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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 core tenet of the City Code on Takeovers and Mergers (the Code) is that an offeror should declare a firm intention to make an offer only after thorough and responsible deliberation, and only where it has strong grounds to believe it can, and will continue to, implement the offer, including ensuring it can fulfil in full any cash consideration (the ‘certain funds’ or ‘certainty of funds’ concept). Under Rules 2.7(d) and 24.8, if an offer is made in cash or contains a cash element, both the announcement and the offer document must include confirmation from an appropriate third party—usually the offeror’s financial adviser—that resources are available to the offeror sufficient to satisfy full acceptance of the offer (a ‘cash confirmation’). This Practice Note reviews the certain funds principle and the related cash confirmation obligations in the Code, and considers a range of issues for the...
This Practice Note examines the management of civil claims within the CPR, addressing the overriding objective in CPR 1—ensuring the court deals with matters justly and at proportionate cost—and the court’s particular case management powers under CPR 3.1. For further detail on managing civil claims, including other powers available to the court, see: Court's case management powers—overview. This Practice Note offers guidance on interpreting and applying the relevant provisions of the CPR. Depending on the court in which your case is progressing, you should also be alert to additional provisions—see: Court specific guidance. Case management and the overriding objective ( CPR 1) The CPR comprise a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost, in line with the criteria in CPR 1.1(2) ( CPR 1.1(1))......
This Practice Note summarises the statutory provisions that prescribe the requirement to be authorised to provide financial services in the UK. The regulators may take action against persons and businesses that operate without the proper authorisations. It introduces and explains the general prohibition in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000), highlights the various exemptions, and notes the related criminal offences under FSMA 2000, ss 23–25. The general prohibition under FSMA 2000 Consistent with section 19 of FSMA 2000, a person must not carry on a regulated activity in the UK, nor hold themselves out as doing so, unless they are either: authorised (by the Prudential Regulation Authority ( PRA) or Financial Conduct Authority ( FCA)), or exempt The inclusion of the phrase ‘or purport to do so’ means the general prohibition is breached even where no...
NOTE : On 2 December 2024, the Lord Chancellor publicly confirmed a positive discount rate of +0.5%. This +0.5% rate takes effect from 11 January 2025. Under Schedule A1 to the Damages Act 1996, later reviews must occur within five years of the end of the previous review, meaning the next review has to begin on or before 2 December 2029. Establishing the claimant’s care requirements The Pre- Action Protocol for Personal Injury Claims stipulates that the Rehabilitation Code should be considered in every personal injury claim. Therefore, in accordance with the Rehabilitation Code, an insurer-funded immediate needs assessment responding to the claim may have been commissioned. In line with recommendations from an independent nurse or another rehabilitation specialist, a care plan—or at least certain case management and care provisions—may already be in place pursuant to those...
Where assets are transferred, rather than shares, and this conveys a trade or other qualifying activity, the plant and machinery capital allowances regime may produce balancing charges — effectively negative allowances, often called a ‘claw-back’. Such a balancing charge lifts taxable profits and creates an extra tax burden for the business concerned. Statute includes routes to prevent that result in particular commercial circumstances, provided specified conditions are fully satisfied and the relevant criteria are met under the rules......
1. Have there been any recent developments regarding the Cape Verdean merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Cape Verde? Competition in Cape Verde falls under the Competition Act, Decree- Law No. 53/2003 of 24 November 2003 ( Competition Act). Under that statute, oversight and enforcement of competition rules sit with the Ministry for Industry, Trade and Energy ( MITE) and the National Directorate for Industry, Trade and Energy ( Nd TE). The Nd TE undertakes studies and inquiries and assembles the dossier for a ministerial ruling. Together, these bodies monitor compliance and apply the rules set out in that act within Cape Verde. A key recent change is the interim transfer, in the short-to-medium term, of competence for competition matters to the Ministry of Finance. The legal...
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 Cambodia? Cambodia introduced a comprehensive Law on Competition ( No. NS/ RKM/1021/013) on 5 October 2021 (the Law), which outlaws anti-competitive mergers under Article 11. The merger control framework is elaborated in the Sub- Decree on the Requirements and Procedures for Business Combinations, issued on 6 March 2023 ( No. 60 ANKR. BK) ( SD 60) and fully operational from 6 September 2023. Additional particulars have been delivered through regulatory instruments and decisions. Certain sector-specific clearances are also required in regulated industries (including banking and finance), and listed companies must obtain pre-approval from the Securities and Exchange Regulator of Cambodia. Collectively, these measures constitute Cambodia’s merger control regime... 2. Under the law, is the control test the same as...
