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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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This Practice Note is an introductory new starter guide that sets out the principal considerations, terms and stages involved in granting a new business lease from the outset. The guide offers an overview and toolkit for entering into commercial leases and serves as a useful starting point for trainee solicitors and those new to Property as a practice area. It concentrates on the key issues that commonly arise and briefly refers to other sources and materials that provide more in-depth information on the topics covered. What is a commercial lease? A commercial lease usually means a written agreement that not only creates a tenancy of business premises, but also sets out the often detailed and extensive provisions that will regulate the relationship between the landlord and the tenant. This Practice Note identifies some of the matters to consider when advising on a new...
The volume of claims brought against banks continues to grow. This Practice Note considers particular issues concerning the tortious duty of care owed by banks to their customers, namely the so‑called ‘ Quincecare duty of care’, assumption of responsibility, and the giving of volunteered advice. For direction on the role of banks in financial mis‑selling claims, see Practice Note: Standard of care in professional negligence claims— Negligent financial mis‑selling claims. For general guidance on tortious claims, see: Tort and negligence claims—overview; and for negligence specifically, consult the following Practice Notes: Negligence—key elements for establishing a negligence claim Negligence—when does a duty of care arise? Negligence—when is the duty of care breached? For guidance on professional negligence more broadly, see: Professional negligence claims—overview. Framing a bank’s duty to its customer Before exploring the potential ambit of a bank’s tortious duty to its customer, it should be borne in mind that—as in...
What is the mutual agreement procedure? The mutual agreement procedure ( MAP), also referred to as the competent authority ( CA) procedure ( CAP), is an administrative route designed to settle issues that arise from: double taxation imposed on taxpayers contrary to the terms of a specific double tax treaty or convention ( DTT), and the way DTTs are applied and interpreted. Article 25 of the Organisation for Economic Co-operation and Development ( OECD) Model Tax Convention ( OECD MTC) outlines the principal rules for running the MAP between treaty partners, though countries may modify Article 25 in their bilateral DTTs. In 2017, Article 25 was extensively revised following recommendations from Action 14 (‘ Making dispute resolutions mechanisms more efficient’) of the OECD’s Base Erosion and Profit Shifting ( BEPS) project. Under the Action 14 report, countries are required, as a minimum...
This Practice Note This Practice Note provides guidance on interpreting and applying the relevant CPR provisions. Depending on the court in which your matter proceeds, you should also be mindful of any additional provisions—see: Court specific guidance. In particular, be aware that CPR 26 (which addresses, among other matters, the allocation of claims to a case management track and the requirement to file a directions questionnaire), and substantial parts of CPR 29/ CPR PD 29 (dealing with case management in the multi-track), do not apply in the Commercial Court (see CPR 58.13 and CPR PD 58, para 10.1), the Circuit Commercial Courts (see CPR 59.11 and CPR PD 59, para 7.1) and the Technology and Construction Court (see CPR 60.6 and CPR PD 60, para 10). For information on case management in the Commercial Court and the Technology and Construction Court, see the following Practice...
This Practice Note addresses the arrangement offence in section 328 of the Proceeds of Crime Act 2002 ( POCA 2002), one of the principal money laundering offences under that statute; see Practice Note: Money laundering offences under the Proceeds of Crime Act 2002— The principal money laundering offences. For material on the other principal money laundering offences, consult Practice Notes: Money laundering offences—concealing, disguising, converting, transferring and removing and Money laundering offences—acquisition, use and possession. The arrangement offence under POCA 2002, s 328 The offence is committed where a person enters into, or is otherwise concerned in, an arrangement which they know or suspect will facilitate (by any means) the acquisition, retention, use or control of criminal property by, or on behalf of, another. For fuller guidance on the meaning of criminal property and criminal conduct, see Practice Note: Principal money laundering...
Failure to disclose offences under the Proceeds of Crime Act 2002 There are four distinct offences relating to non-disclosure under the Proceeds of Crime Act 2002 ( POCA 2002): not reporting to a nominated officer or another authorised person when operating in the regulated sector—a broad application within the regulated sector, not confined to nominated officers a nominated officer in the regulated sector failing to disclose—a narrow application limited to nominated officers within the regulated sector a nominated officer in the unregulated sector failing to disclose—a narrow application limited to nominated officers in the unregulated sector not making a disclosure in the prescribed form—a wide application across both regulated and unregulated sectors, not limited to nominated officers POCA 2002, sections 330 and 331 together impose a duty on the regulated sector to report suspicions of money laundering to the...
