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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 member’s entitlement to appoint a proxy arises under the Companies Act 2006 ( CA 2006). Beyond the statutory framework, a company’s articles may confer broader rights concerning how proxies are appointed. A traded company must also satisfy additional CA 2006 requirements on proxy appointments, which this Practice Note summarises. For illustrations of differing proxy forms, see Precedents: Short-form proxy for the general meeting of a private company or an unlisted public company Long-form proxy for a general meeting of a private company or an unlisted public company Proxy for a general meeting of a listed company This Practice Note does not deal with voting by proxy; see Practice Note: Voting by proxy. For details on appointing a corporate representative as an alternative to a proxy, see Practice Note: How to appoint one or more corporate...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES Considerations when appointing scheme advisers and service providers Administering a pension scheme can, at times, be a challenging and intricate responsibility for trustees to manage effectively in practice. Trustees must navigate extensive laws and rules, make numerous decisions, and complete required formalities with care and diligence. Consequently, many trustees of pension schemes formally engage a panel of specialists to help operate the scheme properly and, at all times, in line with all relevant legislation and regulations. Statute makes provision for appointing specific advisers, referred to as ‘professional advisers’ under law. Those professional advisers, outlined below, comprise the following roles: the scheme auditor the scheme actuary the fund manager the custodian the legal adviser Indeed, under section 47 of the Pensions Act 1995 ( PA 1995), schemes have a legal duty to appoint an...
This Practice Note offers practical direction on making applications to the Solicitors Regulation Authority ( SRA) for approval as a recognised sole practice, recognised body, or licensed body (including multi-disciplinary practices), and on filling in the SRA’s firm authorisation application ( Form FA1). It further points to precedents in Practice Compliance and Practice Management you can deploy or tailor to back your SRA submission, and signposts subtopics you might consult for added detail on the important parts of the form as necessary. Does my business need to be authorised by the SRA? ......
The Variation of Trusts Act 1958 ( VTA 1958) empowers the court to sanction alterations to a trust’s provisions on behalf of beneficiaries who cannot themselves give consent to the change at all. It is chiefly intended for the familiar circumstance in which the trust instrument contains no explicit authority empowering anyone to modify the settlement under its own terms. Background to the Variation of Trusts Act 1958 The statute traces its origins to the decision in Saunders v Vautier, a leading case. The court there held that, where every beneficiary is an adult with capacity, they may collectively, acting unanimously, revise the trust terms as they choose if they wish to do so. Traditionally, the most typical illustration is a life tenant and a remainderman opting to divide the trust fund between them rather than maintain the settlement until the life tenant’s death. In...
This Practice Note explores the practicalities of making alterations to statements of case—covering amendments to pleadings, particulars of claim, the claim form, the defence, and any reply—under CPR 17 in practice. It addresses how to indicate the changes that have been made, and in particular stresses the requirement to verify any amended statement of case with a statement of truth (noting the risk of contempt of court where a statement of truth is untrue), and highlights the need to re-seal an amended claim form. This Practice Note should be read alongside the following Practice Notes: Amending a statement of case—introduction Amending a statement of case—permission to amend Amending a statement of case—cost implications This Practice Note provides guidance on the interpretation and application of the relevant provisions of the Civil Procedure Rules ( CPR) as they apply. Depending on the court in which your matter is...
This Practice Note explains the actions to take after an initial interview or client meeting, such as drafting a file note and the first client care letter with terms of business. It also outlines good practice for handling documents obtained by ‘self-help’ in accordance with the Imerman decision, and addresses non-court dispute resolution together with property-related steps. File note A file note (often called an attendance note) should be produced immediately after the first interview and after each subsequent meeting or telephone conversation with the client. This contemporaneous record must be placed on the client’s file or uploaded to the electronic case management system in strict chronological order, so it can be relied upon in any future dispute or by fee-earners unfamiliar with the matter. The note created after the first meeting should capture all key background details and the client’s...
The statutory framework Generally, the statutory regime governing private sector occupational pension schemes under Scots law mirrors that applicable across the rest of the UK. That said, the foundational trust law on which most private sector schemes rest is not the same, as Scotland has its own distinct trust legislation and a separate body of case law. The Scottish court structure operates wholly apart from the English system, and although English decisions on pension matters can be helpful in addressing particular questions, they do not bind the Scottish courts. Variations in several other branches of law can also shape how pensions law is interpreted and how practice is carried out. These divergences may affect both legal analysis and day-to-day administration. Application of legislation, guidance and other policy in Scotland When advising on pension schemes governed by Scots law, it is important to verify that any cited...
