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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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Background to the Package Travel Regulations From 1 July 2018, packages are now covered by the Package Travel and Linked Travel Arrangements Regulations 2018 (2018 Package Travel Regs), SI 2018/634. These provisions gave effect to Directive ( EU) 2015/2302 (the Package Travel and Linked Travel Arrangements Directive). Post- Brexit transition or implementation, the 2018 Package Travel Regs continue to apply, with limited changes removing references to EU legal sources. The Package Travel and Linked Travel Arrangements Directive may still usefully guide interpretation of the 2018 Package Travel Regs. For further details and guidance, see Practice Note: Assimilated law. This Practice Note centres squarely on the 2018 Package Travel Regs. The earlier Package Travel, Package Holidays and Package Tours Regulations 1992 (the 1992 Package Travel Regs), SI 1992/3288, took effect on 23 December 1992 to transpose an EU Directive on package travel, package holidays and...
Outsourcing is a staple of many law firms’ operating models, bringing cost and efficiency gains for practices and their clients. This Practice Note sets out and clarifies the main compliance issues that arise for SRA-regulated firms and individuals when outsourcing, including where outsourced services are taken offshore. It reflects the SRA Standards and Regulations and offers guidance on sound practice when outsourcing legal activities or operational functions. What is outsourcing? Put simply, outsourcing means engaging a third party to deliver services that you could otherwise perform yourself. The external provider instead supplies those services using its own people and, often, its own facilities. In principle, you may outsource any activity provided you comply with the law and regulatory obligations. However, you cannot divest yourself of responsibility for meeting the SRA’s requirements, and you remain always accountable to the SRA where work is...
General damages General damages encompass non-pecuniary heads of loss, both past and future, which resist exact computation; instead, an appropriate sum is assessed by judgment. In everyday parlance, the expression general damages is often used solely for the award covering pain, suffering and loss of amenity ( PSLA), and although this is the most usual head within general damages, it is not the only category. Accordingly, particular care should be taken to ensure both parties involved fully understand precisely what is meant at any given point, especially during the course of settlement negotiations, where clarity about the precise scope is essential. For a more complete explanation, see Practice Note: Common recoverable losses in personal injury cases— What are general damages and special damages?......
The idea of ordinary share capital carries weight for UK tax purposes. This Practice Note outlines the principal tax reliefs that commonly hinge on ‘ordinary share capital’ (regardless of whether the issuer is a UK company), namely: no gain/no loss treatment on intragroup transfers corporation tax group relief substantial shareholdings exemption share for share exchanges and schemes of reconstruction business asset disposal relief (formerly entrepreneurs’ relief) and investors’ relief relief for employee share acquisitions, and enterprise investment scheme ( EIS) and seed enterprise investment scheme ( SEIS) relief This Practice Note then considers how ‘ordinary share capital’ is defined for UK tax purposes. No gain/no loss treatment on intragroup transfers Where companies are within the charge to UK corporation tax and form a 75% group, assets can pass between them without triggering tax on any profits or gains. For more...
Types of option agreement People frequently refer to 'put' and 'call' option arrangements. A call option gives the buyer the right to require the seller to dispose of a property (or a defined part) to the buyer. A put option allows the landowner to require the buyer to acquire the property. Under a pure call option, the buyer may at any point within the agreed option window compel the landowner to transfer the property to it. A put option is the reverse position and is encountered far less often. A hybrid can be created, often described as a 'put and call' or cross option, so either party may oblige the other to buy or sell on the terms specified in the option agreement. Many option arrangements carry numerous conditions (for example, planning or other consents to be secured) so that, rather than being truly 'pure'...
This Practice Note offers a concise overview of the principal points of comparison between the UK and EU online safety regimes. In particular, it sets side-by-side the regulatory frameworks of the Online Safety Act 2023 ( OSA 2023) and Regulation ( EU) 2022/2065, the EU Digital Services Act ( EU DSA), examining their scope, the obligations they impose, and the potential penalties for breach. Background Online spaces increasingly face threats including misinformation and harmful material, heightening risks to users, especially vulnerable audiences such as children. To safeguard people on the internet and foster a more secure digital ecosystem, both the UK and the EU have introduced laws to govern online services: the OSA 2023 and the EU DSA. The OSA 2023 establishes risk-based duties of care that service providers are required to meet. The EU DSA mirrors this philosophy, setting out a framework aimed at...
