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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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Member resolutions The consent of a company’s members is needed for particular alterations to the company—such as revising its constitution, changing its name or adjusting its share capital—or for the company to undertake certain steps, including entering a substantial property transaction with a director or making a political donation. In this manner, the Companies Act 2006 ( CA 2006) protects members’ interests (the company’s owners) by requiring directors (the company’s management) to obtain members’ authorisation before proceeding with any such changes and actions across the company. Members give that consent by passing what is called a ‘member resolution’, more commonly described as a ‘shareholder resolution’. As most companies are limited by shares this usage is widespread, but because some are limited by guarantee, the inclusive and correct expression covering both is ‘member’ (see Q& A: What is the difference between a member and a...
In certain corporate takeovers, the purchaser may arrange the deal so that the price is satisfied by issuing new shares and/or loan notes in the acquiring company. Rather than, or in addition to, receiving cash, the vendor shareholders swap their existing shares (or loan notes) for fresh shares and/or loan notes created by the corporate buyer. This Practice Note explains the tax consequences for the selling shareholders and the acquirer in such arrangements. It covers both parties’ positions under the relevant tax rules. This method of acquisition plainly offers a cash flow benefit to the buyer and, provided specific conditions are met, the securities exchange is also treated as a reorganisation for tax purposes. Consequently, no capital gains tax (or corporation tax on chargeable gains) is due from the selling shareholders at the point they dispose of their shares. Where the...
This Practice Note sets out how to build a negotiation approach, offering tips on organising facts, aligning with client goals (including identifying the best alternative to a settlement), appraising the other side’s stance, selecting negotiation techniques, and deciding whether to open with a settlement proposal or a preliminary discussion. For direction on who should participate in settlement talks, and on confidentiality and the effect of ‘subject to contract’, see Practice Note: Settling disputes—who, confidentiality and subject to contract. For assisted routes to settlement, see Practice Note: What is ADR? and related material. For guidance on making offers and recording a deal, see Practice Notes: Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement and related content Settling disputes—an early strategy for settlement A stage of litigation involves exchanging information under an applicable pre-action protocol or, if none governs the...
This Practice Note explores five categories of set-off—emphasising that contractual set-off, insolvency set-off and banker’s set-off matter most in finance, particularly commercial lending. It also addresses issues concerning guarantees and freezing injunctions linked to set-off. For a general overview, see Practice Note: What is set-off and when is it available?... When is set-off relevant to finance transactions? There are five principal forms of set-off: independent set-off (also referred to as legal set-off or statutory set-off) transaction set-off (also called equitable set-off) contractual set-off insolvency set-off banker’s set-off (also known as current account set-off) For further detail, see Practice Note: Types of set-off. In commercial loan arrangements, the most significant variants are generally contractual set-off, insolvency set-off and banker’s set-off... Contractual set-off provisions in loan documentation For guidance on contractual set-off generally, see Practice Note: Contractual set-off. Many finance agreements in loan deals include...
Practice Note This Practice Note assists with applications seeking the courts’ permission to serve a claim form outside the jurisdiction of the courts of England and Wales (referred to in this Note as the English courts). Such applications are usually determined without notice and on the papers. The Note addresses when the application should be made, the documents that must accompany it, and the matters to consider when completing the papers. It also explains the steps to take if permission is granted. In practice, permission is almost invariably given unless there is a clear and obvious defect in the application......
This Practice Note examines service of a claim form issued by the courts of England and Wales on a defendant domiciled in Scotland or Northern Ireland. Where service is effected on a defendant’s solicitor, permission is not required provided the conditions in CPR 6.7(2) are met. If serving the defendant directly, permission is likewise unnecessary where there is compliance with CPR 6.32. Where those requirements are not satisfied, the claimant must seek the court’s permission to serve the claim form out of the jurisdiction under CPR 6.37. Court permission is not required—service on the defendant’s solicitor The court’s permission is not needed to serve a claim form on a defendant’s solicitor if the criteria in CPR 6.7(2) are fulfilled. CPR 6.7(2) applies where service is on a defendant’s solicitor whose business address is in Scotland or Northern Ireland. This is subject to Section IV of Part 6 and any...
FORTHCOMING CHANGE : On 27 October 2025, the Renters’ Rights Act 2025 obtained Royal Assent. For further guidance on the Act’s effect on residential tenancies in England, see Practice Note: Renters' Rights Act 2025—key provisions. Where an employee in England resides in premises owned by their employer to perform their job and has exclusive possession of that accommodation, they occupy either as a tenant or as a licensee under a service occupancy (also called tied accommodation). This distinction is significant because, with a service occupancy, the right to bring the arrangement to an end arises when the employment ceases, whereas a tenancy may carry security of tenure. From 1 December 2022, tenancies and licences of dwellings in Wales are regulated by the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016) (subject to certain limited exceptions). The terms of both existing and new...
