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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 serves as a primer on financial covenants (financial undertakings). It outlines the rationale for using financial covenants, then describes how they are established and measured. It also covers the typical financial covenants seen in commercial finance, such as: minimum net worth test gearing ratio leverage ratio (or debt to equity ratio) current ratio (or acid test ratio) cashflow ratio interest cover ratio loan to value ratio Note that this Practice Note does not delve into financial covenants for specialist transactions in detail. The final section, however, signposts additional resources on applying financial covenants across various specialist transactions. Where relevant, it draws attention to provisions in the Loan Market Association ( LMA) senior multi-currency compounded rates/term rates term and revolving facilities agreement for leveraged acquisition finance transactions (the LMA leveraged facilities agreement)...
This Practice Note explains the key points to consider when preparing to file a defence to a claim issued under CPR 7. It addresses the defendant’s obligation to submit a defence, the applicable time limits (including potential extensions), and the implications of failing to file on time. It also highlights further points to bear in mind when lodging the defence where counterclaims or additional claims are pursued. For drafting support, see Practice Notes: Drafting the defence—formalities and Drafting the defence—drafting tips. For service requirements, see Practice Note: Serving the defence. This Practice Note guides the interpretation and application of the relevant provisions of the Civil Procedure Rules. Depending on the court hearing the matter, additional provisions may apply; for details, see: Court specific guidance. Requirement to file a defence Claims under CPR 7 A defendant must file a defence if they intend to contest all or part of the...
There is no explicit rule that you must run a file audit or review process. Nevertheless, firms holding or pursuing Lexcel accreditation need a file review framework, and professional indemnity ( PI) insurers frequently ask about such systems as an indicator of sound risk management. This Practice Note outlines why a file review system is advisable and describes how to introduce and sustain an effective approach within your firm... Regulatory requirements SRA regime While a file review process is not specifically mandated, the SRA requires an effective method for supervising clients’ matters—see Practice Note: Supervision—regulatory requirements—law firms and Precedent: Supervision policy—law firms. You remain responsible for work undertaken through those you supervise or manage You must ensure client work is supervised effectively You must also make sure the people you manage are competent for their role, and that they maintain up-to-date...
1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Fiji? Nothing significant. Fiji’s competition framework and legislation are dated. In April 2020, the Fijian Government released a Competition and Consumer Policy Statement (the Statement). It proposes legislative changes, including to the pre-notification merger regime. Key proposals include: retaining a pre-merger notification system, with mandatory filing for mergers meeting thresholds to be set (for example, market share, transaction value, or domestic/global turnovers) subjecting unnotified mergers/acquisitions that may substantially lessen competition to remedies, including potential nullification Since April 2020 there appears to have been little movement, and there is no clear indication of when these reforms might be implemented. 2. Under law, is the control test the same as the EU concept of...
FIDIC Yellow Book 2017, reprinted 2022 with amendments FIDIC released the second editions of the Red, Yellow and Silver Books in December 2017. Three years on, in December 2022, it issued reprints. The 2022 reprint of the Yellow Book should be cited as ‘ The Conditions of Contract for Electrical & Mechanical Plant and for Building and for Engineering Works, Designed by the Contractor Second Edition 2017, reprinted 2022 with amendments’, and it also carries the original ISBN. The amendments comprise: the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published) the further errata released in June 2019, and additional errata together with new amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC characterises as ‘improvements & clarifications in response to industry feedback and to support the increased use of 2017...
Chapter 9 of the UK Listing Rules ( UKLRs) Chapter 9 of the Financial Conduct Authority ( FCA) UK Listing Rules ( UKLRs) sets out continuing obligations for any company that has a listing of equity shares in the equity shares (commercial companies) category, which the company must comply with to retain its admission to the Official List (terms in bold are defined in the FCA Handbook Glossary). For further detail on companies with a listing of equity shares in the equity shares (commercial companies) category, refer to Practice Note: The UK listing regime for more information. Under UKLR 6.6 R, a company with a listing of equity shares in the equity shares (commercial companies) category must include specified financial disclosures within its annual financial report. The UKLR 6.6 R obligations for both UK and overseas issuers with a listing of equity shares in the...
The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices from 2014 onwards. Search and filter options include: Rule breach (including breach of Principle 6) Keyword (including ‘ Treating Customers Fairly ( TCF)’) Sector Date Seriousness Aggravating and mitigating factors Financial penalty Other actions (such as referrals to the Upper Tribunal) Overview and key points This Practice Note explores the continuing significance of the Financial Conduct Authority’s ( FCA) Treating Customers Fairly ( TCF) initiative after the arrival of the FCA’s Consumer Duty. TCF’s core building blocks are found in the FCA’s Principles for Business ( PRIN), especially Principles 6 and 7. Once a central pillar of the FCA’s consumer protection objective, TCF was integral to securing a fair deal for consumers. This Practice Note...
