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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note examines appeals arising from case management rulings, for which the court may take into account additional, proportionality-based factors when deciding whether to grant permission to appeal. For wider guidance on permission to appeal, see the following Practice Notes: Permission to appeal—preliminary considerations Permission to appeal—the application Permission to appeal—hearing and next steps What are case management decisions? The Practice Directions to Part 52 of the Civil Procedure Rules ( CPR 52) define case management decisions. Under CPR PD 52A, paragraph 4.6, they include decisions concerning: disclosure—this extends to orders for specific disclosure (see Hankin v Barrington, noted in News Analysis: Specific disclosure and permission to appeal case management decisions ( Hankin v Barrington)) the lodging of witness statements or experts’ reports directions governing the claim’s timetable adding a party to the claim security for costs, and use of...
in judicial proceedings Perjury is an indictable-only offence, attracting a maximum of seven years’ imprisonment and/or a fine. The constituent parts of this offence are set out as follows: being a witness or an interpreter who has been duly sworn in judicial proceedings wilfully making a material statement that is false, and knowing it is untrue or not believing it to be true Assisting, encouraging or procuring perjury contrary to section 1 of the Act 1911 ( Pe A 1911) is likewise an indictable offence and also carries the same ceiling penalty. Where the principal wrongdoing amounts to a lesser offence triable either way, the maximum sentence available on indictment is two years’ custody and/or a fine; if dealt with summarily, the court may impose an unlimited fine and/or a custodial term not exceeding the general limit in a magistrates’ court (or both). See Practice Note: Sentences imposed following...
Pension loss typically arises only when someone has lost their job, together with the related workplace pension benefits linked to that particular position too......
FPR 2010, PD 12J ( Child Arrangements and Contact Orders: Domestic Abuse and Harm) A revised Practice Direction 12J within the Family Procedure Rules 2010 came into force on 2 October 2017. PD 12J now subsumes and replaces the President’s Guidance in Relation to Split Hearings ( May 2010) insofar as it pertains to proceedings for CAOs. The fresh iteration followed a report by a Working Group chaired by Cobb J, commissioned by the President of the Family Division, Sir James Munby, after the All- Party Parliamentary Group on Domestic Violence ( APPG) drew attention to the significance of PD 12J in its 2016 Parliamentary Briefing: Domestic Abuse, Child Contact and the Family Courts. The President invited Cobb J to review FPR 2010, PD 12J to assess whether additional amendments were necessary. The ensuing document— Review of Practice Direction 12J FPR 2010 – Child...
This Practice Note explains how proceedings are run under the PCA Arbitration Rules 2012 (including the Optional Protocols adopted in 2024) (the PCA Rules). It identifies the core provisions governing the presentation of parties’ submissions and evidence, the handling of jurisdictional challenges and requests for interim measures, the conduct of hearings, and the steps for closing the proceedings... General provisions Under PCA Rules, art 17, the general framework for the conduct of arbitral proceedings is prescribed, mirroring to a large extent art 17 of the UNCITRAL Arbitration Rules ( UNCITRAL Rules). Article 17(1) of the PCA Rules authorises the tribunal to manage the arbitration as it considers suitable, provided the parties are treated equally and each is afforded a reasonable chance to present its case. The same provision further requires the tribunal to run the case so as to prevent unnecessary delay and cost, and to...
Practice Note This Practice Note outlines how the Contracts ( Applicable Law) Act 1990 operates when assessing whether parties have selected the governing law for their agreement. It explores issues including whether that choice must be set out in writing, whether it must point to the law of a particular country, and whether the parties may divide the governing law. It also identifies mandatory rules—domestic, foreign and international—that can constrain the chosen law. To decide if the C( AL) A 1990 regime applies, see Practice Note: Understanding applicable law—a guide for dispute resolution practitioners. on the Act’s application and interpretation, see Practice Note: Contracts ( Applicable Law) Act 1990—application and interpretation on the approach where the parties have not chosen the applicable law, see Practice Note: Contracts (applicable law) Act 1990—parties fail to choose the applicable law Schedule 1 to the C( AL) A 1990...
What does this Practice Note cover? This Practice Note outlines the participants involved in a Rule 144A (17 CFR § 230.144A)/ Regulation S debt issuance. Such offerings are typically intricate transactions featuring numerous parties, each with a vital function. Core participants encompass representatives of the issuer, one or more investment banks acting as initial purchasers of the securities (and carrying out an equivalent function for the Regulation S securities), a trustee/paying agent, and an independent audit firm, together with legal advisers to the issuer, the initial purchasers, and the trustee. In addition, others may participate on a more limited basis, including local counsel, The Depository Trust Company ( DTC), credit ratings agencies, printers, and regulators, among other parties. Each of these participants is considered in greater detail below in this Practice Note. Issuer The issuer is the entity that issues the securities being offered and sold. As the...
