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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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Where a business or asset acquisition constitutes a relevant transfer under the Transfer of Undertakings ( Protection of Employment) Regulations 2006, SI 2006/246 ( TUPE 2006), the purchaser effectively ‘stands in the seller’s place’ and inherits all rights and liabilities in respect of employees assigned to the business being transferred—see: Effect of TUPE 2006 below. As with share purchases, the default position on acquiring the business and assets of a company (an asset purchase) is the maxim caveat emptor (let the buyer beware). In the event of a relevant transfer under TUPE 2006, the seller is obliged to provide specified employee liability information ( ELI) to the buyer (see: Employee liability information ( ELI), below). Apart from that obligation, the seller owes no duty to disclose to the buyer any faults, issues or liabilities affecting the undertaking. The buyer must therefore always carry out its own...
This Practice Note sets out the matters a claimant must establish in an asbestos action. It further reviews pleural plaques claims, limitation questions including section 14 of the Limitation Act 1980 ( LA 1980), the Pre- Action Protocol for Disease and Illness Claims, and the special procedural rules for mesothelioma claims. Elements of the claim A claimant who has developed disease through exposure to asbestos must prove the following in order to pursue their claim. A duty of care and/or a statutory duty owed by the individual or company responsible for the asbestos exposure. That duty requires the taking of reasonable care to prevent a person being subjected to a foreseeable risk of asbestos-related harm. In Asmussen v Filtrona, the claim was rejected because, on the then prevailing standards and the general state of knowledge about the dangers of asbestos, it could not be said that...
Introduction Article 8 of the European Convention on Human Rights ( ECHR) sets out that: 1) every individual is entitled to respect for his or her private and family life, home and correspondence; and 2) a public authority must not interfere with the exercise of this right unless any interference is lawful and necessary in a democratic society for reasons including: in the interests of national security in the interests of public safety for the country’s economic wellbeing for the prevention of disorder or crime for the protection of health or morals for the protection of the rights and freedoms of others The rights safeguarded by Article 8 are also set out in Schedule 1 to the Human Rights Act 1998, and are qualified rights (see Practice Note: Convention rights—structure of qualified rights). Article 8 is engaged whenever one or more of the interests listed in Article 8(1) are in...
A conversation with Esteban Rópolo, Partner at Argentine law firm Baker & Mc Kenzie Sociedad Civil, on key issues on merger control in Argentina NOTE—to check whether notification thresholds in Argentina and throughout the world are satisfied, please consult Where to Notify. 1. Have there been notable changes to Argentina’s merger control regime, are any updates expected within the next year, and are there other pressing merger control topics currently arising in Argentina? The Defence of Competition Law No. 27,442 (the Law), enacted on 22 May 2018, introduces a new merger control framework in Argentina. Under the Law, a National Competition Authority ( Authority) is contemplated as a decentralised, self-governing body within the national executive branch, and will act as the competent authority for competition matters across the jurisdiction. The new Authority will comprise, in particular, the Antitrust Court, the Secretariat of...
What are AONBs/ National Landscapes? Areas of outstanding natural beauty ( AONBs), termed National Landscapes, are stretches of countryside across England and Wales, lying outside national parks in England and Wales, designated because of their exceptional landscape importance. The core objective of AONB/ National Landscape status is 'to conserve and enhance the natural beauty of the landscape'. to provide for the quiet enjoyment of the countryside to take account of the interests of people who live and work within them On 22 November 2023, every designated AONB in England and Wales adopted the name ‘ National Landscapes’. This change is mirrored in the National Planning Policy Framework ( NPPF), though in statute they continue to be called AONBs. Responsible authorities include Natural England, Natural Resources Wales, the Department of the Environment, Food and Rural Affairs ( Defra), the Welsh Ministers, and local planning...
This Practice Note ought to be read alongside Practice Note: Arbitration in New Zealand—recognition and enforcement of arbitral awards. The New Zealand Arbitration Act 1996 The Arbitration Act 1996 (the Act) prescribes the framework governing domestic and international arbitrations in New Zealand. Any references in this Practice Note to sections, Sch 1 and its articles, and Sch 2 and its clauses, are references to the Act. The Act’s aims are to foster the use of arbitration at home and abroad, to secure coherence across international arbitral regimes and between those regimes and New Zealand’s domestic scheme, to uphold party autonomy in resolving disputes by arbitration, and to confine the oversight of New Zealand courts when asked to review or set aside arbitral outcomes. To meet these objectives, Schedule 1 establishes a unified set of rules for both international and domestic arbitrations. This scheme is derived from the...