What are special reasons in driving sentencing? Special reasons are a class of mitigating submissions that may: prevent a defendant from being disqualified from driving, or reduce the period of any disqualification; or prevent a defendant from receiving a penalty points endorsement Such arguments are put forward after a conviction or following a guilty plea to driving offences. While the phrase ‘special reasons’ draws its authority from section 34(1) (disqualification) and section 44(2) (endorsement) of the Road Traffic Offenders Act 1988 ( RTOA 1988), there is no statutory definition. Case law, however, provides assistance. A special reason is a mitigating or extenuating factor which does not amount in law to a defence to the allegation, is directly linked to the commission of the offence, and is one the court ought properly to take into account when passing sentence. A matter personal to the...
This Practice Note offers an overview of the Sentencing Council’s General Guideline—overarching principles (the General guideline). It should be considered alongside offence-specific sentencing guidelines and other overarching guidance covering, for example, community and custodial sentences, offences taken into consideration, totality, and reduction in sentence for a guilty plea. For more on sentencing practice, the Sentencing Council’s functions, and its definitive guidelines, see Practice Note: Sentences imposed following conviction. For details of the Sentencing Council’s guidelines for use in the magistrates’ court (commonly known as the Magistrates’ Court Sentencing Guidelines or MCSG) and offence-specific guidelines (formerly described as definitive guidelines) for use by Crown Courts in England and Wales, see Practice Note: Sentencing criminal offences—sentencing guidelines and resources. The General guideline—application The General guideline applies to all individual offenders aged 18 or over and to organisations sentenced after 1 October 2019, regardless of when the offence took...
Requirement to pay funds into court This Practice Note examines the obligation and process for paying monies into court once an order for security for costs has been made. It also addresses applications for payment out to a party, together with applications for any surplus to be applied in satisfaction of a judgment. The Note proceeds on the footing that the security for costs application was brought by the claimant. That said, the same principles equally apply in other contexts, for instance where the claimant applies against a counterclaiming defendant... This Practice Note sits within a suite of materials on issues concerning security for costs under CPR 25, with the other Practice Notes listed in Security for costs—overview. From 6 April 2025, amendments to CPR 25 took effect, re-numbering the former provisions and revising parts of the wording dealing with security for costs. Where...
‘securities litigation’ This Practice Note addresses ‘securities litigation’ in the setting of misleading statements, providing a concise comparison of the distinguishing aspects of pursuing private civil claims for losses arising from acquiring, continuing to hold, or disposing of securities following the publication of inaccurate information by companies, their directors, or those promoting investment in them. It sets out, in tabular form, the principal requirements across various bases of claim: common law misrepresentation, deceit and negligent misstatement; Financial Services and Markets Act 2000 claims (ss 90, 90A and Sch 10A); claims under the Public Offers and Admissions to Trading Regulations 2024 ( SI 2024/105, reg 30 and Sch 2) (see New Analysis: UK listing and prospectus regime reform—potential impact on securities litigation); and Companies Act 2006 claims (section 463). See Practice Notes: FSMA 2000—claims relating to misleading statements and omissions (including claims under POATRs, SI 2024/105, reg 30 and Sch...
FORTHCOMING CHANGES: At Budget 2025, the government confirmed Finance Bill 2026 measures: Main pool writing‑down allowances fall from 18% to 14% from 1 April 2026 ( CT) and 6 April 2026 ( IT), impacting companies and unincorporated businesses, including pre‑ FYA expenditure. A 40% first‑year allowance for qualifying main rate spend incurred from 1 January 2026, with fewer restrictions than other FYAs; it mainly helps costs outside the £1m AIA or existing FYAs, applies to all businesses, includes assets used for leasing (not overseas), and excludes cars and second‑hand assets. 100% green FYAs for zero‑emission cars and EV charging points extended to 31 March 2027 ( CT) and 5 April 2027 ( IT). The Practice Note outlines section 198/199 CAA 2001 elections for fixtures transferred on property sales or new leases. Default treatment is a just and reasonable...
Secondary liabilities UK tax legislation includes a range of rules under which one individual can be held accountable for another’s tax debt; these are referred to as secondary liabilities. This Practice Note concentrates primarily on secondary tax liabilities that may arise on the sale of a company, with implications for both parties to the transaction. For instance, the target could become secondarily liable due to a default elsewhere within the seller’s group. A buyer will be reluctant to shoulder that expense and will therefore seek protection by pursuing a claim under the tax covenant or warranties to safeguard its position. The target might also incur primary liabilities that crystallise after it joins the buyer’s group but which relate back to periods when it belonged to the seller’s group. In such cases, members of the seller’s group may themselves face secondary tax...
