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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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EPC (engineering, procurement and construction) arrangements are often conceived as turnkey deals—the contractor delivers the facility and the employer simply turns the key to a fully completed plant. The employer’s objective in such agreements is to shift virtually all project risks to its EPC contractor, with the price reflecting that allocation. In practice, the works are delivered complete, most risks are allocated to the contractor, and the price is set to reflect this. However, the contractor may still advance claims under turnkey terms in defined situations. This Practice Note examines what claims EPC contractors might bring, the steps for initiating a claim or resolving a dispute about one, and the key issues to address when negotiating the contract in light of these potential claims. Possible claims EPC contracts are typically drafted so that the bulk of risk sits with the contractor. There are solid...
Background to environmental outcomes reports Part 6 of the Levelling-up and Regeneration Act 2023 ( LURA 2023) establishes a system of environmental outcomes reports ( EORs), set to replace the existing processes of environmental impact assessment ( EIA) and strategic environmental assessment ( SEA) once the necessary regulations are in place. The government proposes a more outcomes-focused approach than EIA and SEA, under which environmental outcomes will be set and particular plans or projects must be assessed against them before any adoption or approval. This is intended to enable decision-makers and local communities to see clearly whether a plan or project meets those outcomes, and to identify the steps being taken to avoid, mitigate or compensate harm to the environment. Although Part 6 of LURA 2023 is in force from 26 December 2023, the substantive duties to carry out EORs for specified plans or...
What is a legal register? A legal register is the documented outcome of a process through which an organisation seeks to evidence compliance with applicable legislation. The calibre of legal registers varies, based on the compliance approach adopted and the: rationale scope (ie types of issues, types of requirements, etc) input from those with the necessary technical expertise documentation evidencing compliance They can range from a simple catalogue of legislation to more comprehensive spreadsheets containing details of: the scope of the legal obligations imposed how those obligations apply to the organisation the relevant ‘aspects’ affected, eg cardboard, flooding, treatment plant, etc the appropriate regulator who within the organisation holds responsibility for demonstrating compliance any specific controls that have been implemented compliance, eg any relevant authorisations and records the revision...
The EDR is given effect in England and Wales by the Environmental Damage ( Prevention and Remediation) ( England) Regulations 2015, SI 2015/810, together with the Environmental Damage ( Prevention and Remediation) ( Wales) Regulations 2009, SI 2009/995. Under the EDR, operators whose activities are responsible for serious environmental incidents must take steps to prevent harm and to remedy any resulting damage. See Practice Notes: Environmental damage regulations—overview Environmental damage—when does the environmental damage regime apply? Environmental damage—potential liabilities Environmental damage—operators’ obligations, enforcement, offences and appeals The environmental damage regulations implement the requirements of the Environmental Liability Directive 2004/35/ EC. See Practice Note: EU Environmental Liability Directive—snapshot. Environmental damage includes damage to: land marine waters protected species or natural habitats sites of special scientific interest ( SSSI) surface water or...
Most lending deals involve the use of formal legal opinions issued by counsel. Commonly, they are required as a necessary condition precedent to funding, or before the finance documents are executed and put into effect. The recipient, most often the lender, receives confirmation of specified legal issues connected with the loan transaction at hand. While widely encountered across numerous lending structures, they can be challenging in both legal and practical terms, and should therefore be negotiated and settled at the earliest possible stage of the transaction process, during initial stages of the process itself......
What are legal opinions? In debt capital markets transactions, legal opinions are formal letters of legal advice serving two principal roles: to set out a checklist of legal points that are critical to the lawfulness of offering and distributing the securities, and to the enforceability of the transaction documents and the securities; and to confirm the law firm issuing the opinion has assumed responsibility for the legal matters it states. Such opinions in debt capital markets are highly standardised, with well-established market conventions addressing: When legal opinions are given; Who provides them; What issues they cover; Who may rely on them; and The assumptions and qualifications they may contain. For broader guidance on legal opinions, see Practice Note: Legal opinions—uses, scope and structure. When are legal opinions given? Legal opinions form part of the conditions precedent delivered at closing for: standalone issues; initial issues under programmes; and syndicated issues under...
STOP PRESS: The UK's prospectus framework presently derives from the EU Prospectus Regulation, which was carried across into domestic law after Brexit as the UK Prospectus Regulation. The UK has been reassessing this regime as part of a broader programme of initiatives to modernise the UK's capital markets and strengthen the UK's attractiveness as a listing venue in the UK. Consequently, the UK Prospectus Regulation will be superseded by the Public Offers and Admission to Trading Regulations 2024 (the POATRs), with all detailed requirements relating to admission to trading to be set out in full in Financial Conduct Authority ( FCA) admission rules. The FCA issued consultation paper FCA CP24/12, outlining detailed proposals; that consultation closed in October 2024. A further consultation paper ( FCA CP25/2), released on 31 January 2025, addresses, among other matters, retail bonds; a unified disclosure framework for debt...
