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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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Trusts and trustees A trust can be created for many purposes and to pursue different aims. What virtually all trusts share, however, is the presence of a trustee, or a number of trustees (the trustee). The trustee’s principal role is to hold and administer the trust’s property. The scope of the trustee’s authority and duties is ordinarily described in a formal trust instrument, for example a trust deed (the trust deed). Read together with the general law, the trust deed will specify, among other matters: the trustee’s powers and obligations, and any restrictions on the trustee’s powers and obligations A trust that owns shares in a private company is most often structured as either a discretionary trust—through which different members of the immediate or wider family may receive benefits—or an employee trust in practice within private company...
While due diligence features in every commercial finance deal, it becomes indispensable in project finance, where the nature of projects brings heightened risk. For more information on the typical risks involved in a project finance transaction, see Practice Note: Project risks and risk allocation. Across most projects, the diligence exercise concentrates on a number of recurring themes. This Practice Note outlines those focus areas and indicates the information lenders are likely to demand. Scope of due diligence in project finance transactions In a standard project finance deal, diligence spans a wide range of matters, such as: legal and political matters environmental and social matters insurance requirements tax and accounting issues Lenders and the sponsor frequently engage in robust negotiation over the breadth of the diligence reports, especially the legal report. For more information on the role of a sponsor, see Practice Note:...
This Practice Note outlines the range of potential consequences a landlord should weigh before taking rent from someone other than the tenant. Those consequences may include contentions that third-party payment of rent has effected a surrender by operation of law with a contemporaneous re-grant in favour of the payer, or that the landlord is estopped from disputing that an assignment has occurred because of the third party’s remittance. The point often arises where: a company connected with the tenant (for instance, a parent or subsidiary) tenders the rent the tenant intends to assign, or is in the course of assigning, the lease the tenant company is insolvent (such as in administration) and a third party wishes to occupy the premises Surrender by operation of law A key risk to evaluate is whether receipt of rent from a third party could amount to a...
This Practice Note outlines key authorities and associated materials on the acceleration of debt and the enforcement of security. The cases are grouped by subject and include: Cases on the process leading to acceleration and enforcement Cases relating to demands and events of default Cases concerning a mortgagee’s duties when enforcing by sale Cases concerning a mortgagee in possession Cases relating to the Financial Collateral Arrangements ( No 2) Regulations 2003 Cases on the process leading to acceleration and enforcement Names of parties: Miller v Cook (1870) L. R. 10 Eq. 641 Judgment date: 13 July 1870 Case summary: This authority establishes the central proposition that security must not be enforced in an oppressive fashion; accordingly, the security holder will, in almost all instances, need to give notice of enforcement and exercise remedies properly, for example by...
STOP PRESS: As of 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements initiated on or after that date must proceed under PA 2023, while those started under the earlier regime—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in accordance with that legislation. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore fall within assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and construction of assimilated law, see Practice Note: Assimilated law. Investigating abnormally low...
To establish that an easement has been given up, the servient owner must prove the dominant owner had a definite, settled intention never to: use the right again for themselves, or seek to transfer the right to any other person Abandonment where the original use has become impossible An easement may be treated as abandoned if it is tied to a particular use and that use can no longer occur (for instance, where the building benefiting from the easement has been demolished). For this to hold, the dominant land must have undergone a radical change in character or a change in identity. In line with the Court of Appeal’s ruling in Mc Adams Homes v Robinson, the court should also assess whether the new use of the redeveloped site would bring about a substantial increase in, or alteration to, the burden on the...
offences Section 2 of the Refuse Disposal ( Amenity) Act 1978 ( RD( A) A 1978) creates a criminal offence where, without lawful authority, a motor vehicle is abandoned on any land in the open air, or on any land that forms part of a highway. It is likewise an offence to abandon anything that once formed part of a motor vehicle and was taken from it while the vehicle was being dismantled on the land. Where the vehicle has not been abandoned but is left on the road and is causing a nuisance to residents and road users, this conduct may well amount to an offence. See Practice Note: Nuisance parking criminal offences. Sentences for abandoning a vehicle The maximum penalty upon summary conviction is a level 4 fine, three months’ imprisonment, or both. RD( A) A 1978, s 2A authorises an officer of a local...
