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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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The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) ECCTA 2023 obtained Royal Assent on 26 October 2023 and is being introduced in phases across a series of commencement dates. A number of its measures will not take effect until detailed secondary legislation and guidance are set, while others require new technical systems and tools before they can operate. The Act’s core aims are to deter the misuse of UK corporate structures for crime and terrorism, enhance the UK’s broader response to economic crime, and support enterprise by improving the efficiency of the UK’s companies registry, including the reliability of its data. Since 6 April 2016, companies (and certain other types of entity) have been obliged to gather and record details of people with significant control ( PSCs). The PSC framework was created to ensure accurate, current information is available on who...
This Practice Note explores regulatory considerations linked to corporate social responsibility ( CSR). For guidance on CSR strategies and drafting a CSR policy, see Practice Note: How to formulate your organisation’s approach to corporate social responsibility— CSR. Although there is no single CSR statute setting out defined duties for businesses, there is extensive legislation on equality and diversity ( E& D)—see section: Equality Act 2010. These themes are central to CSR. You should also consider any regulatory, practice standard, or accreditation expectations relating to CSR... SRA requirements There is no SRA obligation for law firms to maintain a CSR strategy or policy. However, a clear CSR policy may assist firms in shaping business processes to achieve an overall positive impact for clients. CSR strongly overlaps with E& D, and firms should remain mindful of their regulatory duties concerning E&...
Because a corporation (body corporate) lacks a physical presence, it must designate an individual to attend and act on its behalf at a company’s general meeting where it holds shares. This can be achieved by appointing one or more people to serve as: its proxy; or its corporate representative For guidance on proxies, see Practice Notes: Appointing a proxy and Voting by proxy. For comprehensive information on voting at general meetings, see Practice Note: Voting at general meetings (including AGMs), and for guidance on hybrid or virtual meetings, see Practice Note: How to call and hold an effective hybrid general meeting. Why appoint a corporate representative rather than a proxy?......
Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007) introduces the distinct offence of corporate manslaughter. The CMCHA 2007 applies across the UK and, at the same time, brings in the offence of corporate homicide for Scotland. This Practice Note addresses corporate manslaughter, not corporate homicide, because certain CMCHA 2007 provisions treat the two offences with slight differences. See Practice Note: Involuntary manslaughter. Corporate, not individual, liability The CMCHA 2007 targets organisational accountability and does not extend to directors or other individuals occupying senior positions within a company. It creates no personal liability under the CMCHA 2007. Further, CMCHA 2007, s 18 expressly provides that a person cannot be guilty of aiding, abetting, counselling or procuring the commission of corporate manslaughter, nor can a person be guilty of encouraging or assisting an offence of corporate...
Part 26A restructuring plans ( RPs) Since 26 June 2020, Part 26A restructuring plans ( RPs) have been in force by virtue of the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Section 7 and Schedule 9 of CIGA 2020 inserted a new Part 26A into the Companies Act 2006 ( CA 2006), entitled ‘ Arrangements and Reconstructions for Companies in Financial Difficulty’. The framework for their use is informed by: the applicable Practice Statement (see Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)); and the Explanatory Notes, which are admissible to assist with interpretation without any need to show that the legislation is ambiguous or unclear (per Snowden J, as he then was, in Re Virgin Atlantic Airways, applying Re Flora v Wakom ( Heathrow) Ltd). These RP provisions represent a permanent reform of the UK’s...
The Insolvency Act 1986, s A1 ( IA 1986) The Insolvency Act 1986, s A1 ( IA 1986) sets out a mechanism allowing directors of insolvent companies, or those likely to become insolvent, to secure a moratorium. The initial period is a 20 business day period, with scope for extension in defined circumstances. The regime is underpinned by the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 1A.1. Its purpose is to give otherwise viable businesses breathing space to reorganise or attract fresh investment without the pressure of creditor enforcement. The statutory architecture for this moratorium was added to IA 1986 by the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), expedited in response to the coronavirus pandemic. An insolvency practitioner acts as ‘monitor’, supervising compliance, while the directors continue to manage day-to-day operations, albeit within...
What is a moratorium? Part A1 of the Insolvency Act 1986 ( IA 1986) sets out a mechanism by which directors of companies that are insolvent, or at risk of becoming insolvent, may obtain a moratorium. The moratorium runs for an initial period of 20 business days and can be extended in several ways: by the directors with or without creditors’ consent, by the court on the directors’ application, while a proposal for a company voluntary arrangement ( CVA) is pending, and by the court in other proceedings. Its purpose is to give viable businesses time to restructure or source new investment without certain creditor action. Oversight is provided by an insolvency practitioner acting as a ‘monitor’, although the directors continue to run the business day to day (a...
