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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 to the FCA’s requirements on information about firms, adviser charging and consultancy charging This Practice Note outlines, in summary, the regulatory regime and guidance that dictates what information a firm must give to clients about its services and remuneration arrangements, and about adviser and consultancy charging when it undertakes designated investment business in this context. The Financial Conduct Authority ( FCA) has set rules requiring a firm to disclose clearly to clients details about the firm and the services it offers. Many of these obligations originally arose from implementing provisions within the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID). The rules sit largely in the General Provisions Manual ( GEN) and the Conduct of Business Sourcebook ( COBS). Mi FID was subsequently replaced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the EU...
This Practice Note reviews evidence in arbitrations brought under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules). The 2021 Vienna Rules entered into force on 1 July 2021 and govern any case filed on or after that date. If your case proceeds under the Vienna Rules 2018, effective 1 January 2018, you should refer to the earlier edition of the rules. What do the Vienna Rules provide on matters of evidence? As is typical of institutional arbitration, tribunals and parties are granted significant leeway in the preparation, presentation and handling of evidence. The Vienna Rules set only limited directions on evidential matters, reserving substantial procedural flexibility to the tribunal so it can tailor the process to the dispute. The key evidentiary provisions in the Vienna Rules are outlined below. Under article 28 of the Vienna Rules, the tribunal has broad...
This Practice Note centres on the FCA requirement at COBS 19.5 for workplace personal pension schemes to set up an independent governance committee ( IGC). For wider detail on the governance duties that apply to workplace personal pension schemes, see Practice Note: Governance requirements applicable to DC workplace pension schemes— Governance requirements for workplace personal pension schemes. What is an IGC? Since 6 April 2015, certain FCA‑authorised pension providers must have a governing body called an IGC, although in some limited scenarios a governance advisory arrangement ( GAA) may take its place. For more on GAAs, see Alternative arrangements to IGCs—governance advisory arrangements ( GAAs), below. IGCs act independently of the provider and are intended to perform a function akin to trustees of occupational pension schemes. An IGC is established to represent the interests of the following groups so that their investments benefit from an...
The UK rail network is the planet’s oldest, with over 1.7 billion people using trains for travel and more than 17 billion tonne kilometres of freight conveyed each year. Since British Rail was privatised in the 1990s, rail infrastructure has evolved into a complex model marrying public ownership with private delivery. Network Rail owns and runs the mainline, overseen by the Office of Rail and Road ( ORR) and steered by strategic policy from the Department for Transport ( Df T). In May 2021, the Government set out the Williams- Shapps Plan for Rail as the blueprint for far-reaching reform of Britain’s railway. A new organisation, the Great British Railways Transition Team, was formed to put interim arrangements in place and to pave the way for Great British Railways ( GBR), envisaged as the railway’s ‘single...
CASE HUB ARCHIVED – this archived case hub sets out the position as at the decision dated 4 June 2019; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline The Office of Rail and Road ( ORR) pursued an Article 102 TFEU/ Chapter II investigation into Freightliner Limited and Freightliner Group Limited, concerning arrangements with customers for the supply of deep sea container rail transport between certain ports and key inland destinations in Great Britain ( ORR Case No. 11/2013). The alleged abuse of dominance consisted of: exclusionary exclusive purchasing obligations minimum volume commitments loyalty rebates exclusivity-inducing rebates Latest developments On 4 June 2019, the ORR stated there were no grounds to re-open the investigation following the expiry of the commitments offered by Freightliner in April 2019. The ORR indicated it had observed positive changes in both...
ARCHIVED: This Practice Note is archived and is not maintained. It is provided for general background information purposes only. The Financial Industry Regulatory Authority ( FINRA) is an autonomous regulatory organisation overseeing the US securities industry. As part of this remit, FINRA operates the securities industry’s largest dispute resolution forum across the sector. It works to settle monetary and business disputes involving investors, brokerage firms and individual brokers, as well as disputes between and among brokerage firms and individual brokers. Such disputes are handled using FINRA’s own arbitration procedure. FINRA has two Codes of Arbitration Procedure: the Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—which governs arbitration between investors and industry parties, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA...
ARCHIVED: This Practice Note is archived and no longer updated; it is provided for background reference and context only. The Financial Industry Regulation Authority ( FINRA) sets out two Arbitration Procedure Codes in total: Code of Arbitration Procedure for Customer Disputes (the Customer Code, or Section 12000 of the FINRA Rules), governing arbitrations between investors and industry participants; and Code of Arbitration Procedure for Industry Disputes (the Industry Code, or Section 13000 of the FINRA Rules), governing arbitrations between industry participants. For further details on FINRA, see Practice Note: FINRA—background, structure and purpose under the Customer Code and the Industry Code. The steps for starting and answering investor claims appear in Part III of both the Customer Code and the Industry Code. This note addresses both Codes. For guidance on the statement of claim itself, see Practice Notes:...