NOTE : On 2 December 2024, the Lord Chancellor confirmed a formal move to a positive 0.5% discount rate, which comes into effect from 11 January 2025. Schedule A1 to the Damages Act 1996 ( DA 1996) stipulates that later reviews must occur within five years of the conclusion of the previous review, meaning the next review must start on or before 2 December 2029. This Practice Note sets out the standard method for translating ongoing losses into a single lump sum by applying a multiplier to the annual loss assessed at the point of settlement or a court award. This is the multiplier/multiplicand method and it is widely used in the great majority of claims for future losses. The Practice Note also looks in more depth at how the multiplicand is derived and explains how the Ogden Tables are used to identify the...
This Practice Note considers the following matters as they arise under the Disclosure Scheme in operation in the Business & Property Courts ( B& PCs) set out in CPR PD 57AD: adjusting an order for Extended Disclosure requesting disclosure of particular documents disclosure of documents referred to in statements of case and evidence These matters are considered below and overlap significantly in practice, not least because CPR PD 57AD, para 18 (variation of Extended Disclosure) expressly allows the court, on such an application, to order disclosure of specific documents or classes of documents. Applications under para 18 are frequently paired, in the alternative, with an application under para 17 for failure adequately to comply with Extended Disclosure; see Practice Note: Disclosure Scheme—how to comply with disclosure orders and obligations. Note that seeking particular documents within the Disclosure Scheme is distinct from pursuing...
This Practice Note outlines the role of the B& PCs, which determine specialist business matters and other international dispute resolution and business cases in England and Wales. Procedural guidance applicable in the B& PCs is contained in CPR 57A and CPR PD 57AA. It explains which courts sit within the B& PCs, the steps for starting proceedings in a B& PC—including electronic issue—and how to frame the claim title. It also addresses moving cases to or from a B& PC. This Practice Note should be read alongside Practice Note: Dispute Resolution—judicial practice notes and guidance, which links to further guidance issued by the judiciary from time to time and which is relevant to the B& PCs... What are the ? The B& PCs hear specialist business and other international dispute resolution and business cases in England and Wales, whether domestic or...
ARCHIVED : This Practice Note is archived and is not being updated. Public Private Partnership ( PPP) structures are widely used by governments to draw on private investment, expertise and risk in procuring infrastructure, with the prospect of delivering a project more efficiently and at lower cost. Among the most prevalent PPP approaches for procuring infrastructure projects is Build Operate Transfer ( BOT). The particulars of a BOT arrangement vary according to the type and features of the project......
Article 8(1) of Regulation ( EU) 1215/2012, Brussels I (recast) This Practice Note examines Article 8(1) of Regulation ( EU) 1215/2012, Brussels I (recast) and the court’s jurisdiction when proceedings involve multiple defendants. Courts in an EU Member State may assume special jurisdiction over a dispute even where a co-defendant is not domiciled in that state, but only if specific conditions are fulfilled. This Practice Note reviews those conditions and the way the Court of Justice has applied them in practice. In particular, it addresses the meaning of ‘irreconcilable judgments’ and ‘anchor defendants’. This Practice Note does not consider the application of Article 8 to competition law infringement cases. Article 8 of Regulation ( EU) 1215/2012, Brussels I (recast) also provides three additional grounds on which a court could claim special jurisdiction. For guidance, see Practice Note: Brussels I...
The nature and purpose of break fees Break fees typically exist to reimburse a party’s legal and professional outlay incurred through due diligence and negotiations when a deal ends. They can also act as a deterrent to behaviour that might unreasonably derail the process, encouraging both sides to keep talking, and discouraging steps that could prevent the transaction from moving forward at all or otherwise cause it to stall. The parties usually enter into a break fee agreement early in the sale process, commonly before the buyer begins its due diligence. Such provisions (also referred to as inducement, termination or broken deal fees) may appear in a stand-alone agreement or be set out within heads of terms. Types of break fees The most prevalent form of break fee arises where the target undertakes to pay the bidder a sum if a specified event happens and the...
