Featured documents
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:
Most recent Practice notes
Brexit impact As at 31 January 2020 (exit day), the UK stopped being an EU Member State, yet moved into an implementation phase during which the EU continued, for many practical and administrative purposes, to treat it as if it were still a Member State. At 11pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s departure from the EU finally came to a close. From that moment (known in UK law as ‘ IP completion day’), core transitional measures formally expired and notable and wide‑ranging shifts began to roll through the UK’s legal framework. Any amendments pertinent to this content will be detailed below. On 24 December 2020, the European Commission and the UK government publicly declared agreement in principle on the legal terms governing the future UK‑ EU relationship. Announced only a week ahead of IP...
CASE HUB ARCHIVED – this archived case hub reflects the position at the date of the decision of 18 January 2018; it is no longer maintained. See further, the timeline and commentary. Case facts Outline European Commission merger investigation into the proposed acquisition of NXP Semiconductors by Qualcomm ( Case M.8306). The transaction features horizontal overlaps in semiconductor markets. Latest developments On 18 January 2018, the Commission cleared the transaction subject to commitments. The commitments accepted include a range of behavioural remedies (see below for more details). Parties Qualcomm Incorporated is a US-based company headquartered in San Diego. It is a world leader in 3G, 4G and next-generation wireless technologies and a leading semiconductor company, which develops and supplies integrated circuits for mobile devices, notably cellular baseband chips. Qualcomm also licences the rights to its intellectual property portfolio, including rights to patents that are essential to the...
This Practice Note examines how dispute adjudication boards ( DABs) operate and are applied in the 1999 FIDIC Red, Yellow and Silver Books, together, in particular, with the 2008 Gold Book and the 2010 Pink Book publication. Across these forms, as standard procedure, disagreements are referred to a DAB (termed a ' Disputes Board' in the Pink Book), whose determinations are binding on the parties involved. Where a party contests a DAB decision, the matter may move to amicable settlement between the parties and, if unresolved, to arbitration, so long as the contractual deadlines are observed. For detail on the layered dispute resolution route in these agreements, see Practice Note: FIDIC contracts (pre-2017 editions)—dispute resolution. In December 2017, FIDIC issued updated editions of the Red, Yellow and Silver Books. In those texts, the DAB is renamed the Dispute Avoidance/...
New starters share purchase transactions collection ( EHS issues)—warranties Acting for a seller The precedent for Environment, Health and Safety ( EHS) warranties in a share purchase agreement—seller’s version—provides a pared-back set of EHS assurances intended for use when representing a seller. Definitions are intentionally broad, and no warranties are offered for contaminated land. The warranties are limited to these core topics: environmental permits observance of EHS law claims and litigation Practitioner tip Other warranties in the SPA can also bear on EHS matters, in particular: general warranties on compliance, licences and litigation property warranties (asbestos in buildings, neighbour disputes, land condition and flooding) employee warranties relating to health & safety claims......
This Practice Note offers guidance on the regulatory obligation to carry out a firm-wide risk assessment ( FWRA) under the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017 ( MLR 2017), SI 2017/692, as amended. There is no single correct approach to completing an FWRA—what matters is being thorough. Consider what you do, and equally, what you do not do. However diligent your FWRA or however well-suited your controls, some offenders may still manage to misuse your practice for criminal ends. A detailed and documented FWRA, alongside written records of decisions taken on particular clients and matters, will allow you to account for your choices and actions to law enforcement bodies and your supervisory authority. Do you have to conduct a risk assessment? If the MLR 2017 apply to your firm, you must take...
This table provides a concise overview of typical negotiated outcomes across a range of intercreditor topics, flagging the principal areas where junior creditors’ rights converge or diverge depending on the junior debt instrument; is drawn from documentation in the upper mid‑market and large capitalisation segments of the European leveraged finance market; assumes a second lien facility is documented separately from the senior debt and votes as an independent creditor class. Intercreditor rights may differ because of (among other factors): transaction‑specific structural features; whether the debt is distributed in Europe or the US; documentary requirements of particular investors (especially where junior debt is pre‑placed); and whether a junior creditor has actively negotiated its rights, or they appear in an evergreen intercreditor agreed solely between the sponsor and senior creditors. For further detail on the topics covered in this table, see...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 18 May 2017; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission merger probe under Article 14(1) into misleading information supplied by Facebook during the Commission’s 2014 review of Facebook’s acquisition of Whats App ( Case M.8228). Latest developments On 18 May 2017, the Commission adopted an infringement decision and levied a €110m fine on Facebook. Parties Facebook is a social media company based in the United States. Background The Facebook/ Whats App ( M.7217) investigation On 19 February 2014, Facebook agreed to purchase Whats App for US$19bn. On 19 May 2014, Facebook filed a Form RS with the Commission requesting review under Article 4(5) after meeting notification thresholds in three Member States; the Commission accepted this as no competent Member State raised objections. Facebook then notified the...
