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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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Brexit impact At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s exit from the EU concluded. At this moment—termed ‘ IP completion day’ in UK law—transitional measures ceased and notable shifts started to apply across the UK’s legal framework. Any updates pertinent to this content will appear below. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) introduced a distinct form of domestic UK law—retained EU Law ( REUL)—comprising EU-derived rights and legislation kept in force in the UK after Brexit. On 29 June 2023, the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) received Royal Assent. It alters how REUL is handled by: revoking substantial amounts of REUL from 31 December 2023 re‑labelling REUL as ‘assimilated law’ from 1 January 2024 ...
The Criminal Finances Act 2017 ( CFA 2017) created a corporate offence for failing to stop the facilitation of tax evasion, effective from 30 September 2017. Government guidance was also released, outlining expectations for compliance frameworks. That guidance should be applied proportionately and on a risk-based footing, reflecting your organisation’s size, nature and complexity. A small entity and a large multinational may adopt the principles in very different ways: what is reasonable for a small business in a low-risk sector could be entirely unreasonable for a large business operating in a high-risk sector. Application should be tailored to organisational scale, sector, and operational complexity as contemplated within the government guidance issued. The Law Society also issued a practice note, Criminal Finances Act 2017, for law firms, which the chancellor approved on 21 November 2018. The Law Society states that the chancellor considers this...
Prepared in collaboration with 4 Pump Court. ARCHIVED: This Practice Note is archived and not maintained. It sets out context and an overview of the revisions to the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) triggered by the commencement of the Local Democracy, Economic Development and Construction Act 2009 ( LDEDCA 2009). It also addresses related amendments to the Scheme for Construction Contracts. These legislative changes take effect from 1 October 2011 (from 1 November 2011 in Scotland) and are not retrospective. For a tabular comparison of measures introduced, see Practice Note: Comparison of both adjudication and payment provisions under HGCRA 1996 and as amended by the LDEDCA 2009. The relevant links in this Practice Note direct to the amended versions of the HGCRA 1996 and the Scheme for Construction Contracts. For the unamended texts, see Part II of the HGCRA as...
This Practice Note considers the right to advance additional submissions in an adjudication after the Response (often described as Reply > Rejoinder > Surrejoinder, and so on) the nature, format and practical drafting points for those submissions For guidance on other adjudication documents, see Practice Notes: The Notice of Adjudication Adjudication—the Referral Notice Adjudication—the Response Entitlement to make further submissions after the Response There is no inherent entitlement to serve material beyond the Response, and an adjudicator does not offend natural justice by declining to allow it ( Barry M Cosmetics v Merit Holdings; AMEC Group v Thames Water). See also News Analysis: Natural justice does not require an adjudicator to permit a Rejoinder ( Barry M Cosmetics v Merit). Nor is it necessarily contrary to natural justice for an adjudicator to impose a timetable that leaves no room for a...
Note: This Practice Note provides focused guidance for proceedings in the Technology and Construction Court ( TCC) under CPR 60, CPR PD 60 and the TCC Guide. Because these sit alongside the wider CPR framework, it should be read together with general materials on preparing for and attending trial, including Trial—overview, which itself links to detailed guidance on specific aspects of trial preparation and attendance. Shorter and flexible trials schemes— TCC claims issued on or after 1 October 2015 may fall within, or be appropriate for, one or both schemes under CPR PD 57AB: the shorter trials scheme and the flexible trials scheme. For further details, see the Practice Notes Business and Property Courts—shorter trials scheme and Business and Property Courts—flexible trials scheme. Electronic working—guidance on electronic working in the TCC is available in Practice Note:...
Parties to a ‘construction contract’ are entitled to refer any crystallised dispute to adjudication at any time. For further detail, see the following Practice Notes: Practice Notes The right to adjudicate Adjudication—is there a ‘dispute’? What is a construction contract under the HGCRA 1996? Where the right to adjudicate is available, the next step is to assess whether adjudication is a workable method of resolving the matter. There is a statutory 28‑day timetable for adjudication, which may render it unsuitable for very large or highly complex claims. This constraint can be alleviated if the parties agree to extend the period within which the decision must be issued, or if the referring party splits the case into more than one adjudication. Even so, if the claim cannot be fairly determined within the restricted timeframe, adjudication may not be the...
