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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 explores certain matters that can arise when enforcing security by appointing a receiver over property held on trust. It also addresses trust considerations in the setting of security granted by a partnership. Several banks have experienced issues when relying on standard-form security documents where their client is a partnership and the secured property is either used by the partnership or constitutes a partnership asset. Commonly, enforcement pitfalls have not been anticipated when the security is taken, and the standard documentation has not been modified to accommodate this. Trusts of land HM Land Registry’s Land Register records ownership of the legal estate in land—the ‘paper title’—that is, the rights of the registered proprietors to execute a valid transfer passing ownership to another person. The Land Register does not record the beneficial (equitable) interest and, as a result, the Land Registrar is not fixed with...
STOP PRESS: As at 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements commenced on or after this date must proceed in accordance with PA 2023, while those started under the earlier regimes (the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011) must continue to be conducted under that legislation. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute 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. STOP PRESS: The Procurement Act 2023 comes into force on 28 October 2024. For further...
OTC derivatives and ETDs Derivatives broadly fall into two categories: over the counter ( OTC) derivatives; and exchange traded derivatives ( ETDs). OTC products can then be divided into: non‑cleared OTC derivatives; and cleared OTC derivatives, which exhibit traits common to both non‑cleared OTC trades and ETDs. For further detail on OTC derivatives and ETDs, see the Practice Notes: OTC and exchange traded derivatives—key features and concepts, and OTC and exchange traded derivatives—documentation. Why are derivatives regulated? Derivatives dealing is a major area of finance and has long been regulated; however, the purpose and breadth of that regulation shifted following the 2007–2008 global financial crisis. Prior to the crisis, in summary: ETDs were regulated because they are traded on public exchanges, with a view to safeguarding market participants and the public from fraud, manipulation and abusive practices; but OTC...
CASE HUB ARCHIVED – this archived case hub records the position as at the judgment of 17 December 2014; it is not being updated and will not be updated further. See further: timeline, commentary and related/relevant cases Case facts Outline Appeal to the General Court seeking to set aside the Commission decision of 21 January 2011 refusing a complaint lodged by Si.mobil on 14 August 2009, which accused Mobitel of abusive conduct contrary to Article 102 TFEU, on the ground that a national competition authority was already seised of the matter. The case examines the Commission’s procedure and margin of discretion when handling competition complaints where national authorities within the European Competition Network are investigating the same concerns. Parties Applicant: Si.mobil telekomunikacijske storitve d.d ( Si.mobil) Defendant: European Commission Si.mobil is a Slovenian mobile network operator providing business and retail services to customers in Slovenia. Mobitel is a...
ARCHIVED: This Practice Note has been archived and is not maintained NOTE: On 5 September 2023, CIETAC announced revisions (the Revisions) to its 2015 arbitration rules, aiming to enhance flexibility and efficiency for the digital era and to reflect developments in international arbitration, following a revision programme begun in April 2021. Covering more than 30 provisions, the updates address: digital case management multi-tiered arbitration agreements jurisdiction multi-contract arbitrations arbitral procedures other challenging issues The Revisions will take effect on 1 January 2024 and will apply to all CIETAC arbitrations commenced from that date. CIETAC’s current arbitration rules have been in force since 1 January 2015 (the CIETAC Rules 2015). This Practice Note is UNDER REVIEW—it presently reflects CIETAC’s structure and role as described in the CIETAC Rules 2015. It addresses arbitration under the CIETAC Arbitration Rules 2015 ( CIETAC...
The structure of the negotiation When stepping into any negotiation, from a multi-million pound deal to sorting the office coffee rota, two core elements matter: the process and stages, and the human dimension—feelings and style. This Practice Note addresses the first; for the second, see Practice Note: The human side of negotiation. A typical negotiation unfolds in five phases: planning—pre-work before talks discussions—scoping what’s on offer proposals and concessions—the core bargaining agreement—settling the terms making it work—implementing the outcome Although attention often clusters around the middle three, extra effort upfront strengthens confidence and leverage. Remember, the close of talks can mark the beginning of a continuing relationship—the long-term effects may shape which compromises you accept. Stage 1: planning and preparation Key things to consider When planning and preparing for a negotiation there are several key things to consider, and it......
The Freedom of Information Act 2000 ( FIA 2000) grants a general public right to access information held by public authorities, requiring each authority to confirm if the requested material is held and, where it is, to supply that information. This access right is not unrestricted, and FIA 2000 contains several exemptions reflecting circumstances where disclosure could harm the proper functioning of the public sector. Legal professional privilege Legal professional privilege is a legal rule safeguarding communications connected to securing legal advice. There are two forms of legal professional privilege—legal advice privilege and litigation privilege. Legal advice privilege covers communications between a client and their lawyer that form part of the process of providing legal advice. This privilege applies regardless of any actual or contemplated court proceedings. By contrast, litigation privilege only arises when litigation is a reality or reasonably in prospect, and it extends beyond...
