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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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The development of the law Alcock v Chief Constable of South Yorkshire Police has traditionally stood as the principal authority on secondary victim claims. Subsequent jurisprudence after Alcock evolved in a piecemeal way, with decisions that were sometimes inconsistent. The Supreme Court's ruling in Paul v Royal Wolverhampton NHS Trust has introduced several revisions and offered much-needed certainty for practitioners. Grasping the landscape both before and after Paul matters because the underlying principles have been refined and clarified, though not every element has altered. Accordingly, this Practice Note is arranged into pre- Paul and post- Paul parts. The amendments attributable to Paul are clearly signposted within this Practice Note. For deeper commentary on the judgment, consult News Analysis: Landmark Supreme Court decision on secondary victims ( Paul v Royal Wolverhampton NHS Trust). It must be appreciated that claims by secondary victims form an...
Companies beginning to exhibit financial strain often find their borrowings changing hands on the secondary market at prices below par or face value. The size of this discount signals the market’s judgement on the chances of full repayment. Original lenders of record, such as banks or loan originators, may wish to offload their exposure in the secondary market to: deleverage balance sheets to meet regulatory demands or maximise shareholder value; dispose of non-performing loans; pare back exposure to a particular debtor or sector in line with strategic aims. In complex restructurings, high levels of debt churn can frustrate talks with key creditors, as participants keep changing, producing a revolving door effect. Key players Typical secondary debt participants include hedge funds, vulture funds, special situation funds, private equity ( PE) funds and pension funds. They trade in secured or unsecured debt, bank or bond debt, or trade claims......
What is the Central Registry of Winding-up Petitions? The Central Registry of Winding-up Petitions (the Central Registry) is a computerised index of winding-up petitions and administration applications, kept for all petitions or applications submitted to the Insolvency and Companies List (formerly the Companies Court), a Chancery District Registry, or the County Court. A search of the Central Registry should disclose: any petition or order for the winding-up of a company made in England and Wales; and any administration application, order or appointment (including out-of-court appointments and intentions to appoint) filed in England and Wales The Central Registry exists to reduce the risk of petitions being presented twice, largely because the jurisdiction to issue such petitions is wide. The court should be notified of any earlier pending petitions before determining a current petition. The court should be told of any such earlier petition before ruling on the present...
This Practice Note briefly outlines the nature of a search order (often referred to as an Anton Piller order, after Anton Piller v Manufacturing Processes (1976)), the underlying jurisdictional footing empowering the courts to issue one, and the tests the court will apply before agreeing to grant such relief, among others. It further describes the emergence of ‘imaging orders’, under which a respondent must allow an IT specialist to create an ‘image’ of their electronic device(s) or account(s), how these sit alongside search orders, and other options requiring delivery up or safeguarding of evidence. For related guidance on search and imaging orders, see the Practice Notes set out below: Search and imaging orders—making an application The model search and imaging order Search and imaging orders—execution of the order and next steps 6 April 2025 changes The CPR provisions that govern interim injunctive relief, which include search and imaging...
Relief under the stamp duty rules was recognised for a person who had entered into a contract to acquire an interest in land but, before completion, entered into a further contract to sell or assign the rights under that agreement to someone else. That principle was then carried over into the stamp duty land tax ( SDLT) regime by section 45 of the Finance Act 2003 ( FA 2003) in its original enactment. In effect, the section averted a charge that would otherwise have arisen where a chargeable interest was acquired at the same time as the same interest was disposed of to another person. It was mainly relied upon for sub-sales, yet because the original text spoke of a ‘transfer of rights’, it also extended to other dealings, including the assignment of rights. Nonetheless, the section was used within a range of SDLT...
This Practice Note This Practice Note sets out the special stamp duty land tax ( SDLT) provisions that apply where an interest in land is transferred from a partnership to a partner, or to a person connected with a partner, including dealings on the dissolution of a partnership. Special SDLT rules apply in the following circumstances: where a chargeable interest is transferred to a partnership from one or more partners, or persons connected with one or more partners, including transfers on the partnership’s formation where value is withdrawn from a partnership by certain parties within three years following such a transfer, as referenced in the preceding bullet where a chargeable interest is transferred from a partnership to one or more partners, or persons connected with one or more partners, including transfers associated with the partnership’s dissolution where a chargeable interest is transferred from one partnership to another and there are...
Chargeable consideration SDLT due on a chargeable transaction is assessed by reference to the transaction’s ‘chargeable consideration’. This Practice Note explains the general meaning of that term for lease transactions, covering how SDLT is worked out on rent, lease premiums and deposits. For how SDLT is calculated on particular lease scenarios—such as linked leases, surrender and re-grant, and variations—see Practice Note: SDLT—common lease transactions. From 1 April 2015, SDLT no longer applies to any land transaction involving interests in or over land in Scotland. From that date, land and buildings transaction tax ( LBTT) applies to such transactions, subject to transitional provisions. Therefore, any references in this Practice Note to ‘ UK land’ or similar expressions, when discussing the application of SDLT, should be interpreted as excluding interests in or over land in Scotland from 1 April 2015. For further details, see the LBTT...