Recognition and enforcement of international arbitration awards This Practice Note offers an introduction to key issues practitioners may face concerning the recognition and enforcement of international arbitration awards. Unless specified otherwise, the term ‘enforcement’ is used in a broad sense to cover both recognition and enforcement. The distinction between these concepts is explored below. Where relevant, this Practice Note should be read alongside: Practice Note: The New York Convention—the recognition and enforcement of arbitral awards—an introduction Practice Note: Enforcement of arbitral awards in England & Wales (note: England is used as shorthand for England, Wales and Northern Ireland in this Practice Note) International arbitration—enforcing international arbitral awards—overview, which includes links to practical guidance on the recognition and enforcement of international arbitral awards in many jurisdictions around the world Practice Note: State immunity and arbitration—general considerations and State immunity and...
This Practice Note looks at preventing enforcement of an adjudication decision by obtaining a stay of execution. Where a stay is made, the court will still enter summary judgment to enforce the adjudicator’s decision, yet it will also suspend the enforcement of that judgment—effectively placing the obligation to pay on temporary hold. This Practice Note examines why a stay might be ordered, the principal considerations the court will take into account when deciding whether to grant one, the scope for partial stays, and whether an arguable case that the adjudication decision was incorrect is required. For guidance on other routes to resist enforcement (for example, using set off or seeking a declaration), see the Adjudication enforcement and challenges subtopic for further direction. Which circumstances could reasonably warrant ordering a stay of execution in practice? A stay of execution of summary judgment proceedings enforcing an...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 8 April 2019; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission merger probe under Article 14(1) into inaccurate or misleading information submitted by General Electric during the Commission’s 2017 assessment of GE’s purchase of LM Wind. Latest developments On 8 April 2019, the Commission adopted an infringement decision, determining that General Electric had given incorrect information in the 2017 merger review of its acquisition of LM Wind, and imposed an administrative fine of €52m on GE. Parties General Electric ( GE) is a US-based group active across multiple sectors, including: aviation digital energy connections global research healthcare lighting oil and gas power renewable energy transport LM Wind Power Holding ( LM Wind) is a leading...
CASE HUB ARCHIVED This archived case hub reflects the position as at the decision dated 3 May 2020 and is no longer maintained. See also the timeline, commentary and related cases. Case facts Outline European Commission merger investigation under Article 14(1) into inaccurate or misleading information allegedly supplied by Merck during the Commission’s 2015 review of Merck KGa A’s acquisition of Sigma- Aldrich ( M.8181). Latest developments On 3 May 2021, the Commission adopted an infringement decision, concluding that Sigma- Aldrich submitted misleading information in the 2015 merger assessment of Merck KGa A’s planned purchase of Sigma- Aldrich. The Commission imposed a fine of €7.5m on Sigma- Aldrich. Parties Merck KGa A ( Merck): a Germany-based pharmaceutical company. Sigma- Aldrich ( SA): a US-based supplier of laboratory testing materials. Background On 22 September 2014, Merck agreed to acquire SA for US$17bn. The transaction was notified to the Commission on 21 April 2015. On 15 June 2015,...
Prepared in collaboration with 4 Pump Court, this Practice Note explores the scope of an adjudicator’s powers and responsibilities when conducting an adjudication, with a particular focus on those arising under the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) and the Scheme for Construction Contracts. Any references to paragraph numbers in the Scheme for Construction Contracts are to paragraphs within Part I of the Scheme. Introduction An adjudicator’s remit is usually set by the rules under which they are appointed, which are commonly contained in, or incorporated into, the relevant contract. Although adjudication frameworks can differ, these variations are generally matters of emphasis rather than fundamental departure. It is nevertheless vital to review the specific rules to: (a) determine the scope of the adjudicator’s powers and obligations; and (b) confirm compliance with the HGCRA 1996 (where this applies to the...
ARCHIVED This Practice Note traces the background to the second edition of the Pre- Action Protocol for Construction and Engineering Disputes (the Protocol), which took effect on 9 November 2016, replacing the first edition that had been in place since October 2000 (with revisions from April 2007). It sets out, in time order, the principal recommendations by Lord Justice Jackson for amending the Protocol in his 2009 final costs report, the observations and actions of the Civil Justice Council working party and the Civil Procedure Rule Costs Sub- Committee, and, lastly, the Acuigen Report arising from an industry survey on the first edition of the Protocol (and the wider process) STOP PRESS An amended Technology and Construction Court Guide was published on 13 October 2022. For further detail, see News Analysis: Technology and Construction Court Guide—updated October 2022. Content and links to the...