E& W Brussels I (recast)—exclusive jurisdiction (art 24) [ Archived] ARCHIVED: This Practice Note has been archived and is not maintained. It outlines Article 24 of Regulation ( EU) 1215/2012 ( Brussels I (recast)), which allocates exclusive jurisdiction to the courts of an EU Member State, irrespective of the defendant’s domicile or any conflicting party agreement. It addresses claims relating to: immovable property ( Article 24(1)) a company’s constitution, corporate governance, and the validity of actions ( Article 24(2)) public registry entries ( Article 24(3)) intellectual property rights ( Article 24(4)) all proceedings concerning the enforcement of judgments ( Article 24(5)) The Note also considers how Article 24 applies to the UK as a non- EU Member State (a third state) following its departure from the EU, subject to transitional provisions in the Withdrawal Agreement. For general guidance on applying this...
Types of Bill Most legislation falls into the category of Public Bills, which seek to alter the law as it applies to all. The majority of these are government Bills, brought forward by ministers as part of a planned legislative agenda or in reaction to developments. When a Public Bill is introduced by an MP or a member of the House of Lords who is not a minister, it is termed a Private Member’s Bill. Only a small proportion of Private Members’ Bills progress into law. It is crucial not to confuse Private Members’ Bills with Private Bills. Private Bills propose legal changes that affect only specific people or bodies, rather than the general population. Each year several measures are put before Parliament by external organisations. For instance, Transport for London ( Tf L) advanced the Transport for London Bill to grant Tf L...
Banks and other financial institutions raise income by levying interest on the loans they extend. For lending to produce a return, the rate charged must at a minimum offset the lender’s own costs. See Practice Note: Introductory guide to interest in loan agreements— Cost of lending. In most syndicated facilities, many interest and interest period terms align with those used in real estate finance. This Practice Note highlights the interest and interest period mechanics that are particular to real estate finance ( REF) deals. Where to start with drafting interest and interest period provisions in a real estate finance transaction These provisions for any given deal are ordinarily settled at term sheet stage before the facility agreement is drafted. It is therefore essential to review the term sheet’s terms before preparing the facility agreement. LMA real estate finance...
In real estate finance, a property’s valuation is critical to any lender, because it is the principal asset over which the loan is taken as security. Accordingly, valuations are required to calculate the loan to value ( LTV) financial covenant (see Practice Note: Real estate finance—financial covenants). Such valuations are typically supplied as a condition precedent to drawdown (often defined as the ‘ Initial Valuation’) and then obtained periodically for the duration of the facility. Where to start with drafting the valuation provisions in a real estate finance transaction The Loan Market Association ( LMA) includes clause language to address these requirements within its real estate finance facility agreements—see clause 16.3 ( Costs and expenses—valuations) and clause 19.15 ( Representations—valuation) in each of the: Single Currency Term Facility Agreement for Real Estate Finance Multiproperty Investment Transactions ( LMA REF Investment Facility...
ARCHIVED : This Practice Note has been archived and is not maintained This archived Practice Note, which is no longer updated, covers the Finance Act 2015 ( FA 2015), which received Royal Assent on 26 March 2015. It is retained for historic interest, tracing the passage of the legislation through Parliament and outlining each provision in the Act with relevant links. The Practice Note is divided into five parts: Progress of FA 2015 Published legislation with immediate effect— Budget 2015 Published legislation with immediate effect— Autumn Statement 2014 Published legislation taking effect later Awaiting draft legislation Several measures identified in Budget 2015 for FA 2015 were postponed until after the general election. The deferred clauses include: The new statutory exemption from income tax for trivial benefits in kind, implementing an Office of Tax...
This Practice Note This Practice Note outlines the provisions of the Criminal Justice and Courts Act 2015 ( CJCA 2015) that are relevant to personal injury litigation. It addresses fundamental dishonesty and the prohibition on inducements to bring personal injury claims, including rules curbing incentives to make such claims. While CJCA 2015 principally sets out how offenders are managed before and after conviction and revises the offence concerning possession of extreme pornographic images, it also ranges over proceedings and the powers of courts and tribunal, as well as judicial review. The applicable parts of CJCA 2015 took effect on 13 April 2015. For those practising in personal injury and clinical negligence, the material provisions sit in Part 3, titled ‘ Courts and Tribunals’. CJCA 2015 modifies the common law approach to dishonesty within civil claims. Courts possess a power to strike out a claim in full as an...