This Practice Note provides an overview of the stamp duty land tax ( SDLT) treatment of the following common lease transactions: grant of a lease linked leases surrender and re-grant of a lease agreement for lease assignment of an agreement for lease reverse premium assignment of a lease variation of a lease surrender of a lease lease to a bare trustee or nominee reversionary lease For general guidance on when SDLT is in point, refer to Practice Note: SDLT—land transactions, chargeable interests and chargeable transactions; and for the method of computing SDLT due on lease arrangements, see Practice Note: SDLT chargeable consideration—leases. This Practice Note excludes leases and holding over. For additional detail on that area, consult Practice Note: SDLT—holding over. From 1 April 2015, SDLT no longer applies to any land...
Property investment partnerships ( PIPs) This Practice Note outlines the particular stamp duty land tax ( SDLT) regime relevant to property investment partnerships ( PIPs). It clarifies what the term covers and how PIP classification impacts the SDLT liabilities of the partnership itself and the partners. In essence, a partnership counts as a PIP where its main business is investing in or dealing with—meaning holding or exploiting—chargeable interests. The overarching outcome of the rules is that buying an interest in a PIP is treated as though a comparable interest were acquired in specified property held by the PIP. Only certain property is brought into this calculation, so every transaction must be considered against the detailed provisions. Transfers of interests in partnerships that are not PIPs trigger SDLT only in exceptional situations. By contrast, the transfer of an interest in a PIP is treated as a...
Missives In Scotland, property deals are most often documented by missives of sale; see, for instance, the Property Standardisation ( PSG) PSG— Offers. A binding bargain emerges through an exchange of written offer and acceptance between the parties (frequently via their agents), and together these letters make up the missives. Often several formal communications pass between the parties before a final, unqualified acceptance is delivered, which brings the bargain to a close; see further: Formal requirements: Stair Memorial Encyclopaedia [7]. Once missives are concluded, a legally enforceable contract exists. The contract may equally be created by a sale and purchase agreement between the parties. If one party then fails to fulfil its obligations, that failure may amount to breach of contract and entitle the other to a legal remedy. For more detail, see: Conclusion of missives: Stair Memorial...
This Practice Note explores the regime for judicial expenses and taxation in general civil litigation across Scotland. For guidance on: How civil claims are funded in Scotland, see Practice Note: Funding Scottish civil litigation The closest equivalent procedure in England and Wales, see, for example: Principles of costs recovery—overview Costs budgeting and costs management—overview Fixed costs—overview Costs orders—overview Security for costs—overview Summary assessment—overview Detailed assessment—overview Discontinuance and costs—overview which, in turn, link through to more detailed guidance on various aspects of civil litigation costs in England and Wales Note: this...
Example delay schedule No. Scott Schedules are frequently invaluable and widely used in construction disputes. They serve to pinpoint the central issues between the parties and to present, in a single document for the judge, a concise outline of the opposing cases on an item‑by‑item basis. The call for a Scott Schedule in construction matters arises because such disagreements are often factually intricate and wide‑ranging. Shuttling back and forth between the parties’ competing (and often very lengthy) statements of case to compare what each says about a specific item can be both confusing and time‑consuming. A Scott Schedule is intended to provide a single source that sets out the rival positions clearly and accessibly. Scott Schedules are commonly used to contrast the parties’ respective stances in: defects cases final account/valuation disputes delay claims Scott Schedules take their name from one of the early...
This Practice Note examines property disputes in Scotland arising: in delict under the Occupiers’ Liability ( Scotland) Act 1960 ( OL( S) A 1960) under consumer rights legislation concerning defective premises and the time limits for claims under the Prescription and Limitation ( Scotland) Act 1973 ( PL( S) A 1973) It does not address statutory repair duties for agricultural or residential tenancies. Broadly, obligations connected to property may arise: by force of law (statutory—see further: Obligations arising by force of law: Stair Memorial Encyclopaedia [2]) from a wrongful act (delictual—see further: Obligations arising from a wrongful act: Stair Memorial Encyclopaedia [3]) voluntarily (eg unilateral and contractual undertakings—see further: Voluntary obligations: Stair Memorial Encyclopaedia [4]) Delictual obligations arising from a wrongful act Delict governs legal wrongs. It is the counterpart of ‘ Tort law’ in England; see: Differences between Scots and English law: Stair Memorial Encyclopaedia [166] and Practice Note: What is a tort? In...