Commission Directive 2006/73/ EC You may locate the complete text of Commission Directive 2006/73/ EC here in full...
Reviewing technical reports If a technical environmental report has been obtained by the buyer during the due diligence process (or supplied by the seller in the data room), it requires interpretation, followed by clear, practical advice to the client on potential liability exposure and recommended measures to mitigate the associated risks. Key issues for lawyers to assess are: Does the report set out clear evidence of environment, health and safety ( EHS) non-compliance, capex needs or potential liabilities? Should an independent environmental consultant be engaged to review and challenge the conclusions of the environmental report? Would a conference call or meeting between the respective environmental consultants (with clients and lawyers present) help to resolve issues of concern? Are any further investigations or enquiries required, and if so, what are the timing and cost...
The asset purchase agreement ( APA) The asset purchase agreement ( APA) is generally prepared during the preliminary or due diligence stage and completed within that same stage. The buyer’s solicitors typically produce the initial draft of the APA and send it to the seller’s solicitors for mark-up. Negotiations will often carry on until the APA is executed and signed finally......
In a climate where online connectivity underpins commerce, cloud services let us open files and hold vast datasets without running our own servers, and the Internet of Things ( Io T) could even let a fridge tap into our banking details, so where does free and open source software ( FOSS) fit? Whether they realise it or not, people come into contact with FOSS every single day. It forms the backbone of the servers that host software, grant us access to the internet, and support many online services we now take for granted. The role of software in business, and the way software is produced, have altered profoundly. It is increasingly normal for competitors to work side by side on joint research and development in an age of ‘collabor-etition’ or ‘co-opetition’. Numerous efforts, including Open Stack Cloud, bring companies together in shared...
FORTHCOMING DEVELOPMENT : The key provisions of the Pension Schemes ( Conversion of Guaranteed Minimum Pensions) Act 2022 will commence on a day still to be designated. Regulations to be made under the Act will cover (i) requirements for survivor benefits following conversion, and (ii) the scenarios in which employer consent is unnecessary or where another person’s approval will instead be required. Separately, the government’s 2019 guidance on using the GMP conversion legislation is expected to be updated to reflect recent developments, including measures in the 2022 Act. For further information, see: Pension Schemes ( Conversion of Guaranteed Minimum Pensions) Bill Hansard: Pension Schemes ( Conversion of Guaranteed Minimum Pensions) Bill, Volume 820: debated on Friday 25 March 2022 Hansard: Pension Schemes ( Conversion of Guaranteed Minimum Pensions) Bill, Volume 821: debated on Wednesday 27 April 2022 This Practice Note outlines and...
This Practice sets out an introduction to the electricity market in Great Britain ( GB). It outlines the main organisations and types of organisation active in generation, transmission, international interconnection, distribution and supply, covering the GB electricity wholesale market, electricity retail market and electricity networks market, while also describing the roles of key industry stakeholders. In view of the GB electricity market’s complexity, this Practice Note presents an overview of the principal authorities and market participants in the GB wholesale and retail electricity markets. As many participants have complex ownership structures, this Practice Note, where needed, refers to the parent company. Where relevant, references include links to key sources and statistics. For a consolidated set of links to the latest key statistics published by DESNZ for the GB energy market, see Statistics at DESNZ. Brexit impact As at 31 January 2020 (exit day), the UK ceased to be an EU...
For comprehensive analysis of 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. That textbook offers in-depth discussion of matters addressed in this Practice Note. What are the general electricity licensing requirements? Section 4 of the Electricity Act 1989 ( EA 1989) obliges parties carrying out certain activities in the electricity sector to hold a licence, with further particulars set out in the sections below. EA 1989, s 4(2) states that undertaking licensable activities without being authorised by a licence is an offence. Under EA 1989, s 4(2), a person convicted of such an offence is liable, on summary conviction, to a fine not exceeding the statutory maximum or, on conviction on indictment, to a fine. The Office of Gas and...
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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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