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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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The Freedom of Information Act 2000 ( FIA 2000) The Freedom of Information Act 2000 ( FIA 2000) provides a right to access information held by public authorities. Under this right, any individual making a valid request to a public authority is entitled: to receive written confirmation from the authority as to whether it holds the information sought and, if so, to have that information communicated to them Consequently, public authorities are obliged to confirm or deny in writing whether they hold the requested material and, where they do, to provide it to the applicant. Who is caught by the regime The regime applies to ‘public authorities’, a term defined in FIA 2000 to include any body, any other person, or the holder of any office that is: listed in FIA 2000, Sch 1 designated as such by an order of the...
At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period drew to a close, following the UK’s departure from the EU. From that moment—termed ‘ IP completion day’ in UK legislation—core transitional measures ceased and substantial changes began to apply across the UK legal framework. For information on the transitional rules for CE and UKCA marking, the amendments made by the Waste ( Miscellaneous Amendments) ( EU Exit) ( No 2) Regulations 2019, SI 2019/188 and the Hazardous Substances and Packaging ( Legislative Functions and Amendment) ( EU Exit) Regulations 2020, SI 2020/1647, and areas of divergence after Brexit, see: GB Restriction of hazardous substances ( GB Ro HS)—scope— Brexit. Ro HS Regulations 2012 The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012, SI 2012/3032 ( Ro HS Regulations 2012) transpose Directive 2011/65/ EU on the...
ARCHIVED: This Practice Note is archived, is not being updated and is provided solely for background reference. In addition, certain links may no longer point to the provisions as they stood when the guidance was first issued. For details on earlier and/or later changes to the CPR, refer to: CPR updates—overview and Procedure Rule Committee minutes—overview. New Rolls Building electronic working pilot scheme ( CPR PD 51O) Date in force : Monday 16 November 2015 CPR PD 51O sets out a new, optional electronic working pilot that will commence on Monday 16 November 2015 for a period of one year. It extends to both fresh and ongoing cases within the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court ( TCC), the Mercantile Court and the Admiralty Court at the Royal Courts of Justice ( RCJ), Rolls Building,...
ARCHIVED This archived Practice Note offers background reading on the key differences between the SAYE guidance in ESSUM and its new location in ETASSUM. It also highlights any material changes in the guidance. The Note reflects the position in December 2015 and is provided for background only. Background On 28 October 2015, HMRC announced a new Employee Tax Advantaged Share Scheme User Manual ( ETASSUM), available on its Gov.uk website. The previous ESSUM guidance remains, at the time of writing, live and accessible here. As the name indicates, ETASSUM covers enterprise management incentives ( EMI), company share option plans ( CSOPs), save as you earn ( SAYE) and share incentive plans ( SIPs). ETASSUM has not yet reached its final version and, when this Practice Note was written, some links were still absent. Every page carries a feedback link for notifying HMRC of issues. The table below...
ARCHIVED: This archived Practice Note supplies background reading on the key differences between the CSOP guidance in ESSUM and where it is now located in ETASSUM. It also sets out any significant changes in the guidance. This Practice Note shows the position as at November 2015 and is for background purposes only. Background On 28 October 2015, HMRC alerted its followers to a new Employee Tax Advantaged Share Scheme User Manual ( ETASSUM), available on its Gov.uk website. The previous guidance in ESSUM remains, at the time of writing, live and can be found here. As the title implies, ETASSUM covers enterprise management incentives ( EMI), company share option plans ( CSOPs), save as you earn ( SAYE) and share incentive plans ( SIPs). ETASSUM is not yet final and, at the date of this Practice Note, many links are still missing. A feedback link appears on every page and...
What this Practice Note covers This Practice Note provides information and hands-on guidance on English law terms and conditions for lawyers advising debut issuers of debt securities. It concentrates on first-time offerings because the documents produced for an issuer’s maiden issue are commonly followed closely on later transactions. The initial documentation phase is when the issuer and its advisers can review the papers in depth and, subject to accepted debt capital markets practice, influence how the documentation is shaped. The Note outlines the practical dimensions of the key provisions found in the terms and conditions of debt securities. It proceeds on the basis that debut issuers are unlikely to be major corporates, financial institutions, multi-lateral agencies (such as the World Bank) or sovereigns that typically raise funds in the international investment-grade public debt capital markets. Rather, it assumes the issuers will be active in...
What this Practice Note covers The purpose of this Practice Note is to offer information and hands-on guidance on English law trust deeds for lawyers advising first-time issuers of debt securities. The emphasis is on debut issuers because documentation for later offerings in the debt capital markets typically mirrors, with little deviation, the papers used for the issuer’s inaugural deal; the documentation phase of that first issuance is therefore when an issuer and its advisers have the chance to review the papers in depth and, within the limits of accepted debt capital markets practice, to shape the documentation’s form. Accordingly, it concentrates on points most relevant to the initial documentation exercise. This Practice Note: sets out the pros and cons of appointing trustees in debt capital markets transactions and describes the relationship between an issuer and the trustee; and explores the...
