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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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Comity Comity is a broad common law doctrine under which courts will recognise and give effect to foreign proceedings, provided they are not: against public policy in breach of core requirements of procedural fairness tainted by fraud or unfairness designed to enforce foreign penal laws (eg the US Securities Exchange Act 1934 carried civil and criminal sanctions and aimed to prevent and punish specified acts and omissions) ( Schemmer v Property Resources) In practice, in England it operates only as a backstop where the following do not apply to aid a foreign office-holder seeking assistance from the English courts: Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency] (for example, where the foreign...
This Practice Note considers which financial services firms are in scope of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 ( MLRs) Firms captured by the MLRs are required to meet stringent statutory duties aimed at combating money laundering ( ML), terrorist financing ( TF) and proliferation financing ( PF). The MLRs apply to entities falling within the definition of Relevant Persons in Part 2 of the legislation. That definition is broader than just financial services firms such as banks, building societies and credit unions, and also reaches other firms that carry out specified financial activities, including investment managers and stockbrokers, e-money institutions, cryptoasset exchange providers, payment institutions, consumer credit firms providing lending services, financial advisers, investment firms, asset managers and businesses offering safety deposit services. The scope therefore spans a range of...
This Practice Note explains what constitutes an actionable misrepresentation, outlines the essential components for advancing a misrepresentation claim, highlights the function of the Misrepresentation Act 1967 ( MA 1967), and contrasts it with related causes of action, providing a comparison with other, similar claims. For connected guidance on the fundamental elements needed to found a misrepresentation claim, see Practice Notes: Misrepresentation—what statements will establish a claim? Misrepresentation—what is inducement? Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) For an overview of practical issues in misrepresentation claims, set against negligent misstatement claims, see Practice Note: Claiming negligent misrepresentation or negligent misstatement—practical considerations. What is a claim for misrepresentation? A misrepresentation claim arises where one party to a contract (the representor) makes an untrue statement that leads the other party (the representee) to enter the contract. A claim can also be brought where the statement is made by an agent of a...
Offences relating to financial services The Financial Services Act 2012 ( FSA 2012) sets out three offences aimed at market manipulation: issuing false or misleading statements, or deceitfully hiding material facts, under FSA 2012, s 89 producing false or misleading impressions under FSA 2012, s 90 making false or misleading statements, and related conduct, concerning benchmarks under FSA 2012, s 91 See also Practice Notes: Misleading statements etc in relation to benchmarks and Misleading impressions under Financial Services Act 2012. For details of the previous regime for market manipulation under section 397 of the Financial Services and Markets Act 2000 ( FSMA 2000), which has been repealed, refer to Practice Note: Misleading the market and market manipulation under s 397 FSMA 2000 [ Archived]......
ARCHIVED : This Practice Note is no longer current and is not being updated. From 6 April 2025, the Consumer Protection from Unfair Trading Regulations 2008 ( SI 2008/1277) were repealed and replaced by the Digital Market, Competition and Consumers Act 2024 ( DMCCA 2024). However, CPUTR 2008 ( SI 2008/1277) will continue to apply to conduct that occurred before 6 April 2025. For details on misleading omissions under the DMCCA 2024, see Practice Note: Misleading omissions under the Digital Markets, Competition and Consumers Act 2024. The offence of misleading omissions Under the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277, engaging in a commercial practice that amounts to a misleading omission is an offence, see regs 6 and 10. Regulation 10 of CPUTR 2008 ( SI 2008/1277) provides that a trader commits an offence if they engage in a...
As at 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 ( DMCCA 2024) has repealed and superseded the consumer protection framework set out in the Consumer Protection from Unfair Trading Regulations 2008 ( CPUTR 2008), SI 2008/1277. This Practice Note addresses the offence of carrying on a commercial practice that entails a misleading omission, and the distinct offence of withholding material information from an invitation to purchase under DMCCA 2024. While the provisions for these offences under DMCCA 2024 broadly reflect those in CPUTR 2008, SI 2008/1277, the prior ban on failing to include material information in an invitation to purchase has been extended and now stands as a discrete type of misleading commercial practice. In addition to targeting drip pricing, the offence has been widened so that leaving out material information from an invitation to purchase is unfair...