This Practice Note outlines the principal points and considerations to bear in mind when seeking damages for losses arising from food poisoning under the: Package Travel, Package Holidays and Package Tours Regulations 1992 (1992 Package Travel Regs), SI 1992/3288 (covering package holidays sold or offered for sale on or after 31 December 1992 up to 30 June 2018), or Package Travel and Linked Travel Arrangements Regulations 2018 (2018 Package Travel Regs), SI 2018/634 (applying to packages sold on or after 1 July 2018) A copy of the 1992 Package Travel Regs can be accessed here for reference if required: For general guidance on package holiday claims, also see Practice Note: Package holiday claims for context. Proving breach of contract Although the claim is brought against the tour operator under the 1992 Package Travel Regs, SI 1992/3288, reg 15, or the 2018 Package Travel Regs, SI...
Section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984 ( PACE 1984) Section 9 and Schedule 1 of PACE 1984 set out a route by which the police may obtain access, for the purposes of a criminal investigation, to material that is not reachable via an application to the magistrates’ court under s 8, namely ‘excluded material’ and ‘special procedure material’. Where the statutory access conditions are satisfied, an application can be pursued to discharge the prosecution’s duty to follow reasonable lines of enquiry, rather than to gather evidence on which the Crown intends to rely. An application under PACE 1984, s 9 and Sch 1 is made to a circuit judge of the Crown Court, seeking either a production order or a search and seizure warrant. For guidance on making applications to obtain excluded material and special...
ARCHIVED This Tracker compiles a range of English court rulings where the Court of Justice decision in Owusu v Jackson has been examined. It covers decisions from the Supreme Court, Court of Appeal and High Court. Owusu confirmed that English courts may not invoke the common law doctrine of forum non conveniens to stay proceedings when a defendant is domiciled in an EU Member State. Supreme Court decisions Judgment Comment News Analysis Owusu applied/considered: Vedanta Resources Plc v Lungowe [2019] UKSC 20 at paras [16] and [38]–[39]. The Supreme Court concluded that the Owusu principle governs whether proceedings against a defendant sued in England can be stayed. A stay is impermissible where the defendant is domiciled in England, even if the alternative forum was not an EU Member State......
Construction projects frequently rely on a wide range of professional consultants, each undertaking distinct responsibilities. The size of the team varies with the project’s scale, and who makes the appointments will depend on the procurement route. Nevertheless, the principal consultants are broadly consistent across most schemes. This Practice Note outlines the roles of those key consultants and draws attention to their main duties. For a summary of the roles of the parties commonly involved in a construction project (including consultants as well as the employer, contractor and sub-contractor), see Practice Note: Parties in a construction project. For a visual of the contractual framework typical of a construction project, and how consultants are positioned within it, see: Structure of a development...
When an overseas company sets up an establishment that conducts business in the United Kingdom, it may need to file its particulars with Companies House. For guidance on registration obligations, see Practice Note: Overseas companies with an establishment in the UK. The framework for registering an overseas company trading in the UK is distinct from the system for registering overseas entities with interests in UK property. For information on the register of overseas entities that own UK property, introduced by the Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022), see Practice Notes: Register of overseas entities that hold UK property—fundamentals and The beneficial ownership register of overseas entities that own UK property. This Practice Note outlines the obligations of an overseas company under the Companies Act 2006 ( CA 2006) and the Overseas Companies Regulations 2009 ( OC Regs 2009)...
Introduction Section 203 of the Housing and Planning Act 2016 ( HPA 2016) grants authority to override easements and other rights benefitting neighbouring land where this is connected with development. HPA 2016, s 203 commenced on 13 July 2016 and superseded and extended the former powers in section 237 of the Town and Country Planning Act 1990 ( TCPA 1990). The provision applies across England and Wales. HPA 2016, s 203 (and previously TCPA 1990, s 237) has been invoked on prominent schemes to address rights of light and comparable easements or restrictive covenants that might otherwise halt progress. In practice, when a particular development programme is jeopardised because agreement cannot be reached to release specified rights, developers have sought local authority intervention, asking it to use its powers to appropriate or acquire the development site (or a portion of it), thereby...