NOTE – to check whether notification thresholds in Brazil and worldwide are met, refer to Where to Notify. 1. Have there been any recent developments regarding the Brazilian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Brazil? Release of relevant institutional documents Since the Brazilian Competition Law took effect in 2012, the Administrative Council for Economic Defense ( CADE) has prioritised deeper institutionalisation by publishing guidance, including on gun‑jumping, merger remedies and the appraisal of horizontal mergers. In 2024, CADE introduced the following: Guidelines for assessing non‑horizontal mergers (the V+ Guidelines), designed to enhance the authority’s toolkit for merger analysis in Brazil alongside the horizontal merger guidelines; Best‑practice directions on appointing trustees or similar mechanisms in antitrust matters (the Trustee Guidelines), intended to bolster adherence to decisions, commitments and agreements in merger control and in...
What does this Practice Note cover? This Practice Note describes the duties and functions of a bond trustee appointed under an English law trust deed for a bond issue. A trustee is not a feature of every bond offering. Some issues proceed without one. The issuer chooses whether to use a trustee or a fiscal agent—see Practice Note: Parties in an issue of debt securities— Fiscal agent or trustee. Bringing in a trustee has significant implications for the issuer and for bondholders (see: Reasons for appointing a trustee below). In this Practice Note, ‘bonds’ is used as a catch-all term for debt securities of all kinds (such as bonds, notes and commercial paper). Be aware, however, that alternative considerations can arise in structured finance deals. For an explanation of the difference between ‘bonds’ and ‘notes’ and the definition of ‘commercial paper’, see Practice Note: Types of debt...
The offence A person commits blackmail if, aiming to obtain a gain for themselves or another, or intending to cause another a loss, they make an unwarranted demand with menaces. A demand with menaces is treated as unwarranted unless the maker holds the belief that: they have reasonable grounds for making the demand; and the use of menaces is a proper way to reinforce the demand. Blackmail is an indictable-only offence and can be tried only in the Crown Court. Jurisdiction At least one constituent element of the offence must occur in England and Wales. A person is guilty of blackmail whether or not they were in England and Wales at any material time, and whether or not they are a British citizen......
Advantages of BIM BIM is expected to cut capital expenditure as well as the whole‑life cost of buildings. Co‑ordination and buildability issues can be resolved during design, preventing delays and extra cost if discovered during construction. The virtual model allows swift, low‑cost exploration of the effects of proposed design changes. It generates 3D imagery, making the finished asset simpler to visualise. The model can be simulated and analysed to reveal insights into anticipated running costs. Design information—such as specifications and other technical data—is embedded within the model, keeping it easy to access. ......
This Practice Note offers guidance on preparing the bill of costs that the receiving party must complete before the start of detailed assessment proceedings, prior to the commencement of detailed assessment. Template bills of costs are provided in CPR PD 47, paragraph 5.1, and vary according to the type of recovery sought (base costs, success fees, LSC costs). The Note also identifies and links through to the relevant costs precedents and to Precedent F, which contains the certificates that must appear within the bill of costs itself. It further includes guidance on how to complete a bill of costs and provides information on using a costs draftsman. Any detailed assessment proceedings should be brought under the provisions within CPR 47 and CPR PD 47, and pursued accordingly. Importance of providing a clear and accurate bill of costs The receiving party should produce a clear,...
Note—to verify if notification thresholds in Belgium and worldwide are triggered, please consult: Where to Notify. 1. Have there been recent developments regarding the Belgian merger control regime? What are the main points of interest and are any further updates/developments expected? Are there any other ‘hot’ merger control issues in Belgium? Belgium first adopted merger control through the Act on the Protection of Economic Competition of 5 August 1991 (the 1991 Act). At inception, the Belgian thresholds combined both turnover and market share criteria. That 1991 framework was superseded by new rules in 1999, and later by the Act on the Protection of Economic Competition of 2006 (the 2006 Act). The 2006 Act delivered significant reforms to merger oversight, most notably because the substantive assessment of concentrations was brought into line with the approach under the EU Merger Regulation ( EUMR)....
Note To determine whether notification thresholds in Barbados and worldwide are satisfied, please consult: Where to Notify. 1. Have there been any recent developments regarding the Barbadian merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Barbados? There is a continuing upswing in acquisitions across the commercial arena, leading to more merger notifications being submitted to the Barbados Fair Trading Commission (the Commission). No recent legislative changes have altered the merger control framework. The Commission remains vigilant about this trend and monitors deals within their relevant markets. While the Commission has authorised mergers in multiple sectors, it has not approved all transactions. Notably, it rejected the proposed acquisition of ice-cream producer BICO Ltd. by Trinidad & Tobago-based HADCO Ltd., acting through its Barbados subsidiary, on the basis that the transaction would...
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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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