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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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A deadlock arises when parties to an agreement face an irreconcilable dispute and cannot reach consensus. The expression is commonly associated with corporate joint ventures ( JVs), especially 50:50 JVs where neither side holds a controlling interest and, as a result, unanimous consent is required for all decisions. Deadlock may equally occur in non-50:50 JVs, for example where specific matters demand unanimity or where more than two JV participants vote and no majority is achieved. Certain conflicts can trigger a deadlock that prevents the joint venture company ( JVC) from operating effectively. It is sensible to address at the outset how a deadlock might be settled. Consequently, joint venture agreements ( JVAs) usually include deadlock resolution mechanisms (often in stepped stages) that must be followed to resolve the impasse. Defining deadlock procedures within the JVA will save time and expense if a...
Grounds to challenge the company voluntary arrangement An applicant may contest the approval of a company voluntary arrangement ( CVA) on one or more of the following bases: the proposal, in whole or in part, does not amount to a composition or arrangement within section 1(1) of the Insolvency Act 1986 ( IA 1986) the arrangement causes unfair prejudice to the interests of a creditor, member or contributory of the company there has been a material irregularity at, or connected with, a company meeting or the relevant qualifying decision procedure (see SIP 6) Although a CVA (or individual voluntary arrangement ( IVA)) must be challenged through the statutory framework in IA 1986, the core principles of good faith and equal treatment—foundational to the pre‑1986 bankruptcy regime—help shape the application of those provisions (see Re New Look; while New Look was due to be taken to the...
A key characteristic of a floating charge is that, until it crystallises, the chargor may manage the secured assets in the ordinary course of business without needing further permission from the chargee. By comparison, a fixed charge entails the chargee exercising a substantial level of control over the asset subject to the security... This Practice Note examines the consequences of crystallisation of a floating charge the categories of event that trigger or may trigger crystallisation, including automatic crystallisation partial crystallisation For more on the nature of fixed and floating charges, see Practice Note: Fixed and floating charges. For guidance on the pros and cons of floating charges, see Practice Note: Floating charges—advantages and disadvantages. For details on creating a floating charge, see Practice Note: Floating charges. See also Security—frequently asked questions... The effect of...
In Scotland, the Crown Office and Procurator Fiscal Service ( COPFS) is under a duty to reveal all material in its possession to the defence. This obligation to disclose applies to prosecutions under both summary and solemn procedure. For an overview of criminal investigation and prosecution policy in Scotland, see Practice Note: The investigation and prosecution of criminal offences in Scotland. For details on summary procedure in Scottish criminal proceedings, see Practice Note: Summary procedure in Scottish criminal proceedings and Scottish summary criminal procedure—flowchart. For information on solemn procedure in Scottish criminal proceedings, see Practice Note: Solemn procedure in Scottish criminal proceedings and Scottish solemn criminal procedure—flowchart. Background The Crown’s requirement to provide the defence with all material it holds arises from the accused’s right to a fair trial under Article 6 of the European Convention on Human Rights. The scope of the Crown’s...
This Practice Note looks at service of documents outside England and Wales and whether the court’s permission to required As a general position, court documents must be served within the jurisdiction, that is, in England and Wales ( CPR 6.6(1) and CPR 2.3), and this remains the starting point. Where a defendant is situated outside England and Wales, there is no automatic right to serve the claim form out of the jurisdiction, and the claimant will therefore need to consider the following options: whether service can be effected in England and Wales, for example by serving the defendant’s solicitor, or by utilising a route available under the Companies Act 2016 whether service can be carried out outside the jurisdiction without first obtaining the court’s permission—the courts of England and Wales must have jurisdiction to determine the dispute between the parties as contemplated under either CPR 6.32 or CPR 6.33; note...
Basic principles Owing to the versatility of schemes of arrangement (schemes) (see Practice Note: Benefits of schemes compared to other processes), together with their ability to bind every creditor within the affected classes of a scheme compromise, and the shortcomings perceived in certain domestic restructuring tools in some overseas jurisdictions, schemes are frequently deployed to restructure foreign companies or English companies with substantial assets or creditor bases outside the UK (see Practice Note: Establishing jurisdiction and sufficient connection). Yet, absent recognition, a scheme may have little practical effect, or the scheme company may remain vulnerable to being subject to an overseas insolvency procedure. Consequently, advisers should address recognition questions from the outset of the scheme process. For proceedings issued on or after 31 December 2020, the operative elements of the EU Recast Regulation on Insolvency dealing with automatic recognition, and the EU Brussels I...
