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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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Liberty Global/ Corelio/ W& W/ De Vijver Media ( M.7194) [ Archived] CASE HUB ARCHIVED – this hub records the status as at the decision date of 24 February 2015 and is no longer updated. For more details, see the timeline, commentary and related/associated cases. Case facts Outline of the European Commission’s merger probe into Liberty Global’s proposed acquisition of joint control over De Vijver Media ( Case M.7194). The operation created both horizontal and vertical overlaps in the Flemish TV market: Liberty Global controls a prominent cable operator that also runs television channels, while De Vijver Media owns two TV channels. Latest developments On 24 February 2015, the Commission cleared the deal subject to commitments......
What is fracking? Shale gas extraction, or hydraulic fracturing (fracking), is the method by which water and chemical additives are forced into shale rock at very high pressure to free the natural gas held within the rock. Vertical well bores are drilled thousands of feet into the earth, passing through sedimentary layers, the water table and shale formations to access the gas. The well is then turned to run horizontally, and a cement casing is fitted, providing a channel for the large volumes of water, fracking fluid, chemicals and sand needed to split the rock and shale. Sometimes, before fluids are injected, small explosives are used to open the bedrock. The resulting cracks enable the gas to be extracted from the formations. Shale gas consists mainly of methane, a natural gas used to generate electricity and for domestic heating and cooking. Fracking is...
Timing Loan transactions usually begin with the term sheet (also called heads of terms) alongside the mandate stage. In this early phase, the parties put confidentiality arrangements in place, settle the key deal terms, and clarify their respective roles. The duration of this stage can shift markedly, shaped by the deal’s nature and complexity. The level of detail in a term sheet also differs: sometimes it records only the principal commercial points, with matters such as representations and undertakings noted only briefly (eg ‘usual representations’). In other cases—particularly for specialist deals like leveraged finance—it can be highly detailed. Reaching agreement on a thorough term sheet at the outset can trim later time and cost when negotiating the loan and security documents. What happens during this stage of the transaction? The parties exchange confidential information At the very outset of a prospective deal, the parties seek to share...
Timing Signing and completion are pivotal points in a loan transaction. Their sequencing can follow two approaches: Signing and completion happen on the same day—in this scenario, all conditions precedent to funding must be fulfilled, or formally waived (see Precedent: Waiver letter: for a bilateral facility agreement—waiving conditions precedent), before either step can occur. There is an interval between signing and completion—this lets the parties commit to the deal at signing, while allowing time before completion to satisfy any outstanding funding conditions precedent. What happens during this phase? Signing Signing is when the parties execute the final versions of the finance documents and the transaction becomes binding, typically subject to certain conditions precedent being met (see Practice Notes: Conditions precedent and Conditions precedent phase in loan transactions). Any other ancillary documents relevant to the transaction that require signature may also be completed at the same time,...
This guidance, May 2022 In May 2022, The Chartered Governance Institute ( CGI) released this resource aimed to equip directors with practical advice on their general duties under the Companies Act 2006 ( CA......
Note — To check whether notification thresholds in Eswatini ( Swaziland) and globally are satisfied, see: Where to Notify. Swaziland is now called Eswatini. Eswatini is a COMESA Member State (see Question 12 below). 1. Have there been any recent developments regarding the Eswatini merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Eswatini? The Eswatini Competition Commission ( ECC) has placed a Competition Bill, 2020 ( Draft Bill) on its website, intended for submission to the Minister of Commerce, Industry and Trade. The Draft Bill seeks to enhance the effectiveness, consistency, predictability, and transparency of competition law enforcement and administration in Eswatini. It also strives to reflect regional frameworks, including the COMESA Competition Regulations, and align with international best practice. To the best of our knowledge, the Draft Bill has not yet been...
Many family-run businesses often begin with a loosely defined governance set-up; relatives broadly recognise their responsibilities and how they relate to one another, and choices are taken swiftly around the kitchen table at home on a day-to-day basis. By their very nature, these enterprises tend to be informal and adaptable, with objectives shaped by doing what is best for the family in line with its values, rather than solely pursuing the owners’ profit or commercial gain. Yet, as the venture grows and more relatives and other employees come on board, managing the business in this manner becomes progressively harder as operations become more complex over time. This Practice Note examines, in particular, the advantages and disadvantages of formalising the family business, selecting a structure for a family business, and family charters. Formalising the family business—advantages and disadvantages The principal benefit of an informal set-up for a family...
