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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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ARCHIVED: The revised Horizontal Guidelines appeared in the Official Journal on 21 July 2023. This Practice Note was prepared with the earlier Horizontal Guidelines in mind. It is no longer maintained. For up-to-date content, please refer to the relevant section in Analysing horizontal co-operation agreements under EU competition law. What is a joint commercialisation agreement? Joint commercialisation agreements entail co-operation between rivals concerning the sale, distribution, or promotion of interchangeable products. Such arrangements span from deals that jointly set every commercial element of selling the products (including price) to narrower pacts tackling a single commercialisation task (for example, distribution, after-sales support, or advertising). These agreements can produce substantial advantages derived from economies of scale or scope, notably for smaller manufacturers. Yet, in some situations they may trigger serious competition law issues, especially where the parties hold a meaningful degree of market power, the...
Reform to the waste carrier, broker and dealer system The 2018 Independent Review into Serious and Organised Crime in the Waste Sector revealed that waste is increasingly handled by multiple, often unclear, intermediaries. It advised overhauling registration and duty of care obligations for carriers, brokers and dealers, including for hazardous waste. In its Resources and Waste Strategy, the government outlined how it would address waste crime, aiming to strengthen the transport, management and description of waste by reforming current regulations, and to stop illegal practices being masked by waste exemptions through changes to the existing regime. Through the Environment Act 2021, the government proposed a comprehensive upgrade to waste record keeping, introducing a digital waste tracking system and replacing registration with a permit-based system, to improve background checks and bring in a technical competency requirement. In 2022, the government launched a...
Introduction Block exemption regimes provide widely applicable safe harbours from the EU prohibition on anticompetitive agreements as set out in Article 101(1) TFEU, so long as the arrangement satisfies the requirements of the relevant block exemption. Each such instrument rests on the presumption that any restrictive deal within its compass fulfils the four criteria in Article 101(3) TFEU that are needed 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 establishes a safe harbour that shields restrictive arrangements from legal challenge under Article 101 TFEU. The former Specialisation Block Exemption Regulation ( EU) 1218/2010 ( SBER 2010), which expired on 30 June 2023, had been in force since 1 January 2011. Following a review process and consultation with...
This Practice Note explores whether permission is needed to obtain a writ or warrant, how long such writs and warrants stay valid, and the ranking of issued writs and warrants. For guidance on specific writs and warrants, see Practice Notes: How to obtain a writ of control How to obtain a warrant of control How to obtain a writ of delivery How to obtain a warrant of delivery Writs of sequestration to enforce a judgment or order Enforcing a judgment or order for possession of land Do I need the court's permission to issue a writ or warrant? In general, you only require the court’s permission to issue a writ or warrant if one of the CPR 83.2(3) criteria is met, namely: six years or more have passed since the date of the judgment or order—for a summary of the...
This Practice Note offers guidance on how to interpret and apply the relevant provisions of the CPR. Depending on the court in which your case is proceeding, you should also be alert to any additional provisions—see further: Court specific guidance below. What is a writ of control? A writ of control is a High Court document directing a High Court Enforcement Officer ( HCEO) to use the Taking Control of Goods ( TCG) procedure. It authorises the HCEO to take control of a judgment debtor’s goods, sell them, and apply the sale proceeds towards any outstanding sum due under a money judgment. The Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007) is the primary legislation introducing the TCG regime—for guidance, see Practice Note: Finding your way through the Taking Control of Goods legislation. Writs of control are the modern counterpart to the former writs of fieri...
CASE HUB Note—appeals were lodged before the General Court in Cases T‑419/14, T‑422/14, T‑438/14, T‑439, T‑441/14, T‑444/14, T‑445/14, T‑446/14, T‑447/14, T‑448/14, T‑449/14, T‑450/14, T‑451/14, T‑455/14 and T‑475/14; see Cases T‑422/14 et al – Viscas and others v Commission (power cables cartel) [ Archived]. Archived – this hub records the position as at the 2 April 2014 decision date and is no longer maintained. See further, timeline and commentary. Case facts Outline of the European Commission’s Article 101 TFEU investigation into a cartel in the market for high‑voltage power cables ( AT.39610). On 02/04/2014 the Commission imposed fines totalling €301.6m. Parties ABB Nexans Prysmian (previously Pirelli) J‑ Power Systems (previously Sumitomo Electric and Hitachi Metals) VISCAS (previously Furukawa Electric and Fujikura) EXSYM (previously SWCC Showa and Mitsubishi Cable) Brugg NKT Silec (previously Safran) LS Cable Taihan The defendants comprise most of the world’s leading producers of high‑voltage power cables. Several companies originally in the cartel combined their activities into joint...
