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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 outlines the Financial Conduct Authority’s ( FCA’s) regulatory reporting obligations in Chapter 16 of its Supervision sourcebook ( SUP 16) for firms undertaking regulated consumer credit activities. It addresses (1) the recurring consumer credit data items ( CCR returns), which differ according to a firm’s permissions and business, and (2) distinct product sales data ( PSD) submissions required of in-scope lenders. It also captures updates in the FCA’s Policy Statement 25/3 ( PS25/3), issued in May 2025, which brought in a new regulatory reporting return for consumer credit firms that carry on any of the following regulated activities: credit broking, debt adjusting, debt‑counselling and providing credit information services. What are the reporting requirements? Reporting operates at two tiers, aligned to a firm’s permission profile: Full permission firms must file one or more CCR returns matching their permissions and...
This Practice Note explores the obligations that debt management firms must meet under Chapter 8 ( Debt Advice) of the Financial Conduct Authority’s ( FCA’s) Consumer Credit sourcebook ( CONC) when interacting with customers. It outlines the scope of CONC 8, including conduct expectations for delivering advice, pre‑contract information and advice obligations, debt solution contracts, debt management plans, the rules applying to debt packagers, and the use of lead generators. For details on the FCA’s treatment of arrears and default, see Practice Note: Consumer credit: rules relating to arrears, default and recovery. Regulatory background Where a consumer falls into arrears or defaults under a consumer credit agreement, it is standard market practice for the lender to assign the debt to a third party debt management firm for recovery, or for the debtor to voluntarily approach a debt management firm with the aim of...
What are growth shares? Growth shares, sometimes called value shares or hurdle shares, are a distinct share class with limited rights. Those rights are structured so that staff only share in increases in the company’s worth arising after an acquisition. As a result, they broadly mirror the economics of an option where the exercise price is set at market value (or includes a premium). For a comparison of growth shares with share options, see Practice Note: Growth shares—practical examples and comparisons with options. Their restricted rights focus returns on value created after the acquisition, rather than on historic value at acquisition for the company specifically. Key elements of growth shares The employee acquires the growth shares up front—unlike a share option or a conditional share award, under which the individual receives shares at a later date only once specified conditions have been...
Accumulated debt, coupled with economic upheaval or a climatic or other external jolt to a nation, can precipitate a crisis severe enough to push creditors to explore legal avenues for recovery. In the language of finance, such disruption will typically amount to an event of default. Where to sue? Following an event of default on, for instance, bond obligations, sovereigns commonly formalise the existence of a public emergency by passing legislation or issuing an executive order or decree. By way of illustration, amid Greece's crisis, Parliament adopted the Bondholders Act 4050/12. In those circumstances, domestic courts would refrain from striking down the default and the extraordinary steps taken by the sovereign's government in light of the national emergency confronting the country. Even where the debtor has waived sovereign immunity, that waiver is often circumscribed within its own...
The Fluorinated Greenhouse Gases Regulations 2015 ( F-gas Regulations 2015), SI 2015/310 Superseding and revoking the Fluorinated Greenhouse Gases Regulations 2009, SI 2009/261, the Fluorinated Greenhouse Gases Regulations 2015, SI 2015/310, give effect to Regulation ( EU) No 517/2014 on fluorinated greenhouse gases, which replaced and repealed the original instrument, Regulation ( EC) No 842/2006. Within Great Britain, assimilated Regulation ( EU) No 517/2014 (the GB F-gas Regulation) now applies as assimilated law. Across the EU, Regulation ( EU) 2024/573 repeals and replaces Regulation ( EU) No 517/2014 and took effect on 11 March 2024. Assimilated law is the term used for retained EU law ( REUL) that remains in force after the close of 2023. Re-badging REUL (and related concepts) as assimilated law indicates a change in its status and handling in UK law, such that it is generally...
There are five essential stages to enhancing efficiency: identify (define) which process requires improvement quantify the issue assess your information refine the process control, ie embed the revised process so it becomes business as usual Management consultants commonly describe this as the DMAIC framework. This Practice Note takes you through Step 3, ie examining the causes of the problem you spotted in Step 1 and measured in Step 2. For more information on continuous improvement and the phases in improving efficiency, see Practice Note: Simplifying continuous improvement—law firms. This Practice Note builds on the case study used in Practice Note: Continuous improvement—law firms—step 2—measure the problem, which concerns a firm’s new client process. Step 3 asks you to interrogate the information you have gathered to: investigate the root cause prioritise the issues explore and evaluate a range of...
