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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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Land Drainage Act 1991 In force 1 December 1991; transposition deadline N/ A. Amendments Environment ( Wales) Act 2016 Deregulation Act 2015 Water Act 2014 Transfer of Tribunal Functions Order 2013, SI 2013/1036 Natural Resources Body for Wales ( Functions) Order 2013, SI 2013/755 Local Government Byelaws ( Wales) Act 2012 Flood and Water Management Act 2010 Transfer of Tribunal Functions ( Lands Tribunal and Miscellaneous Amendments) Order 2009, SI 2009/1307 Tribunals, Courts and Enforcement Act 2007 Local Government and Public Involvement in Health Act 2007 Natural Environment and Rural Communities Act 2006 Constitutional Reform Act 2005 Communications Act 2003 Water Act 2003 Enterprise Act 2002 ( Disqualification from Office: General) Order 2006, SI 2006/1722 Transfer of Functions ( Transport, Local Government and the Regions) Order 2002, SI...
ARCHIVED: This Practice Note is archived and is no longer maintained. It covers the Finance Act 2018 ( FA 2018), which received Royal Assent on 15 March 2018. Kept for historical interest, it traces the Bill’s route through Parliament and summarises each measure in the Act, with relevant links. This Practice Note is divided into two parts: Progress of FA 2018 FA 2018—measure by measure For detailed tracking of the consultations referenced, see: Tax—consultation and legislation tracker. Progress of FA 2018 This section sets out how FA 2018 progressed through Parliament. 13 September 2017 — Draft legislation published ( Draft) 25 October 2017 — Consultation on draft legislation closed 22 November 2017 — Autumn Budget 28 November 2017 — First reading and approval of Budget Resolutions 1 December 2017 — Finance Bill 2018 published ( Bill as...
Power offtake arrangements In project-financed power generation schemes, a central document is the power offtake agreement. Commonly termed a ‘power purchase agreement’ or PPA, it is usually a contract between the generator and a licensed electricity supplier acting as offtaker for the plant’s entire output. PPAs of this sort are typically on the supplier’s standard terms, which most funders recognise. For our key resources on PPAs, see: Power purchase agreements and routes to market—overview. These agreements tend to favour the offtaker and securing substantial revisions is generally challenging. An alternative offtake model arises where the generator links directly to one or more local consumers via a ‘private wire’, with those customers purchasing electricity straight from the power station. In broad terms, ‘private wires’ refers to electricity distribution systems not owned or operated by a distribution network operator ( DNO) licensed under section 6 of the...
Across both advanced and developing nations, the commerce in falsified medicinal products is a global problem. The labels ‘falsified medicines’ and ‘counterfeit medicines’ must not be conflated—falsified medicines are fake items crafted to imitate genuine treatments, while counterfeit medicines are those that breach trade marks or other intellectual property rights. This Practice Note reviews the regulatory changes introduced by Directive 2011/62/ EU on preventing the entry of falsified medicinal products into the legitimate supply chain (the Falsified Medicines Directive, FMD), aimed at addressing the growing incidence of falsified medicines. It first explains the meaning of ‘falsified medicinal product’, then outlines the FMD’s measures, including: tighter oversight of active substances duties placed on participants within the supply chain safety features added to medicinal product packaging a common logo for websites that sell medicinal products This Practice Note also sets out an...
ARCHIVED This Practice Note has been archived and is not maintained. It covers the Finance ( No 2) Act 2017 ( F( No 2) A 2017), which obtained Royal Assent on 16 November 2017. Kept for historic interest, it traces the legislation’s journey through Parliament and provides an outline, with relevant links, of each measure in the Act. F( No 2) A 2017 was published on 8 September 2017. It includes provisions removed from the first Finance Bill 2017—published on 20 March 2017 and enacted as the Finance Act 2017 on 27 April 2017—following the announcement of the 2017 general election. For further background on F( No 2) A 2017, see News Analyses: Government withdraws majority of Finance Bill 2017, Amended provisions for second Finance Bill of 2017 and Publication of second Finance Bill 2017. There was no single, standard title for the...
The Capacity Market The Capacity Market ( CM) forms part of the government’s Electricity Market Reform ( EMR) programme. It is a statutory framework designed to stimulate dependable electricity capacity, helping to prevent gaps in supply when electricity might be scarce......
