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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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Court directions for investment Where damages are secured for a child, whether after settlement or at trial, funds are not released straightaway to the child or their legal advisers; instead, they are managed in line with directions issued by the court. The core rule is that the court determines, by order, how the funds are to be handled and precisely what is to happen to them ultimately. The court enjoys broad discretion. It may direct that some or all of the money be paid into court for investment, or be managed in another appropriate way......
This Practice Note sets out guidance on claims for ‘use and occupation’ or mesne profits, and on when double rent or double value can be sought. Claims for use and occupation A claim for use and occupation arises where land is occupied without an express agreement stipulating the rent. In such cases, the landlord may sue to recover a reasonable sum for the land’s occupation. The recovery takes the form of damages for breach of an implied promise to pay for using the land. The claim only lies where the tenant actually entered the premises with the landlord’s permission, and not as a trespasser (in which event, see Mesne profits below). The landlord must establish an express or implied contract with the occupier and must hold the legal estate ( Morgell v Paul (1828) 2 Man & Ry KB 303 (not reported by Lexis...
This Practice Note outlines key points to bear in mind when someone intends to start a claim against a company subject to a company voluntary arrangement ( CVA). It does not address the process for placing a company into a CVA, the overall impact of a CVA, or the avenues for challenging one. For further reading on these areas, see: Practice Note: In what circumstances can a CVA be proposed and by whom? Practice Note: The CVA proposal and procedure Overview: Company voluntary arrangements Practice Note: Proprietary claims Practical issues to consider before bringing a claim against a company subject to a CVA Is the claimant bound by the CVA? The initial question for any claimant is whether they are bound by the CVA’s terms and, as a result, are likely prevented from pursuing a claim. In broad terms, a...
Claims for negligent misrepresentation are frequently pursued together with, or as an alternative to, claims for negligent misstatement. It is therefore helpful to grasp the key practical considerations relevant to both types of claim. Comments Negligent misrepresentation Key ingredients of claim the representee relied upon a statement made to them by, or on behalf of, the representor the representor intended that statement to prompt the representee to enter the contract the statement did in fact induce the representee to enter the contract the statement bore the character of a representation the representation was untrue Accordingly, a negligent misrepresentation claim inherently involves entry into a contract brought about by the misrepresentation. Negligent misstatement Key ingredients of claim an inaccurate statement made by the representor to the representee the claimant relied on that misstatement the claimant suffered loss as a consequence there is no need for a contract to have been concluded between claimant and...
This Practice Note provides overarching information on civil restraint orders ( CROs) that applies across all forms of CRO, and should be considered alongside the following Practice Notes: Limited civil restraint orders Extended civil restraint orders General civil restraint orders What is a civil restraint order ( CRO)? CROs restrict a party’s capacity to pursue specified claims or applications in identified proceedings unless the court’s permission is obtained first. They are made to stop a party from issuing claims or bringing applications that lack merit, where that party has shown a persistent pattern of such conduct......
Procedural Rules This Practice Note outlines how to bring and oppose applications in the High Court for a civil recovery order ( CRO), a property freezing order ( PFO), or an interim receiving order ( IRO). For more on these orders and the grounds for obtaining them, refer to Practice Note: Civil recovery orders under the Proceeds of Crime Act 2002. The procedural framework is contained in the following documents: Practice Direction— Civil Recovery Proceedings Senior Master Practice Note 15 April 2016: POCA Civil Recovery Claims under CPR Part 8 Civil Recovery Proceedings Practice Direction: Civil Court News— CCN 2 (13) Applications for PFOs or IROs (interim orders) must be issued in the Administrative Court of the High Court. A CRO claim must be commenced in the Central Office of the King’s Bench Division ( KBD). Where a CRO application follows interim order...
A child might also qualify to apply for indefinite leave to enter or remain in the UK under Part 8 or Appendix FM where: both parents hold settled status in the UK, or one parent holds settled status and the other is applying for indefinite leave to remain at the same time as the child one parent holds settled status and the other is deceased one parent holds settled status and has had sole responsibility for the child's upbringing the child is seeking indefinite leave to remain, one parent has settled status and the child normally lives with that parent and not their other parent one parent or relative has settled status, there are serious and compelling family or other considerations which make excluding the child undesirable, and suitable arrangements have been made for the child's care If one of the child's parents has been granted, or is...