This Practice Note explains the circumstances and methods by which parties may seek to limit or exclude liability for misrepresentation, by invoking section 3 of the Misrepresentation Act 1967 ( MA 1967) together with the section 11 reasonableness test under the Unfair Contract Terms Act 1977 ( UCTA 1977). Note: from 1 October 2015, UCTA 1977 applies only to business-to-business contracts; for consumer contracts, see sections 61–76 of the Consumer Rights Act 2015 ( CRA 2015). For guidance on rescission and damages arising from misrepresentation, see: Misrepresentation—damages as a remedy Misrepresentation—rescission as a remedy For related matters, including: Entire agreement clauses and their role in limiting or excluding liability for misrepresentation—see Practice Note: Contract interpretation—entire agreement clauses Non-reliance clauses used to exclude or limit liability for misrepresentation and the notion of ‘contractual estoppel’—see Practice Note: Contractual...
This Practice Note explores the availability of damages as a remedy for a misrepresentation claim, with reference to the Misrepresentation Act 1967 ( MA 1967)... For analysis of when the courts will set aside a contract for misrepresentation and when parties may validly exclude or restrict liability for misrepresentation, see the following Practice Notes: Misrepresentation—rescission as a remedy Misrepresentations—excluding and limiting liability for them When can you claim damages as a remedy for misrepresentation? MA 1967 supplies a statutory foundation for seeking damages in cases of misrepresentation under MA 1967, s 2, in addition to the common law action for damages for fraudulent misrepresentation or the closely related tort of deceit......
Part 7 of the Financial Services Act 2012 The Financial Services Act 2012 ( FSA 2012) brought in new criminal offences connected to financial services, namely: issuing false or deceptive statements creating false or misleading impressions issuing false or deceptive statements, or causing a false or misleading impression, in relation to specified benchmarks Under section 401 of the Financial Services and Markets Act 2000 ( FSMA 2000), the Financial Conduct Authority ( FCA) is empowered to prosecute these offences......
The right to obtain disclosure Disclosure refers to the stage in which each party makes available documents within their control that are relevant to the matters in dispute. Its central aim is to advance the overriding objective by putting litigants on an equal footing. The notion of ‘documents’ is not confined to paper files; it covers any means of recording information, including electronic databases, microfilm used for archiving, and video or audio tapes and discs. In clinical negligence claims, the claimant’s medical records are usually the most significant documents. They represent the most contemporaneous account of the care provided and will, in almost every case, underpin the expert evidence that shapes the result of the litigation. Prompt, impartial examination of the medical records can avoid unnecessary delay and cost, and is essential from the outset to evaluate the merits, identify strengths, and pinpoint any...
ARCHIVED: This archived Practice Note explores the use of mediation‑arbitration (med‑arb) to resolve commercial disputes. It is not maintained and is provided for background purposes only. For general information on alternative dispute resolution ( ADR), see ADR and dispute resolution clauses—overview. For guidance on mediation, see Mediation—overview. Med‑arb is suitable for a wide array of commercial disputes. It is appropriate, for example, for international or cross‑border matters in the construction, energy and infrastructure sectors. What is med-arb? Med‑arb is a hybrid, two‑stage ADR mechanism. Typically, the parties authorise the mediator to convert automatically into an arbitrator and to issue a legally binding arbitral award if the mediation does not achieve a settlement of the dispute. The arbitration stage is legally binding, and the arbitrator’s award is enforceable like one made in standard arbitration proceedings, a feature that is generally...
Definition of Waste ' Waste' is described in the Waste Framework Directive, Directive 2008/98/ EC ( WFD), as any material or item that the holder discards, plans to discard, or must discard. For further details, see Practice Note: Meaning of waste—what is waste? Waste Framework Directive 2008/98/ EC (as amended in 2018) ( WFD). The Waste ( England and Wales) Regulations 2011, SI 2011/988, gave domestic effect to the WFD’s requirements in England and Wales under domestic law......
Materials, goods and workmanship Employers place significant emphasis on the contractor’s materials and craft on a build, since, alongside the design, they dictate the calibre of the finished scheme—and whether the contractor has achieved the stipulated level of workmanship, and/or selected materials that satisfy the contract’s quality criteria, is frequently at the heart of disputes about defective work and alleged shortfalls. The building contract typically sets out comprehensive clauses on workmanship benchmarks and on the categories and grades of goods and materials the employer requires the contractor to use on the project. While the technical documents attached to the building contract usually contain most of the particulars and prescriptions, the principal contractual terms commonly also address the employer’s expectations regarding materials and workmanship. As noted in this Practice Note, numerous express terms in a building contract (or a sub-contract to the primary building...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It outlines the core doctrines of marine insurance as set out in the Marine Insurance Act 1906 ( MIA 1906). It considers indemnity principles within marine cover, the notion of a marine adventure, combined land and sea exposures and perils of the sea. It further reviews insurable interests, the main risks insured, marine policy forms, the role of marine insurance brokers and the insurer’s rights of subrogation under a marine policy among other related matters. For fuller guidance on types of marine insurance, see: Marine insurance—overview Practice Notes: Marine insurance—essentials Marine cargo insurance Hull and machinery insurance Protection and indemnity insurance Marine war risks What is marine insurance? Marine insurance is defined in MIA 1906 as a contract by which the insurer agrees, in the manner and to the...
