCC, spanning pre‑application considerations through to serving the issued application. For guidance on preparing for an application hearing after issue of the application, see Practice Note: Preparing for an application hearing in the Technology and Construction Court ( TCC). The following general points should be noted: The TCC Guide also offers practical information on proceedings in the TCC, but it is not a replacement for the CPR and must be read in...
This Practice Note This Practice Note outlines the principal substantive and procedural rules regarding evidence-taking in the EU for family proceedings where the pertinent request was received before the implementation period ( IP) completion day (11pm on 31 December 2020). It also explains the law and process for obtaining evidence under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention), which applies between contracting states, covering most, though not all, EU Member States. In addition, it signposts resources for scenarios where the Hague Evidence Convention is not engaged. During proceedings, evidence may need to be gathered from parties or witnesses located overseas. Council Regulation ( EC) No 1206/2001 of 28 May 2001 on cooperation between courts of the Member States in the taking of evidence in civil or commercial matters (the Taking of...
This Practice Note examines the English Court’s approach to take-or-pay clauses and offers a detailed analysis of the rule on penalties as it applies to such provisions. For an introduction to take-or-pay clauses in the energy sector and the regulatory and competition law concerns commonly faced, see Practice Note: An introduction to EU law and competition law issues for take-or-pay clauses in energy contracts. For further guidance on drafting take-or-pay clauses and the typical features encountered, see Practice Note: Drafting take-or-pay clauses in energy contracts. English courts’ attitude to take-or-pay clauses English Courts have generally acknowledged and enforced take-or-pay provisions in commercial contracts. In Port of Tilbury ( London) Ltd v Stora Enso Transport & Distribution Ltd, the defendant had an ongoing requirement to import, handle, store and distribute its paper in England. It entered into a long-term agreement with the claimant, the Port of...
1. What is the applicable legislation? Sweden operates two principal investment control frameworks. The Swedish FDI Regulation (the FDI Regulation), effective from 1 December 2023, is the primary scheme governing foreign direct investment in Sweden. Its protective remit is Sweden’s security and public order or public safety in Sweden, capturing any undertaking whose operations need safeguarding to maintain that security, order or safety. The Protective Security Act (the PSA), in force since 1996, is narrower than the FDI Regulation and targets only deals involving businesses that carry out security-sensitive activities. The PSA’s protected interest is Sweden’s security, covering activities that are significant for Sweden’s security or that fall under an international protective security commitment binding on Sweden. The FDI Regulation and the PSA partially overlap in scope. Both extend to security-sensitive activities and, to differing extents, essential services. However, the PSA is confined to...
Defining sustainable development—the background In the UK, mechanisms concerned with sustainable development generally draw on, and are steered by, variants of the Brundtland definition. They also frequently cite the three interlinked ‘pillars’, often described as the ‘triple bottom line’. The Brundtland definition and the ‘three pillars’ concept The Brundtland Report ( Our Common Future) frames sustainable development as progress that fulfils current needs without diminishing the ability of future generations to meet theirs. It embraces two principal ideas: needs—particularly the fundamental needs of the world’s poor, which warrant overriding priority; and limits—those set by the prevailing state of technology and social organisation on the environment’s capacity to satisfy present and future needs. The UN General Assembly endorsed this definition in Resolution 42/187, and the 2005 UN World Summit Outcome refers to the ‘interdependent and mutually reinforcing pillars’ of sustainable...
Recap of discharge from bankruptcy Bankruptcy starts on the date the court makes the bankruptcy order and lasts until the individual is discharged (section 278 of the Insolvency Act 1986 ( IA 1986)). A bankrupt is discharged automatically one year after the bankruptcy date ( IA 1986, s 279(1)), unless a criminal bankruptcy order has been made ( IA 1986, s 279(6)). Until discharge, a bankrupt must not, among other limits: act as a company director without the court’s leave obtain credit exceeding £500 without declaring that they are undischarged carry on business, directly or indirectly, under a different name from that used when made bankrupt without informing all those they deal with that they are undischarged be elected to sit or vote in the House of Commons On discharge: the debtor is no longer liable for their...
Summary trial in the magistrates’ court This Practice Note outlines the sequence of a summary trial in the magistrates’ court. It considers the process under the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, and the respective functions of the prosecution and the defence. Summary trials in the magistrates’ court are determined by either a bench of magistrates or a district judge. At the outset, the defendant must state whether the plea is guilty or not guilty, as mandated by Crim PR 2025, SI 2025/909. This forms the first stage in the summary trial process. Where a not guilty plea was entered earlier, the justices’ legal adviser or the court must ask the defendant to reaffirm that plea at the start of trial. Should the defendant change to a guilty plea on the trial date, the court may move directly to...