This Practice Note outlines consumer credit law following the shift of regulatory supervision to the Financial Conduct Authority ( FCA). It considers key changes affecting insolvency practitioners ( IPs). For further reading on consumer credit agreements, see Practice Notes: Regulated activities relating to consumer credit and The FCA consumer credit regime: an overview of rules on arrears, default and recovery... Regulatory oversight From 1 April 2014, oversight of consumer credit moved from the Office of Fair Trading ( OFT) to the FCA. As part of this transition, the OFT licensing scheme under the Consumer Credit Act 1974 ( CCA 1974) was replaced by the FCA’s authorisation regime under Part IV( A) of the Financial Services and Markets Act 2000 ( FSMA 2000)... If a firm had: a consumer credit licence on 31 March 2014; and applied before 1 April 2014 for interim...
NOTE—appeals lodged before the General Court in Cases T‑341/18, T‑342/18, T‑344/18 and T‑363/18 ARCHIVED – this archived case hub reflects the position as at the decision of 21 March 2018; it is not maintained. See timeline, commentary and related cases. Case facts ARCHIVE 21/03/2018 Outline: European Commission Article 101 TFEU investigation into an alleged cartel in the electrolytic capacitors market (devices that store electrical energy) ( AT.40136). Latest developments On 21 March 2018, the Commission adopted an infringement decision against nine makers of aluminium and tantalum electrolytic capacitors, levying total fines of €253.935m for running a cartel to exchange sensitive information so as to coordinate future conduct and avoid price competition. Parties Manufacturers of electrolytic capacitors, all based in Japan: Sanyo Electric Co., Ltd ( Sanyo), a Panasonic Corporation subsidiary Elna Hitachi Chemical Holy Stone Matsuo NEC Tokin Nichicon Nippon Chemi- Con Rubycon A tenth, unidentified company received the Commission’s statement of objections, but in the end was not...
ARCHIVED: This Practice Note has been archived and is not maintained This Practice Note offers background reading on the principal distinctions between the EMI guidance in ESSUM and its current placement within ETASSUM. It also highlights any material changes in the guidance. The position reflected is as at December 2015 and is provided for background use only. Background On 28 October 2015, HMRC announced a new Employee Tax Advantaged Share Scheme User Manual ( ETASSUM), available on its Gov.uk site. The earlier guidance in ESSUM remains, at the time of writing, live and can be found here. As its name indicates, ETASSUM covers enterprise management incentives ( EMI), company share option plans ( CSOPs), save as you earn ( SAYE), and share incentive plans ( SIPs). ETASSUM is not yet complete and, when this Practice Note was prepared, some links were still absent. Each page includes a...
The notion of concerted practice set out in Article 101(1) TFEU empowers the European Commission ( Commission), national competition authorities, and national courts to forbid particular kinds of anti‑competitive conduct among undertakings that fall short of an agreement in this field. For an overview of Article 101(1) TFEU, see further, The prohibition on restrictive agreements, for present purposes. Concept of concerted practices: definition and underlying rationale Article 101 TFEU distinguishes between agreements between undertakings, decisions by associations of undertakings (which we do not address here), and concerted practices. An agreement presupposes that the parties subscribe to a common plan that restricts, or is liable to restrict, their independent commercial conduct by determining how they will act or refrain from acting on the market. By contrast, a concerted practice captures undertakings that knowingly engage in collusive behaviour to lessen uncertainty in the...
This Practice Note outlines key aspects of a documentary 'relaxation' or 'release' clause, commonly included in leveraged buy-out ( LBO) facility agreements. It also considers: the most frequently encountered trigger conditions common ways of easing requirements within the facility agreement, and particular points to address when negotiating this clause This Practice Note assumes a degree of familiarity with leveraged finance structures and documentation. For introductory material, see Practice Notes: Introductory guide to acquisition finance and Introductory guide to leveraged finance facilities agreements. The Glossary of acquisition finance terms and jargon may also be useful. Background Traditionally, LBO facility agreements have placed strict limits on group activities and imposed rigorous mandatory prepayment obligations, reflecting high leverage. Private equity sponsors often contend that, while controls are appropriate when the balance sheet carries significant leverage, once the group has materially deleveraged, such tight...
Sections 122A–122K of the Sexual Offences Act 2003 ( SOA 2003) contain the statutory framework for sexual risk orders ( SROs). An SRO is a civil measure intended to safeguard the public across the UK, as well as children or vulnerable adults overseas, from individuals who present a risk of harm. Through SROs, the courts may impose whatever prohibitions are considered necessary to prevent such individuals from causing harm. The Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022) makes amendments to the relevant part of the SOA 2003; at the time of writing, certain changes have not yet commenced and are highlighted below where applicable. The principal difference between an SRO and a sexual harm prevention order ( SHPO) is that an SRO can be made in relation to someone who has not been convicted of, or cautioned for, an offence listed in SOA...