Capital payments are generally taxed by setting them against available relevant income ( ARI), offshore income gains ( OIGs) and then capital gains, in that sequence respectively. Accordingly, where a trust has no ARI, distributions are matched first with OIG figures and ultimately with amounts then referable to section 1(3) of the Taxation of Chargeable Gains Act 1992 ( TCGA 1992) (formerly s 2(2)), and those arising under TCGA 1992, s 87 or Schedule 4C. For commentary on OIGs, see the Practice Note: Offshore trusts—offshore income gains ( OIGs). For guidance on matching capital payments, see Practice Notes: Offshore trusts—matching capital payments—section 87 TCGA 1992 and Offshore trusts—matching capital payments where the trustee borrowing rules apply— Sch 4C TCGA 1992. Where there has been a transfer between settlements, the OIG figures and the s 1(3) amounts within each settlement are...
The scope of offences a juror may commit in connection with a trial on which they sit was widened when the Criminal Justice and Courts Act 2015 ( CJCA 2015) introduced, in particular, four new offences into the Juries Act 1974 ( JA 1974). The pre-existing JA 1974 offences, together with the offence of contempt of court, remain available to those examining alleged jury irregularities and misconduct. For further guidance on such irregularities, see the Practice Note: Dealing with jury irregularities. The Criminal Practice Directions ( CPD) now reflect the offences set out in JA 1974, ss 20A–20D, together with the related repeal of section 8 of the Contempt of Court Act 1981 ( CCA 1981). Judges dealing with juror misconduct enjoy a wide discretion as to how they wish to proceed against the juror concerned, as...
Hackney carriages and private hire vehicles A ‘hackney carriage’ means a vehicle authorised to ‘ply for hire’, namely to offer a taxi service and stand on taxi ranks awaiting passengers. See the Practice Note: Taxi licensing. Plying for hire without a hackney carriage licence is an offence under section 45 of the Town Police Clauses Act 1847 ( TPCA 1847). Touting for car hire services constitutes an offence by virtue of section 167 of the Criminal Justice and Public Order Act 1994 ( CJPOA 1994). See Practice Notes: Taxi touting or soliciting for hire, and Taxi and private hire vehicles enforcement. A ‘private hire vehicle’ is defined at section 80 of the Local Government ( Miscellaneous Provisions) Act 1976 ( LG( MP) A 1976) as ‘a motor vehicle constructed or adapted to seat fewer than nine passengers, other than a hackney carriage or public...
Occupiers' Liability Act 1957 Under the Occupiers' Liability Act 1957 ( OLA 1957), an occupier of premises owes a common law duty of care to all their visitors for risks arising from the state of the premises, and from things done or left undone upon them. In every case, the occupier must exercise such care as is reasonable in the circumstances. The test for liability under OLA 1957 is: the claimant must be a visitor at the material time the defendants must be occupiers the defendant must have breached the statutory duty to take such care as, in all the circumstances, was reasonable to see that the claimant was reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupiers to be there the breach must have caused the claimant...
A judgment creditor can ask the court for a charging order to secure what is owed, provided the judgment debtor holds chargeable assets ( CPR 73). Once a charging order is in place, the creditor may then seek an order for sale from the court, with a view to realising and recovering the amount due under the judgment. This Practice Note highlights key points to weigh up when deciding whether this enforcement route is appropriate, or whether it would be better not to pursue it. For broader guidance on charging orders, including what they are and the procedural steps required to obtain them, see the following Practice Notes: Charging orders—what are they and when to use them— CPR 73 Charging orders—how and where to apply Charging...
Private nuisance Relevance of private nuisance in modern law Despite the highly intricate framework of environmental regulation, private nuisance (together with other torts like negligence and trespass) occupies a significant role in contemporary environmental law. That is hardly unexpected in a common law system where judges hold a pivotal constitutional function. Moreover, certain environmental problems sit beyond formal regulatory schemes and are not wholly captured by them. For example, the statutory nuisance scheme in Part 3 of the Environmental Protection Act 1990 ( EPA 1990) extends only to the nuisances enumerated in EPA 1990, s 79(1), and no further; yet, where the environmental harm has ceased or been abated, a legitimate claim for damages for historic nuisance may remain, which the statutory environmental protection mechanisms do not provide or permit. The tort of private nuisance also retains weight because recent statutes, following earlier patterns of...
This Practice Note outlines highway nuisance law, and records that section 333 of the Highways Act 1980 ( Hi A 1980) expressly preserves common law. It considers when activities on or over the road may constitute a nuisance, with reference to statute and the common law, including: builders’ works, scaffolding and skips; racing and unsuitable traffic; stationary traffic; and bridges and beams spanning the highway. It also surveys likely nuisances arising from neighbouring land, such as: domestic or farm animals; pigeons; smoke and fumes; and trees. Common law and statute law Regarding highways, nuisance at common law substantially overlaps with statutory provisions (principally within the Hi A 1980), yet Hi A 1980, s 333 specifically preserves the common law. Pratt and Mackenzie’s Law of Highways (21st edition, 1967) describes a highway nuisance as any wrongful act or omission on or near a...