The Financial Services Enforcement Database The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. The Database can be searched and filtered by: rule breach keyword sector date seriousness aggravating and mitigating factors financial penalty other actions, including referrals to the Upper Tribunal The Financial Conduct Authority ( FCA) has a range of powers (see sections 97, 131E, 131F, 165–169, 171–173, 175, 176 and 284 of the Financial Services and Markets Act 2000 ( FSMA 2000)) to gather information, appoint investigators, and require a skilled persons report ( FSMA 2000, s 166). In each situation, the FCA selects the combination of powers it deems most appropriate. For reasons of fairness, transparency and efficiency, it will usually use formal statutory powers to obtain...
Background to FCA inducements requirements This Practice Note sets out the Financial Conduct Authority’s rules on inducements—such as fees, commission and non-monetary benefits—covering both the general ban and the circumstances where exemptions apply. The UK regime has long imposed detailed requirements on benefits connected to dealings in retail investment products. In the past, the FCA’s inducement standards were chiefly located in COBS 2.3 and implemented obligations arising from: the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID) the Mi FID Implementing Directive ( Commission Directive 2006/73/ EC) the fourth Undertakings for Collective Investment in Transferable Securities Directive ( Directive 2009/65/ EU) ( UCITS IV) the UCITS IV Implementing Directive ( Commission Directive 2010/43/ EU) Mi FID has been replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II Directive) and the EU Markets in Financial...
Treating complainants fairly Rules on how firms must handle customer complaints sit in the Dispute Resolution: Complaints Sourcebook ( DISP) within the Financial Conduct Authority ( FCA) Handbook. DISP 1 sets out requirements and guidance for dealing with complaints swiftly and fairly, including matters that might be taken to the Financial Ombudsman Service ( FOS). Entitled ‘ Treating complainants fairly’, DISP 1 underscores how strongly the FCA prioritises fair treatment of anyone raising concerns about a financial service. The DISP regime is prescriptive, covering: consumer awareness ( DISP 1.2) complaints handling ( DISP 1.3) recording of complaints ( DISP 1.9) complaints reporting ( DISP 1.10) publication of complaints data ( DISP 1.10A) As a result, firms have limited latitude in their approach to complaints. The FCA aims to ensure consumers are not put at a disadvantage because they typically have less power and...
When authorised firms stop conducting regulated activities, their Part 4A permission will be revoked. The Financial Conduct Authority ( FCA) may likewise exercise its own-initiative powers to remove a permission where particular circumstances arise. The same approach applies to requirements imposed on authorised firms: such requirements can be cancelled either on the firm’s request, or where the FCA deploys its own-initiative powers. This may occur, as necessary, in particular cases. Cancellation of permission Cancellation at the request of an authorised person The FCA can cancel the Part 4A permission of an authorised person at that person’s request. Firms should give early notice, at the earliest opportunity, to their relevant regulator if they intend to cease performing one or more regulated activities on a permanent basis. This is to comply with Principle 11 of the FCA’s Principles for Businesses ( PRIN 11) ( SUP 15.3.8G (1)(d)), which...
Introduction to the FCA authorisation process Putting together an application for Financial Conduct Authority ( FCA) authorisation can be demanding. You must assemble and submit numerous documents for the FCA to review. Although application types differ in method, layout and content, the cornerstone for most is the regulatory business plan, commonly called the ‘ RBP’. This Practice Note sets out guidance on building the RBP. The advice applies broadly across the principal financial services arenas: investment, insurance intermediation, mortgages, credit and payment services. By contrast, applications made to the Prudential Regulation Authority ( PRA)—for banks and risk‑taking insurers, for instance—follow a specialist route and fall outside the scope of this Practice Note. For further detail on the FCA’s authorisation journey, see: Obtaining authorisation and fees—overview. See also: FCA— Authorisation, FCA— How to apply for authorisation or registration, and FCA— Sample business...
Practice Note This Practice Note reviews the conduct of contempt proceedings under Part 37 of the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955—often called committal proceedings—covering the standard of proof to be applied to a contempt application, together with practical information about hearings and the treatment of evidence. It also outlines the range of powers the court may exercise in connection with contempt arising within family proceedings. In addition, it addresses what is to occur if the defendant fails to attend the hearing, the defendant’s right to remain silent, and the defendant’s eligibility for legal aid, legal representation and/or an interpreter. For guidance on the preliminary steps for an application for contempt under FPR 2010, SI 2010/2955—including the formalities that must be satisfied before issue, such as (where relevant) the requirement for a penal notice on the order said to have been...