STOP PRESS The Data ( Use and Access) Act 2025 ( Commencement No 6 and Transitional and Saving Provisions) Regulations 2026, SI 2026/82 bring into effect the outstanding provisions of the Data ( Use and Access) Act 2025 ( DUAA 2025). Measures concerning subject access requests, legitimate interests, purpose limitation, automated decision-making, international transfers and enforcement take effect on 5 February 2026, with provisions on penalty notices and complaints commencing on 19 June 2026. For further details, consult Practice Note: Data ( Use and Access) Act 2025—employment implications. This Practice Note will be revised shortly to reflect these changes. The selection process starts with shortlisting or screening applications to decide which candidates should proceed to the next phase of recruitment, typically interviews. Up to that point, recruitment focuses on attracting applications from the widest possible pool. During shortlisting, less suitable candidates are filtered by...
This Practice Note outlines the criteria an employer may apply when deciding how to engage an individual. It examines the main categories of employment status—employee, worker, and the self-employed or independent contractor—and also addresses employee shareholders, casual staff and those on zero hours arrangements, agency workers, apprentices, interns and volunteers. Employers should identify at the outset which status is intended—employee, worker or self-employed—as each attracts distinct rights and protections. Further, particular considerations arise where the engagement is casual or ‘zero hours’, or involves agency workers, apprentices, interns or volunteers. Employment status also determines how the individual is treated for tax purposes (see Practice Note: Employment status—why it matters). Errors can result in employment tribunal proceedings and exposure to tax liabilities. Ultimately, regardless of the label used, courts and tribunals will prioritise the true substance of the working relationship over the wording of any...
Responsibility for flood management and drainage in England and Wales has evolved through a tangled past. In 1927, a Royal Commission on land drainage observed that arterial drainage was overseen by a bewildering patchwork of authorities created by five centuries of piecemeal law, with liabilities governed by no consistent scheme and often out of date or unclear. That inheritance persists, though reforms over the last 25 years have helped to rationalise the regime. Historically, individual landowners held primary duties, and some still apply; see Practice Note: Flood management and drainage—landowner rights and responsibilities. Today, public bodies play leading roles in protecting communities from flooding. Key legislation The responsibilities of public bodies for flood management and drainage in England and Wales are outlined in separate Practice Notes: Flooding— UK policy and legislative framework Land Drainage Act...
This Practice Note sets out a summary of the principal provisions of the Financial Conduct Authority’s ( FCA) Insurance: Conduct of Business sourcebook ( ICOBS) that cover general matters and information disclosure requirements. Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) On 6 January 2008, the FCA’s predecessor, the Financial Services Authority ( FSA), brought ICOBS into force, replacing the earlier Insurance: Conduct of Business sourcebook ( ICOB). Its key shift moved supervision away from a prescriptive, rule‑based model towards a more principles‑led or outcome‑focused approach. Consequently, legacy ICOB rules were simplified where the FSA judged that specific customer protection was unnecessary. ICOBS has since been amended several times, most notably to implement the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), which was transposed into UK law on 1 October 2018. Although the UK has withdrawn from the EU and...
This Practice Note summarises the principal elements of the FCA’s Insurance: Conduct of Business sourcebook ( ICOBS) that address cancellation rights and the handling of claims, with particular reference to ICOBS 7 and ICOBS 8. Implementation of the Insurance: Conduct of Business sourcebook ( ICOBS) ICOBS took effect on 6 January 2008 under the Financial Services Authority ( FSA), then the FCA’s predecessor, supplanting the former Insurance: Conduct of Business sourcebook ( ICOB). Its key reform shifted supervision away from detailed, prescriptive rules towards a principles-led, outcomes-focused approach. Accordingly, ICOB’s detailed provisions were streamlined where the FSA considered bespoke consumer protections unnecessary. Subsequent updates have followed, most significantly to give effect to the Insurance Distribution Directive ( Directive ( EU) 2016/97) ( IDD), implemented in the UK from 1 October 2018. Despite the UK’s withdrawal from the EU, and the transfer and...
Introduction Block exemption regulations offer broadly applicable safe harbours from the EU ban on anti-competitive agreements set out in Article 101(1) TFEU, provided the agreement meets the criteria of the relevant block exemption regulation. Each block exemption rests on the assumption that any restrictive agreement within its scope satisfies the four conditions in Article 101(3) TFEU required for an individual exemption from the application of Article 101(1) TFEU (see further, Article 101(1) TFEU—the prohibition on restrictive agreements and Individual exemptions under Article 101(3) TFEU). Accordingly, every block exemption regulation creates a safe harbour that shields restrictive arrangements from legal challenge under Article 101 TFEU. The former Research & Development Block Exemption Regulation ( EU) 1217/2010 ( R& D 2010), which expired on 30 June 2023, had applied since 1 January 2011. Following a review and engagement with stakeholders, the updated Research &...