ARCHIVED This Practice Note is archived and no longer maintained. It is provided for background information only. The Financial Industry Regulation Authority ( FINRA) maintains two Codes of Arbitration Procedure: Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules) — governing arbitrations between investors and industry parties Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules) — governing arbitrations between industry parties For more on FINRA, see Practice Note: FINRA—background, structure and purpose under the Customer Code and the Industry Code. FINRA’s powers Sending investor or industry disputes to FINRA arbitration does not limit or prevent FINRA’s authority. The Customer Code, Pt I, r 12104, and the Industry Code, Pt I, r 13104, preserve the rights, actions and determinations that FINRA is otherwise authorised to adopt,...
ARCHIVED: This Practice Note is archived and no longer actively maintained. It is provided for background purposes only, for reference. It is not being updated further at this time. The Financial Industry Regulatory Authority ( FINRA) is an independent regulatory organisation overseeing the US securities industry. As part of its broad remit, FINRA operates the sector’s largest dispute resolution forum. It routinely handles monetary and commercial conflicts involving investors, brokerage firms and individual brokers, as well as disputes between and among brokerage firms and individual brokers. These cases are resolved through FINRA’s arbitration process. FINRA has two Codes of Arbitration Procedure: the Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—governing arbitrations between investors and industry parties, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA...
ARCHIVED: This Practice Note is archived and is no longer maintained. It is provided for background information only. The Industry Code The Finance Industry Regulatory Authority ( FINRA) maintains two Codes of Arbitration Procedure. One is the Code of Arbitration Procedure for Industry Disputes (the Industry Code), which regulates arbitrations among industry participants. For guidance on starting an arbitration under the other code, the Code of Arbitration Procedure for Customer Disputes (the Customer Code), refer to Practice Note: FINRA—commencing an arbitration under the Customer Code [ Archived]. Starting an arbitration When an industry dispute occurs, FINRA arbitration will be compulsory in certain situations. In other instances, the parties may decide to arbitrate a dispute under the Industry Code. In every case, a claim must be submitted within six years of the events that gave rise to the dispute (the Industry Code, Pt II, r...
ARCHIVED: This Practice Note is archived and not maintained. It is supplied for background reference only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulator for the US securities market. It also operates the industry’s largest forum for dispute resolution, addressing monetary and commercial disagreements involving investors, brokerage firms and individual brokers, as well as conflicts arising between and among brokerage firms and individual brokers. These cases are determined through FINRA’s own arbitration process. FINRA has two Arbitration Procedure Codes: the Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—which governs arbitration between investors and industry parties, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules)—which governs arbitration between industry parties. Investor disputes Under the Customer Code, FINRA arbitration must be used in...
There are numerous structures used to hold wealth, with many set up beyond the UK. This Practice Note explains the UK tax treatment of foreign entities. Each tax must be analysed on its own. An entity might amount to a settlement for inheritance tax ( IHT), yet fail to be settled property for capital gains tax ( CGT). Under UK tax law, foreign entities fall into three forms: companies, trusts or partnerships. Companies are treated as opaque; partnerships as transparent; and trusts follow a distinct regime. Classification of foreign entities: transparent or opaque For a transparent vehicle, a member is viewed as entitled, as they arise, to a proportionate share of the entity’s underlying profits and gains. By contrast, a member of an opaque vehicle is, in broad terms, taxed only when the entity makes distributions to that member; there is no look through to the...
For wider background on Guernsey, see Practice Note: Private client— Guernsey— Q& A guide. Guernsey as a trust jurisdiction Although Guernsey acknowledged the trust concept as early as the eighteenth century, the island’s modern trust services industry took shape in the 1960s and 1970s, prompted by foreign exchange controls, tax and succession planning, and the movement of wealthy residents. It has since adapted to serve an increasingly mobile international client base and to meet a changing international regulatory environment, and now hosts approximately 150 professional licensed fiduciaries (based on primary licensee statistics), spanning large international firms through to independent boutique companies. Trusts were commonly created in Guernsey before the Trusts ( Guernsey) Law, 1989 (the 1989 Law), as evidenced by statutes and court decisions. The 1989 Law affirmed the validity of both Guernsey and foreign trusts and set out the principles applying to them. It has been...