When drafting a Will, it is vital to anticipate as many practical scenarios as possible, ensuring the legacies set out can operate exactly as the testator intended them to. Even a carefully prepared Will can encounter situations where, in practice, a testamentary gift does not ultimately take effect. Reasons a gift may fail There are numerous different routes and circumstances by which a legacy can fail. Some of the more frequent grounds for failure are noted below. Failure to survive the testator: the doctrine of lapse If a named beneficiary dies before the testator, the legacy to that person lapses and therefore is ineffective. In addition, a Will may stipulate that a beneficiary must outlive the testator by a stated minimum period of time, and if they do not meet that timeframe, the gift then fails. On intestacy, the statutory rule requires a surviving spouse or civil...
This ‘ How to’ guide offers a primer on drafting and negotiating a facility agreement for those starting out in lending transactions. It includes a table of useful precedents, explains how a facility agreement is organised, and flags key issues to consider when drafting and negotiating, alongside links to further materials. See also Practice Note: Introductory guide to lending, which sets out the facility agreement’s role within a loan transaction. For a deeper look at negotiating a facility agreement—covering the parties’ aims, analysis of the agreement’s structure and frequently negotiated clauses, plus common pitfalls—see Practice Note: Negotiation guide—facility agreement. Finding a precedent facility agreement The lender’s lawyers will typically, though not invariably, produce the first draft of the facility agreement. What kind of precedent is required? When choosing a suitable precedent facility agreement, it is vital to understand the nature of the loan, as that will...
This Practice Note This Practice Note examines when parties may consent to prolong or modify a deadline prescribed by the CPR, practice directions or a court order, and summarises the court’s stance on granting extensions of time. It does not cover extensions connected to service of the claim form, service of the particulars of claim, or the service of evidence in claims brought under CPR 8. For guidance on extending time for service of the claim form, see: Extending time for service of the claim form—principles; Extending time for service of the claim form—making an application; and Extending time for service of the claim form—illustrative decisions. For extending time for service of the particulars of claim, see Practice Note: Service of the particulars of claim. For extending time for service of evidence in a Part 8 ( CPR 8) claim, see...
Adducing expert evidence in private law children proceedings This Practice Note addresses the presentation of expert evidence in private law children cases, setting out the statutory framework (in particular Part 25 of the Family Procedure Rules 2010 ( FPR 2010) and the associated Practice Directions) and also clarifying who qualifies as an expert. It further explores when such evidence is required, the process for seeking permission and the considerations the court must weigh when deciding that application, together with the commissioning of experts, including use of a single joint expert ( SJE), and the arrangements for paying the expert’s fees. It also outlines experts’ obligations and the expectation that they attend court. In addition, it explains the need for any expert in children proceedings to satisfy the relevant national standards for experts. For hands-on guidance on evidence in private law children cases, see...
This Practice Note deals with the position regarding the evidence of an expert witness called in criminal proceedings under the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 19 and the Criminal Practice Directions A party may call an expert only where the subject-matter lies outside the ordinary knowledge of the judge or jury. Expert opinion should not be used where the court’s own knowledge suffices. The judge’s gatekeeping role is central in this context. A person may present themselves as an expert only if appropriately qualified—the issue is for the judge, who will evaluate: whether the opinion belongs to a body of knowledge and experience with sufficient organisation to be regarded as reliable; and whether the witness has, through study or experience, acquired enough understanding of the field so that their evidence would assist the court on a...
This Practice Note pinpoints and distils key cases on the responsibilities of legal advisers when collaborating with expert witnesses tasked with preparing and giving evidence in a civil court, and on the duties of the experts themselves. Drawing from those decisions, it highlights what practitioners should avoid or adopt when selecting, instructing and engaging with expert witnesses. Admissibility of opinion evidence The admissibility of opinion evidence from witnesses with expertise in the relevant field is addressed in the Supreme Court decision of Kennedy v Cordia ( Services). The court set out ‘four considerations which govern the admissibility of skilled evidence’ (the term for expert evidence in civil procedure in Scotland where the case originated) as whether: the proposed skilled evidence will aid the court in its task the witness has the requisite knowledge and experience the witness is objective in the presentation and assessment of the...
Preparation of exhibits to witness statements and affidavits This Practice Note concentrates on assembling exhibits for witness statements and affidavits. It defines what an exhibit is and sets out practical matters to bear in mind during preparation, indicating where the requirements differ between witness statements and affidavits. It provides guidance on the form an exhibit should take, how to organise exhibit bundles, and how to address voluminous, defective and non‑documentary exhibits. Depending on the court for your claim, additional provisions may apply—see Court specific guidance. This Practice Note should be read with Practice Notes: Affidavits and witness statements supporting interim applications, Witness statements—substantive content, and Drafting witness statements—formalities and dealing with problematic witnesses. An exhibit is made up of documents or other items used to support the contents of a witness statement or an affidavit. Exhibits are referred to within, but remain separate from, the...
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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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