Application Section 426 of the Insolvency Act 1986 ( IA 1986) is, in practice, most often invoked by overseas courts submitting inbound requests to the English courts, serving as a safety net where the following do not bite: The UNCITRAL Model Law on Cross- Border Insolvency as given effect by the Cross- Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030 (see Practice Note: When does UNCITRAL (implemented by the Cross- Border Insolvency Regulations) apply and what are the effects?). For instance, where the office-holder is not a foreign representative (eg a receiver). Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency]......
This Practice Note sets out a concise overview of mechanisms for enforcing copyright across borders. An international system of copyright enforcement Copyright is a territorial intellectual property right, safeguarding a work only within the bounds of a single country. As early as the nineteenth century, this limitation was acknowledged as a challenge for rights holders. Copying abroad became simpler, yet owners had no recourse, since their rights were recognised solely in their home jurisdiction and carried no force beyond it. As a result, demands grew for a unified international approach to copyright. Such a framework now operates, built on four conventions. Central to it is the rule of national treatment: a copyright holder is treated as though they are a national of the country where the infringement occurs and may invoke that country’s copyright laws. Those wishing to rely on this...
Copyright theft Unauthorised use of copyright is a criminal matter under the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Trade Marks Act 1994 ( TMA 1994) and the Video Recordings Act 1984 ( VRA 1984). It may alternatively be brought under the Fraud Act 2006 ( Fr A 2006), or pursued as a conspiracy contrary to the Criminal Law Act 1977 ( CLA 1977), or at common law as conspiracy to defraud. See Practice Notes: Conspiracy and Conspiracy to defraud. Cases can be taken by the Crown Prosecution Service or by trading standards. Enquiries may call on HM Revenue and Customs, the UK Border Agency and the National Crime Agency. Most CDPA 1988 offences—namely those in CDPA 1988, s 107(1)(a)–(b), (d)(iv) and (e)—are either-way, meaning trial may occur in the magistrates’ court or the Crown Court. They are treated as the graver...
This Practice Note aims to provide some guidance on the core principles of legal professional privilege ( LPP) and how they apply in criminal investigations and prosecutions. For further information and guidance on maintaining LPP for a client during the course of a criminal investigation, see Practice Note: Maintaining privilege during criminal investigations. What is privilege? Privilege can be grouped into four primary categories in law: legal professional privilege common/joint interest privilege (though, strictly, this sits within legal professional privilege) without prejudice privilege privilege against self-incrimination This Practice Note deals solely with LPP within a criminal context. For more general information concerning legal professional privilege, see Practice Note: Legal professional privilege in civil proceedings. For information on other types of privilege, refer to Practice Notes: Privilege—joint and common interest privilege,...
Criminal offences are generally divided into two categories: conduct crimes result crimes A conduct crime arises where proving the prohibited conduct alone is sufficient. For instance, an accused commits dangerous driving by operating a motor vehicle dangerously on a road or other public place; there is no need to demonstrate harmful outcomes such as injury to another person. A result crime, by contrast, requires that specified consequences occur; for example, murder necessitates proof that a person has been killed. For any result crime the prosecution must show both a factual connection between the accused’s conduct and the alleged outcome (factual causation) and a legally sufficient cause linking that conduct to the forbidden consequences (legal causation). Factual causation is often described as the 'but for' test: the result must not have happened but for the accused’s actions. If this factual link cannot be shown, the...
In England and Wales, bankruptcy is the formal mechanism by which a court or the bankruptcy adjudicator makes a bankruptcy order against an individual. Although a company can proceed to voluntary liquidation without the court’s involvement, only the court or the adjudicator can place an individual into bankruptcy. The route available to a debtor’s creditors follows a set procedure, which may include a pre-action step (the statutory demand), and is taken under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. The Practice Direction on Insolvency Proceedings ( PDIP) applies as well. Types of bankruptcy petition and who can present one creditors' petition—any creditor, whether acting alone or with other creditors, who is owed a liquidated, undisputed sum meeting or exceeding the bankruptcy limit (for petitions presented on or after 1 October 2015,...
This Practice Note summarises the rules that govern credit limits. A borrower is allocated a credit limit by the creditor, being the highest amount of credit available to be drawn under a running credit agreement, for example a credit card facility. It applies to running credit arrangements, including credit cards, for the customer concerned only. Definition of credit limit A credit limit operates in running-account credit agreements and represents the maximum debit balance that may, under a credit agreement, remain outstanding on the account, ignoring any contractual term permitting that maximum to be temporarily exceeded. ‘ Running-account credit’ is defined in the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544, art 60L ( RAO) and includes credit cards. in advertising When a financial promotion states an interest rate or an amount relating to the cost of credit, whether shown as a...