FORTHCOMING CHANGE: On 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect. Procurements started on or after that date must proceed under PA 2023, while those initiated under earlier legislation must continue to be delivered and administered in line with that regime: Public Contracts Regulations 2015 ( PCR 2015) Utilities Contracts Regulations 2016 Concession Regulations 2016 Defence and Security Public Contracts Regulations 2011 See Practice Note: Introduction to the Procurement Act 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore form assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. FORTHCOMING CHANGE: From 24 February 2025, Procurement Policy Note ( PPN) 015 replaces PPN 10/23 with updated guidance on how to...
Businesses granting share schemes to staff overseas must weigh their plan’s aims against the regulatory and tax requirements across multiple countries. Although share schemes are typically launched with clear positives in mind (such as fostering ownership, aligning stakeholders, boosting participation and morale), the threat of civil and even criminal sanctions for breaches—and the damage to reputation and negative press—drives the need for worldwide compliance at both the parent and each local subsidiary level for any cross‑border employee plan. Compliance is rarely simple given the intricate legal and tax obligations and the pace at which these rules evolve. Accordingly, employers require a targeted, well-structured, and continuous approach to identify and manage the hurdles of running share plans worldwide. This Practice Note considers practical ways organisations can address these compliance concerns within an ever more complex and shifting international regulatory and tax...
CASE HUB ARCHIVED This archived case hub reflects the position as at the 15 January 2016 decision and is no longer maintained. See the timeline and commentary for more. Case facts Outline of the European Commission’s merger review into Ball’s planned purchase of Rexam (case number M.7567). There are horizontal overlaps in the EEA for producing and supplying beverage cans and aluminium bottles. Latest developments On 15 January 2016, the Commission cleared the deal subject to commitments. Ball must divest ten can body plants and two can end sites to a suitable purchaser. Ball’s UK sites: Rugby and Wrexham Ball’s German sites: Weissenthurm, Hassloch and Hermsdorf Ball’s Netherlands site: Oss Ball’s Poland site: Radomsko One of Ball’s two French sites: La Ciotat Rexam’s Austrian site: Enzesfeld One of Rexam’s two Spanish sites:...
ARCHIVED: This material was published in 2014 and is not kept up to date. The Market Standards Trend Report examines contemporary market practices and developing trends arising from 2014 annual general meeting ( AGM) season......
ARCHIVED : This Practice Note is archived as of July 2020. On 31 January 2020, the UK left EU membership and entered a transition period during which EU law still applied. Throughout that time, the EU’s GDPR continued to operate in the UK and, for EEA and UK data protection purposes, the UK was broadly treated as an EU (and EEA) state. Accordingly, any mentions of EEA or EU states in this Practice Note should be taken to include the UK until the transition period ended. For additional guidance, see Practice Note: Brexit—implications for data protection [ Archived]. After the Brexit transition ended: The EU GDPR was, in UK law, replaced by a UK GDPR regime closely modelled on the EU GDPR, including a like-for-like Article 17 (right to erasure); see Practice Note: The UK General Data Protection Regulation ( UK GDPR). ...
CASE HUB ARCHIVED This archived case hub reflects the position as at the decision date of 21 January 2016; it is no longer maintained. For more, see: timeline, related/relevant cases and commentary. Case facts Outline A national reference from the Lithuanian court, Lietuvos vyriausiasis administracinis teismas ( Supreme Administrative Court of Lithuania), invited the Court of Justice, by way of Article 267 TFEU, to give a preliminary ruling clarifying which factors should be considered when assessing whether travel companies (agents) using a common computerised platform have infringed Article 101 TFEU. In particular, the referring court asks whether Article 101(1) TFEU must be interpreted to mean that participation in a common information system gives rise to a presumption that the participating undertakings knew, or ought to have known, of discount restrictions applied by that system and, therefore, implicitly consented to limit price competition between...
CASE HUB ( NOTE—appeal lodged by Qualcomm before the General Court in Case T- 235/18) ARCHIVED – this case hub captures the status as at the decision of 24 January 2018; it is not being updated. See also timeline, commentary and connected cases. Case facts Outline European Commission Article 102 TFEU inquiries into Qualcomm, assessing allegedly abusive exclusivity payments linked to baseband chipsets ( Case AT.40220). Latest development On 24 January 2018, the Commission adopted an infringement decision against Qualcomm, concluding it had misused its dominant position by granting substantial exclusivity payments to a key customer on condition it would not procure from rivals. The Commission levied a fine of €997,439,000 on Qualcomm. Parties Qualcomm, a US based company with its headquarters in San Diego ( California), designs and sells wireless telecommunications products and services from 157 sites across the globe. It is the world’s largest supplier of baseband...
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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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