This Practice Note sets out when title can be claimed through adverse possession in relation to (a) unregistered land, and (b) registered land where the entitlement to be entered on the register arose before 13 October 2003 (that is, the squatter can evidence continuous adverse possession for at least 12 years before 13 October 2003). It also addresses circumstances in which such a claim might fail, and the process for a squatter applying to register title based on adverse possession, including the requirements for a statement of truth. This is one of four Practice Notes on adverse possession. The others are: Establishing adverse possession of land Claiming title by adverse possession under the Land Registration Act 2002 Adverse possession and leases Unregistered land A claim to title by adverse possession concerning unregistered land is governed by the Limitation Act 1980 ( LA 1980), sections 15 and 17, together with...
How is an administrator’s remuneration determined? The pay of an insolvency office‑holder, whatever the capacity in which they are appointed, is set under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. Office‑holders should also have regard to the Statements of Insolvency Practice ( SIPs), which provide guidance on the basis of remuneration. Where a court is asked to consider remuneration, it will apply Part Six of the Practice Direction on Insolvency Proceedings ( PDIP), and this ought likewise to be taken into account by office‑holders. as a percentage of the value of: the property with which the office‑holder has to deal, or the assets that are realised or distributed by...
Defendants' costs orders The framework for obtaining a defendant’s costs order ( DCO) is set by the Prosecution of Offences Act 1985 ( POA 1985). Any sums due under a DCO are paid from central funds. Practitioners should consult the Costs Practice Direction ( Costs in Criminal Proceedings) 2015, which sets out guidance on the principles and processes for granting costs to acquitted defendants in criminal cases. See also Practice Note: Criminal Practice Directions. The scope of the court’s authority to issue a DCO is identified below in detail......
Background to the regulated activity of accepting deposits Section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000) prevents any person from lawfully performing regulated activities in the UK unless they are authorised or otherwise exempt from authorisation. This restriction is commonly termed the general prohibition. For fuller guidance on the general prohibition and its territorial reach, see the Practice Notes: The general prohibition and implications of its breach, and Territorial scope of the general prohibition. ‘ Regulated activities’ encompass specified activities carried on by way of business that concern ‘specified investments’, or any property to which the relevant activity relates. For these purposes, ‘specified’ means identified by HM Treasury. The Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO) sets out a range of activities and investments that are so specified. For...
The Acas Code of Practice on disciplinary and grievance procedures ( Acas Code) The Acas Code of Practice on disciplinary and grievance procedures ( Acas Code) defines baseline expectations of fair conduct for handling discipline and grievances at work, and requires both staff and management to adhere to its rules and procedures. These are minimum standards of reasonable behaviour for workplace disciplinary and grievance situations, imposing duties on employees and employers to comply with the Code’s provisions. As a statutory code, it influences a broad range of employment claims; non-compliance can be considered when assessing liability and may affect the level of compensation awarded, in relevant cases. The non-statutory Acas guide on discipline and grievances at work ( Acas guide) sits alongside the Code and offers best practice guidance for managing disciplinary and grievance matters in the workplace. Where the Code’s...
Strike out for abuse of process–basis of application Under CPR 3.4(2)(b), the court has power to strike out a statement of case where it considers the pleading to be an abuse of the court’s process, or where it is otherwise likely to impede the just disposal of the proceedings. It follows that an application to strike out on this basis can properly be advanced by any party against the relevant statement of case, namely: a claimant, in respect of a defence or a counterclaim a defendant, in relation to a claim a third party defendant ( Part 20 defendant), concerning a claim brought against it As noted in Practice Note: Strike out—court’s inherent jurisdiction and discretion, the court may equally choose to strike out a statement of case on its own initiative. For comprehensive guidance on the approach to strike out and...