The New York Convention and arbitration agreements The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) prescribes the criteria for valid arbitration agreements, which States parties to the New York Convention commit to recognise. The binding obligation to acknowledge and give effect to valid arbitration agreements has been affirmed by legislation and court rulings across most jurisdictions. Although the New York Convention was, at first, conceived as an instrument confined to the recognition and enforcement of arbitral awards, a discrete clause addressing the recognition and enforcement of arbitration agreements was inserted in the closing weeks before the New York Convention was adopted (when the wording had largely been settled). This timing helps to account for the absence of that subject in the treaty’s title and in other provisions of the New York Convention where one might have...
This Practice Note relates to CPR 21 and addresses claims that involve a child. A person can act as a litigation friend where they are able to conduct the proceedings fairly and competently for the child, have no interests adverse to the child, and agree to satisfy any adverse costs order made against the child. The Practice Note sets out how someone may become a litigation friend and how to end or change the appointment of the litigation friend. It also considers the position where the child reaches 18 during the course of the proceedings. Appointing a litigation friend A child is any person under the age of 18. In civil proceedings, a child must have a litigation friend to carry on the proceedings on their behalf (unless the court directs otherwise), pursuant to CPR 21.2. Commonly the child’s parent will act as...
This Practice Note concentrates on the appointment of a company secretary for either a public or a private company. It does not cover resignation or removal of a company secretary; for those topics, see Practice Notes: Resignation of a company secretary and Removal of a company secretary, which address those matters. The role of a company secretary The Companies Act 2006 ( CA 2006) does not set out the role or particular duties of a company secretary; these are generally determined by the secretary’s contract of employment. Typically, a company secretary’s remit will include, among other matters: keeping the company’s records and registers, statutory and non-statutory, up to date setting agendas for, and minuting, board meetings and members' meetings, and filing documents with Companies House, as required by statute CA 2006 allows the same individual to serve as both a director and the...
Timing and procedure Once the period for acknowledging service has expired, a claimant may seek an interim payment order. There is no obligation to re-file or re-serve any evidence already lodged or provided to the relevant party. The application must be made in accordance with, and as set out in, CPR 23, and Form N244 can be used for this purpose. The application notice must be accompanied by supporting evidence. See ‘ Claimant’s evidence’ below. See also Practice Note: How to make an application for a court order ( CPR 23)......
This Practice Note outlines the six criminal offences under the Protection from Harassment Act 1997 ( PHA 1997), such as harassment, causing fear of violence and stalking. It highlights the criminal remedies open to those targeted, including restraining orders made under PHA 1997. It also reviews civil avenues, for example damages for distress, injunctions and exclusion zones. The Note explains the process under the Civil Procedure Rules 1998 ( CPR), covering who may apply and the appropriate court. It includes guidance on breach of injunction, undertakings, warrants of arrest and the assessment of damages. Where clients cannot rely on the Family Law Act 1996 ( FLA 1996) because they fail to meet the criteria or eligibility, or where compensation is pursued, relief may instead be available under PHA 1997. See Practice Note: Domestic violence non-molestation orders. However, if the victim and the...
Whether you can recover property taken by an investigating authority during a criminal inquiry hinges on the legal power used to seize it and on whether the investigation remains ongoing or proceedings have concluded. As a first step, make an informal approach to the investigating body to seek the return of the items. Ordinarily, this will involve contacting the officer in the case who, if agreeing to the request, will notify the police property centre that holds the items so arrangements can be made for their return to the owner. If the officer agrees to the approach, they will set the return process in motion. Where that request is declined, you may need to issue a formal application for the property’s return. Before deciding to pursue such an application, statutory retention periods for convicted offenders must be taken into account. If the...
Who may apply for probate or letters of administration A grant of representation can be pursued personally by the executors named in the Will, or by those proposing to apply for letters of administration; collectively they are the personal representatives ( PRs). Alternatively, a professional probate practitioner may act and submit the application for the PRs. This Practice Note explains the process where a practitioner applies on behalf of the PRs. If lay PRs apply without a practitioner, the procedure differs slightly and guidance is available online. How to apply for probate or letters of administration Probate practitioners may apply for a grant of representation on the PRs’ behalf: by post, using form PA1P (if there is a Will) or PA1A (if there is no Will); or online, using the HMCTS online application service. Every application for a grant of representation, other than a resealing, must be...