This Practice Note explores outsourcing within the insurance market. The related documents pod to the right links to a suite of Practice Notes that deliver broad, practical guidance on commercial outsourcing in general. Outsourcing in insurance Outsourcing has grown markedly across insurance in recent years. Where once insurers largely relied on binding authority arrangements limited to underwriting risk and handling claims, the rise of technology has driven expanded use of third‑party providers. A wide range of activities can now be externalised, including: form processing claims call handling auditing data collection the hiving off of entire books of business (for instance, life portfolios, whose long‑tail profile may require record retention and claims handling for decades after acquisition) Whilst outsourcing can and does deliver advantages for insurers and reinsurers, it also engages numerous legal and regulatory duties when functions are placed with third...
Out-of-court appointments This Practice Note addresses: the out-of-court mechanism for an appointment by a qualifying floating charge holder ( QFCH), and the paperwork required to effect the appointment The principal provisions governing administrator appointments by a QFCH via the out-of-court route are found in paragraphs 14–21 of Schedule B1 to the Insolvency Act 1986 ( IA 1986) and the Insolvency Rules ( England and Wales) 2016 ( IR 2016), SI 2016/1024, rr 3.16–3.22. The procedure typically comprises three stages: Pre-appointment Notice of intention to appoint Notice of appointment For guidance on who may use the out-of-court process to appoint an administrator, see Practice Note: Out-of-court administrator appointments—who can appoint and in what circumstances? For a procedural checklist, see: Appointment of an administrator using the out-of-court procedure by a qualifying floating charge holder ( QFCH)—checklist and timeline. For details on e-filing in the context of...
Practice Note This Practice Note outlines when the court may direct the sale of property in proceedings under the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil Partnership Act 2004 ( CPA 2004), together with practical points when pursuing a sale. It also describes the limited avenues for seeking an interim order for sale, and the steps to take where one party does not execute a conveyance, together with the procedure to follow. By virtue of MCA 1973, s 24A (and the Civil Partnership Act 2004 equivalent), the court may order the sale of property—real or personal, eg a car ( Joy v Joy- Morancho ( No 2))—provided it is accompanied by one of the following: a legal services payment order a lump sum order a property adjustment order a secured periodical payments order An order for sale can be made at the same time as the...
Introduction This Practice Note aims to: analyse the character and features of the on demand performance bond; outline the principal indicators and key factors for deciding whether a performance bond should be treated as an on demand instrument rather than a 'conditional' guarantee or bond For an overview of performance bonds, see Practice Note: Performance bonds—construction projects. For guidance on making a call under a bond, see Checklist: Calling on an on demand bond—checklist......
What are knock-for-knock indemnities? A knock-for-knock clause sets out a mutual arrangement under which contracting parties divide responsibility for specified losses—typically injury or death of personnel and damage to property—backed by mutual indemnities. In place of the usual fault-based rules that would apply at law, the approach adopts the notion that loss remains with the party on whom it falls. This risk allocation device is widely utilised in the offshore oil and gas sector to create certainty and to avoid recourse against other participants. Its use is increasingly seen across other complex offshore energy projects, such as offshore wind projects. What are the key features of a knock-for-knock clause? As a general rule, these clauses preserve the position that any harm to personnel or damage to property suffered by a party’s defined ‘group’ must be borne by that party, regardless of fault. The relevant ‘group’ can be...
This Practice Note examines the ban on break fees and other deal protection devices (‘offer-related arrangements’) in Rule 21.2 of the City Code on Takeovers and Mergers (the Code), together with how Rule 21.2 applies to schemes of arrangement set out in Appendix 7. It also outlines the carve-outs to the general ban and the situations in which the Takeover Panel (the Panel) may permit departures, for instance in the context of competing offers or a formal sale process. Background— Takeover Panel consultations Since 11 September 2011, the Code has broadly prohibited break fees and similar deal protection measures in public takeovers, subject to specified exceptions. The restriction was introduced because the Panel was concerned that the growing use of inducement fee arrangements and other protections discouraged potential competing offerors and left offeree boards with little scope to advance or recommend a competing offer......
Why was the Offender Rehabilitation Act introduced? The Ministry of Justice identified that about 50,000 short-sentence prisoners were leaving custody without any rehabilitation support. Those coming out after brief terms were at greater risk of reoffending, with this group responsible for around 85,000 crimes each year. The legislation forms part of the government’s wider reforms to probation. Implementation dates The Offender Rehabilitation Act 2014 ( ORA 2014) received Royal Assent on 13 March 2014. From 1 June 2014, certain measures took effect, including provisions on supervising and rehabilitating female offenders, the officer responsible for implementing orders, and offenders sentenced by Service Courts. The remaining provisions, which relate to offender rehabilitation, commenced on 1 February 2015. What does the Offender Rehabilitation Act 2014 change? Release arrangements ORA 2014 introduces several changes to the release arrangements in the Criminal Justice Act 2003 ( CJA 2003) for people serving custodial...
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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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