P. R. I. M. E. Finance Arbitration Rules Updated in 2021, the P. R. I. M. E. Finance Arbitration Rules’ 2022 edition took effect on 1 January 2022 and applies to arbitrations begun on or after that date (the P. R. I. M. E. Finance Rules; the Rules). The Rules also contain model clauses and a model submission agreement. This Practice Note explains how to commence an arbitration under the P. R. I. M. E. Finance Rules. When a dispute emerges, parties should consult the relevant documents to review the dispute resolution clause(s). If a clause or agreement calls for arbitration, it is essential to check: the administering institution or the rules under which the arbitration will proceed (see Understanding institutional and ad hoc arbitration—overview) any applicable limitation period, contractual or statutory, by which the arbitration must be commenced (see Practice Notes:...
For fuller analysis of the regulation, consenting and incentivisation of the net zero transition under the laws of England and Wales, see Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook explores, in depth, many of the themes addressed in this Practice Note... This Practice Note outlines the principal aspects of the supplier obligation, a mandatory charge on Great Britain’s licensed electricity suppliers used to finance the Contracts for Difference ( Cf D) low carbon subsidy mechanism... It also explains the reliefs available for electricity provided to electricity intensive industries ( EIIs) and for power sourced from renewable generators in other EU Member States, described as ‘ Green Excluded Electricity’... What is the background to the Cf D regime and Electricity Market Reform? The Electricity Market Reform ( EMR) programme was developed by government between 2010 and 2015 to reshape the GB...
Fraud in personal injury claims can cover a spectrum of conduct, from overstating particular heads of damage to wholly inventing an accident and the ensuing injuries and losses. The available remedies where dishonesty is in play have been radically altered by section 57 of the Criminal Justice and Courts Act 2015 ( CJCA 2015). This provision can permit defendants to have otherwise meritorious claims struck out, to remove the shield of qualified one-way costs shifting ( QOCS), and to invalidate a claimant’s legal expenses cover. See Practice Notes: Personal injury claims and the Criminal Justice and Courts Act 2015 and Qualified one-way costs shifting ( QOCS). Duties and responsibilities of parties and legal advisers Pleadings— CPR By virtue of CPR 16.5(2), if a defendant disputes an allegation in the particulars of claim, they must give their reasons; and where they propose a different account from the...
Many in-house legal teams often act as the gateway through which the business engages law firms. Where the legal function holds responsibility for managing the budget for external spend, that approach is reasonable. However, if the business user or beneficiary of the advice funds the work and needs guidance regularly, well-governed direct access can be sensible. This Practice Note offers practical pointers for in-house lawyers on setting up processes that allow business colleagues to reach external legal resources directly. Direct access—risks to avoid When exploring direct routes to external legal advice, certain pitfalls must be tightly controlled or avoided; a business user might: pose the wrong question provide partial or misleading information to the law firm run up higher or avoidable costs misread or misinterpret the advice received hide or downplay unpalatable...
Cyber risk, like any other corporate exposure, demands careful management and should be treated as a high‑priority concern for the internal compliance or legal team. It is a business issue to be addressed within an overarching information governance, risk management and crime prevention framework, and must not be left solely to the IT department. This Practice Note covers: the landscape around cybercrime (i.e. why it should be on your radar) the threats cybercrime poses to commercial organisations, and principal vulnerabilities This Practice Note reflects information security and breach notification obligations in the General Data Protection Regulation ( UK GDPR), Assimilated Regulation ( EU) 2016/679, but is not intended to address specialist sector‑specific requirements in the: Network and Information Systems Regulations 2018 ( NIS Regulations), SI 2018/506 Privacy and Electronic Communications ( EC Directive) Regulations 2003 ( PECR 2003), SI...
This Practice Note outlines the categories of firm within scope of the Financial Conduct Authority’s ( FCA’s) Mortgages and Home Finance: Conduct of Business sourcebook ( MCOB), explains how obligations change according to the nature of the customer a firm serves, and indicates where requirements differ by the product offered. It further sets out the expectations for certain overarching areas of a firm’s operations in MCOB 2, together with supplementary provisions in MCOB 2A that give effect to aspects of the EU Mortgage Credit Directive ( Directive 2014/17/ EU) ( MCD). For guidance covering other parts of MCOB, see Practice Notes: Mortgage and home finance conduct of business—financial promotion and communications regime, Mortgage and home finance conduct of business—distribution and disclosure requirements, and Mortgage and home finance conduct of business—responsible lending, charges and arrears...
ARCHIVED: This Practice Note has been archived and is not maintained Employment Tribunals ( Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237 — Schedule 3: The Employment Tribunals ( Equal Value) Rules of Procedure 1 Application of Schedule 3 This Schedule applies to cases that include an equal value claim and, for such proceedings, alters the rules set out in Schedule 1. The definitions in rule 1 of Schedule 1 also apply here. Additionally, for this Schedule— “comparator” means a person of the opposite sex to the claimant, in relation to whom the claimant asserts that his or her work is of equal value; “equal value claim” refers to a claim alleging breach of a sex equality clause or rule under the Equality Act, in relation to work within section 65(1)(c) of that Act; “the facts relating to the question” bears the meaning given in rule...