The Third Edition The third edition of the Standard Commercial Property Conditions was released on 27 April 2017. It refreshed the Standard Commercial Property Conditions ( Second Edition) (the Second Edition), which dated from June 2004. The revision sought to capture developments in law and practice affecting commercial property transactions over the intervening period. A modest follow-up arrived in March 2018—the Standard Commercial Property Conditions ( Third Edition—2018 Revision) (the Third Edition). This introduced just one alteration, updating the definition of ‘clearing bank’ in SCPC 1.1.1(c) to align with changes to the Clearing House Automated Payment System... Summary of the main differences between the Second Edition and the Third Edition Value Added Tax ( VAT) Second Edition: SCPC 1.4.1—the seller warrants the sale is not a supply for VAT purposes. Alternatives in SCPC A1 (sale is standard rated) and SCPC A2 (transfer of going...
Legal professional privilege ( LPP) shields documents from disclosure to third parties, including government agencies, regulators and claimants in civil proceedings. It is vital to safeguard LPP wherever possible when carrying out internal investigations. For guidance on preserving privilege in the criminal context, see Practice Note: Maintaining privilege during criminal investigations. Types of legal professional privilege There are two types of LPP in England and Wales: Legal advice privilege Covers confidential written or oral communications between a lawyer and their client where the dominant purpose is to obtain or provide legal advice, together with related documents. Advice from an in-house lawyer is protected if given in the proper legal context and confined to the legal element of their function (ie genuinely for the purpose of giving or receiving legal advice). It will not apply where the subject matter...
This Practice Note outlines how the Care Quality Commission ( CQC) applies its powers and approach to sanctions and enforcement. What is the CQC? The CQC is a non-departmental statutory body, sponsored by the Department of Health and Social Care. It regulates health and social care services in England and safeguards the interests of people whose rights are restricted under the Mental Health Act 1983 ( Me HA 1983). See Practice Note: Care Quality Commission ( CQC). The relevant legal framework for enforcement The CQC’s enforcement powers are derived from: the Health and Social Care Act 2008 ( HSCA 2008) the Health and Social Care Act 2008 ( Regulated Activities) Regulations 2014, SI 2014/2936 the Care Quality Commission ( Registration) Regulations 2009, SI 2009/3112 the Legislative and Regulatory Reform Act 2006 ( LRRA 2006) and the Regulators’ Code For registered services,...
The Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024 set out the overarching framework for decision-making across all formal insolvency processes. Although decision procedures specifically appear in IR 2016, SI 2016/1024, Pt 15, company voluntary arrangements ( CVAs) are instead covered in IR 2016, SI 2016/1024, Pt 2. For a further general guide to decision-making, see Practice Note: Voting and creditors' decision procedures. Creditor claims There is no express statutory definition of ‘creditor’ in the Insolvency Act 1986 ( IA 1986) or IR 2016, SI 2016/1024 for the purposes of a CVA. For individual voluntary arrangements ( IVAs), the expressions ‘debt’ and ‘liability’ are each defined to embrace ‘debts or liabilities which are present or future, certain or contingent or in respect of an amount which is fixed or liquidated or is capable of being ascertained by fixed rules or as a...
By design, offshore oil and gas decommissioning programmes are intricate pieces of work. They demand collaboration across every department within the organisations proposing the programme, together with close engagement with the Department for Energy Security and Net Zero ( DESNZ), the North Sea Transition Authority ( NSTA) (previously the Oil & Gas Authority), and the support of a range of stakeholders. DESNZ was created on 7 February 2023 and assumed the energy brief of the former Department for Business, Energy and Industrial Strategy ( BEIS), which has now been wound up. Any mention of ‘ BEIS’ in this practice note refers to BEIS’s former functions. The rights and duties connected to decommissioning programmes sit in Part IV of the Petroleum Act 1998 ( PA 1998). That said, PA 1998 largely supplies the framework and procedures, while most practical detail about...
This Practice Note outlines practical points for banking and finance lawyers stepping into in-house positions. Aimed at practitioners within banks and other financial institutions, it explains how an internal role can contrast with private practice and proposes hands-on measures for newcomers. These include learning about the specific bank or financial institution, understanding any internal policies and processes, and clarifying the remit of the in-house banking and finance lawyer within that organisation. It is directed at banking and finance lawyers employed by banks or other financial institutions, rather than those in private practice. It sets out how in-house work may differ and offers practical starting steps for new joiners specifically. The nature of the particular bank or other financial institution For a banking and finance lawyer transitioning to an in-house role at a bank or another financial institution, it is essential at the outset to become...
What happens if a members’ voluntary liquidation fails and exit options An MVL will be regarded as having failed where it must be switched from a solvent winding up to an insolvent one. Should the liquidator, at any point in the MVL, conclude that the company will not satisfy its liabilities in full, with interest at the official rate, within the timeframe set out in the declaration of solvency, they are required to prepare a statement of the company’s affairs and, within seven days of that conclusion, circulate it to the company’s creditors together with a notice explaining the position. The relevant test is whether all debts (plus interest) can be discharged within the stated period, which cannot exceed 12 months from the date the liquidation began. It is not a test of balance sheet solvency. Once it becomes clear that payment in full within that...