Guidance Advice on enforcing breaches of planning control is contained in: Planning Practice Guidance ( PPG) in England Development Management Manual ( DMM) in Wales Time limits for issuing an enforcement notice All enforcement action for breaches of planning control is constrained by statutory time limits. Action taken beyond these periods is not authorised, save in limited situations; see Practice Note: Deliberate concealment of planning breaches. The time limits for taking enforcement action in England are: Operational development: ten years from the date the operations were ‘substantially completed’ (or four years where substantially completed before 25 April 2024) Change of use of any building to ‘use as a single dwellinghouse’: ten years from the date of the breach (or four years where the breach occurred before 25 April 2024) Any other breach of planning control: ten years from the date of the...
Purpose Highways can be stopped up when a section is no longer required, or where the land is needed to enable a development. When a road is ‘stopped up’, the public’s right to use it is removed. Legislation Powers to stop up and to divert highways are set out in: sections 247, 248, 249, 253 and 257 of the Town and Country Planning Act 1990 ( TCPA 1990) sections 116, 118 and 119 of the Highways Act 1980 ( Hi A 1980) Guidance The Rights of Way Circular (1/09) offers direction to local authorities on recording, managing and maintaining, protecting and amending public rights of way. The government has produced guidance for applicants in England on applying for a stopping up order to close or divert a highway. The Welsh government has issued guidance and services for applicants on the requirements and procedures for stopping up and diversion of...
This Practice Note highlights key distinctions between adjudication and litigation, arbitration, mediation and expert determination Litigation Adjudication offers a rapid, provisional, interim route to resolve disputes; its outcome is binding until finally settled by arbitration, litigation or agreement. The principles of natural justice that are fundamental in litigation also apply in adjudication. However, within adjudication, observance of natural justice yields to the overriding need for a determination within a very limited period. See Practice Note: Breach of natural justice in adjudication. Confidentiality In litigation the court’s judgment is public. Adjudicators’ decisions rarely reach the public domain because they carry little authority in other proceedings. In addition, parties to adjudication can enter into a confidentiality agreement. Procedure Litigation is controlled by the Civil Procedure Rules. For adjudication, the governing legislation—covering, among other things, timetable and process—is Part II of the Housing Grants, Construction and Regeneration Act 1998 and, where...
This Practice Note offers guidance on statements of truth under CPR 22 and CPR PD 22. It clarifies what a statement of truth is, identifies which documents must be verified by one and sets out the standard wording. It also explains who may sign the statement of truth (including solicitors, and scenarios involving multiple parties or group litigation), addresses the use of electronic signatures (referred to in CPR 5.3 as signatures ‘printed by computer or other mechanical means’), and highlights the repercussions of either failing to sign or making a false statement of truth, including the risk of contempt of court. Depending on the court handling your matter, you may need to consider additional requirements—see: Court specific guidance. Amendments to CPR 22 and CPR PD 22—1 October 2023 CPR 22 and CPR PD 22 are revised with effect from 1 October 2023—see: LNB News...
This Practice Note sets out guidance on standstill agreements (also known as tolling agreements) used either to pause the running of limitation or to push out the limitation period. It clarifies the distinction between these forms of standstill and points to relevant Precedents. For broader guidance on limitation, see Practice Note: Limitation Act 1980—general application. Suspending or extending limitation—what is the difference and why is it important? There is a key difference between pausing time for a defined window and lengthening the limitation period to a particular date. Although both mechanisms aim to halt limitation from accruing, where time is suspended the remaining part of the limitation period at the date of the agreement will ordinarily start again once the suspension finishes. By contrast, where an extension is agreed, the limitation will usually expire on the date the extension ends. That date will normally fall after the...
Standby letters of credit Originating in the US as a means to bypass the prohibition on domestic banks issuing guarantees, standby letters of credit were developed to fill that gap. Outside the US, parties more commonly opt for an on demand guarantee or bond (see Practice Note: On demand guarantees and bonds) rather than a standby letter of credit. A standby letter of credit belongs to the broader category of letters of credit. What unites all letters of credit is a bank’s promise to pay the beneficiary a defined sum within a stated period against presentation of specified documents that comply with the credit’s terms. Letters of credit fall into two main forms: commercial letters of credit (also called traditional letters of credit) standby letters of credit (also called standby credits) The intended purpose of the credit determines which type applies......
This Practice Note examines the duty of care expected of solicitors and barristers in professional negligence actions, whether arising in contract or tort. It takes as its foundation the general principles governing all professionals, as set out in Practice Note: Standard of care in professional negligence claims, and then turns to examples specific to the legal sector. As that Practice Note explains, reliance on a responsible body of professional opinion is not commonly applicable to claims brought against solicitors and barristers. This may reflect the courts’ readiness to reach their own judgment on matters of legal practice ( Edward Wong Finance v Johnson Stokes; Patel v Daybells). Solicitors and barristers—expected standard of care (general principles and illustrative examples) The standard for solicitors and barristers is one of ‘reasonable skill and care’, consistent with Bolam v Friern Hospital. Put differently, the question is what a...
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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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