Suitability requirements in Appendix FM The suitability criteria within Appendix FM broadly echo, though not entirely, the refusal grounds contained in Immigration Rules, Part 9. For further information on those grounds, see: Suitability grounds for refusal and re-entry bans—overview. Immigration Rules, Part 9, para 9.1.1(a) states that the Part 9 refusal grounds for entry clearance or leave to remain are not applicable to applications submitted under Immigration Rules, Appendix FM, except for Immigration Rules, Part 9, para 9.8.2, which is limited to entry clearance applications (previously contrived in a significant way to defeat the purpose of the rules or where there are aggravating factors). In addition, several Part 9 grounds can be relied upon to refuse leave to enter at port and to cancel existing leave, even where a person holds leave under Appendix FM. Frequently, the same Home Office guidance is used to...
This Practice Note addresses agents and other intermediaries in the sphere of anti-bribery and corruption. It outlines what an agent or intermediary is, how engaging agents and intermediaries could expose a commercial organisation to risk, and the steps you might take to lessen those related risks. What is an agent or intermediary? Agents and intermediaries are third parties appointed to provide services for, or on behalf of, your organisation, or to represent your interests. This may include: business consultants sales agents third parties retained in relation to government business or actions introducers facilitators lawyers and other professional advisers other third parties who provide services for or on behalf of an organisation in any capacity Whether a given third-party arrangement is an agent or intermediary relationship is a factual question in each instance. When deciding which...
Background This Practice Note outlines the statutory framework contained in the Companies Act 2006 ( CA 2006), alongside other legislation, concerning the terms of an auditor’s appointment and the setting of an auditor’s remuneration and related matters. It also notes that additional rules on the terms of an auditor’s appointment and remuneration may apply to a listed company, an AIM company, or a company whose securities are admitted to the AQSE Main Market or the AQSE Growth Market (formerly the NEX Exchange Main Board or NEX Exchange Growth Market), but these fall beyond the scope of this Practice Note. For guidance on how an auditor is appointed (including the mandatory tender requirements that apply to public interest entities), see Practice Note: Appointment of an auditor, and for a form of resolution, see Precedent: Resolution to appoint or re-appoint an auditor and fix their...
Revocation for breach of community order By virtue of paragraphs 10 and 11 of Schedule 10, Part 2 to the Sentencing Act 2020 ( SA 2020), the Crown Court or a magistrates' court has the power to revoke a community order and to resentence where an offender, without a reasonable excuse, has failed to comply with any of the requirements of that order. The procedure governing applications for amendment, revocation or variation of community orders is set out in the Criminal Procedure Rules 2025, SI 2025/909, Part 32 ( Crim PR 2025). See further, Practice Note: Breach of a community order. Powers of the magistrates' court to revoke other than for breach SA 2020 further provides that, so long as the order remains in force, either the offender or the 'responsible' officer may apply to the magistrates' court for the order to be revoked, or for the...
This Practice Note outlines the process for plea before venue and allocation where an either-way offence is not sent straight to the Crown Court for trial... Procedure for either-way offences not sent forthwith to the Crown Court for trial: plea before venue and allocation If the court determines that trial should take place in the Crown Court, the case must be sent there forthwith. In all other cases—save where the offence is indictable only, or an either-way matter falling within the specific circumstances described in the Practice Note: Allocation and Sending for Trial— Sending of Cases Forthwith to the Crown Court for Trial—the court should take a plea before venue under MCA 1980, s 17A, and then address allocation. The governing procedure is set out in the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 9......
This Practice Note considers allocation (by the court) of defended civil claims to one of the case management tracks: the small claims track, fast track, intermediate track or multi-track. It explains what is meant by 'allocation' and summarises the principal features of each track. The Note focuses on defended civil claims and the court's role in placing them on the appropriate case management path. The framework for allocating civil claims differs by the date proceedings are issued: Issued before 1 October 2023: three case management tracks—the small claims track, fast track and multi-track. Issued on or after 1 October 2023: four case management tracks—the small claims track, fast track, intermediate track and multi-track. For personal injury matters, the applicable rules turn on when the cause of action arises; for disease claims, they depend on when the first letter of claim is sent...
Allocation In the context of insurance and reinsurance, ‘allocation’ is the process of identifying which policy covers a loss, or a share of a loss. In many claims this point never surfaces. If a driver wrecks their car, the motor insurance policy in force on the date of the accident will respond. Yet, in the smaller number of cases where it does arise, the consequences can be substantial for a (re)insurer's inwards liability and the availability of its outwards reinsurance. Consider a business that employs a worker for 40 years. During that period the worker is exposed to asbestos and, after retirement, develops mesothelioma and dies. The estate sues the former employer. The company had workers’ compensation/employers’ liability insurance throughout the employee’s service, but which policy, if any, should respond to the claim? Or take an insurer that covers a power station which later...
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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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