A statement of capital provides a point-in-time record of a company’s share capital. Under the Companies Act 2006 ( CA 2006), a company must complete one in various situations. Requirement for a statement of capital A company with share capital must, on request, provide its members with a current statement of capital, giving access to up-to-date details whenever a member asks. In addition, a statement of capital must be filed with Companies House in connection with almost all transactions involving company’s share capital, accompanying the filing for such dealings......
What are notification requirements? The notification requirements form a statutory regime in Part 2 of the Sexual Offences Act 2003 ( SOA 2003), created to manage the risks posed by sexual offenders living in the community. They do not depend on any court order or ruling; rather, they take effect automatically by statute when a person is convicted in circumstances within SOA 2003, s 80. As these duties arise under statute, there is no appeal against their automatic application. The regime applies only to defined categories of offenders and is commonly called the sex offenders’ register, though no register exists as such. Offenders subject to the requirements must automatically provide specified information to the police on conviction or caution for a relevant sexual offence. The duration for which an offender must comply (the notification period) is determined by how the offender was dealt with for the...
Ready, willing and able This Practice Note explains the meaning of ready, willing and able and highlights the upshot of serving an invalid notice. Where a party is ready, willing and able to complete, it may serve a notice to complete, thereby making time of the essence and enabling rescission of the contract. The Standard Conditions ( SCs) and the Standard Commercial Property Conditions ( SCPCs) prescribe how such a notice must be served. Although the focus is on commercial property transactions, it also briefly addresses residential aspects. Ordinarily, time is not of the essence for completing a land sale contract. If either seller or buyer postpones completion, the party in default is answerable in damages (and for compensation under the standard conditions) but cannot rescind unless and until time is made of the essence. It falls to the party who is ready, willing and able to...
What is non-negligent damage? Where damage to neighbouring property stems from a contractor’s negligence or breach of contract, the contractor is liable in the tort of negligence or nuisance to the owner whose property is lost or damaged. See Practice Note: Negligence in construction. The adjoining owner may pursue either the contractor or the employer, as the party for whom the work is undertaken. The contractor must provide an indemnity to the employer against claims for property damage caused by the contractor’s negligence or breach of contract. If the employer is sued, it can seek an indemnity from the contractor for any damages awarded. Difficulties arise when damage to a neighbour’s property is not due to the contractor’s negligence or breach—non‑negligent damage. The issue first emerged in the 1958 case, Gold v Patman and Fotheringham, where the property adjoining the site of the works suffered damage caused by a...
This Practice Note Examines the provisions of the UK Corporate Governance Code ( UKCG Code) concerning the governance function of the boards of companies with equity shares listed in the commercial companies category, and outlines the separate roles and accountabilities of the chair, the senior independent director ( SID) and non‑executive directors ( NEDs). It further addresses the UKCG Code’s expectations on board composition, including the notion of independence under the Code. A non‑executive director ( NED) is not a statutory creation or requirement, yet the position is central to achieving sound corporate governance. The Companies Act 2006 ( CA 2006) draws no legal distinction between executive and non‑executive directors. NEDs therefore carry the same duties, responsibilities and potential liabilities at law as executive directors. For guidance on these legal obligations and liabilities, and the benchmarks to which all directors are held equally, see:...
General role and responsibility of a non-executive director ( NED) For a comprehensive overview of the duties and accountability of NEDs, consult Practice Note: Non-executive directors and the listed company board—corporate governance roles and responsibilities. Guidance on the rules, expectations and remit of NEDs is likewise set out in the UK Corporate Governance Code ( UKCG Code) and in the FRC Guidance on Board Effectiveness, both published by the Financial Reporting Council ( FRC). For further details on the Code itself, see Practice Note: The UK Corporate Governance Code. NEDs who perform SMFs under the SM& CR With effect from 7 March 2016, the Senior Managers and Certification Regime ( SM& CR) applied to UK banks, building societies, credit unions and Prudential Regulation Authority ( PRA)-designated investment firms. The regime then covered all dual-regulated insurers on 10 December 2018, and from 9 December 2019 it was...
Overview of nil paid and partly paid shares The chance to take up or buy shares on a nil or part-paid basis has long been, and remains, in practice, a fairly routine and well-used way to broaden share participation. The usual aim is to let people own shares in a company as other shareholders do, and potentially enjoy comparable rights, while postponing the cash outlay for those shares. This offers a pragmatic commercial approach and can bring both tax benefits, yet it also exposes the individual to possible liabilities for the unpaid subscription amount. These arrangements resemble an option in that payment of the whole or a portion of the price is required only later or on certain specified triggers, such as a company sale, a listing, or when the company makes a call for the outstanding sum. The crucial difference from options is 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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