The offences of child abduction The Child Abduction Act 1984 ( CAA 1984) establishes two distinct child abduction offences. The first covers a parent or a person linked to the child who removes or sends the child out of the UK without the necessary consent ( CAA 1984, s 1). The second addresses the abduction or detention of a child by others ( CAA 1984, s 2). Both offences are triable either way in the magistrates' court or the Crown Court. Consent of DPP Proceedings for either child abduction offence may only begin with the consent of the Director of Public Prosecutions. Elements of the offence of abduction of child by a person connected with a child Section 1 of the CAA 1984 sets out the elements where the alleged offender is connected with the child. The prosecution must show: an individual 'connected with' a child under...
The need to pursue enforcement to effect a child's return from a non- Hague Convention state can emerge after an unanticipated, unheralded removal, or subsequent to consent or a court-authorised short-term removal. Refer to Practice Note: Child abduction—wardship and inherent jurisdiction (non- Hague Convention) for the governing principles and procedural matters in such non- Hague cases. That Practice Note addresses enforcement in child abduction matters outside the Hague regime, including wardship, and sets out relevant practice and procedure. In March 2022, the President of the Family Division released revised guidance on coordination between courts in England and Wales and British Embassies and High Commissions overseas, detailing the steps to follow when judicial consular help is sought. These procedures were settled jointly by the President and the Foreign, Commonwealth and Development Office ( FCDO). See: The Foreign, Commonwealth and Development Office. It explains...
NOTE With effect from 14 August 2023, the County Court Money Claims Centre ( CCMCC) and the County Court Business Centre ( CCBC) have been retitled the Civil National Business Centre ( CNBC)—see: LNB News 14/08/2023 12— CCMCC issues name and performance update. This Practice Note explains how to seek a charging order under CPR 73 and CPR PD 73. It outlines the application steps, namely: which form to use, how to complete it, and where to submit your completed application form It also provides guidance on interpreting and applying the relevant CPR provisions. Depending on the court dealing with your matter, further requirements may apply—see Court specific guidance below. This Practice Note is relevant whether your charging order application is made via the Civil National Business Centre ( CNBC) or in a non- CNBC case. Be aware that special provisions apply to charging orders over...
FORTHCOMING CHANGE relating to UK transfer pricing legislation Finance Bill 2026 (as introduced) contains provisions delivering a range of changes to the UK’s transfer pricing legislation. Once enacted, with effect for accounting periods beginning on or after 1 January 2026, the package will, among other matters: remove UK‑to‑ UK transfer pricing, subject to carve‑outs intended to prevent opportunities for tax arbitrage amend and clarify the participation condition make clear that the OECD Model Tax Convention and the OECD Transfer Pricing Guidelines are to be used as interpretative aids introduce several amendments to the rules governing financial transactions to better align the UK position with the OECD Transfer Pricing Guidelines Alongside this, the government announced at Budget 2025 that it will proceed with an annual requirement for in‑scope multinationals to report information on cross‑border related party transactions for accounting periods...
This Practice Note considers when a party may seek to substitute its Part 35 expert during the life of a claim. It sets out the circumstances in which such a change might be necessary, flags the predictable accusation from an opponent that the party is engaging in ‘expert shopping’, and indicates the means by which the court will probe whether that is in fact the real motivation for the proposed switch. It also addresses the possibility that permission will only be granted on terms, including a requirement to disclose materials prepared by the initial expert witness. The court’s approach to a proposal to change an expert Allowing expert opinion evidence at trial lies within the court’s discretion. A request to replace an expert part‑way through the case is a case management matter, likewise requiring the exercise of that discretion. In dealing with any such...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note addresses public procurement exercises launched before the Procurement Act 2023 ( PA 2023) took effect on 24 February 2025. Any in-scope procedure started on or after that date is subject to PA 2023. Through the Act’s transitional and savings provisions, the prior public procurement regimes continue, so far as required, to enable contracting authorities to finalise and manage procurements commenced before PA 2023 commenced (ie procurements already under way). This Practice Note should be considered against that backdrop. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Additional practical guidance on PA 2023 appears in a separate subtopic, see: Procurement Act 2023—overview. Implications of changes during the public procurement procedure This Practice Note sets out when a contracting authority may adjust its award criteria during a...
Principal private residence relief ( PPR relief) removes some or all of the gain arising on the sale or disposal of an individual’s dwelling-house from capital gains tax ( CGT) where the property was their sole or principal residence at any time during their ownership period. UK-resident taxpayers may claim PPR relief on the disposal of a UK or a non- UK residence. Individuals who are not UK resident may claim PPR relief on the disposal of a UK dwelling-house. From 6 April 2015, a residence will not qualify for PPR relief in a tax year unless the individual either: was resident, in that tax year, in the country where the dwelling-house is situated; or spent at least 90 nights in the dwelling-house (or in dwelling-houses within the same country) during that tax year. Principal private residence relief: the basics In general, gains realised on the...