NOTE— To check whether notification thresholds in Finland and across the globe are met, see: Where to Notify. 1. There have been recent developments regarding the Finnish merger control regime. What are the main points of interest and are any further updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Finland? Finnish merger control is governed by the Competition Act ( No. 948/2011), which took effect on 1 November 2011 and repealed the Act on Restrictions on Competition ( No. 480/1992). Merger control provisions were first introduced into Finnish competition law on 1 October 1998. The 2011 Act revised the merger control framework, principally to align it more closely with EU rules. Notably, the former dominance test was replaced by the SIEC test used by the European Commission ( Commission), and procedural rules were adjusted to further...
This Practice Note outlines regulatory duties concerning the use and care of visual display screen equipment. For details on other regulatory requirements linked to managing health and safety in the workplace, see Practice Note: Health and safety in the workplace—regulatory requirements... What is display screen equipment? Display screen equipment ( DSE) is the commonly used term for devices featuring an alphanumeric or graphic screen, and covers conventional display screens and laptops, touch-screens and similar technologies. There are particular risks associated with prolonged DSE use and, in some situations, organisations must implement specific measures. DSE requirements apply whenever workers are using DSE, including when: working at a fixed workstation working remotely/mobile working hot-desking Where staff use DSE both in the office and away from it, for example when working from home, the requirements will apply in both...
This Practice Note offers guidance for commercial organisations on composing and rolling out a health and safety policy. It highlights key considerations and points to tools that may assist. It also explains the benefit of having a policy document that both states the overarching commitment to health and safety and sets out the organisation’s aims and targets. This Practice Note focuses on health and safety obligations in an office-based setting. Sector- or workplace-specific duties may arise in other environments. For detail on regulatory requirements tied to implementing a health and safety policy, see Practice Note: Health and safety policy—regulatory requirements. What is a health and safety policy? A health and safety policy is a statement of the organisation’s principles and aims for protecting staff and visitors. It should usually be distinguished from a health and safety plan, which develops and records the concrete measures and...
Putting a carefully designed and accessible health and safety framework in place helps an organisation oversee these matters effectively and efficiently. An organisation should therefore: set out its core principles and aims for protecting the health and safety of its key stakeholders, ie what it intends to achieve (see subtopic: Health and safety policy) identify key members of staff and obtain their input carry out a risk assessment (see Practice Note: How to conduct a health and safety risk assessment) develop an action plan explaining what the organisation needs and why implement the plan, and review the plan This Practice Note explains how to design, implement and review a plan to manage health and safety, and control related risks in an office-based workplace. Other...
This Practice Note examines the following matters in the context of private equity-backed buyouts: the situations in which costs borne by the acquisition group in relation to the buyout are allowable as deductions for corporation tax purposes the extent to which any VAT charged on those costs can be reclaimed by the acquisition group It is assumed that all companies comprising the acquisition group are UK tax resident and that the buyout is implemented as a purchase of shares in the target company (target). For additional detail on how private equity-backed buyouts are usually structured and financed, and on other tax considerations arising for the acquisition group, see Practice Notes: Tax and management buyouts—what is a management buyout?, Tax and secondary buyouts—what are secondary buyouts? and Tax and buyouts—tax issues for the acquisition...
This archived case hub captures the position as at the decision date, 17 June 2014; it is no longer maintained. For more, see timeline, commentary and related cases. Case facts Outline Outline of the European Commission’s Article 101 TFEU investigation into a cartel in the car and truck bearings market ( COMP/39.922). Latest development On 19 March 2014, the Commission formally issued its enforcement decision, and it was publicly announced that all six defendants had settled with the Commission......
