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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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Introduction The Habitats Regulations Assessment ( HRA) requires the evaluation of any ‘plans or projects’ that could have a ‘likely significant effect’ on a European site. Such proposals may proceed only when the competent authority is satisfied they will not result in an ‘adverse effect on the integrity of a European site’. Where adverse effects are found, or where their consequences remain uncertain, permission can be given solely if particular ‘derogations’ apply. See Practice Notes: Implementation of the EU Habitats Directive in England and Wales and Appropriate assessment/habitats regulations assessment. Screening Is the proposed activity a 'plan or project'? The HRA applies only where the proposal amounts to a ‘plan or project’. Although the legislation does not define these expressions, they are commonly afforded a very broad interpretation, encompassing a wide range of activities and circumstances. If the proposal is not a plan or project, there is no...
Shared Ownership ( SO) Shared Ownership ( SO) is a government-backed route intended to widen access to home ownership, predominantly for leasehold properties. Purchasers begin by buying a stake in their home and paying rent on the remaining share. They can then acquire additional slices of equity over time through staircasing, ultimately reaching full ownership at final staircasing. Although often called ‘part rent part buy’, a more accurate description is that the SO buyer holds an equity interest while renting under a lease. Across England, excluding Greater London, SO is delivered via Homes England ( HE) funding programmes: for SO homes delivered 2016–21, under the Shared Ownership and Affordable Homes Programme 2016–21 ( SOAHP 2016–21) since 1 April 2021, under the Affordable Homes Programme 2021–26 ( AHP 2021–26) The rules and requirements governing SO are set out in Chapter 1 of HE’s Capital...
This comprehensive database sets out precisely how the European Commission has worked out penalties levied on cartels that have infringed Article 101 TFEU, applying the current fining guidelines. Notes: All cartel penalties imposed pursuant to the 2006 Fining Guidelines are captured in this tracker Only sanctions relating to cartels are covered; penalties for other Article 101 TFEU infringements are excluded from scope Where fields in the tracker are left blank, this signals that the information has not been disclosed publicly Cases are incorporated once the Commission publishes the complete text of the infringement decision......
ARCHIVED: This Practice Note is archived and no longer maintained. Introduction This Practice Note sets out the principal legal security considerations facing mobile payment service providers and their customers, and how forthcoming European legislation seeks to address them. In the UK, the mobile payments sector is growing rapidly, marked by the arrival of Apple Pay, Google’s Android Pay and Samsung Pay. Retail payments have seen notable technological innovation, with swift increases in electronic and mobile transactions and the appearance of new categories of payment services in the marketplace, which strains the existing framework. As a result, payment services legislation—such as the Payment Services Directive (2007/64/ EC) ( PSD), implemented domestically by the Payment Services Regulations ( SI 2009/209) ( PSR)—has, in places, become outdated, particularly on security, prompting reform of the PSD. The European Parliament adopted the second Payment Services Directive ( PSD2) on 8 October 2015. The...
Context Community Infrastructure Levy The Community Infrastructure Levy ( CIL) is a charge on development that local planning authorities—designated as charging authorities under Part 11 of the Planning Act 2008—are empowered to apply to development within their area. Where an authority resolves to introduce CIL, it must approve a charging schedule that specifies the rates to be levied. From the date that schedule takes effect, any planning permission issued, or deemed to be granted via general permitted development rights, becomes subject to CIL unless one of several exemptions or reliefs is available. This Practice Note focuses solely on exceptional circumstances relief. For other reliefs and exemptions, refer to the Practice Notes: Community Infrastructure Levy ( CIL)—exemptions for minor development, residential annexes and extensions and self-build housing, Community Infrastructure Levy ( CIL)—exemptions and relief for charities and Community Infrastructure Levy ( CIL)—social housing...
CASE HUB (appeals lodged at the Court of Justice in Cases C- 271/16 ( Panalpina), Case C- 264/16 ( Deutsche Bahn), C-262/16 ( Schenker) and Case C- 261/16 ( Kühne + Nagel)) ARCHIVED –this archived case hub reflects the position at the date of the judgment of 29 February 2016; it is no longer maintained. See further: timeline commentary related/relevant cases Case facts Outline Applications before the General Court sought annulment, in whole or in part, and/or a substantial decrease in the penalties set by the Commission’s decision of 28 March 2012, which found breaches of Article 101 TFEU and Article 53 of the EEA Agreement and levied aggregate fines of €169 million on 14 undertakings engaged in international freight forwarding for their alleged involvement in four separate worldwide cartels in freight forwarding services (‘ Freight forwarding cartel’). On 29 February 2016, the General Court...
