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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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Assimilated law and retained EU law are concepts created by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended, arising from Brexit, and denoting a new class of domestic legislation. They are umbrella labels used, at two junctures in the UK legal system’s engagement with Brexit, for the corpus of EU‑derived rules kept within domestic law following the transition period (termed IP completion day in the EU( W) A 2018 and associated legislation). For initial background reading, see Practice Note: Retained EU law and assimilated law. Assimilated law versus retained EU law: what’s the difference? Both expressions describe the residual body of domestic rules originally deriving from the UK’s membership of the EU. The pair marks two phases in the legal system’s adaptation to Brexit: retained EU law was the label for that body as it was...
This Practice Note sets out an overview of the principal stages in pursuing an appeal before the First-tier Tribunal ( Immigration and Asylum Chamber). The content reflects a typical, standard appeal and may not address every possible circumstance, and it does not purport to be exhaustive. Detailed guidance on filing an appeal to the First-tier Tribunal, including applicable fees, is provided in the Practice Note: Submitting an immigration appeal to the First-tier Tribunal ( IAC). For a discussion of various practical considerations when preparing an appeal to the First-tier Tribunal, consult Practice Note: Preparing for an immigration appeal to the First-tier Tribunal ( IAC). Procedural requirements: sources The Tribunal Procedure ( First-tier Tribunal) ( Immigration and Asylum Chamber) Rules 2014 ( Procedure Rules), SI 2014/2604, which came into effect on 20 October 2014, operate as the procedural code for the Immigration and Asylum Chamber of the...
This Practice Note reviews the FIDIC Conditions of Contract for EPC/ Turnkey Projects 1999, often referred to as the FIDIC Silver Book 1999. FIDIC issued a new Silver Book in December 2017, with amendments in 2022—see Practice Note: FIDIC contracts—introduction to the FIDIC Silver Book 2017, reprinted in 2022 with amendments, for guidance on that edition. For the 1999 suite, also see: Practice Note: FIDIC contracts—introduction to the Red Book 1999 Practice Note: FIDIC contracts—introduction to the Yellow Book 1999 Practice Note: FIDIC contracts (pre-2017 editions)— Yellow and Silver Books compared For what type of project is the contract suitable? The FIDIC Silver Book 1999 is advised for delivering a process or power plant on a turnkey basis, and may likewise be adopted where one party assumes full responsibility for the design and delivery of a privately financed...
FIDIC Red Book 2017—reprinted 2022 with amendments In December 2017, FIDIC released second editions of the Red, Yellow and Silver Books. Three years on, in December 2022, FIDIC issued reprints. The FIDIC Red Book 2022 reprint is formally titled ‘ The Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer Second Edition 2017, reprinted 2022 with amendments’. It carries the same ISBN. The changes comprise: the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published) the additional errata issued in June 2019, and further errata and fresh amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC describe as ‘improvements & clarifications in response to industry feedback + to support the increased use of 2017 contracts’ There is no requirement to adopt the 2022 FIDIC...
This Practice Note reviews the Conditions of Contract for Plant and Design Build 1999 (widely known as the FIDIC Yellow Book 1999) and the Conditions of Contract for EPC/ Turnkey Projects 1999 (the FIDIC Silver Book 1999). Both are intended for scenarios where the Contractor, rather than the Employer, undertakes the design of the Works, but there are important differences, which are outlined in this Practice Note and considered at a high level. For deeper analysis of each form, see Practice Notes: FIDIC contracts—introduction to the Yellow Book 1999 and FIDIC contracts—introduction to the Silver Book 1999 for background and context. New editions of the Yellow and Silver Books were issued in December 2017. For more information, refer to Practice Note: FIDIC contracts 2017—what’s changed? [ Archived]. These materials provide helpful orientation too. What types of projects are the contracts suitable...
Introduction This Practice Note reviews the statutory foundation of FCA supervision and the regulator’s supervisory methodology, including its decision‑making framework. It explores the FCA’s supervisory principles, areas of focus and priorities, and also sets out, in summary, how the FCA oversees firms on a day‑to‑day basis. The Note also addresses the supervisory stance taken towards retail and wholesale markets and towards international firms, as well as oversight of specialist domains (financial crime, fintech and outsourcing). It outlines the FCA’s co‑operation with other bodies, such as the PRA, and considers the prudential supervisory approach applied to firms outside of dual regulation with the PRA. The material draws principally on the following primary sources and references: FCA Mission: Approach to Supervision ( April 2019), the FCA Handbook’s Supervision Manual ( SUP), and FCA’s Mission Paper 2017: How we regulate financial services. Further background on the FCA and PRA can be...