What does this Practice Note cover? This Practice Note outlines the predominant and widely used form of credit derivative, the credit default swap ( CDS). It also describes the reasons participants use CDS, the manner in which a CDS is documented, and the way CDS are cleared. In addition, it identifies a number of particular CDS structures, including CDS linked to asset-backed securities ( CDS on ABS), basket CDS (covering both portfolio CDS and Nth to default CDS), loan-only CDS ( LCDS) and collateralised debt obligations ( CDOs). What is a CDS transaction? The most prevalent credit derivative is a credit default swap ( CDS). It is an agreement between two parties that hinges on the credit quality of a third party, called the reference entity. That reference entity might be a corporate, a sovereign, a municipality or a comparable...
Cycle track A ‘cycle track’ is a route that forms part of a highway, giving the public a right of way on pedal cycles (excluding pedal cycles that are motor vehicles), with or without a corresponding right on foot. Cyclists may use existing: all-purpose highways bridleways restricted byways byways open to all traffic ( BOATS) However, to offer cyclists an area free from motor vehicles yet suitably surfaced, it is necessary to create a cycle track through the appropriate legal procedure. Cycle tracks can be established by converting an existing right of way (by downgrading or upgrading highway rights), or by creating a new cycle right. The Department for Transport ( Df T) has published guidance on the legal procedures for creating cycle tracks......
This Practice Note offers practical guidance on the rules of origin applicable to trade in goods under the Comprehensive and Progressive Agreement for Trans- Pacific Partnership ( CPTPP) between parties. This guidance excludes, in particular, the specific regional value content requirements applicable to certain automotive goods. Introduction Rules of Origin are the criteria used to establish a product's origin. Under the CPTPP, these rules are significant for trade between the parties to the CPTPP, because only those goods regarded as originating within CPTPP territories can obtain preferential tariff treatment, most of which is, in practice, zero-rated. For further direction on trade in goods under the CPTPP, and on the corresponding tariff commitments that apply, please see Practice Note: UK's trade in goods under the Comprehensive and Progressive Agreement for Trans- Pacific Partnership. Goods that are non-originating are subject to the tariff treatment generally provided for under the World Trade...
This Practice Note draws upon the direction in CPR PD 6B and the related table identifying filing deadlines for documents in proceedings where particulars of claim have been served outside England and Wales. It addresses filing of the acknowledgement of service, any admission, the defence, and responses to applications. Note that, because the relevant periods are calculated by reference to the particulars of claim, they do not apply to Part 8 claims, where particulars are generally not required. This area is currently subject to judicial consultation; see Practice Note: Tracker—changes to Part 6 and practice directions 6A and 6B. Rules for determining the period for responding to the claim form The timeframe for responding to the claim form depends on whether service occurs with or without the court’s permission. Without court permission In specified circumstances, CPR 6.35 permits service of the claim form without the court’s...
This Practice Note This Practice Note examines where and how to lodge and issue the claim form for proceedings commenced under CPR 7, and identifies the documents that must be filed with it, including the response pack. It also clarifies when proceedings are regarded as ‘started’, as that date carries consequences for the timetable for service of the claim form and for limitation... For guidance on claims issued under CPR 8 (alternative procedure for claims where there is no substantial dispute of fact), see Practice Note: CPR Part 8 claims (alternative procedure for claims). This Practice Note should be read alongside Practice Note: Claim form—the contents. For additional help on issuing and filing a claim in the County Court, see Practice Note: Starting civil claims in the County Court. For further guidance on the appropriate court in which to issue, see...
This Practice Note sets out how to bring a possession claim when a lease or licence has ended, for both residential and commercial premises. It covers Part 55 of the Civil Procedure Rules ( CPR 55), preparing the claim, and practical points for the hearing. For guidance in other situations requiring possession proceedings, see Practice Notes: Terminating assured and assured shorthold tenancies—pre- Renters' Rights Act position Forfeiture of a lease Trespassers—possession proceedings LTA 1954 business lease renewal—proceedings Mortgage possession claims Entitlement to possession A tenant’s right to occupy ends after the contractual term expires in several cases, including: the lease is commercial and is contracted out of the security of tenure provisions of LTA 1954, or security of tenure is otherwise lost (see Practice Note: LTA 1954 business lease...
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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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