What is principal private residence relief? Principal private residence ( PPR) relief is a relief from capital gains tax ( CGT). It may apply to the gain arising on the disposal of a dwelling house, or land occupied and enjoyed with it, where the property is, or has at any time during ownership been, the owner’s only or main residence. The residence can be in the UK or overseas, subject to specific conditions linked to the taxpayer’s residence status. If the property has not been the only or main residence for the full period of ownership (subject to certain permitted absences), or if the owner has not been resident in the same territory as the property for part of that time, the relief will only reduce a corresponding part of the gain. The relief applies to disposals by individuals, trustees and personal...
This Practice Note explores how the material contribution principle functions where there are several defendants or concurrent causes of injury, the distinct stance adopted by the courts on causation in disease claims, and whether the material contribution test may extend to other personal injury matters when the ‘but for’ test fails. It also offers practical guidance on assembling evidence to prove material contribution. The orthodox test for deciding whether the defendant’s breach caused the claimant’s loss is the ‘but for’ test. That test asks the court to consider: but for the defendant’s breach of duty, would the claimant have suffered the damage? For further guidance, see Practice Note: Causation in personal injury claims. For guidance on causation in clinical negligence, see Practice Note: Causation and material contribution in clinical negligence claims. Only when the ‘but for’ test fails should ‘material...
Khan v Meadows In Khan v Meadows, the Supreme Court outlined a framework for analysing the constituent parts needed to establish negligence, including the scope of duty and causation. For further guidance, including on the limits of the defendant’s duty of care, see Practice Note: Duty of care and breach in clinical negligence claims. Causation has two elements that a claimant must demonstrate: Is the loss a consequence of the defendant’s act or omission? (the factual causation question) Is any part of the harm unrecoverable because it is too remote, because there is another effective cause (including an intervening act that broke the chain of causation), or because the claimant has mitigated their loss or failed to avoid loss they could reasonably have avoided?......
under POCA 2002 Chapter 3 under Part 5 of the Proceeds of Crime Act 2002 ( POCA 2002) Part 5, Chapter 3 of POCA 2002 establishes the summary process in England and Wales for the recovery of cash, along with related powers to search, seize, detain and forfeit cash. Under s 294, specified officers may seize cash suspected of being recoverable property, or cash thought to be intended by any person for use in unlawful conduct. For details on cash search powers and what constitutes cash, recoverable property and unlawful conduct, see Practice Note: Cash searches under the Proceeds of Crime Act 2002. POCA 2002, Pt 5, Chs 3A and 3B introduce complementary powers for the recovery of listed items of personal property, such as precious metals and jewellery, and for the forfeiture of monies held in certain accounts and in bank accounts. See also...
Introduction This Practice Note sets out a concise outline of the applicable tests for cashflow and balance sheet insolvency under section 123 of the Insolvency Act 1986 ( IA 1986). It focuses, in particular, on the position in light of the Supreme Court’s leading judgment in BNY Corporate Trustee Services v Eurosail- UK 2007-3BL (the Eurosail decision)... The two tests IA 1986, s 122(1)(f) permits the court to wind up a company that cannot meet its debts (see Practice Note: Compulsory liquidation—issuing a petition). Under IA 1986, s 123(1)(e), a company is deemed unable to pay its debts if it is proved to the court’s satisfaction that it cannot pay debts as they fall due (the ‘cashflow insolvency’ test). In addition, under IA 1986, s 123(2), a company is likewise deemed unable to pay its debts if it is proved to the court’s...
What is a cash balance scheme? Put simply, a cash balance pension scheme is an arrangement where a member accumulates a guaranteed pot of money during their pensionable service, which is then used to provide retirement benefits. When the member retires, this pot is generally applied to buy an annuity (or to deliver other retirement benefits) on whatever terms can be obtained in the market at that time. This kind of scheme blends features of a defined benefit ( DB) arrangement with aspects of a defined contribution ( DC) arrangement. That mix is important because it influences how the risks inherent in any pension arrangement are shared between the member and the sponsoring employer, as explored in this Note. Benefit structures Cash balance schemes come in different forms, but they broadly fall into two categories depending on how the retirement cash sum is...
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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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