This Practice Note examines what is meant by chargeable consideration, the concept that sets the level of stamp duty land tax ( SDLT) payable on a chargeable transaction. For guidance on what constitutes a chargeable transaction, consult Practice Note: Land transactions, chargeable interests and chargeable transactions. For treatment of chargeable consideration in relation to leases, see Practice Note: SDLT-common lease transactions. From 1 April 2015, SDLT no longer applies to any land transaction involving any interests in or over land in Scotland. From that date, land and buildings transaction tax ( LBTT) applies to those transactions, subject to transitional provisions. Accordingly, any references in this Practice Note to ‘ UK land’ or similar terms, where SDLT is in point, should be interpreted as excluding interests in or over Scottish land from 1 April 2015. For more information, refer to the LBTT...
This Practice Note summarises the confiscation regime set out in the Proceeds of Crime Act 2002 ( POCA 2002), together with the changes introduced by Schedule 8 to the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023), insofar as it operates in Scotland. Schedule 8 amended the Proceeds of Crime Act 2022 to make provisions in connection with cryptoassets and confiscation orders. Those amendments have not yet been brought into force. Introduction to Scottish confiscation law and procedure Confiscation is the mechanism by which, after conviction, an offender’s financial gain from offending is taken away. The POCA 2002 confiscation provisions are designed to facilitate the recovery and seizure of the proceeds of crime in order to: disincentivise criminal activity, and prevent offenders from retaining the proceeds of crime following conviction This Practice Note addresses the Scottish confiscation process and...
This Practice Note outlines that who owns school land and buildings is chiefly determined by the school’s category, and examines ownership across community schools, voluntary schools, foundation schools, academies and free schools. It highlights renewed attention to the School Sites Act 1841 ( SSA 1841), under which landowners were encouraged to gift plots for local schools on the understanding that, if a school later closed, the site would revert to the original donor. It also addresses provisions allowing schools to serve community uses such as elections. Ownership of school land and premises In broad terms, the ownership of school sites and playgrounds, school buildings and playing fields is largely dictated by the type of school. Community schools At ‘community’ schools, the land and premises are owned by the local authority for the area in which the school sits (that is, the county council, borough council or unitary...
The removal of internal border checks across the Schengen Area stands as one of the EU’s landmark achievements, shaping and embedding the European societal model and way of life. Yet major developments—such as the coronavirus ( COVID-19) pandemic and rising irregular migration—have exposed shortcomings and loopholes in Schengen border management. To address the migration challenges faced by Member States and to uphold border-free movement within Schengen, significant revisions were adopted in 2024. This Practice Note concentrates on Regulation ( EU) 2016/399, the Union Code on the rules governing the movement of persons across borders (codification), which sets out the conditions for movement to and from the area without internal border control, as well as between participating Member States. It also reflects the 2024 amendments, drawing out the principal features of the current framework and outlining the accompanying instruments that clarify how the...
This Practice Note carefully examines the overarching principles for assessing class questions in-depth. For fuller guidance on what, in practice, could or could not split a class, please refer to: Checklist of factors which may (and may not) fracture the class in a scheme of arrangement or restructuring plan. Statute and Practice Statement Under Part 26 of the Companies Act 2006 ( CA 2006), which regulates the scheme of arrangement (scheme) procedure, and CA 2006, Pt 26A, which regulates the restructuring plan ( RP) procedure, the applicant must, at the outset, seek a formal court order to convene the relevant meeting(s) of creditors, members, or any class(es) in question, to approve the proposed scheme/ RP. Absent properly constituted meetings of the applicable classes of creditors and/or members, the court lacks jurisdiction and, at the later sanction hearing, cannot lawfully proceed to sanction the scheme/ RP....
Use this Practice Note when identifying the applicable law for agreements made on or after 17 December 2009. It outlines when and for what reasons Regulation ( EC) 593/2008, Rome I was brought in. The Note reviews the implementation of Regulation ( EC) 593/2008, Rome I, the states that have signed up and are therefore bound by it, together with any reservations those states have entered. It explains why the regulation governs contractual disputes within the UK. Guidance is given on interpreting Regulation ( EC) 593/2008, Rome I, followed by consideration of the universal application rule (art 2) and the breadth of the applicable law (art 12). It sets out the general principles alongside rules tailored to particular categories of contract. It also identifies matters excluded from Regulation ( EC) 593/2008, Rome I, including arbitration and questions relating to the status and legal...
This Practice Note This Practice Note is intended for identifying the governing law where a contract was concluded from 17 December 2009 to 31 December 2020. It addresses consumer contracts under Article 6(1) of Regulation ( EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to contractual obligations ( Rome I). It sets out, step by step, how the applicable law for consumer agreements is ascertained, and the limits placed on any choice of law the parties seek to make, including where they wish to select their own governing law. As a rule, a consumer contract is governed by the law of the country of the consumer’s habitual residence. The Note outlines how to establish the consumer’s habitual residence and explains why the formal validity rules that apply to other contracts do not apply in this...
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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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