Practice Note This Practice Note explores key issues for administrators concerning their personal liability and outlines steps they may take to reduce their exposure. From a commercial perspective, this is a matter of real importance for office-holders. In this context, commercial realities matter greatly. Such considerations remain central for these office-holders in practice. They have no duty to accept any given appointment. On accepting office, they do so to perform work for fair remuneration and, though they acknowledge the demands of their professional work, they are not in the business of guaranteeing an insolvent company’s liabilities or assuming personal risk. This Practice Note does not address the extent of an office-holder’s liability for breach of duty (for example, the duty to exercise reasonable skill and care in the performance of their functions, Re Charnley Davies Limited ( No 2)) or liability under...
The use of malus and clawback The concept that performance-based cash or share awards for executives and senior employees can be reduced (malus) or recovered (clawback) when a material adverse event occurs or later comes to light is now widely accepted and embedded in market practice. Although rooted in the financial services industry, malus and clawback are now standard elements of incentive plans operated by companies listed in the equity shares (commercial companies) category in the UK. This development flows directly from the Financial Reporting Council’s ( FRC) 2014 revisions to the UK Corporate Governance Code in response to the global financial crisis, together with the subsequent expectations of the UK’s major institutional shareholders. The Department for Business, Energy & Industrial Strategy’s ( BEIS) March 2021 consultation on modernising the UK’s audit and corporate governance regime further reinforces that deploying malus and clawback within...
Under section 23 of the Local Government Act 1974 ( LGA 1974), the office of the Local Government and Social Care Ombudsman ( LGO) is established to look into complaints about maladministration and/or service failings involving the following bodies: any local authority, covering its members, officers, and any committee or subcommittee (but not town or parish councils) combined authorities, or a joint board where all constituent bodies are local authorities a development corporation constituted for the purposes of a news town, or an urban development corporation fire and rescue commissioners school admission appeal panels police and crime commissioners a national park authority See Practice Note: Local Government and Social Care Ombudsman. What is Maladministration? Section 26 of the LGA 1974 sets out what the LGO may investigate, but Maladministration itself is not defined in the statute......
For various reasons, a claimant or respondent may want or need to: amend the contents of their ET1 claim form, ET3 response form or a reply (to an employer’s counterclaim) after the original has been lodged with the tribunal; and/or add information to that already in the claim, response or reply (each commonly called a ‘pleading’) to elaborate on the pleading (often termed ‘further and better particulars’) In broad terms, when an employment tribunal decides whether to permit an amendment to a pleading, it should: identify, in writing, the amendment or amendments sought; and expressly balance the injustice and/or hardship of allowing or refusing the amendment(s), taking into account all relevant factors, including, as appropriate, those mentioned in the case of Selkent (as described in detail below) The current Employment Tribunal Procedure Rules 2024 ( ET Rules 2024), SI...
The Financial Services Enforcement Database The Financial Services Enforcement Database brings together comprehensive details on substantive Financial Conduct Authority ( FCA) and Prudential Regulation Authority ( PRA) Final Notices and, where obtainable, Decision Notices, covering 2014 onwards. The Database can be searched and refined by fields including rule/legislation breach, keyword, sector, date, financial penalty, facets of financial penalty analysis, outcomes such as redress and prohibition orders, and further actions like referrals to the Upper Tribunal. This Practice Note sets out the law and process for making a reference to the Upper Tribunal ( Tax and Chancery Chamber) following a disciplinary or non-disciplinary decision of the FCA or the PRA; including decisions on restrictions, financial penalties and prohibition orders under the Financial Services and Markets Act 2000 ( FSMA 2000), and the FCA’s registration of cryptoasset firms under the Money Laundering, Terrorist Financing and...
FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill gained Royal Assent on 18 September 2023 and is now known as the Powers of Attorney Act 2023 ( PAA 2023). The majority of its provisions remain inactive while secondary legislation is awaited in due course to implement them fully. Once commenced, PAA 2023 will amend the Mental Capacity Act 2005 ( MCA 2005) so as to deliver a more up-to-date lasting power of attorney ( LPA) service......
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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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