Structure This Practice Note proceeds on the basis that the funder supplies finance only to the JV (ie a cash loan to be repaid with interest). If, however, the funder wishes to join the JV as a participant, see Practice Note: Property development joint ventures—acting for an investor, which considers a funder’s position when investing. Likewise, where the funder is to forward fund the scheme (often called a ‘forward funding’ or ‘forward sale’), it would typically purchase the property itself and grant the developer a licence to undertake the works. In substance, that is an investment by the funder, with returns realised through lettings or other disposals of the finished scheme. Strictly, it is not a joint venture and may instead be documented contractually via a forward funding agreement or forward sale contract. For more detail, see Precedents: Forward funding agreement and Forward funding...
NOTE— Avio has lodged an appeal before the General Court in Case T‑139/18. ARCHIVED – this archived case hub records the position as at the decision of 20 July 2016 and is no longer updated. See further the timeline, commentary and related cases. Case facts The European Commission conducted a merger review of the proposed acquisition of Arianespace ( Case M.7724) by Airbus Safran Launchers ( ASL, a 50/50 joint venture controlled by Airbus and Safran). The deal raised vertical overlap issues across satellite and launch service markets. Latest developments On 20 July 2016, the Commission approved the transaction subject to commitments designed to prevent competitive harm from potential exchanges of sensitive information between the firms. The parties will: Set up firewalls between Airbus and Arianespace to block information flows that could disadvantage rivals; specifically, they will not share third‑party information beyond what is...
Step-by-step guide Party A and Party B put in place an International Swaps and Derivatives Association ( ISDA) Master Agreement with a Schedule, and mutually together agree to record their interest rate swap ( IRS). Assume the IRS has a notional of US$100m. The notional amount of the IRS is not exchanged; instead, it is used as the basis for......
ARCHIVED: This Practice Note is archived, is not maintained, and is supplied for background reference only. In addition, some links may no longer lead to the provisions as they stood at the time the guidance was published. For information on earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Underlying documents The Civil Procedure ( Amendment) Rules 2016, SI 2016/234 sets out revisions to the Parts of the CPR. The Making Document, issued by the Ministry of Justice on Thursday 25 February 2016, details changes to the practice directions. Coming into force date February 2016 23 February 2016—amendments to CPR PD 12 concerning Default Judgment. These changes reflect last year’s commencement of the Hague Convention on the Choice of Court Agreements 23 February 2016—amendments to CPR PD 74A on Enforcement of judgments in different...
This Practice Note reviews the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters (1965) (the Hague Service Convention). The convention applies between contracting parties and prescribes how service of documents should be effected. This Practice Note does not consider whether the court’s permission is needed to serve documents outside England and Wales ( England). For guidance, see Practice Notes: Cross-border service—a guide for dispute resolution practitioners and Cross-border service—is permission required to serve a defendant who is outside England and Wales? For an understanding of the convention, the Hague Convention on Private International Law ( HCCH) provides useful FAQs and a two-page outline. It also publishes a detailed Practical Handbook on the Operation of the Service Convention, which must be purchased. Note that the handbook has superseded the Explanatory Report on the Hague Service...
This Practice Note outlines the context for the in‑house lawyer’s role and what their organisations expect of them. It sets the scene for understanding shifting responsibilities and perceptions in organisations today. What are in-house lawyers expected to do? Not long ago, the prevailing view was that moving in‑house marked a somewhat second‑tier route—the refuge for those who hadn’t fully thrived in private practice. That perception has decisively shifted, and expectations have altered accordingly. Businesses now demand far more of their legal functions and the professionals within them. Standards are, rightly, high—yet what, precisely, is being asked? To answer, it helps to trace where the in‑house community has come from. Consider this extract from an SRA‑commissioned report dated February 2014: it notes that the evolution of in‑house counsel over roughly three decades is rooted in the United States. Yet, during the past 10–15 years, the UK......
Practice Note This Practice Note is aimed at in-house counsel. It sets out a concise overview of work allocation. The core idea is that deploying resources must be intentional and methodical, and that legal functions should resist the belief that they must personally shoulder every legal risk; with appropriate frameworks and support, others within the business can handle risk just as well. In the end, no legal department will ever be staffed with enough lawyers to operate solely as executors. Two models for resourcing legal work are the ‘chute’ and the ‘portal’. Under the chute model, all items with a legal element across the organisation are channelled straight to lawyers, who wait for the flow to arrive. Over time this becomes unsustainable, because the volume demands an ever-growing number of lawyers to keep pace with the workload, as the...
This Practice Note This Practice Note considers the key points to address when acting for an executive director (who will also be an employee) entering a service agreement and/or assessing a draft service agreement. It: is not intended for use when advising a non-executive director does not cover the particular issues arising where the company is regulated by the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) For an example service agreement, see Precedents: Executive service agreement or Executive service agreement (short form). The service agreement will, in almost all cases, have been produced by the employer and, accordingly, the wording will favour the employer. Where the draft reflects the employer’s standard terms for directors at an equivalent level, the employer is unlikely to accept material alterations, save to capture the specific package settled with the director. The extent to which the...