This Practice Note outlines the consumer credit activities regulated by the Financial Services and Markets 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), and the consequences of undertaking them without the required Financial Conduct Authority ( FCA) authorisation. The FCA and the consumer credit regime From 1 April 2014, consumer credit regulation transferred from the Office of Fair Trading ( OFT) to the FCA, and the OFT was abolished. The FCA is the conduct regulator for firms undertaking consumer credit, including: consumer lenders credit card issuers debt management firms credit brokers credit reference agencies hire purchase providers financial advisers pawnbrokers mail order businesses debt collectors payday lenders Types of authorisation for consumer credit firms, including the limited permission regime, are covered in Practice Note: FCA authorisation of consumer credit firms. Regulated activities—general Section 19(1) of the Financial Services and Markets Act 2000 ( FSMA 2000) imposes a general prohibition on carrying on regulated activities in the UK unless...
Mental capacity is the ability to carry out a particular juristic act by understanding it and deciding to do something that attracts legal consequences, for example making a Will, putting in place a power of attorney, making a gift, or giving consent. A lack of mental capacity is the inability to take such action or to give consent because of a mental disorder or disability. This absence of capacity may well fluctuate. It will also differ according to the specific task in question that calls for the choice or consent and, for that reason, mental capacity is described as being 'function-specific'. The common law presumption of capacity In the common law, every individual is presumed to possess mental capacity until the opposite is proved. Where it has been proved or accepted that someone was so mentally disordered as to lack the capacity to enter a...
At the start of a deal, from the outset, when gathering and assembling the relevant turnover data (and, thereafter, evaluating domestic threshold tests and any timing duties), appointed counsel should keep the following closely in view at all times. Turnover Rules on compiling, allocating (including geographic allocation) and calculating relevant turnover vary from the EU position, including within certain EU Member States and in key non- EU regimes, for example: in Austria—methodology can inflate the purchaser group's turnover and may ultimately determine whether a mandatory notification is triggered. For determining the relevant turnover, the turnover of all entities linked (directly or indirectly) to a party must be wholly (100%) attributed—ie the entire turnover of each connected subsidiary up the corporate chain in which there is a 25% shareholding or voting rights (even where control is absent) in Canada—for the purpose of testing the 'size of the...
Note—to check if notification thresholds in El Salvador and around the globe are reached, please refer to: Where to Notify. 1. Have there been any recent developments regarding the Salvadoran merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in El Salvador? The latest revisions to the merger framework occurred on 17 November 2021, when the Salvadoran Congress approved amendments to the Competition Law ( CL), subsequently published in the Official Gazette on 21 December 2021. The reform aimed to ensure observance of Article 166 of the Administrative Procedures Law ( LPA), which regulates administrative processes, and to align the CL with the LPA’s provisions. These changes introduced notable updates that equip the Superintendence of Competition ( SC) with greater tools to address illicit conduct and enhance legal certainty for economic agents; among them, the...
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 Botswana? To determine if notification thresholds in Botswana and across the world are met, see further: Where to Notify......
Introduction The Control of Asbestos Regulations 2012, SI 2012/632 ( CAR 2012), were made under section 15 of the Health and Safety at Work etc Act 1974 ( HSWA 1974). They sit within the broader suite of health and safety regulations and other statutory instruments—for example, the Management of Health and Safety at Work Regulations 1999, SI 1999/3242. These regulations place obligations on HSWA 1974 duty holders. Although the HSWA 1974 does not define “duty holders”, the term captures a range of individuals and organisations—often employers—as well as those managing projects and activities. Under CAR 2012, reg 4(1), the dutyholder is: any person with duties for the maintenance or repair of non-domestic premises under a lease or management agreement, including a landlord or a tenant, or where no such lease or agreement exists, the freeholder or any person exercising control over that part of the...
The EU merger control framework, set out in the EU Merger Regulation ( EUMR), rests on the ‘one‑stop shop’ principle for overseeing concentrations within the EEA. It vests the European Commission (the Commission) with exclusive jurisdiction to assess transactions that amount to a concentration (as defined in Article 3 EUMR) and that meet the turnover thresholds in Article 1(2) or (3) EUMR (and therefore have an EU dimension). Consequently, by virtue of Article 21(3) EUMR, Member States are barred from applying their national competition laws to such EU‑dimension concentrations. The EUMR seeks to streamline the review of certain large‑scale, pan‑ European deals before a single authority (ie, the Commission), rather than exposing them to potentially duplicative assessments by multiple national competition authorities across the EU. It also provides referral mechanisms between the Commission and Member States to ensure the...
This Practice Note sets out what acts an unincorporated association, together with its members or office-holders, may undertake in a finance transaction. Any mention of an association refers to an unincorporated association. It also explains the steps to investigate capacity and authority under English law. Unincorporated associations are often used by clubs, societies and charities. This Practice Note does not address the charity law issues that apply to unincorporated associations which are charities. For information on charities, see: Practice Note: Charitable incorporated organisations Practice Note: Taking security over charity assets—key considerations Practice Note: Mortgaging charity land—mortgagee’s considerations Practice Note: Mortgaging charity land—charity's considerations Charity regulation—overview What is an unincorporated association? The courts have described an unincorporated association as ‘an association of persons connected by identifiable rules and with an identifiable membership’. An unincorporated...
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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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