In 2022, the AAA revised its Commercial Arbitration Rules and Mediation Procedures, together with the Procedures for Large, Complex Commercial Disputes (collectively, the Commercial Rules or AAA Commercial Rules). The updated AAA Commercial Rules have been in effect from 1 September 2022. The 2022 rules govern matters where the administrative prerequisites have been satisfied for a Demand for Arbitration filed on or after 1 September 2022, or where a Submission Agreement reaches the AAA on or after 1 September 2022 ( R.1(a)). The 2022 iteration of the Commercial Arbitration Rules retains the fee schedule that has been in force since 1 May 2018. This Practice Note therefore cites and follows the rule numbers contained in the 2022 AAA Commercial Arbitration Rules. The earlier iteration of the AAA Commercial Arbitration Rules, amended and effective as at 1 October 2013, can be found on the AAA's...
Scope of planning judicial review Within the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Part 54, a claim for judicial review is described as a claim to assess the lawfulness of an enactment, or any decision, act, or omission made in connection with the exercise of a public function. Decisions, actions, or failures to act pertaining to the performance of a public function are, as a matter of principle, subject to judicial review......
Once a defendant is found guilty of a criminal offence by a court in England and Wales, the court then considers what sentence should follow. See Practice Notes: Sentencing procedure in the magistrates’ and Crown Courts and Sentencing Code. This Practice Note outlines the purpose and reach of mitigation advanced on behalf of convicted defendants in England and Wales to lessen the sentence imposed by the court... Factors determining sentence Sentencing courts must have regard to any matters that, in the court’s opinion, are relevant in mitigation of sentence. Mitigation covers any element of a case that reduces the seriousness of the sentence to be passed, whether affecting its length or its type. By contrast, aggravating factors are those that increase the severity of the sentence. Before reaching conclusions for the purpose of imposing certain sentences, the court is required to consider both...
This Practice Note examines what amounts to hearsay evidence, the circumstances in which it may be admitted, and the process for applying to adduce it. Because hearsay can affect the fairness of a criminal trial, it is a significant feature of proceedings. It also outlines the factors the court ought to weigh when deciding whether to permit or exclude such material. How to identify hearsay The Criminal Justice Act 2003 ( CJA 2003) defines hearsay. At its core, hearsay is a second-hand narration of a relevant issue. It consists of four key components. There must be: a statement made outside the courtroom advanced for the truth of what it says, and the maker’s purpose is to induce another to believe or act on the stated facts A statement Under the CJA 2003, a statement is broadly any...
Administration Administration is a process intended to give a company time to breathe, aiming either at rescue or restructuring, or at securing a better result for all creditors than liquidation wherever possible. The core statutory framework for administration sits in Section 8 and Schedule B1 of the Insolvency Act 1986 ( IA 1986), together with the Insolvency ( England and Wales) Rules 2016, IR 2016, SI 2016/1024 rr 3.1–3.70, which apply in tandem. An administrator, an insolvency practitioner appointed under IA 1986, takes control of the company’s business and assets to pursue one of the three statutory purposes of administration set out in IA 1986......
The Construction law case tracker This tracker compiles notable judgments from 2021, 2022 and 2023 that are pertinent to construction lawyers, presented in reverse chronological order. For earlier periods, see the Construction law case tracker archives for 2020, 2019, 2018, 2017, 2016 and 2015. Public procurement matters are covered in the UK public procurement case tracker and the EU public procurement case tracker. Key forthcoming appeals feature in the Construction horizon scanner ( Appeal cases). Judgment date Case Topic News Analysis/further reading Summary 19 December 2024 — 381 Southwark Park Road RTM Company Limited v Click St Andrews Limited [2024] EWHC 3569 ( TCC) — Building safety — News Analysis: The first building liability order and information orders granted under the Building Safety Act 2022 (381 Southwark Park Road v Click) The Technology and Construction Court ( TCC) issued the first (and, so far, only) judgment...