CASE HUB ARCHIVED – this case hub captures the position as at the 14 March 2013 judgment date; it is no longer being maintained. See also: timeline, commentary and related/relevant cases Case facts ( ARCHIVE 14/03/2013) Outline Appeals were lodged with the General Court seeking annulment or a reduction in the levels of fines imposed under the Commission’s decision of 15 October 2008, which found a breach of Article 81 EC and levied penalties of €45.6m on Dole and €14.7m on Del Monte (jointly and severally with Weichert) for alleged involvement in a cartel concerning the supply of fresh bananas to the northern European region (the ‘ Bananas cartel’). On 14 March 2013, the General Court upheld the infringement finding (on the merits) in relation to both appeals—holding, in particular, that the information concerned was not in the public domain and that swapping...
ARCHIVED: This Practice Note is archived and is not maintained. For alternative further reading, see Practice Note: Judicial review in Scotland—raising a claim. In Scotland, any application for judicial review must be made, in the prescribed form, to the Court of Session. The Courts Reform ( Scotland) Act 2014 ( CR( S) A 2014) ushered in an entirely new procedure for judicial review proceedings in Scotland. Sections 27A–27D of the Court of Session Act 1988 ( CSA 1988) introduced new time limits and a requirement to obtain the Court’s permission before applying. Chapter 58 of the Court of Session Rules was fully rewritten in 2015, reforming all applications to the court’s supervisory jurisdiction in Scotland, which must proceed by petition for judicial review. The key procedural stages and the corresponding Court of Session Rules are as follows: Petition — Rules...
CASE HUB ARCHIVED This archived case hub reflects the position as at the decision date of 24 May 2016 and is no longer maintained. See further: timeline, commentary and related cases. Case facts Outline The CMA pursued an Article 101 TFEU/ Chapter I CA98 investigation into Foster Refrigerator (a manufacturer), a division of ITW Ltd, regarding the alleged insertion into vertical agreements of a minimum advertised price for internet sales of commercial refrigeration products, curbing retailers’ ability to price below that level (case CE/9856-14). Latest developments On 24 May 2016, the CMA adopted an infringement decision and levied a £2,298,820 fine on ITW Ltd, owner of the Foster Refrigerator division. The penalty was reduced by 10% as ITW Ltd put in place a comprehensive compliance programme to train staff, and by a further 20% because ITW Ltd settled with the CMA, admitted liability and...
What are growth shares? Growth shares, sometimes called value or hurdle shares, comprise a distinct class of shares with curtailed rights. Those rights are crafted so the holder benefits only from increases in the company’s value arising after an acquisition, and only on a capital distribution to shareholders once a preset value hurdle is met. As a result, they broadly mirror the economics of an option carrying a market-value or premium strike price. For further detail on the principal features of growth shares, and when they may suit a company seeking to incentivise staff, see Practice Note: Growth shares (value shares). To understand potential returns and tax consequences, it is helpful to set growth shares alongside enterprise management incentives ( EMI) options and unapproved options. For an overview of EMI options, see Practice Note: Introduction to enterprise management incentives ( EMI) schemes. For context on...
Legislation The English legal system rests on two principal sources of law: legislation, and case law, or common law Legislation is a primary source, divided into primary and secondary forms. Acts of Parliament are primary legislation, often called statute. A primary statute sets out the overall structure of the relevant law but may leave out practical or consequential specifics, and secondary legislation is used to add the detailed provisions linked to the original statute. Each year, thousands of pieces of secondary legislation are passed, compared with an average of between 30 and 40 Acts of Parliament, making secondary legislation the most time‑effective means of putting into effect the detail a statute needs to operate. There is no general legal limit on what secondary legislation can accomplish; its scope depends on the wording of the parent Act. Advantages and disadvantages of secondary...
Offence of making a false instrument Under section 1 of the FCA 1981, a person commits forgery if they create a false instrument intending that they, or someone else, will use it to persuade another to treat it as authentic, and, because of that acceptance, to act or refrain from acting to their own or another’s detriment. For all offences in the FCA 1981, section 8 explains what counts as an “instrument”. It covers: any document; postal stamps and Inland Revenue stamps; disks, tapes, sound tracks; and any other device on or in which information is recorded or stored by mechanical, electronic, or other means. The FCA 1981 does not define “document”, but currency notes are excluded, as these fall under counterfeiting offences in Part II of the FCA 1981 (see Practice Note: Counterfeiting notes and coins). Electronic impulses used as...
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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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