At the outset of a deal, the lender’s solicitors undertake due diligence on the borrower(s), any guarantors and any providers of third party security (together, the obligors). Immediately before completion (ie funding), the lender will seek assurance that nothing has altered regarding the obligors’ financial or corporate position since the initial review. On the morning of completion, the lender’s lawyers commonly run targeted searches on the obligors for this purpose. Winding up search The Central Registry of Winding-up Petitions (the Central Registry) is a computerised record of winding-up petitions and administration applications, maintained 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 Central Registry search should disclose: any petition or order for the winding-up of a company made in England and Wales; and any...
This Practice Note examines the Engineer’s role under the FIDIC Red and Yellow Books 2017. For further detail on these forms, please see the Practice Notes: FIDIC contracts—introduction to the Red Book 2017 and FIDIC contracts—introduction to the Yellow Book 2017. The FIDIC Silver Book 2017 features an ‘ Employer’s Representative’ rather than an Engineer and is outside the scope of this Practice Note (see Practice Note: FIDIC contracts—introduction to the Silver Book 2017). For guidance on the Engineer’s function under the FIDIC Red and Yellow Books 1999 and the FIDIC Pink Book 2010, consult Practice Note: FIDIC contracts (pre-2017 editions)—the role of the Engineer. Who is the Engineer? Under Sub- Clause 1.1.35, the Engineer is the person named in the Contract Data and appointed by the Employer to act as Engineer for the purposes of the Contract, including any successor appointed pursuant to Sub- Clause 3.6 [...
Security over land Security can be taken over real property by means of a mortgage or a charge, with the form selected typically hinging on the importance of the land to the borrower’s business or its relevance to the arrangement and the circumstances of the particular transaction in question. If the land is a key asset, or the facility funds acquisition or development, funders tend to insist on a charge by way of legal mortgage. Where the property is of lesser importance, they may accept an equitable mortgage or charge. Lenders frequently take a debenture, combining fixed and floating security over all the borrower’s assets, capturing its rights, title and interest in the real property it owns. A charge by way of legal mortgage is usually included within the debenture, though it can also be set out as a standalone security document, or as a...
This Practice Note outlines the first matters to weigh up when seeking to enforce a financial order made in family proceedings, setting out the governing rules for each available enforcement route. It further offers direction on orders that can be sought where a party is in contempt, for example a Hadkinson order, and addresses when interest might accrue on a financial order. General principles You may need to enforce all or part of an order arising in financial proceedings; attention must be paid to any leave requirements and limitation periods, see Practice Note: Limitations on enforcement. If a court order partly comprises a recital recording an agreement that imposes an obligation on a party, and partly contains operative terms, the recital can be enforced if the court would have had power to make an order in equivalent terms ( H v H (...
This Practice Note addresses enforcement of settlement agreements reached before any claim is issued. In contrast to compromises made after a claim has begun, a pre-issue settlement leaves nothing to be stayed or brought to an end. As a result, a judgment or order is not typically required, and the enforcement questions are correspondingly different. If a claim has already been issued, see Practice Note: Enforcing settlement agreements concluded after proceedings have commenced. How did the parties conclude their pre-action settlement? The parties may have formed a settlement contract by any of the following: by an executed agreement in a contractual document by deed by a binding exchange of emails or letters by an offer and acceptance under CPR 36 (a pre-action Part 36 offer) Enforcement of an executed agreement in a contractual document Where, pre-action, the parties have settled their dispute by executing a contractual agreement but one party does not...
Background to the energy supply company special administration regime The government established a special administration regime ( SAR) for energy suppliers in the Energy Act 2011 ( En A 2011), adopting and adapting certain provisions from the Energy Act 2004 ( EA 2004). Brought in as part of a broader package in En A 2011, the SAR aims to strengthen energy security and ensure gas and electricity continue to be delivered as cost effectively as possible where a major supplier becomes insolvent and no purchaser can be secured. To govern the procedure, the government also introduced the Energy Supply Company Administration Rules 2013 ( ESCAR 2013), SI 2013/1046, which set the technical framework for energy supply company administrations ( ESCA). ESCAR 2013, SI 2013/1046 reflects the Insolvency ( England and Wales) Rules 1986, SI 1986/1925, diverging only to the extent needed to reflect ESCA’s...
Encouraging criminality As of 1 October 2008, when the Serious Crime Act 2007 ( SCA 2007) came into force, the common law offence of incitement was abolished. In its place, SCA 2007, ss 44–46 introduced the offences of encouraging or assisting, which are inchoate in nature, covering unlawful conduct that has not yet occurred. Under the SCA 2007 there are three routes to liability for encouraging criminality: intentionally encouraging or assisting an offence encouraging or assisting an offence while believing it will be carried out encouraging or assisting offences, believing that one or more will be carried out An offence is made out where both of the following apply: a person does something capable of encouraging or assisting the commission of an offence, and that encouragement or assistance is intended to bring about the commission of the...