Prima facie, a freehold estate covers everything beneath the land’s surface and the airspace directly above, seemingly without limit in both directions, though the purported absoluteness of that idea has been moderated in recent times. Accordingly, one freehold ought not to overlap with another at all. Even so, practitioners should remain alert to the existence of a ‘flying freehold’: a freehold (or part of it) that projects, or ‘flies’, above a neighbouring freehold; the property beneath, which extends under the flying freehold, is sometimes described as a ‘creeping freehold’. Today, such a situation would usually be dealt with by granting a long lease, yet flying freeholds (often created many years ago) still appear on a regular basis......
NOTE : Amendments to the CPR took effect on 1 October 2023, extending the reach of fixed costs. They apply where the cause of action arises on or after 1 October 2023 (typically, the accrual date is the date of the accident). In this Practice Note, the version of CPR 45 that applied before 1 October 2023 is referred to as ‘ Rule’ or ‘ Part’. For a copy of Part 45 in force prior to 1 October 2023, see: NOTE : The Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents ( RTA SCP) covers accidents occurring on or after 31 May 2021. The small claims track threshold for personal injury claims arising from a road traffic accident has been increased to £5,000 for general damages for pain, suffering and loss of amenity (subject to...
NOTE : From 1 October 2023, the CPR were revised to broaden the reach of fixed costs. These revisions apply in cases where: the cause of action accrues on or after 1 October 2023 (the accrual date will usually be the date of the accident), or in disease claims, no letter of claim has been sent before 1 October 2023 In this Practice Note, the version of CPR 45 in force before 1 October 2023 is described as ‘ Rule’ or ‘ Part’......
Note The broadened fixed costs regime took effect on 1 October 2023. For all civil cases other than personal injury and disease, the extended fixed costs regime applies (save where a case is specifically excluded) where proceedings were issued on or after 1 October 2023. In personal injury matters, it applies where the cause of action arose on or after 1 October 2023, and in disease cases it applies if the letter of claim was sent to the defendant on or after 1 October 2023. This Practice Note addresses and covers fixed trial costs in the fast track for fixed costs cases issued prior to 1 October 2023. These are the costs the court may award as the advocate’s costs of preparing for and appearing at trial. The amount depends on the value of the claim ( Table 9 (rule 45.38(1)) and on whether the case is a...
The principal rules for imposing fines after conviction sit in sections 118–132 of the Sentencing Act 2020 ( SA 2020), also called the Sentencing Code. On conviction, a court may order a monetary penalty in place of, or in addition to, another sentence where the offence allows a fine, and this can occur in either the Crown Court or the magistrates’ court. Any financial penalty must reflect the seriousness of the conduct and may not exceed any statutory maximum attached to the offence. A fine is inappropriate where the gravity of the offence demands immediate custody, and it must not be used where a mandatory sentence applies (for example, life imprisonment for murder). See: A- G’s Reference ( No 41 of 1994) (1995) 16 Cr App Rep ( S) 792 (not reported by Lexis Nexis®). Where an offence sets a ceiling for the...
STOP PRESS The UK’s prospectus framework currently derives from the EU Prospectus Regulation, retained in UK law as the UK Prospectus Regulation. Following a review of the UK prospectus regime, the UK Prospectus Regulation will be replaced by the Public Offers and Admission to Trading Regulations 2024, with detailed admission-to-trading requirements to be set out in Financial Conduct Authority ( FCA) admission rules. The FCA published its final rules on 15 July 2025. The new rules take effect on 19 January 2026. This Practice Note reflects the requirements of the UK Prospectus Regulation regime. What does this Practice Note cover? This Practice Note: explains what financial services regulation is and why regulating the financial sector matters highlights the regulatory regimes that lawyers should consider when advising on lending, debt issuance and derivatives transactions provides a summary of the UK and EU...
This Practice Note explains the court’s jurisdiction for applications seeking a financial order and identifies who can apply, including in respect of a child of the family. It details the types of orders the court may grant. It also addresses the court’s remit where there has been a foreign or overseas divorce or dissolution, clarifying how jurisdiction is engaged in such circumstances. Powers of the court Although the High Court still holds exclusive jurisdiction over a limited category of cases, section 31E of the Matrimonial and Family Proceedings Act 1984 ( MFPA 1984) provides, among other things, that in Family Court proceedings the court may make any order that the High Court could have made if the case were before it. The breadth of these powers has been emphasised by the courts, notably by Mostyn J in CH v WH, where he observed at para [9] that 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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