Under the corporate intangible assets rules in Part 8 of the Corporation Tax Act 2009 ( CTA 2009), the default position is that profits and losses relating to a company’s intangible fixed assets ( IFAs) are calculated and recognised as credits and debits for corporation tax purposes, in step with the accounting treatment applied to those IFAs. In other words, a company’s accounts, drawn up in line with generally accepted accounting practice ( GAAP), provide the platform from which the taxable and relievable items and the relevant amounts relating to the company’s IFAs are determined. This principle is often termed ‘tax following the accounts’. The effect of the tax-follows-the-accounts approach is that, where an accounting loss is recognised in arriving at a company’s profit and loss in respect of capitalised expenditure incurred to create or acquire an IFA, whether through...
Work in or adjacent to other buildings An insurance contract may respond to loss or damage to property arising from an insured peril, for example buildings insurance or contractor’s all risk insurance. The peril might be an act of God, or stem from negligence. Insurance can also protect against liabilities owed at law, for instance injury, death or property damage caused by negligence. The insured occurrence must give rise to legal liability, ie a tort. Public liability policies do not extend to accidental damage unless negligence is involved. Such policies also typically exclude contractual liabilities that would not have existed but for the contract. To place insurance over a building, the proposer must hold an insurable interest in it. Usually that interest is ownership, or, for a mortgagee, a financial stake in the property. For further detail, see Practice Note: General...
This Practice Note outlines guidance on the third edition of the ARIAS ( UK) Rules, brought into effect in 2014 (the ARIAS Rules). For direction on using the ARIAS Fast Track Arbitration Rules, refer to Practice Note: ARIAS Fast Track Rules ( AFTAR) 2013. What is ARIAS? The AIDA Reinsurance and Insurance Arbitration Society of the UK ( ARIAS ( UK)) was founded in 1991 as a Centrally Affiliated Chapter of AIDA—the Association Internationale de Droit des Assurances—an international body committed to advancing the study and understanding of insurance law (click here for the ARIAS ( UK) website). ARIAS emerged amid a rise in insurance and reinsurance disputes to champion methods of settling such disagreements that matched market expectations, chiefly via arbitration. Services ARIAS is not an institution. Unlike arbitral bodies such as the LCIA, it has no secretariat, and its involvement in...
This Practice Note This Practice Note sets out that the standard of highway maintenance required is determined by the level of expected ordinary traffic on the route concerned. It further explains that a person injured by a danger on a highway may sue the highway authority in negligence, and that the authority has a statutory defence under the Highways Act 1980 ( Hi A 1980) if it can show it exercised reasonable care. It also notes that, at common law, the obligation is to keep the highway in a reasonable condition rather than to improve it. The authority must carry out routine inspections of the highway surface and run a system for incoming reports of damage; however, the duty to keep the highway in repair does not extend to damage caused by extraordinary traffic. A highway authority is under a duty to...
This Practice Note sets out the principal highways law matters relating to bridges and tunnels—namely the public’s entitlement to pass and re‑pass across bridges or through tunnels, and who carries responsibility for their maintenance. It outlines the four categories of highway bridge and explains, for each, where the maintenance duty falls, with particular reference to the Highways Act 1980 ( Hi A 1980) and the Transport Act 1968 ( Tr A 1968). It also summarises relevant legislation that is specific to toll bridges and tolled tunnels, new bridges across navigable water, bridges across boundaries, and footbridges. The main highways law issues concerning bridges and tunnels are as to the: rights of the public to pass and re‑pass across bridges or through tunnels maintenance liability for them The Hi A 1980 definitions of a bridge and a tunnel provide little practical...
NOTE—to check if notification thresholds in Taiwan and worldwide are triggered, see: Where to Notify. 1. Have there been any recent developments regarding the Taiwanese merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Taiwan? The Fair Trade Act last underwent revision on 16 June 2017. Among other adjustments, it empowered the Taiwan Fair Trade Commission ( TFTC) to prolong the assessment window for merger notifications to up to 90 business days, and gave the TFTC latitude to obtain outside expert views, introducing new steps relevant to hostile takeovers. In June 2023, the TFTC unveiled a draft amendment to the Fair Trade Act eliminating the market share threshold. The proposal aims to bring greater clarity to filing triggers and to lower compliance burdens. It was formulated after surveying overseas statutes and...
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: 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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