NOTE—to check whether notification thresholds in Mexico and worldwide are triggered, see further: Where to Notify. 1. Have there been any recent developments regarding the Mexican merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Mexico? There have been significant recent changes to the Mexican merger control regime, comprising amendments to the applicable legislation and the establishment of a new competition authority. The governing statute is the Federal Economic Competition Law 2015 ( Ley Federal de Competencia Económica, Competition Law 2015), as revised by a reform published in the Official Gazette on 16 July 2025, which came into force on 17 July 2025 ( Publicación DOF 16 de julio de 2025 Edición Vespertina, Amendment 2025). Under the Amendment 2025, the National Antitrust Commission ( Comisión Nacional...
1. Have there been any recent developments regarding the Ivorian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Côte d' Ivoire? The country’s competition statute was most recently revised in 2019 via Ordinance No. 2019-389 of 8 May 2019, which modified Ordinance No. 2013-662 of 20 September 2013 (the Competition Act). Enforcement of the Competition Act rests with the National Competition Commission ( NCC). That said, mergers fall outside the scope of the Competition Act. Côte d' Ivoire belongs to the West African Economic and Monetary Union ( Union Economique et Monétaire Ouest Africaine) ( WAEMU) and must comply with WAEMU competition rules set out in Directive 02/2002/ CM/ UEMOA (the WAEMU Regulations). Merger control is exclusively within WAEMU’s remit across its members; domestically, the NCC’s role is largely to support the WAEMU...
From 1 April 2007, sections 42 and 43 of the Mental Capacity Act 2005 ( MCA 2005) took effect. Together they activated a Code of Practice to direct everyone dealing with matters governed by the MCA 2005. Section 43 of the MCA 2005 set out the process, including consultation, that had to be completed before adoption of the code. Those steps were duly finished and, in line with section 42, a Code of Practice (the Code) was issued. That provision suggested there could be multiple codes, yet until 2008 it appeared that only a single composite code was envisaged. On 3 November 2008, however, an additional code—the Deprivation of liberty safeguards Code of Practice (the DOLS Code)—came into force. Its introduction followed the insertion of several new sections into, and other amendments of, the MCA 2005 by the Mental Health Act 2007 ( MHA 2007)....
Members’ voluntary liquidation Voluntary liquidation, also known as winding-up, is the process by which a company, following a resolution of its members, chooses to bring its activities to an end and move towards ultimate dissolution. There are two forms: members’ voluntary liquidation ( MVL), when the company is solvent and the members retain majority control; and creditors’ voluntary liquidation ( CVL), when the company is insolvent and creditors take majority control. The distinction between them rests on whether the directors consider the company able to pay all debts in full, with interest at the official rate, within a period not exceeding 12 months from the commencement of the winding-up. If they do, this is set out in a declaration of solvency and the company can proceed by way of MVL. If they do not, it must instead go into CVL. For further reading, see Practice Note: What is a...
The Companies Act 2006 ( CA 2006) sets out rules that limit and oversee substantial property transactions carried out between a company and its directors. Such arrangements require approval because they involve directors (or their connected persons) and are viewed as particularly vulnerable to abuse. The interplay between the statutory approval regime for these transactions and the general statutory duties of directors is considered in Practice Note: Directors' duties—scope, nature, interpretation and application. There are also statutory provisions dealing with the position where a company enters into a substantial property transaction without securing any required members’ approval, or without making the transaction conditional on obtaining that approval (see Practice Note: Substantial property transactions—consequences of a failure to obtain members’ approval). One of the general statutory duties of directors is the obligation to declare to the other directors any way in which they are,...
Mc Kenzie friends in family proceedings This Practice Note sets out advice on Mc Kenzie friends within family cases, also detailing the steps to follow when a party wishes to be assisted by a Mc Kenzie friend, together with the limits on what a Mc Kenzie friend can and cannot do. It also reviews requests for a Mc Kenzie friend to be granted rights of audience or permission to conduct proceedings. The principal guidance about Mc Kenzie friends was published on 12 July 2010 by the President of the Family Division, jointly with the Master of the Rolls (the Mc Kenzie friends guidance). That document superseded the earlier President’s guidance dated 14 October 2008 and drew together much of the direction contained in previous authorities. In addition, guidance issued by the Bar Council, the Chartered Institute of Legal Executives ( CILEx) and the Law...
This Practice Note examines the role of material breach within construction projects, reviews how contracts may define the expression, and pinpoints leading case law on its meaning where no contractual definition is supplied. It also outlines the judicial approach to the phrase when agreements are silent on its scope... Relevance of material breach on construction projects The term ‘material breach’ appears across a range of contractual forms. In construction contracts, such provisions most commonly relate to termination and/or suspension—ie the agreement may specify that: the contractor and/or the employer can terminate, and/or the contractor may suspend works if the other party is in ‘material breach’. Regarding termination, there is often a grace period during which the party in material breach is given the chance to remedy the default before termination proceeds. It is also common to encounter material breach clauses in PFI/ PF2...