First meeting and early stages In cases of serious injury, it is crucial that the claimant practitioner meets the claimant and their family at the earliest opportunity. These first interactions may involve more than one visit. Wherever feasible, the practitioner should arrange to see the claimant and relatives in their home setting. This might not be achievable while the claimant remains in hospital or within a rehabilitation unit. Nevertheless, once the client has been discharged, it is beneficial for the practitioner to attend at their home and meet with them and their family there......
ARCHIVED: This Practice Note has been archived and is not maintained. On 10 May 2022, the Commission introduced the Vertical Block Exemption Regulation 2022/720 ( VBER 2022), which superseded the earlier Vertical Restraints Block Regulation 330/2010 ( VBER 2010, also referred to as the VRBE in this Practice Note) with effect from 1 June 2022. This Practice Note was prepared for the VBER 2010. NOTE— The VBER 2010 expired on 31 May 2022 and was replaced by the VBER 2022 on 1 June 2022. Under Article 10 VBER 2022, a 12‑month transition (ending 31 May 2023) applied to pre‑existing vertical agreements in force on 31 May 2022 that complied with the exemption conditions under the VBER 2010 on that date but did not meet the exemption conditions under the VBER 2022. Accordingly, this Practice Note is provided for background only. For...
STOP PRESS: This Practice Note cites a previous iteration of the UK Corporate Governance Code, not the latest edition issued on 22 January 2024. For more details, see Practice Note: The UK Corporate Governance Code. In the wake of the 2007–2008 worldwide financial turmoil, significant debate arose over the type and calibre of disclosures companies give investors about their financial health and capacity to endure pressures in the short to medium term. Consequently, the Financial Reporting Council ( FRC) commissioned an inquiry chaired by Lord Sharman (the Sharman Inquiry), commencing in March 2011. The FRC’s objectives in initiating the inquiry were to capture the lessons of the crisis, spread leading practice widely, and develop, as needed, its guidance on going concern and liquidity risks. The Sharman Inquiry’s remit was to pinpoint lessons for companies and auditors addressing going concern and liquidity risks and to...
NOTE— ISU has appealed to the General Court in Case T‑93/18. ARCHIVED – this archived case hub reflects the position as at 8 December 2017; it is no longer maintained. See further: timeline, commentary and related cases. Case facts Outline European Commission Article 101 TFEU examination of the International Skating Union’s ( ISU) eligibility rules, under which skaters may face permanent bans from ISU competitions for participating in events not approved by the ISU ( Case AT.40208). Outcome On 8 December 2017, the Commission adopted an infringement decision, concluding that the ISU’s rules violate Article 101 TFEU. The Commission ordered the ISU to end the unlawful conduct within 90 days, by repealing or revising its eligibility rules, and to abstain from implementing any measure with the same or an equivalent object or...
This Practice Note This Practice Note sets out details of, and links to, financial standard orders issued by the standard orders group under the authority of the President of the Family Division. It covers standard order 2.1, the financial remedy order (which may be used either for an order made by consent or at a final hearing), directions orders (both long and short), together with search and freezing orders. On 17 May 2023, Mr Justice Peel, the judge responsible for standard orders, announced, with the President of the Family Division’s authority and following a review and consultation exercise, that the standard orders had been updated to reflect developments in law, practice and procedure and to promote consistency. See: LNB News 17/05/2023 88. On 21 May 2024, Mr Justice Peel, judge in charge of standard orders, announced, again with the authority of the...
This Practice Note sets out who may apply for a parental order and the conditions that must be met for a parental order to be made under the Human Fertilisation and Embryology Act 2008 ( HFEA 2008) It considers the parental order reporter’s role and the effect and duration of parental orders, their possible alternatives, together with leading case law. A parental order allows a child to be recognised in law as the child of the applicant(s) where: the child was carried by a woman who is not the applicant, or not one of the applicants, as a consequence of an embryo being placed in her, or the placement of sperm and eggs, or by her artificial insemination; and the gametes of the applicant, or of at least one of the applicants, were used to create the embryo. In addition, the...
It has long been standard for administrators and liquidators to try to cap their personal liability when entering contracts on a company’s behalf. In addition, office-holders frequently seek to limit liabilities incurred during an administration or liquidation where such liabilities would otherwise rank as an expense of the process. Expense claims sit only behind fixed charge claims and, in many cases, come ahead of the insolvency office-holder’s remuneration. This Practice Note considers the use of exclusion clauses intended to contract out of expense claims, summarising the history of the practice, the practical issues that may arise, and points for counterparties to weigh when agreeing such terms... Background to the practice In the course of an administration or liquidation, an office-holder may enter into numerous contracts for the company while exercising their powers and functions. The two principal categories are those for the...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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