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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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Insurance contracts have long seemed enigmatic to law students and practising lawyers. The reason is that they are contracts of the utmost good faith. They are unlike ordinary agreements: they must be treated with exceptional care. The central element of the obligation of utmost good faith, as articulated in the Marine Insurance Act 1906 ( MIA 1906), is the policyholder’s duty to volunteer information to the insurer that would ‘influence the judgment of a prudent insurer’ when deciding whether to accept the risk and what to charge for it (see: MIA 1906, s 18). This has always been a demanding requirement. In truth, it has long been a tall order. It expects the policyholder to second‑guess the insurer’s thinking and make disclosure on that basis. The insurer, by contrast, was free to sit back and remain passive, under no obligation to offer the...
If a tenant gives up some or all of the holding under an agricultural tenancy, whether because the landlord has served a notice to quit or otherwise, each party may have a claim to compensation. The potential level of compensation due from the landlord to the tenant can influence the decision to serve a notice to quit, and its timing. Compensation is primarily governed by statute, under either the Agricultural Holdings Act 1986 ( AHA 1986) or the Agricultural Tenancies Act 1995 ( ATA 1995), though common law and customary entitlements still play a small residual part. The express provisions of the tenancy agreement must also be considered. Claim by Tenant Tenant-right A tenant holding a tenancy protected by AHA 1986 and entered into after 1 March 1948 is entitled to compensation for ‘tenant-right’. Where the Act provides this entitlement, any claim based on custom or on an...
The offence of aggravated vehicle-taking A person commits aggravated vehicle-taking if the following conditions are met: they remove a conveyance without the owner’s consent or other lawful authority for their own use or for another’s; or knowing that any conveyance has been taken without such consent or authority, they drive it or allow themselves to be carried in or on it—the basic offence ( TWOC) under section 12 of the Theft Act 1968 ( TA 1968); and it is shown that, at any point after the vehicle was unlawfully taken (by that person or someone else) and before it was recovered, the vehicle was driven, or injury or damage resulted. See Practice Note: Taking a conveyance without the owner’s consent ( TWOC)......
A straightforward way to describe an offshore trust is one in which the trustees are based in a low- or zero-tax territory. Those with UK links include the Crown Dependencies— Jersey, Guernsey and the Isle of Man—and the Overseas Territories of Bermuda, the British Virgin Islands, the Turks and Caicos Islands, the Cayman Islands and Gibraltar (collectively the ‘ CDOTs’). As a result, offshore trusts are frequently linked to potential tax efficiencies, though the personal tax circumstances of the settlor and any beneficiaries must also be taken into account. They can also confer benefits that are unrelated to tax planning. Confidentiality and anonymity At common law, trustees are obliged to keep the business of the trust confidential, a duty grounded in the general law on breach of confidence. Courts have examined this obligation in various decisions, commonly in the context of providing...
This Practice Note sets out the principles governing when evidence of a defendant’s bad character may be admitted to rectify a false impression created by the defendant, or to respond to an attack on the character of another person or witness. In criminal proceedings, such material is admissible under section 101(1)(f)–(g) of the Criminal Justice Act 2003 ( CJA 2003), gateways F and G respectively. Bad character to correct a false impression The CJA 2003 authorises the admission of evidence of the defendant’s bad character to correct a misleading impression given by the defendant; the applicable statutory route is gateway F ( CJA 2003, s 101(1)(f)). The term ‘bad character’ is defined in the CJA 2003 and includes, among other things, the defendant’s prior convictions. See Practice Note: Admissibility of defendant's bad character in criminal...
The statutory conditions This Practice Note sets out the statutory requirements for admitting a statement from a witness who is not available in criminal proceedings in England and Wales, under section 116 of the Criminal Justice Act 2003 ( CJA 2003). For wider guidance on the admissibility of hearsay in criminal cases, see Practice Note: Admissibility of hearsay evidence in criminal proceedings. Section 116 CJA 2003 governs the use of hearsay where the maker of the statement is ‘unavailable’ to testify. A statement from such a witness is admissible as evidence of the matters asserted only where all of the following are satisfied: the material would have been admissible as oral testimony had the witness been able to attend court the individual who made the statement is identified to the court’s satisfaction the maker falls within one of the...
This Practice Note examines the admissibility of bad character evidence for the purpose of proving a propensity to be untruthful Bad character material indicating a defendant’s inclination to lie can, in principle, be received pursuant to section 101(1)(d) of the Criminal Justice Act 2003. Under s 101(1)(d), evidence of bad character is admissible where it bears upon an important matter in dispute between the prosecution and the defence. The CJA 2003 expressly identifies the issues to include whether the defendant demonstrates a propensity for untruthfulness. Any such indication of untruthfulness must be relevant to the issues that fall to be determined......