This Practice Note sets out a summary of the Financial Conduct Authority’s ( FCA) criminal powers to bring fraud prosecutions under the Fraud Act 2006 ( Fr A 2006), the Theft Act 1968 ( TA 1968), common law conspiracy to defraud and, from 1 September 2025, the corporate offence of failure to prevent fraud. It also outlines key fraud offences and records FCA fraud prosecutions. In addition, this Practice Note reviews the FCA’s ability to bar persons convicted of fraud from participating in financial services by deploying formal enforcement powers under the Financial Services and Markets Act ( FSMA 2000). It further signposts practical, in‑depth guidance... Overview A core function of the Financial Conduct Authority ( FCA) is acting as a private prosecutor, notably for fraud offences, including the general fraud offence in Fr A 2006, s 1. Fraud counts are frequently advanced...
The Financial Services Enforcement Database The Financial Services Enforcement Database collates comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices, from 2014 onwards. It can be searched and refined by rule breach, keyword, sector, date, seriousness, aggravating and mitigating factors, financial penalty, and other actions, including referrals to the Upper Tribunal. This Practice Note outlines the Financial Conduct Authority ( FCA)’s approach to contested enforcement against firms and individuals, as distinct from matters handled under the FCA’s Executive Procedures. It covers the issue of Warning, Decision and Final Notices on the recommendation of the Regulatory Decisions Committee ( RDC), the potential for discontinuance or settlement, and references to the Upper Tribunal ( Tax and Chancery Chamber) ( Upper Tribunal). Once FCA investigators have: concluded their investigation determined that enforcement action is appropriate prepared their case papers for the RDC and...
Causes of action Where a claimant in a personal injury or clinical negligence matter has died before trial, two principal claims are available. for the benefit of the deceased’s estate under the Law Reform ( Miscellaneous Provisions) Act 1934 ( LR( MP) A 1934) on behalf of the deceased’s dependants under the Fatal Accidents Act 1976 ( FAA 1976) These claims can be pursued separately, yet they are frequently brought in tandem. A claim advanced for the estate is grounded in the continuation of the very cause of action that belonged to the deceased at the moment immediately before death. By contrast, a claim pursued for the dependants creates a fresh cause of action, but it will only succeed if it can be demonstrated that the deceased would have recovered damages had they remained alive. Who can bring a claim under the Law Reform (...
Conflicts of interest can present significant and serious problems for solicitors and law firms, affecting both compliance obligations and client relationships alike in practice. If a conflict arises, or there is a risk that one might arise, it is vital to: maintain robust systems and effective controls that enable the prompt identification of any conflict carefully assess whether you can act, or continue to act, for the client(s) concerned determine what appropriate safeguards are required to manage and mitigate the conflict Solicitors Regulation Authority ( SRA) regulatory regime The principal requirements within the SRA Standards and Regulations include the following SRA components: Principles Code of Conduct for Solicitors, registered European lawyers ( RELs), registered foreign lawyers ( RFLs) and registered Swiss lawyers ( RSLs) Code of Conduct for Firms Accounts Rules Glossary For further information on the SRA Standards and Regulations, see Practice Note: The Solicitors Regulation Authority ( SRA) regime for family...
Under the Insolvency Act 1986 ( IA 1986), it is a criminal offence for any officer of a company, past or present, to obtain creditors’ agreement by deception or by making false statements in connection with a company’s winding up. The matter can be prosecuted in either the magistrates’ court or the Crown Court. Elements of the offence a company is in the process of being wound up, whether by the court or voluntarily the individual is, or has previously been, an officer of the company they make a false representation, or they perpetrate fraud for the purpose of obtaining the creditors’ consent to an agreement concerning the company’s affairs or to the winding up, and they are deemed to have committed the offence if, prior to the winding up, they made any false...
Liability Liability means the total deprivation of liberty without any lawful foundation. Such claims are commonly brought against public authorities wielding powers of detention—typically a local police force, the Secretary of State for the Home Department, or the Secretary of State for Justice. The confinement may arise through policing, immigration control, or imprisonment (including where a sentence or parole period has been miscalculated, leading to detention that is unlawful). As Lord Bridge explained in R v Deputy Governor of Parkhurst Prison, Ex p Hague, false imprisonment comprises two elements: actual confinement and the lack of lawful authority to justify it. In Jalloh, the Supreme Court adopted a broad conception of ‘imprisonment’: being compelled by a particular person to remain in a specific place, whether by physical barriers, guards, or threats of force or legal process. In that case, curfew conditions imposed on a person facing...
