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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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This Practice Note aims to outline the principal distinctions between Scots law and English law concerning the creation of fixed security over land and buildings. These differences extend from the forms of security that can be taken over real property, to the ways in which such security is perfected and the significance of those perfection requirements. For broader guidance on taking security over land and, in particular, the position in England and Wales, see Practice Note: Taking security over land. Land and buildings A helpful place to begin is by considering what is meant by land and buildings for the purposes of fixed security. Under Scots law, a standard security can be taken as fixed security over property owned outright (heritable property) or property held under a lease. For leasehold property, a lease for a term of 20 years or less cannot be...
UNCITRAL rules on costs Tribunal's fees and expenses This Practice Note addresses matters concerning costs in arbitrations under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL framework, including the role of appointing authorities in such proceedings, see Practice Note: UNCITRAL Rules—background and introduction. Where an appointing authority (often an arbitral institution) constitutes an UNCITRAL tribunal, the parties may also agree that the institution’s schedule for arbitrators’ fees applies. In that event, the tribunal will consider that schedule when fixing its remuneration ( UNCITRAL Rules, Article 41, para 2). Promptly after it is formed, the tribunal must tell the parties how it intends to set its fees and expenses, including any rates it proposes to use. A party may, within 15 days of receipt, submit this proposal to the appointing authority for review. The...
CASE HUB ARCHIVED This archived case hub reflects the position as at the judgment dated 19 January 2016; it is no longer maintained. For further details, see: timeline, commentary and related/relevant cases. NOTE—appeal lodged by Toshiba at the Court of Justice in Case C‑180/16 Toshiba v Commission. Case facts Outline Appeals were brought before the General Court seeking annulment or a reduction of the fines arising from the Commission’s amended decision of 27 June 2012 (which amended the original decision of 24 January 2007). That decision found an infringement of Article 81 EC and Article 53 of the EEA Agreement and re‑imposed fines of €56.79m and €74.82m on Toshiba and Mitsubishi Electric, respectively, for their alleged role in a cartel concerning the supply of gas‑insulated switchgear (‘ Switchgear cartel’). On 19 January 2016, the General Court dismissed the actions in full and accordingly confirmed the revised fines imposed by the...
ARCHIVED: This Practice Note has been archived and is not maintained. Last updated March 2021 Tracker overview This Transparency Directive tracker sets out recent legislative and regulatory changes relating to the TD, alongside relevant background materials and subsequent amending and implementing measures from 2001 to the present. It also covers Q& As, recommendations and technical advice issued by ESMA (which succeeded CESR). A list of abbreviations for the tracker is available here. This Practice Note is split into the following sections: Key documents and abbreviations Recent and future developments (2015 onwards) Review and further implementation of the TD (2010–2014) Implementation of the TD (2004–2010) Development of the TD (2001–2004) The TDAD (as adopted), which amended the TD (as adopted), had an implementation deadline of 26 November 2015. For further details, see Recent and future developments (2015 onwards) below. Key documents and abbreviations The following are key materials regarding the...
The Education Act 1996 ( EA 1996) creates criminal liability for a parent who does not ensure his child receives regular education. All offences under the EA 1996 are summary only, so they can be dealt with solely in the magistrates' court. Procedure Under the EA 1996 Only a local education authority may commence criminal proceedings under the EA 1996; no other prosecuting body is permitted to do so. Before starting a case, the authority must first consider whether it would be appropriate, instead of or as well as prosecuting, to seek an ' Education Supervision Order' ( ESO) from the court. Elements of the offence of failing to comply with school attendance order The prosecution must establish that: a parent has failed to comply with the requirements of a school attendance centre...
This Practice Note describes the searches to be completed ahead of completion (pre-completion searches), namely: official searches with priority land charges searches company and bankruptcy searches It sets out when each search is required, how to carry it out, the aim and effect of each search, the applicable priority period, and the steps to take if adverse entries are uncovered. It also points out that additional pre-completion searches may be necessary where a document is executed under a power of attorney. These searches are undertaken for the buyer, tenant or lender to verify that the title information obtained during due diligence remains correct at completion. If a lender is financing the acquisition and taking a charge over the property, it may perform some or all of the pre-completion searches itself, or insist on conditions precedent relating to the provision of...