For comprehensive analysis of how regulation, consenting and incentivisation shape the net zero energy transition within the legal framework of England and Wales, consult: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook provides thorough treatment of topics addressed in this Practice Note. What is Electricity Market Reform and the Capacity Market? The Capacity Market ( CM) forms a component of the government’s broader Electricity Market Reform ( EMR) programme......
Note— To check whether notification thresholds in Greenland and across the world are satisfied, see: Where to Notify. 1. Have there been any recent developments regarding the regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Greenland? Although Greenland sits within the Kingdom of Denmark, competition matters are governed locally, as commercial affairs are devolved. Merger control is primarily set out in the Consolidated Greenlandic Competition Act (the Act), which is based on the Danish Competition Act and thus aligned with EU competition principles. The principal distinctions from the Danish framework are its much lower notification thresholds and the newly introduced ‘situated’ criterion. For merger control, the Act is supplemented by an executive order on the Notification of Mergers and Executive Order No. 13 of 23 July 2015 concerning the Calculation of Turnover. In...
CASE HUB ARCHIVED This archived hub captures the position as at the decision dated 9 January 2015 and is no longer updated. See also the timeline, commentary and related cases. Note: a later appeal was filed in the Court of Appeal—see SCOP v CMA and DFDS ( Court of Appeal)... Case facts Outline: Further appeals were brought by Eurotunnel and Société Coopérative de Production Sea France concerning Eurotunnel’s completed acquisition of Sea France assets. These appeals challenged the CMA’s Eurotunnel/ Sea France remittal decision, which affirmed the CMA’s jurisdiction and again barred Eurotunnel from running ferry services from Dover. On 9 January 2015 the CAT delivered its judgment and dismissed both appeals... Parties Groupe Eurotunnel, operator of the Channel Tunnel, acquired three Sea France ferries and other assets and now runs them on the Dover– Calais route under the My Ferry Link brand... Société...
This Practice Note concentrates on health and safety considerations during the due diligence stage of a corporate transaction, as regulatory health and safety duties can carry significant capital expenditure consequences. It should be read alongside the Precedent: Health and safety due diligence questionnaire. Asbestos materials Industrial and manufacturing premises (and at times plant) often contain asbestos. Businesses that control such buildings and plant are legally obliged to manage asbestos. Management—and especially removal—can be extremely costly. See Practice Note: Control of asbestos—duty to manage. A buyer should seek evidence of asbestos surveys for any buildings that pre-date 2000, together with records confirming that higher risk materials have been identified and are being managed appropriately (eg removed or encapsulated). This can include copies of the asbestos register, the asbestos management system, and consignment notes for the disposal of asbestos waste. A well-managed business will have these...
The European Commission ( Commission) wields wide-ranging powers to investigate suspected anti-competitive behaviour (covering infringements of Articles 101 and 102 TFEU, as well as alleged breaches of the EU Merger Regulation). It may, among other measures, carry out unannounced inspections at the premises of any undertaking within the EEA. Two types of inspections Article 20 of Regulation 1/2003 establishes two forms of ‘dawn raid’: inspections grounded in a binding decision, to which undertakings are legally obliged to submit; failure may result in being compelled to comply and exposure to penalties, and inspections based on written authorisation, which undertakings may decline without risking the imposition of penalties. Submission cannot be partial or conditional. The existence of a right to object does not mean that, if an undertaking consents, the inspection will be conducted any less rigorously than one ordered by decision. These two options are...
CASE HUB (date of decision–23/07/2014; appeal lodged at General Court in Case T-704/14 Marine Harvest v Commission) ARCHIVED – this archived case hub reflects the situation as at the decision of 23 July 2013; it is no longer maintained. See further the timeline, commentary, and related/relevant cases. Case facts ARCHIVE 23/07/2014 Outline European Commission investigation into Marine Harvest’s failure to notify a merger and breach of the EU Merger Regulation standstill obligation, arising from its acquisition of a minority shareholding in, and control over, Morpol. Latest development On 23 July 2014 the Commission fined Marine Harvest €20m for obtaining control of Morpol without first securing clearance under the EU Merger Regulation. When setting the penalty, the Commission highlighted that Marine Harvest is a substantial European company with extensive prior experience and familiarity with EU merger control rules—accordingly, the Commission considered that Marine Harvest should have understood 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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