The Electronic Communications Code Section 4 and Schedule 1 of the Digital Economy Act 2017 introduced into the Communications Act 2003 an updated Electronic Communications Code, replacing the earlier Code on 28 December 2017. For guidance on the Code’s provisions, see the following Practice Notes: The Electronic Communications Code—code rights The Electronic Communications Code—terminating and renewing code rights Previous Electronic Communications Code [ Archived] This Practice Note addresses the obligations on electronic network providers designated as ‘ Code operators’ by the Code to comply with conditions showing they hold sufficient funds to satisfy their liabilities. These conditions are contained in the Electronic Communications Code ( Conditions and Restrictions) Regulations 2003, SI 2003/2553. The Communications Act 2003 and the Digital Economy Act 2017 ( Consequential Amendments to Secondary Legislation) Regulations 2017, SI 2017/1011—which deal with consequential amendments to secondary...
This analysis examines the principal amendments to the Immigration Rules (the Rules) outlined in HC 1078. HC 1078 was published on 16 March 2017, together with an Explanatory Memorandum ( EM). A significant portion of the amendments concern Tier 2, as the Statement of Changes brings in the second wave of modifications to Tier 2 ( General) and Tier 2 ( Intra- Company Transfer) ( ICT) first trailed in Parliament by the former Minister of Immigration, James Brokenshire MP, on 24 March 2016. That address followed the government's review of the Migration Advisory Committee ( MAC)'s reports arising from its comprehensive assessment of Tier 2. For information on how the first phase of changes was implemented in November 2016, see Practice Note: Statement of Changes in Immigration Rules, HC 667—analysis [ Archived]. The bulk of the Tier 2 revisions had been...
Sections 22–24 of the Taxation of Chargeable Gains Act 1992 ( TCGA 1992) set out the statutory rules governing disposals, including deemed disposals, where assets have been lost, destroyed, damaged, or reduced to a negligible value. Guidance on making claims for negligible value is available in Practice Note: CGT—assets of negligible value and in the HMRC Capital Gains Manual ( CGM) at CG13120P. For a summary of capital gains tax ( CGT) fundamentals—such as what the tax covers, which assets fall within CGT, what counts as a qualifying disposal, and how CGT is calculated—refer to the Practice Note: Introductory guide to CGT. Asset lost or destroyed—basic position Under TCGA 1992, s 24(1), the complete loss, destruction, dissipation, or extinction of an asset is treated as being a disposal of that asset, regardless of whether any capital sum is obtained by way of...
Contractors must strictly observe the prescribed steps when pursuing claims for additional expense and/or extensions of time under FIDIC forms. Failure to comply carries serious consequences, likely preventing a successful recovery and exposing the contractor to liquidated damages if completion slips. This Practice Note examines the notification process for contractors’ claims in the 1999 Red, Yellow and Silver Books, together with the Pink ( MDB) Book 2010 and the Gold Book 2008. For guidance on employers’ claims under those editions, see Practice Note: FIDIC contracts (pre-2017 editions)— Employer claims. The approach in the 2017 Red, Yellow and Silver Books differs—for instance, Contractor and Employer claims follow a single regime. For further detail, see Practice Note: FIDIC contracts 2017— Contractor and Employer claims. Contractors' claims The mechanism for contractors’ claims appears in clause 20.1. Rights to claim arising from distinct events are dispersed across the...
The purpose of this Practice Note This Practice Note explores arbitration in the sphere of internal sporting proceedings and matters before the Court of Arbitration for Sport ( CAS), concentrating on: the benefits and drawbacks of arbitration in a sporting setting the circumstances in which internal sports proceedings qualify as arbitrations Arbitration is often promoted as superior to court litigation for its speed, cost-effectiveness and procedural adaptability. It is also, in general, a private process, meaning the substance and result of a case are kept confidential. These characteristics broadly hold true for sports disputes resolved by arbitration, though their application will ultimately turn on the particular context. Sports-related arbitrations may involve, for example, internal proceedings of a sports federation or other regulatory authority, appeals from those outcomes to CAS tribunals, challenges to anti-doping rulings before CAS tribunals, appeals concerning selection and eligibility for the Olympic Games to CAS...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 8 March 2017; it is no longer maintained. See further, timeline and commentary. Case facts Outline European Commission investigation under Article 101 TFEU into four cartels across markets for air conditioning and engine cooling components ( AT.39960). The cartels featured coordination of prices or markets and the exchange of information. Latest development On 8 March 2017, after six manufacturers settled with the Commission and acknowledged their involvement in the four cartels, the Commission issued an infringement decision. Aggregate fines of €155m were imposed. The fines per manufacturer were: Behr–€62,135,000 Calsonic–€1,747,000 Denso–€322,000 (as a result of being granted immunity, Denso was not fined for its involvement in three of the cartels) Panasonic–€0 (as a result of being granted immunity, Panasonic was not fined for the one cartel it was...
Popular documents
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 ]...
Discover more from LexisNexis