Exemptions from the marine licensing regime Certain activities that would typically be treated as licensable under section 66 of the Marine and Coastal Access Act 2009 ( MCAA 2009) can, where specific stipulated conditions are satisfied, fall outside the marine licensing regime established by MCAA 2009 and therefore not require a licence. This approach applies only where the relevant criteria are met. Using exemptions allows regulators to act in a proportionate manner in the regulation of the marine environment, by making the licensing process swifter and more cost-effective wherever the activity is considered to present low risk. Although the proposed activity may not require a marine licence, other consents may still need to be obtained. See Practice Note: Marine...
Introduction to margin loans What is a margin loan? At a high level, a margin loan is credit extended to a borrower, secured by liquid assets pledged for the lender’s benefit. The collateral usually consists of instruments traded on public markets or exchanges, most commonly the borrower’s listed shares, which serve as the underlying assets. The outstanding balance under the margin loan facility is compared with the value of those assets through a loan to value test. Should the collateral’s value drop beneath an agreed threshold, a margin call arises, obliging the borrower to act—typically by adding cash or further security—to return the loan to value ratio to the agreed level. Because asset values are set by exchange-traded prices, the loan to value can fluctuate rapidly and is therefore usually checked daily at the close of trading on the relevant exchange, when prices are...
THIS PRACTICE NOTE APPLIES TO TRUST- BASED OCCUPATIONAL PENSION SCHEMES Legal requirements in relation to conflicts of interest Pension scheme trustees are obliged to act solely and faithfully in the best interests of the scheme’s beneficiaries. Nonetheless, trustees may owe obligations to other persons, or have personal stakes, that are at odds with that obligation and may compromise their judgement. It is a core doctrine of trust law that trustees must not place themselves in circumstances where their duty to advance beneficiaries’ best interests conflicts with obligations owed to other parties, or with their own personal interests. Where trustees take decisions while affected by a conflict that has not been suitably controlled, there is a risk those decisions could be questioned by scheme members or set aside by the courts, exposing the process to challenge. It is also essential that the members of a scheme perceive any...
In certain situations, a transaction will require particular obligations to be met after completion. These are known as ‘conditions subsequent’. This may stem from the terms of: the finance documents (e.g. where it was always intended that some lender-imposed requirements could only be met following completion), or a waiver or amendment letter (i.e. where specific conditions precedent were not met at completion and the lender agreed to waive them for a defined period) It is in the interests of both the lender(s) and the borrower to ensure that the conditions subsequent are satisfied within any timeframe set by the lender(s). Lawyers acting for the lender(s) The lender(s) will be keen to confirm that any conditions subsequent are discharged within the relevant deadline. The lawyers acting for the lender(s) should: review the finance documents to identify whether any conditions subsequent apply if there is a ......
This Practice Note sets out and clarifies the case management powers of the magistrates’ courts when handling summary-only matters or either-way cases that are before the magistrates’ courts in the ordinary course. The overriding objective In line with the overriding objective, courts must actively manage proceedings so that they are dealt with justly, efficiently and with expedition, avoiding unnecessary delay. In effect, each case requires robust, proactive oversight by the court. In addition, the prosecution and the defence must assist the court to make sure their case progresses as efficiently as possible at every stage. Case management in the magistrates’ court Case management in the magistrates’ court is governed by the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 3, together with the Criminal Practice Directions 2023 ( CPD). Criminal lawyers should also ensure they are familiar with the...
Section 62 of the Law of Property Act 1925 ( LPA 1925) (section 62) At its core, it works as a drafting shortcut. Yet on a transfer of part, it can turn permission—eg to use an area for car parking—into a right that cannot be defeated......
Nature of the award A claimant who can no longer carry out work they loved may recover damages for loss of congenial employment. That award targets the lost pleasure derived from their previous role and stands apart from any straightforward monetary loss. While certain judges subsume it within compensation for pain, suffering and loss of amenity, the law also acknowledges loss of congenial employment as a distinct head of damage. This category generally emerges where the claimant’s pre-accident occupation was out of the ordinary; nevertheless, it is enough to demonstrate that their work gave them marked satisfaction and fulfilment. It addresses the personal, non-pecuniary deprivation linked to the role, rather than earnings, and turns on evidence of genuine gratification......
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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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