Expert evidence in public law children proceedings This Practice Note addresses the use of expert evidence in public law children cases, including those concerning care and adoption. It outlines the key statutory framework and clarifies what constitutes an expert. It also explores when expert input is required, the process for seeking permission, instructing experts, and the arrangements for paying an expert’s fees. For wider practical guidance on evidence in such proceedings, see Practice Note: Evidence in public children proceedings... At common law, witnesses are to testify to facts rather than offer opinions, unless they are suitably qualified to give expert evidence and thus provide an opinion on a pertinent issue. The court must confine expert material to that which, in its judgment, is necessary to help it resolve the case justly... This area is governed by: section 13 of the Children and Families Act 2014 ( CFA...
A– B | E– H | I– N | O– P | Q– V. CE marking The CE ( Conformité Européene—meaning European Conformity) symbol is compulsory for certain products, including medical devices, to confirm the device meets all relevant medical device regulations before it can be lawfully marketed within the EEA. It: demonstrates the manufacturer has verified these products satisfy EU safety, health or environmental requirements signals a product’s conformity with EU legislation permits the free movement of products across the EEA In Great Britain ( GB) after Brexit, the UKCA mark is the counterpart to the CE mark, available for medical devices placed on the GB market from 1 January 2021, although Northern Ireland continues to require the CE mark under EU legislation. For existing ‘legacy’ devices on the GB market, the CE mark will keep being recognised for varying periods beyond 30 June 2023 under...
For comprehensive commentary on the regulation, consenting and incentivisation of the net zero energy transition under the laws of England and Wales, see also: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. The textbook includes in-depth discussion of issues covered in this Practice Note. Brexit impact At 11 pm ( GMT) on 31 December 2020, the transition/implementation period following the UK’s withdrawal from the EU ended. That moment (described in UK law as ‘ IP completion day’) brought key transitional measures to a close and significant changes started to apply across the UK legal regime. Any changes relevant to this content are set out below. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) created a new category of domestic UK law—retained EU law (...
No medicinal product can be marketed until it has obtained approval known as a marketing authorisation ( MA). An MA specifies the authorised indications, the patient population and the dosage, together with any conditions placed on the MA holder ( MAH). The approval framework is regulated by Directive 2001/83/ EC on the Community Code relating to medicinal products for human use (the Pharmaceutical Code). There are several routes to secure an MA for medicinal products: EU centralised procedure ( CP), with medicines approved via the CP often termed centrally authorised products ( CAPs) Mutual recognition procedure ( MRP) Decentralised procedure ( DCP) National procedure The appropriate route is determined by the product’s nature, therapeutic area and the type of licence required (ie where the product is to be sold and whether licences already exist in other EU/ EEA Member States). There are also several different legal bases on which an MA...
This Practice Note sets out to compare and contrast the principal features of the FIDIC 1999 suite and the NEC4 suite. Its focus is the NEC4 Engineering and Construction Contract ( ECC) and the FIDIC Red Book 1999 ( Red Book), used where the Contractor delivers works to the Employer’s design. For commentary on the 2017 Red Book, see Practice Note: FIDIC 2017 and NEC4 contracts compared. Overall philosophy FIDIC The FIDIC suite is widely regarded as the foremost international standard form for construction procurement, most frequently characterised as ‘written by engineers, for engineers’. It is also widely associated with a carefully balanced approach to risk, allocating exposures to the party best positioned to carry them (the EPC/ Turnkey option, commonly called the Silver Book, is something of an exception). True to its engineering heritage, the Engineer has a central role under, in practice, a number of FIDIC...
Summary The character of the asset subject to security typically determines how it can be realised to deliver value to the security holder on enforcement. Funds in a bank account are generally the easiest to realise, as they can usually be set off or appropriated against the secured obligation... Other enforcement resources For points a security holder should assess before enforcing, see Practice Note: How to prepare to enforce security. For guidance on different security types, refer to: Practice Notes: Enforcement—debentures and floating charges Practice Notes: Enforcement—fixed charges For enforcement over shares and land, see: Practice Notes: Enforcement—security over land Practice Notes: Enforcing share security Forms of security and quasi-security over cash in an account There are several methods by which a creditor can secure (or obtain first call on) cash held in a bank account. The approach depends on whether the account is...
At the due diligence phase, where no certificate of title is supplied by the seller, the purchaser will carry out pre-contract investigations and enquiries, and evaluate whether targeted environmental diligence is required, for example ground investigations, asbestos assessments or consultations with regulators. Key tasks for environmental lawyers during the phase The seller’s solicitors will: ......