STOP PRESS The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) obtained Royal Assent on 26 October 2023. Part 1 of ECCTA 2023 comprises a significant suite of measures that bolster the function of Companies House and increase the transparency of UK corporate entities, furthering the openness of UK corporate bodies. The ECCTA 2023’s provisions will be introduced gradually over time, over an extended period. Numerous elements of the statute depend on detailed secondary legislation and guidance, alongside the development of fresh technical systems and tools to deliver the changes. For further details, see Practice Notes: The Economic Crime and Corporate Transparency Act 2023—what Banking & Finance lawyers need to know and The Economic Crime and Corporate Transparency Act 2023—tracker. This Practice Note draws out the practical distinctions between legal entities in Scotland and those in England and Wales. It also addresses the legal...
The offences of failing to secure regular attendance at school The Education Act 1996 ( EA 1996) places criminal responsibility on a parent who does not ensure their child receives regular education. All offences under EA 1996 are summary only, meaning they can be dealt with solely in the magistrates' court. See Practice Note: Education Act offences. Before starting legal proceedings, the local authority must consider whether to apply for an Education Supervision Order. See Practice Note: Education supervision orders. Statutory guidance aimed at raising school attendance provides advice on when prosecution is suitable. As a rule, prosecution should be a last resort after all voluntary and formal support has been attempted and has not worked. EA 1996 creates two offences concerning a parent's failure to secure a registered pupil’s attendance at school. The first, under s 444(1), is a strict or absolute offence, so proof of the...
Practice Note This Practice Note reviews the SBCC standard forms and highlights how they differ from JCT contracts. The Scottish Building Contract Committee’s strategy is to keep arrangements as consistent across the UK as possible, adopting JCT formats wherever feasible. Nonetheless, Scotland’s distinct legal system means certain differences in treatment remain. Accordingly, the SBCC editions adjust the JCT wording to reflect Scots law and terminology, without shifting the risk allocation or, in general, introducing other substantive changes. They mirror JCT colour bands, section titles and clause numeration and, where practicable, retain JCT naming conventions and dates. The SBCC suite is now issued as a single consolidated document, removing the need—unlike the former JCT 80 and 98 arrangements—to read a separate Scottish supplement alongside the JCT form. The 2016 suite appeared in two stages: Minor Works family, together with the Short-form Subcontract and...
This Practice Note concisely sets out guidance on Sanderson and Bullock orders. It explains their nature and purpose, when such orders may properly be made, and the reasoning that underpins their use. Sanderson and Bullock orders—what are they? These orders typically arise where a claimant brings a claim (in contract or in tort) against two or more separate and distinct defendants, but ultimately achieves success against only one of those defendants. Their immediate origins lie in the following authorities: Sanderson v Blyth Theatre Company (1903)—the court required the losing defendant to meet the successful defendant’s costs (a Sanderson order) Bullock v London General Omnibus Co (1907)—the court directed the claimant to pay the successful defendant’s costs, but expressly allowed the claimant to include those sums within the costs to be ultimately recoverable from the losing defendant (a Bullock order) A Sanderson order is also on occasion simply described as a...
Employment Tribunal Procedure Rules 2024 ( ET Rules 2024), SI 2024/1155, Rule 22 Under Rule 22 of the Employment Tribunal Procedure Rules 2024 ( ET Rules 2024), SI 2024/1155, the tribunal has a process for situations where a respondent either opts not to oppose a claim brought against it, or does not file a response that is valid under the rules. In these circumstances: the tribunal must consider whether judgment can be entered on the claim immediately, without the need to hold a contested hearing the respondent will, as of right, forfeit the ability to take a full part in the remainder of the proceedings This mechanism can equally be invoked where a claimant fails to provide a timely reply to a respondent employer’s contractual counterclaim (see Practice Note: Employer’s contract claim (counterclaim) in the employment tribunal)......
This Practice Note This Practice Note is intended for use when identifying the applicable law where the contract was concluded on or after 17 December 2009 and before 1 January 2021. For agreements made on other dates, the UK courts will apply a different applicable law regime. The regime engaged will turn on the date on which the contract was made. For guidance on the distinct regimes and how they interrelate, see Practice Note: Applicable law regimes. This Practice Note examines the rules in Article 5 of Regulation ( EC) 593/2008, Rome I, which sets out how the governing law is determined for contracts of carriage. Although the article deals with both the carriage of goods and the carriage of passengers, this Practice Note addresses only the carriage of goods. The rules in Article 5 of Regulation ( EC) 593/2008, Rome I operate solely to the...
ARCHIVED: This Practice Note is archived and no longer updated. A major overhaul of the UK listing framework took effect on 29 July 2024, removing the premium and standard listing segments and introducing a single listing category for equity in commercial companies. That commercial companies category is strongly disclosure-led and sits alongside other categories including shell companies, secondary listing and closed-ended investment funds. To deliver these reforms, the UK Listing Rules sourcebook was commenced and the prior Listing Rules sourcebook was withdrawn. For more detail, see Practice Note: Reform of the UK listing regime—fundamentals. This Practice Note records the regime before 29 July 2024 and is kept for background reference. It examines the regulatory tests that previously applied where a company with what was then a standard or premium listing undertook, or intended to undertake, a significant transaction treated as a reverse...
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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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