The need for legislation in the construction industry Across the 1980s and into the early 1990s, the construction sector was beset by inefficiency, disputes and widespread insolvency, notably among contractors and sub‑contractors. In 1994, Sir Michael Latham was asked to produce a report on the difficulties facing the industry. In that study, titled ‘ Constructing the Team’, Latham pinpointed two themes at the heart of the sector’s problems: disputes payment Latham concluded the industry required a dedicated method of resolving disagreements that was easy to access, rapid and low‑cost, to curb the prevailing disputes culture. He also considered that safeguarding cash flow throughout every tier of the industry would cut contractor and sub‑contractor insolvency and support stable employment. The HGCRA 1996 The legislative answer to Latham’s findings appeared in Part II of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), passed in 1996 and...
With appreciation to other contributors from Squire Patton Boggs offices across its global network. Cross-border JVs There is no single, universal approach to structuring cross-border joint ventures ( JVs) (ie where one or more JV participants are based outside the UK and intend to establish a JV outside the UK). The provisions of any contract must ultimately set out the parties’ commercial arrangement. However, many of the legal points highlighted in this and the related Practice Notes: Cross-border joint ventures—initial considerations, Cross-border joint ventures—management and control, and Cross-border joint ventures—termination may influence the choice of jurisdiction for the JV vehicle, as well as the commercial bargain itself, and should therefore be assessed as early as possible to give the JV the best chance of success. Even if a joint venture agreement ( JVA) uses a familiar governing law, such as English law, creating a...
This Practice Note proceeds on the basis that: the joint venture’s chosen vehicle is a private limited liability company no shareholder in the joint venture company ( JVC) is a listed company the JVC’s board comprises natural persons Directors' duties Directors owe a range of obligations to their companies. In some circumstances, they may also face liability to others under statute or the common law. Traditionally, many core obligations were fiduciary. The principal court-developed duties are now codified in sections 171–177 of the Companies Act 2006 ( CA 2006). For a summary of the scope of these statutory general duties, refer to Practice Note: Directors' duties—fundamentals. Although a JVC director owes the same duties to the JVC as any director owes to a non- JVC company, certain duties take on special significance or application for JVC directors, including: the obligation to promote the company’s success for the...
This Practice Note outlines the legal framework for taxi licensing. It focuses on the rules for ‘hackney carriages’ and ‘private hire vehicles’ ( PHVs), which are typically booked in their entirety, that is, not on split fares per passenger. It does not address vehicles hired on separate fares. Licensing authority The licensing body for both hackney carriages and PHVs is the district council; where no district council exists, responsibility falls to a metropolitan council or unitary authority, and in Wales to a county council or county borough council. Section 15 of the Transport Act 1985 extended hackney carriage licensing across England and Wales (outside London), while section 76 of the Public Health Act 1925 brought railway land within the regime. PHVs may only be licensed after an area has adopted Part II of the Local Government ( Miscellaneous Provisions) Act 1976, and only where hackney carriage...
CASE HUB ARCHIVED – this archived case hub captures the status as at the judgment date of 28 February 2013; it is not updated. For more, see: timeline, commentary, and related/pertinent cases Case facts Outline A reference was made at national level by the Portuguese Tribunal da Relação de Lisboa ( Lisbon Court of Appeal) to the Court of Justice, seeking a preliminary ruling under Article 267 TFEU. The court asked, among other matters, whether the rules of a professional association—set out in a regulation and, specifically, establishing a mandatory training scheme for chartered accountants—are consistent with Article 101 TFEU......
ARCHIVED: This Practice Note is archived and not maintained. It outlines the Finance Act 2016 ( FA 2016), which secured Royal Assent on 15 September 2016. Retained for historical interest, it traces the legislation’s passage through Parliament and sets out, with relevant links, each measure contained in the Act. This Practice Note is divided into four parts: Progress of FA 2016 FA 2016—measure by measure Items included in the Draft Finance Bill on 9 December 2015 but not in FA 2016 Items that were expected to be included in FA 2016 Progress of FA 2016 This section records how FA 2016 progressed through Parliament. 9 December 2015 — Draft legislation published 14–29 January 2016 — Lords Select Committee: inquiry into the draft FB 2016 9 December 2015–3 February 2016 — Consultation on draft clauses to be included in FB 2016 24 March 2016 — FB 2016 published ( Bill as...