While primary infringement usually involves, in most instances, the act of reproduction, secondary infringement concerns commercially dealing in infringing copyright works. Acts of secondary infringement Secondary infringing conduct comprises: importing; possessing; selling or dealing; providing the means for making copies; permitting the use of premises for an infringing performance; and supplying apparatus for an infringing performance. Unlike primary infringers, who are strictly liable irrespective of what they knew, secondary infringers must have knowledge of the infringement. Secondary acts address those further down the 'chain'. Copyright owners may seek assistance to prevent importation and block entry of infringing copies by writing to HMRC. Where proceedings are in prospect, a claimant should write to the prospective defendant, put them on notice, and allow a reasonable period to assess and evaluate the claims advanced against them. Those in the frame for...
What does this Practice Note cover? This Practice Note sets out the nature and framework of convertible and exchangeable securities. It considers: what convertible and exchangeable securities are why they are issued why investors choose to invest in them the principal terms commonly included in convertible and exchangeable securities documentation, including share allocation on conversion or exchange, anti-dilution adjustments, investor protections, change of control and call options disclosure requirements private placements What are convertible and exchangeable securities? These are forms of equity-linked debt securities. They give the investor the right to convert the debt into equity (ie shares) of the issuer, or to exchange the debt for equity in another company. This Practice Note focuses mainly on transactions where both the securities and the exchange or conversion shares are tradeable and listed. They are also referred to as ‘hybrid...
Public authorities may, in a number of broad ways, be found not to have breached a Convention right. These avenues are contained in the European Convention on Human Rights ( ECHR) and, in domestic law, the Human Rights Act 1998 ( HRA 1998). This Practice Note considers: derogations from the Convention rights reservations to Convention rights matters within a state’s margin of appreciation For qualified rights (rather than absolute rights), a public authority will not be in breach if its actions meet the qualifying conditions, ie the interference with the Convention right is justified. For background, see Practice Note: Convention rights—structure of qualified rights. Derogations from the Convention rights What is a derogation? Article 15 of the ECHR allows Member States, in defined circumstances, to depart from the obligation to respect the Convention rights. The situations in which a contracting state may do so are...
Parliamentary statements of compatibility The Human Rights Act 1998 ( HRA 1998) not only furnishes individuals with a remedy where their European Convention on Human Rights ( ECHR) protections have been infringed, it also prompts government and Parliament to scrutinise, during law-making, whether proposed measures align with Convention rights. Under HRA 1998, s 19, a Minister of the Crown in each House must, before a Bill’s second reading, issue a statement confirming that the Bill complies with Convention rights (a section 19(1)(a) statement) or, alternatively, under section 19(1)(b), state that they cannot make such a confirmation, yet the government nonetheless asks Parliament to continue with the Bill. This process aims to ensure that human rights implications are addressed proactively, rather than remedied only after breach. It signals to both Houses the government’s assessment, while allowing Parliament to weigh...
Major changes to the Highway Code came into force on 29 January 2022. The new framework introduced a ‘hierarchy of road users’, designed to make it clearer for vulnerable users who should have rights of way at junctions. Further information can also be found in The Highway Code and The Highway Code—8 key changes from 29th January 2022. To succeed with a personal injury claim, a claimant must first show that the defendant owed them a common law duty of care, that this duty was breached, and that the breach caused their injuries. In short, three points must be shown: a duty, a breach, and resulting injury. For more guidance, see: Proving negligence or breach of statutory duty—overview. There may then be an issue of contribution by the claimant, because individuals also owe themselves a duty to take care to protect themselves from harm, and their own...
What is meant by a contractual recognition of bail-in clause? The notion of a ‘contractual recognition of bail-in clause’ arose from provisions in the Bank Recovery and Resolution Directive ( EU Directive 2014/59/ EU) (the BRRD), introduced as part of the EU’s response to the financial crisis. Practice Note: EU Bank Recovery and Resolution Directive ( EU BRRD)—essentials contains fuller detail on the BRRD. The BRRD has been incorporated into the EEA Agreement, so it applies throughout the EEA, and not only to EU member states. One purpose of the BRRD is to ensure that, if an institution becomes insolvent, losses are absorbed by creditors and shareholders rather than by taxpayers. To facilitate this outcome, Article 43 of the BRRD enables an EEA regulator to write down and/or convert into equity the liabilities of a failing EEA institution (the bail-in tool). A possible...
rules on interpreting contracts (agreements) This Practice Note outlines the rules for construing contracts and their terms, reviewing leading cases— Rainy Sky v Kookmin, Arnold v Britton, and Wood v Capita—together with the principal canons of construction. It should be read alongside the Practice Notes: Contract interpretation—the guiding principles; and How to approach a contractual interpretation dispute—a practical guide. Lord Hoffmann’s five principles in ICS v West Bromwich Building Society (see Practice Note: Contract interpretation—the guiding principles) provide the central approach to interpretation, which is then supported by general rules or guidelines (often called canons of construction) used to help determine the meaning of a written agreement. This Practice Note examines the most significant of these, namely: the whole document is relevant commercial sense (business common sense) and avoiding an unreasonable outcome cutting down rights and remedies saving the...