In most cases, the seller’s solicitors draw up the sale contract, and it can sometimes be issued as early as the heads of terms stage. The seller’s and buyer’s legal teams then settle the contract provisions, taking account of what the searches and enquiries reveal. Timing How long this phase takes is governed by a range of factors, such as any deadlines set in the heads of terms, the transaction’s size and complexity, and the extent of the buyer’s due diligence: if the buyer is waiting......
What is a phantom award? In essence, phantom awards fall into two main types: phantom share awards and phantom options. Phantom share awards A phantom share award gives the holder a right to a cash sum mirroring the value of an actual share. These arrangements are also known as ‘shadow shares’, ‘synthetic shares’, or ‘equity appreciation units’; for simplicity, this note calls them ‘phantoms’ and ‘phantom share awards’. Phantom options A phantom option typically entitles the holder to the increase in the value of a real share above a notional exercise or base price. Practical example Big Co Limited is a rapidly expanding private UK company seeking to launch an incentive plan that allows all employees to participate and share in any future growth of the business. Its investor base, however, is reluctant to issue actual shares to employees, as that would dilute the current investor...
ARCHIVED: This Practice Note has been archived and is not being maintained. After the EU transition period formally concluded, the UK ceased participation in the European Investigation Order ( EIO) regime. Instead, mutual legal assistance requests from EU Member States now rely on the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, as augmented by the EU‑ UK Trade and Cooperation Agreement ( TCA). EIOs arriving before IP completion day (11 pm 31 December 2020) continue to be handled and progressed as EIOs, with the relevant procedures and processes remaining in full force and effect for these transitional matters. EIOs received after IP completion day are treated as requests made under the 1959 Convention accordingly thereafter. See the Practice Note: Mutual legal assistance ( MLA). This Practice Note is retained to support...
The Health and Safety Executive ( HSE) reports that electricity and unsafe electrical work still often cause serious injury and death to workers and non-workers in the UK. Main hazards are: contact with live parts causing shock and burns injury from exposure to electrical arcing burns where static discharge ignites workplace flammables fires and explosions from poor installations and faulty equipment Electrical safety is a key part of health and safety management. See Practice Notes: How to manage health and safety in the workplace and Health and safety in the workplace—regulatory requirements. Key workplace electrical safety laws Relevant regulations include: The Electricity at Work Regulations 1989, SI 1989/635 The Supply of Machinery ( Safety) Regulations 2008, SI 2008/1597 Electrical Equipment ( Safety) Regulations 2016, SI 2016/1101. See Practice Note: Electrical equipment safety Management of Health and Safety at Work Regulations 1999, SI 1999/3242 The Plugs and Sockets etc ( Safety) Regulations 1994, SI...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background use only. For further details on the Prospectus Regulation, see Practice Note: The UK Prospectus Regulation—essentials [ Archived]. Introduction to the Prospectus Regulation roadmap The Prospectus Regulation ( EU) 2017/119 ( PR) was published in the Official Journal of the European Union on 30 June 2017 and took effect on 20 July 2017, with most provisions applying from 21 July 2019. The PR materially revises the prospectus publication obligations contained in the Prospectus Directive 2003/71/ EC (the PD). As a regulation, it has direct applicability across Member States. This Practice Note sets out an article-by-article roadmap of the PR, detailing for each article: the article title and number, and the corresponding PD provisions For additional guidance on the PR, see Practice Notes: The UK Prospectus...
This Practice Note outlines the obligations of the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, regarding the screening of relevant employees and the approval of beneficial owners, officers and managers ( BOOMs), together with best practice for vetting staff for anti-money laundering ( AML) compliance roles, even where the MLR 2017 do not apply. This Practice Note mirrors the requirements of the MLR 2017, as amended, and supplies guidance that is of broad, general application. You should verify whether the MLR 2017 contain additional or varied obligations for your sector and whether your regulatory body has any further, additional, sector specific requirements in relation to screening employees within your organisation. Screening requirements in the MLR 2017 If the MLR 2017 apply to your organisation, you must conduct screening of relevant...
This Practice Note considers how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented property, and sets out the enforcement and compliance powers of the local weights and measures authority. It also outlines the level of financial and publication penalties, the issuing of compliance notices, and a landlord’s rights to seek review and appeal. It forms part of our series of Practice Notes on MEES... MEES Regs 2015, SI 2015/962, reg 27 states that a landlord must not let a substandard non-domestic private rented ( NDPR) property—one with an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’—unless: ‘relevant energy efficiency improvements’ are carried out ( MEES Regs 2015, SI 2015/962, reg 29), or one of 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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