The Financial Services and Markets Act 2000 ( FSMA 2000) is the primary statute overseeing the UK financial services industry and the regulation of securities and investments, and it carries various implications for running employee incentive arrangements. FSMA 2000 is bolstered by a wide suite of further statutory instruments, rules and guidance issued by the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA). This Practice Note sets out the impact of FSMA 2000 on employee incentive arrangements and highlights key considerations that employers must address when inviting employees in the UK to participate in such incentives. FSMA 2000 FSMA 2000 regulates securities and investments in the UK to protect consumers, uphold and strengthen the integrity of the financial system, and foster effective competition within the financial services sector. It achieves this by banning and limiting a wide range of...
Why do lenders require security? It is standard practice for lenders to seek security over a borrower’s assets as a condition of making loan facilities available. Granting security gives the lender specific rights over the secured property if the borrower does not repay, including the ability to sell those assets to clear the outstanding debt. What types of security might a borrower be asked to provide? The rights arising from a security interest vary with the form taken. Security may take the form of: Mortgage—under a mortgage, legal and/or beneficial ownership of an asset is transferred to the lender for security, on the basis that it will be returned to the borrower once the debt is repaid or the obligations satisfied; an assignment by way of security is a form of mortgage (see Practice Note:...
During the life of a marriage or civil partnership, where one spouse or civil partner has a right to live in a property by reason of a beneficial estate, interest, contract or statute, the spouse or civil partner not named on the legal title may register home rights (previously called matrimonial home rights) as a charge against the property under the Land Charges Act 1972 ( LCA 1972) or the Land Registration Act 2002 ( LRA 2002), depending on whether the property is unregistered or registered. The rules on home rights are contained in Part IV of the Family Law Act 1996 ( FLA 1996) and in FLA 1996, Schedule 4. Where the home is owned jointly, both at law and in equity, by the spouse or civil partner together with the other spouse or civil partner, protection under the FLA 1996 is...
This Practice Note reviews evidential matters in arbitrations conducted under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. Under Article 17(1) of the UNCITRAL Rules, the tribunal may manage the arbitration in whatever manner it considers suitable. Each party carries the burden of proving the facts on which it relies ( Article 27(1)), and the tribunal decides on the admissibility, relevance, materiality and weight of any evidence presented ( Article 27(4)). Documentary evidence The notice of arbitration should specify the arbitration agreement relied upon and any contract or other legal instrument out of, or in relation to, which the dispute has arisen ( Article 3(3)(c)–(d)), copies of which should be included with the statement of claim where that is filed separately from the notice of...
Inquests An inquest is an inquisitorial, non-adversarial procedure in which there are no ‘parties’; rather, individuals or organisations with an interest are notified about the investigation and are permitted to play a role. They are formally described as ‘properly interested persons’, often referred to as IPs (interested persons). The purpose of an inquest is to determine four statutory questions: who died, when they died, where they died, and how the death occurred. In the majority of inquests, it is the ‘how’ question that proves the most contentious issue. This note sets out some of the principal issues that can arise when preparing for an inquest. Useful guidance on approach to inquests is contained in the Chief Coroner’s Guidance for Coroners on the Bench (the Bench Guidance). The Bench Guidance is intended to be a ‘live’ document, subject to review and revision. It is said to be a...
ARCHIVED: This Practice Note is archived and is no longer maintained. It concerns Directive 2002/22/ EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights in relation to electronic communications networks and services, as revised by Directive 2009/136/ EC (the Universal Service Directive). It forms part of a suite of Practice Notes addressing the key components of the EU regulatory regime for electronic communications. Across the EU, the operation of electronic communications networks and services in each Member State is subject to a shared regulatory system that initially consisted of five directives (the Framework). The Framework’s purpose was to create a harmonised regime for regulating electronic communications networks and services across the EU. In December 2018, Directive ( EU) 2018/1972 establishing the European Electronic Communications Code ( Recast) (the European Electronic...
This Practice Note focuses on the key points for public authorities to consider when complying with a freedom of information request. Under the Freedom of Information Act 2000 ( FIA 2000), a public authority is required to answer any valid request for information made by any individual, wherever in the world they are, as required by the Act. On receiving a valid request, the authority must confirm or deny in writing whether it holds the specified information and, if it does, provide it to the applicant, unless an exemption applies. When a request is received, an authority should: log the date on which the request was received assess whether the request satisfies validity requirements ascertain if information matching the stated description is held estimate the likely cost of compliance decide whether charging a fee is...
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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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