Where a sponsoring partner receives one or more specified benefits, partners and dependent children applying under Appendix FM are not required to meet a minimum income threshold for the five-year route to settlement; instead, the applicable financial assessment is the test of 'adequate maintenance'. The 'adequate maintenance' criterion also applies to the following categories: parents applying under Appendix FM, other family members applying under Appendix Adult Dependent Relative, applications under Appendix Child Relative ( Sponsors with Protection), and children of settled parents applying under Part 8 of the Immigration Rules, however, under Part 8 there are important differences regarding the treatment of third-party support and offers of employment. It remains unlikely that partners or other family members will now apply under Part 8 of the Immigration Rules; nevertheless, advisers may still encounter someone who has, for whatever reason, remained on that route...
This Practice Note examines how easements are acquired through prescription (long use) at common law, via the doctrine of lost modern grant, and by statute (pursuant to the Prescription Act 1832). It explains how a claimant can satisfy each route, the scope of the right obtained, and further matters to weigh where the dominant or the servient tenement is let on a tenancy at the relevant time by either party. It also briefly addresses the question of whether a long-used easement can be safeguarded by registration at HM Land Registry. Presumed grant An easement can be founded by long use: at common law under the lost modern grant doctrine (a well-known branch of common law prescription) by statute (under the Prescription Act 1832 ( PA 1832)) The law of prescription is a means of proving an easement, not of creating it. It...
This Practice Note reviews the acknowledgment of service form, outlining what it is, when it must be used, and the consequences of not filing an acknowledgment of service. It also sets out the deadlines for doing so, which depend both on the court in which the matter is proceeding and whether it is a Part 7 or Part 8 claim form. The requirements governing acknowledgment of service are set out in Part 10 for Part 7 proceedings and in Part 8 for Part 8 proceedings. For practical help on completing an acknowledgment of service form, and on problems that may occur where the form has not been completed properly, see Practice Note: Acknowledgment of service—completing the form. Note that: The rules for acknowledgment of service are contained in Part 10 for Part 7 claims and in Part 8 for Part 8 claims. Part 10 was...
Post 1 October 2013 From 1 October 2013, section 69 of the Enterprise and Regulatory Reform Act 2013 ( ERRA 2013) recast section 47 of the Health and Safety at Work etc. Act 1974 ( HSWA 1974), altering the previous position. For accidents occurring at work on or after that date, civil liability does not arise from a breach of statutory duty unless the particular regulation expressly provides for it. The Workplace ( Health, Safety and Welfare) Regulations 1992 ( W( HSW) Regs 1992), SI 1992/3004, do not provide for civil liability to arise from a breach. In those circumstances, claimant practitioners are left to rely on breaches of workplace regulations as support for a claim in negligence. The regulations have their greatest relevance and utility to claimant practitioners where they prescribe a framework of steps or measures required of an employer to ensure...
This Practice Note explains the circumstances in which the Landlord and Tenant Act 1954 ( LTA 1954) applies to the surrender of a business lease. Parties proposing to enter into a surrender agreement should confirm whether the lease benefits from the LTA 1954 security of tenure protections. If the tenant is protected under Part II and the required statutory procedure is not observed, any surrender agreement will not prevent the tenant from exercising the right to request (and obtain) a new lease under the LTA 1954. This can lead to costly complications and delay for a landlord seeking to take back the premises (for redevelopment, to occupy or to re‑let). For guidance on contracting out of the LTA 1954, see Practice Note: Contracting out of the Landlord and Tenant Act 1954—procedures, timing and pitfalls. When does the Landlord and Tenant Act 1954 apply on the...
Legitimate interests assessment under the UK GDPR Under the UK General Data Protection Regulation ( UK GDPR), you may process personal data where doing so is necessary to pursue the controller’s or a third party’s legitimate interests, unless those interests are outweighed by the data subject’s interests or their fundamental rights and freedoms that demand protection of personal data, particularly where the data subject is a child... A balancing exercise is therefore essential: your legitimate interests must be weighed against the data subject’s interests, rights and freedoms—see Precedents: Legitimate interests assessment—data processing—short form and Legitimate interests assessment—data processing... The result of that balancing test will, in large part, decide whether legitimate interests can be relied upon as a lawful ground for processing personal data... This Practice Note sets out guidance on conducting a legitimate interests assessment under the UK GDPR. It is drawn from the UK GDPR,...
A new protocol, the disclosure of information between family and criminal agencies and jurisdictions (the 2024 protocol) A fresh protocol—'the disclosure of information between family and criminal agencies and jurisdictions' (the 2024 protocol)—was published in February 2024, superseding the October 2013 protocol and good practice model (disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings). From 1 March 2024, it governs the sharing of information and material between criminal and family agencies and jurisdictions. It covers all private and public family law proceedings, including contemplated public law cases, and all material in police possession. A working group comprising the judiciary, local authorities, police and the Crown Prosecution Service will review it in 2025. This Practice Note outlines the general approach to public children care proceedings where criminal proceedings are concurrent or imminent, addressing the Family...