This Practice Note discusses the two ‘failure to prevent’ corporate criminal offences created by the Criminal Finances Act 2017 ( CFA 2017): CFA 2017, s 45 establishes the offence of failing to prevent the facilitation of a UK tax evasion offence(s) ( UK tax evasion facilitation offence) CFA 2017, s 46 establishes the offence of failing to prevent the facilitation of a foreign tax evasion offence(s) (foreign tax evasion facilitation offence) Both offences impose strict liability, with a ‘reasonable procedures’ defence for those able to show they maintained reasonable procedures designed to prevent facilitation of the underlying tax evasion offences. This Practice Note explains the components of each offence and the defences introduced by the CFA 2017. The offences sit within a broader suite of measures aimed at combating tax evasion and its facilitation, both in the UK and worldwide. They are...
Offence of failing to co-operate with a preliminary test Failing, without a reasonable excuse, to comply with a preliminary test when lawfully required amounts to an offence. This is a summary-only offence. The components are: failing to co-operate with a preliminary test when required, and without reasonable excuse The prosecution must prove each element to the criminal standard, namely beyond reasonable doubt. Under the Deregulation Act 2015, the previous obligation to carry out a preliminary breath test before evidential breath tests has been removed. Police may therefore proceed directly to evidential breath testing at the roadside where a portable evidential device is available, although the power to require a preliminary breath test remains. Failing to co-operate ‘ Failing’ includes refusing. If a defendant is asked to co-operate with a preliminary test, has the opportunity to do so, yet chooses not to, that is a clear...
This Practice Note outlines fact-finding (also called split) hearings in private children cases. It identifies the considerations in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, and in FPR 2010, PD 12J, which guide the court when deciding if a split hearing is necessary where domestic abuse is alleged, and the issues to be addressed if a fact-finding hearing is required. It describes the court’s role at such a hearing and the approach taken when deciding whether an allegation is proved. Fact-finding hearings, or split trials, are scheduled within private law children proceedings so that oral evidence can be heard on disputed matters bearing on the child’s welfare. In reaching conclusions on the allegations, the court applies the balance of probabilities. When will a fact-finding hearing take place? A fact-finding hearing is not warranted in every private law children case. Before the court lists one, there must...
Facilitating the performance of a duty by public officials Facilitation payments, sometimes termed ‘grease’ or ‘facilitating’ payments, are typically modest sums made to public officials or third parties in order to secure the carrying out of their functions, either more swiftly or even to ensure it occurs at all. This may extend to the giving of ‘gifts’, such as cigarettes or alcohol. In certain jurisdictions, these payments are routine and lawful (eg permitted in some situations under the US Foreign Corrupt Practices Act 1977 ( FCPA 1977); see Practice Note: The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table). Are facilitation payments illegal under BA 2010? Such payments amount to the offering, promising or providing of a financial advantage and therefore constitute bribery, as the Bribery Act 2010 ( BA 2010) provides no...
This Practice Note examines Extended Disclosure within the Disclosure Scheme operating in the Business and Property Courts ( B& PCs) under CPR PD 57AD. It sets out what Extended Disclosure entails, the route to obtaining it, and the matters the court weighs when making an Extended Disclosure order, including the touchstone of what is ‘reasonable and proportionate’, together with the various Extended Disclosure Models A, B, C, D and E. The Disclosure Scheme took effect on 1 October 2022 following a disclosure pilot. Decisions handed down during the pilot remain pertinent and are referenced below. What is Extended Disclosure? The usual sequence for disclosure under the Disclosure Scheme is: first, Initial Disclosure on service of statements of case, with the possibility of seeking further ‘additional disclosure’ (see Practice Note: Disclosure Scheme— Initial Disclosure); and second, before the first Case Management Conference ( CMC), the parties should confer and...
This Practice Note This Practice Note examines the admissibility of expert evidence under CPR Part 35 and the Civil Evidence Act 1972 ( CEA 1972). In particular, it addresses whether such evidence is admissible, the courts’ assessment of whether expert opinion is ‘reasonably required to resolve the proceedings’ so as to justify permission to adduce it under CPR 35.1, and the difficulties that can arise where the trial is split. When instructing experts, you are expected to have regard to: all relevant CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims (the Guidance). The Guidance superseded the ' Protocol for the Instruction of Experts to give Evidence in Civil Claims', formerly annexed to CPR PD 35, with effect from 1 December 2014 Practice Direction Pre- Action Conduct and Protocols, para 7, and the...
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
When deciding how a deed or contractual agreement should be signed, the execution block to use will vary according to: the type of document (for example, a contract or a deed) who is signing on behalf of the entity (the company itself, an administrator, liquidator, administrative receiver, receiver, nominee or supervisor) Type of document Broadly, documents fall into two groups: agreements/contracts, which require valuable consideration deeds, for which consideration is not needed Deeds are instruments that: state on their face that they are intended to take effect as a deed are properly executed as a deed Because deeds must be executed in the presence of a witness to be binding, they carry a stronger presumption of validity than instruments simply signed by the parties, or those under seal. The witness should ideally be independent (not the party’s solicitor,...
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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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