Note—to check whether notification thresholds in Hong Kong and worldwide are satisfied, please see: Where to Notify. 1. Have there been any recent developments regarding the Hong Kong's merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Hong Kong? Hong Kong established its first cross-sector competition framework through the enactment of the Competition Ordinance ( Cap 619). As the principal source of competition law in Hong Kong, the Ordinance became fully operative on 14 December 2015. The Hong Kong Competition Commission (the Commission) is the main authority tasked with enforcing the Ordinance. In the telecommunications sphere, the Office of the Communications Authority (the Communications Authority) exercises concurrent jurisdiction with the Commission over anti-competitive conduct by certain undertakings for merger control purposes. In practice, the Communications Authority leads on merger reviews and...
CASE HUB (appeals lodged at the General Court in Cases T- 241/12 ( Versalis) and T- 240/12 ( Eni)) See further, timeline. Case facts Outline European Commission investigation under Article 101 TFEU into the renewed imposition of fines relating to the synthetic rubber cartel ( Case AT.40032). Parties Eni Sp A ( Eni) and its subsidiary Versalis Sp A ( Versalis—formerly Polimeri Europa Sp A). Eni is the ultimate parent of the Eni Group. Activities in the relevant products were initially undertaken by Eni Chem Elastomeri Srl ( Elastomeri), indirectly controlled by Eni through Eni Chem Sp A ( Eni Chem). On 1 November 1997, Elastomeri was merged into Eni Chem. Eni held 99.97% of Eni Chem. On 1 January 2002, Eni Chem transferred its strategic chemical operations (including BR and ESBR) to its wholly owned subsidiary Polimeri Europa Sp A (now Versalis). Eni has exercised direct and full...
This Practice Note sets out the principal obligations on experts and their instructing solicitors under the ‘ Guidance for the instruction of experts in civil claims’, effective from 1 December 2014. It provides direction on those key obligations while preserving the original intent and scope... This Practice Note should be considered in conjunction with: Practice Note: Instructing an expert Checklist—letter of instruction to expert precedent: Letter of instruction to own expert Note : ‘ Guidance’ means the Civil Justice Council’s Guidance for the instruction of experts in civil claims, which came into force on 1 December 2014... The focus of the Guidance is to ensure that: experts are engaged only when their evidence is necessary and required the appointed expert is the correct expert, suitably qualified to opine on the issues in dispute the expert is supplied with all...
What is the impact of Brexit on the UK nuclear sector? As of 31 January 2020 (exit day), the UK ceased to be an EU Member State. From that date, a transition/implementation phase applied, during which the EU continued, for many purposes, to treat the UK as if it remained a Member State. Leaving the EU also entailed withdrawal from the Euratom Community. The transition ended at 11 pm ( GMT) on 31 December 2020—known in UK law as ‘ IP completion day’. At that point, key transitional measures expired and notable shifts started to apply across the UK’s legal framework. The UK’s exit from the EU likewise meant departure from Euratom. Any changes pertinent to this content are outlined below. Following IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) introduced a new category of domestic...
What is credit support? Credit support allows a party to lessen the credit risk of its counterparty. It functions as a protective mechanism against non-performance. Such arrangements are also described as 'financial collateral arrangements', 'margin arrangements', 'collateralisation' and 'credit enhancement'. One party (or both) will transfer, or otherwise make available, assets (termed collateral or margin) to the other party (the collateral taker) to secure or back its present or future obligations. If the credit support provider defaults, the collateral taker may rely on the collateral furnished by the defaulting party to secure any outstanding debt. Collateral might be posted by one party only (for example, where one party is rated more highly than the other, it may require collateral) or by both parties, as the particular arrangement requires. In this context, collateral denotes the assets delivered under a credit support...
When a dominant undertaking can offer rebates to persuade customers to buy from it remains among the most intricate and disputed issues under Article 102 TFEU. Such discounts—common in everyday trading—can improve efficiency. Yet making rebates available to buyers of a dominant supplier can impede rivals from wooing those buyers, thereby shoring up the supplier’s market power. In theory, one can reconcile these aims by examining a scheme’s effects, but doing so generally entails detailed fact-finding, leaving businesses uncertain in advance whether a particular programme will breach the law. A long-standing debate concerns how far the European Commission ( Commission) may censure rebates by their very form, without more, or whether it must first show, in the case’s specific context, that they are liable to cause anti-competitive harm. Determining if, and in what situations, such incentives warrant condemnation lies at the core of...
Legal professional privilege ( LPP) This Practice Note examines legal professional privilege, which comprises legal advice privilege and litigation privilege. It sets out the criteria applicable to both categories, including the confidentiality of communications, the dominant purpose and legal context of the material over which privilege is claimed, and the identity of any recipients copied into the correspondence. It explains, for the purposes of asserting privilege, what is meant by client, legal adviser, legal advice and anticipated litigation. It also addresses recognised exceptions, notably the iniquity exception (where fraud or crime is in play), and situations where statute displaces privilege. The treatment of copy documents, and of documents that are collated, selected or extracted, together with translations, is considered. Practical pointers are provided. In this Note, legal professional privilege (often shortened to ‘privilege’) is used as a collective label for legal advice...
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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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