Consumer insurance and commercial insurance for businesses This Practice Note sets out an overview of several widely used insurance types, who may require them, and how they operate. Broadly, insurance falls into two groupings: cover for consumers cover for businesses For individuals purchasing as consumers, the governing statute is the Consumer Insurance ( Disclosure and Representations) Act 2012 ( CI( DR) A 2012). CI( DR) A 2012 describes a consumer as an ‘individual who enters into the contract wholly or mainly for purposes unrelated to that individual’s business trade or profession’. The Act addresses what a consumer is obliged to tell the insurer before making, or changing, an insurance contract. See Practice Note: A guide to the Consumer Insurance ( Disclosure and Representations) Act 2012 for additional detail. For business policyholders, the applicable legislation is the Insurance Act 2015 ( IA 2015). IA 2015...
CASE HUB ( NOTE—appeal brought by the Commission before the Court of Justice in Case C-39/18 P7) ARCHIVED — this case hub records the position as at the judgment dated 10 November 2017 and is no longer being maintained. For more, see: timeline, commentary and relevant/similar cases. Case facts On 4 February 2015 the Commission found six breaches of Article 101 TFEU and levied fines totalling €14.9m on the international broker, Icap, on the basis of Icap’s alleged role in facilitating six cartels in the market for interest rate derivatives denominated in Japanese yen (‘ Yen interest rate derivatives cartels’). Outline Appeal to the General Court seeking annulment, in whole or in part, and/or reductions in the fines imposed in relation to the Commission’s decision of 4 February 2015 concerning the six infringements and the penalties applied to Icap......
ARCHIVED : This Practice Note has been archived and is not maintained. Lawyers and the businesses they counsel must grasp their exposure to sanctions in order to craft and roll out a robust compliance plan. However, the contours of sanctions compliance shifted after the UK’s choice to exit the EU. Up to 11 pm on 31 December 2020 (the end of the implementation period), the bulk of the UK’s sanctions regimes derived from the EU, via EU regulations that applied directly in Member States; criminal offences and licensing arrangements were then put in place by UK regulations under the European Communities Act 1972. Domestically, UK sanctions were confined to (very unusually) freezing orders under the Anti- Terrorism, Crime and Security Act 2001 ( ACSA 2001), transactional measures directed under the Counter Terrorism Act 2008 ( CTA 2008), and...
Across the UK, hazardous wastes are governed by distinct regimes for England, Wales, Scotland and Northern Ireland. In England and Wales, the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894 (the ‘ Hazardous Waste Regulations’) prescribe the regime. The Environment Act 2021 ( EA 2021) created powers to make further regulations to strengthen the hazardous waste regime in England and Wales. The 2005 Regulations were made to give effect to the Hazardous Waste Directive 91/689/ EEC and contain provisions on tracking and movement controls. Subject to reg 9, a waste is “hazardous waste” if it is: listed as a hazardous waste in the List of Wastes a specific batch of waste determined (under regulation 8) to be hazardous waste The “ List of Wastes” in this context means the list established by Commission Decision 2000/532/ EC, which replaced Decision 94/3/ EC...
This Practice Note sets out the core concepts and issues concerning ETDs, including: what ETDs are and how they operate how ETDs mitigate counterparty risk via clearing and collateralising trades how ETDs are traded and matched on a regulated exchange how ETDs are given-up for clearing, and how collateral is managed For more information on the differences between OTC derivatives and ETDs, see Practice Notes: OTC and exchange traded derivatives—key features and concepts and OTC and exchange traded derivatives—documentation. What are exchange traded derivatives? ETDs are derivative contracts entered into through a regulated exchange (the Exchange). The Exchange functions as a market mechanism that enables the exchange of offsetting derivative positions. It offers a venue where a relatively narrow range of futures and options is traded on standard terms. To be traded and matched on the Exchange, contracts must carry highly...
This Practice Note explores key matters for construction solicitors on schemes featuring demolition, from planning and Building Act 1984 ( BA 1984) obligations, party wall considerations, health and safety (including how the CDM Regulations apply) to handling demolition waste. It further reviews the contractual forms used to procure a demolition contractor, the process for their appointment, and the surveys or studies commonly carried out ahead of commencement. What does demolition involve? Demolition does not always equate to total clearance of a building or structure—it may span from ‘soft strip’ works during refurbishment (for example, taking out internal partitions or stripping M& E systems) to complete demolition of the entire asset, including removing and grubbing out foundations. It might serve as the opening phase of a wider build to free the site for new development, form an element of modifications to an existing property, or be 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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