This Practice Note considers the procedural framework applicable to equal pay (equality of terms) claims... Similarities and differences The procedure for equal pay claims, as with all other tribunal claims, is governed by the Employment Tribunal Procedure Rules 2024 ( ET Rules 2024), SI 2024/1155. They are commenced in the same manner as other claims (see Practice Note: Submission of a claim to the employment tribunal) and matters concerning like work and/or work rated as equivalent proceed under the ordinary procedural rules. The approach to obtaining information (formerly statutory questionnaires) in equal pay claims generally mirrors that for discrimination (prohibited conduct) claims (see Practice Note: Obtaining information for equality claims). Special procedures, set out below, apply where the claim advances that the claimant’s work is of equal value to a comparator (see Practice Note: Equal pay: equal work and comparators— Work of equal...
Dispute resolution appointments Following a successful pilot run first launched in the Midlands West region in 2020, dispute resolution appointments were officially introduced nationally in July 2023 as a form of alternative dispute resolution ( ADR) offered to parties during employment tribunal proceedings, with the aim of encouraging them to resolve their dispute by agreement. A dispute resolution appointment is a non-consensual, confidential and evaluative exercise for cases listed for six days or longer, generally the most complex discrimination and whistleblowing detriment claims. An employment judge provides the parties with an assessment of their respective prospects of success and the likely outcomes in terms of remedy. The intention is to help identify the real issues and what is at stake, and the potential consequences, thereby promoting settlement between the parties. If settlement is not reached, the process may still be valuable in...
STOP PRESS: The Data ( Use and Access) Act 2025 ( Commencement No 6 and Transitional and Saving Provisions) Regulations 2026, SI 2026/82 bring into force the remaining provisions of the Data ( Use and Access) Act 2025 ( DUAA 2025). From 5 February 2026, the provisions on subject access requests, legitimate interests, purpose limitation, automated decision-making, international transfers and enforcement take effect; the measures on penalty notices and complaints come into force on 19 June 2026. For further detail, see Practice Note: Data ( Use and Access) Act 2025—employment implications. This Practice Note will be updated shortly to reflect these changes. This Practice Note sets out the issues that arise when giving or seeking an employment reference (ie a reference concerning the employee’s work history) for a current, former or prospective employee. An employer may additionally be asked to supply a financial reference for an...
This Practice Note examines Employer termination under the 2017 FIDIC Red, Yellow and Silver Books. It does not cover any right to terminate at law. In addition, the Contract’s governing law may influence how certain clauses operate. For further detail on Employer termination in the pre‑2017 Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts (pre‑2017 editions)—termination by the Employer. Who can terminate? Both the Employer and the Contractor may bring the Contract to an end. Clause 15 prescribes the Employer’s process, while Clause 16 sets out the Contractor’s. The Employer may additionally terminate under Sub‑ Clause 11.4 [ Failure to Remedy Defects], and either Party may terminate under Sub‑ Clause 18.5 [ Optional Termination] and Sub‑ Clause 18.6 [ Release from Performance under the Law]. For termination by the Contractor, see Practice Note: FIDIC contracts...
This Practice Note outlines range of disclosure duties that apply to employers in relation to pensions information. Depending on the specific duty, that information may need to be provided to scheme members, the trustees and/or the Pensions Regulator. General requirements to disclose information to trustees Legislative requirement Under the Occupational Pension Schemes ( Scheme Administration) Regulations 1996, SI 1996/1715 (the Scheme Administration Regs), an employer participating in an occupational pension scheme is under a legal duty to share information with the scheme trustees (for example, about a particular issue or occurrence such as a proposed transaction) in the following situations: when asked by the trustees, where the details are reasonably required for them to carry out their duties or for their advisers to perform their functions. If the employer handles scheme administration, this covers information identifying who administers the scheme and the terms on which they do...
This Practice Note looks at circumstances in which an employer may pursue a contractual counterclaim against an employee in connection with a breach of contract claim made by that employee, under the Employment Tribunals Extension of Jurisdiction ( England and Wales) Order 1994 (the Order), SI 1994/1623. When an employer is permitted to make a contract claim (counterclaim) A respondent employer is entitled to bring a contract claim (that is, a contractual counterclaim) against a claimant only where that claimant has themselves included a contract claim in the ET1 claim form, and that ET1 has been properly served on the same respondent to whom the counterclaim would be addressed. If the ET1 does not include such a contract claim, then the respondent employer is not permitted to advance any contractual counterclaim in reply......
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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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