What is the nature of the liability? The Environmental Protection Act 1990, Part IIA ( EPA 1990) sets out a liability‑focused framework designed to address the United Kingdom’s legacy of contaminated land. Under Part IIA, causing contamination is not, in itself, a criminal offence. By contrast, failing to comply with a remediation notice served by the enforcing authority is an offence. Retrospective liability An ‘appropriate person’ can be required to meet the costs of cleaning up contaminated land where the contamination occurred before 1 April 2000, even if the conduct was lawful at the time. This retrospective element enables the enforcing authority to require remediation at historically polluted sites that would otherwise be unlikely to be remediated. ‘ New’ contamination is ordinarily addressed under other regimes, such as the environmental permitting or environmental liability regimes. Strict liability For the ‘causation’ limb of the liability test, the regime is...
This Practice Note outlines the consumer remedies and avenues of redress available when consumer protection legislation is breached. It covers rights in relation to faulty goods, services and digital content under the Consumer Rights Act 2015 ( CRA 2015), cancellation rights for distance and doorstep contracts, the private right of redress, and mechanisms for card payment redress. It also highlights other private actions, such as for breach of contract or statutory duty, and collective proceedings that may benefit consumers. For civil or criminal enforcement, see: Consumer remedies and enforcement—overview. For an introduction to the regulatory bodies able to enforce some of the remedies discussed in this Practice Note, see Practice Note: Consumer protection regulators—introduction. Remedies for faulty goods Under the CRA 2015, consumers benefit from statutory rights for goods purchased from traders. The principal rights require that goods are of...
This Practice Note sets out overarching principles and guidance for arbitrators and parties when identifying and addressing conflicts of interest in international arbitration. It should be read alongside Practice Note: Conflicts of interest in arbitration—challenges to arbitral appointments for further context. What are the general principles of fairness, impartiality, and independence? A core aspect of procedural fairness is that the tribunal be impartial and independent; this is as fundamental to arbitration as it is to court proceedings. That standard is embedded in national arbitration regimes (for instance, the arbitrator’s general duty in section 33 of the Arbitration Act 1996 ( AA 1996) to act fairly and impartially) and in international institutional rules, eg article 5.3 of the London Court of International Arbitration ( LCIA) Arbitration Rules. Broadly, commentators describe independence as the absence of any present or previous relationship of dependence between the parties and the...
Conflicts of interest Conflicts of interest can present serious and complex challenges for solicitors and law firms, affecting both compliance obligations and your client relationships. If a conflict, or the possibility of one, emerges during your work, it is essential to: put in place systems and controls that allow the conflict to be spotted determine whether you may act or continue to act for the client(s) concerned identify the safeguards required to handle the conflict The SRA Codes of Conduct (the SRA Code for Solicitors, RELs, RFLs and RSLs ( Code for Solicitors) and the SRA Code for Firms) recognise two categories of conflict of interest: Own interest conflict (term used by SRA: Own interest conflict) — where your duty to act in any client’s best interests clashes, or may clash, with your own interests in that matter or a related matter Client conflict (term used by SRA: Conflict of...
This Practice Note outlines who is entitled to seek a variation of a confiscation order, together with the relevant timing and procedure for making such an application. It addresses reconsideration via the slip rule and the broadened authority in the Proceeds of Crime Act 2002 ( POCA 2002) permitting the available amount to be revisited without time limit after conviction. It further identifies the statutory foundations for appealing a confiscation order under both the Criminal Appeal Act 1968 ( CAA 1968) and POCA 2002. Lastly, it weighs up whether a variation application or an appeal is the more suitable procedural avenue to contest a confiscation order. Who can apply to vary a confiscation order under the Proceeds of Crime Act 2002? A defendant, the prosecutor, or an appointed receiver may ask the Crown Court to lower the sum specified by a...
Why you need to manage this risk Confidential information ranks among a company’s most prized assets. Keeping matters confidential is often the most effective way to shield trade secrets and valuable know-how when intellectual property rights do not provide sufficient protection, or when relying on those rights is commercially unattractive. A breach of confidence can deprive a business of key assets and cause serious disruption. Commercial records such as price lists, customer lists, details of customers, suppliers, business partners, and relationships with regulators or other third parties Unpublished copyright works Mathematical formulae and manufacturing techniques, processes, designs, drawings and engineering Secure codes and algorithms Personal employee information such as compensation arrangements, benefits, hours of work Confidential information about employees (e.g. performance review information and sickness records) Hardware configuration information Plans, sketches and diagrams ...
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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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