The need for environmental insurance Bringing brownfield or previously developed plots back into use can boost a client’s property value. Yet the client could encounter the following liabilities: undetected contamination present on the site unrecognised continuing effects on third parties outside the site boundary worsening of existing pollution on-site (for example through contractors’ piling works), and the creation of new contamination at the location While some clients might choose to bear these risks, others—and stakeholders such as funders, prospective tenants and neighbours—may insist on the purchase of insurance. For further detail on environmental insurance in general, please refer to Practice Notes: Environmental insurance—when is......
Environmental insurance has become a routine instrument for managing environmental risk, used by operational businesses and across numerous transactions and development projects. Further guidance on environmental insurance generally can be found in the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Some of the principal advantages and disadvantages of environmental insurance are set out below: Advantages Competitive pressure in the market has lowered premium levels Gives reassurance where the strength of an indemnity covenant is in doubt Can serve several stakeholders (seller, purchaser, tenants, funder) and assist in closing transactions Cover can be arranged for defined scenarios (eg concerns about a contractor disturbing legacy contamination) Tackles worries and uncertainties around unknown contamination (eg the environmental report or remediation may have missed significant areas) Offers protection for...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment of 20 March 2014 and is no longer updated. For additional detail, consult the timeline, commentary and related or relevant cases. Case facts Outline An appeal was brought before the General Court seeking annulment of the Commission’s decision of 23 February 2010 (the “contested decision”), which refused Reagens Sp A access to specific documents in the Commission’s administrative file from the “ Heat stabilisers” cartel investigation, under Regulation 1049/2001 on public access to European Parliament, Council and Commission documents. Reagens had been an addressee of the Commission’s decision of 11 November 2009, which found that it had taken part in an EEA‑wide cartel concerning heat stabilisers. Unlike another addressee, Reagens was unsuccessful in a request—lodged before adoption of the infringement decision—for a reduction of the fine on the basis of...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 20 March 2014; it is no longer being maintained. Case facts ARCHIVE—20/03/2014 Outline Appeal before the General Court seeking annulment and/or a reduction of the penalty arising from the Commission’s decision of 11 November 2009, which found infringements of Article 101 TFEU and Article 53 EEA and imposed a fine linked to Faci’s involvement in EEA-wide cartels in the market for tin and ESBO/esters heat stabilisers. Amongst other matters, the case concerns whether the Commission has produced evidence that, to the requisite legal standard, demonstrates circumstances amounting to an infringement. Parties Applicants: Faci Sp A ( Faci) Defendant: European Commission Faci is an Italian company, with a presence in the UK and Spain, which manufactures and supplies, amongst other products, epoxidised soya bean oil and...
Note—for guidance on whether notification thresholds in Switzerland and globally are triggered, see: Where to Notify. 1. Have there been any recent developments regarding the Swiss merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Switzerland? On 24 November 2021, the Swiss Federal Council released a preliminary draft proposing a partial overhaul of the Cartel Act ( ACart). These amendments aim to enhance the ACart’s effectiveness. Central to the package is the modernisation of Switzerland’s merger control framework. The update focuses on bringing Swiss practice in line with EU and global standards. Replacing the current dominance-plus test with the significant impediment to effective competition ( SIEC) standard would align Swiss review practice with the EU and international approaches, reducing the threshold for authority to step in. Proposals on merger control envisage...
The Seed Enterprise Investment Scheme ( SEIS), akin to the Enterprise Investment Scheme ( EIS), exists to stimulate investment into smaller, higher‑risk trading businesses by offering a suite of tax incentives to individual investors acquiring newly issued shares in those companies. The SEIS framework is prescriptive and imposes a range of conditions that must be satisfied, covering: individual investors the issued shares, the funds raised and arrangements in general the issuing company This Practice Note concentrates on the criteria applicable to the individual investor. They are set out by reference to the income tax relief contained in Part 5A of the Income Tax Act 2007 ( ITA 2007). Capital gains tax ( CGT) relief—whether via the disposal exemption or re‑investment relief—applies only to shares that attract SEIS income tax relief, so these criteria equally govern entitlement to CGT relief. For the remaining...
A collateral warranty is an agreement that is ancillary to, or runs alongside, the underlying or primary contract (ie the construction contract or a consultant’s appointment). Most collateral warranties pick up the duties and obligations set out in the underlying contract, and the warrantor promises to a third party that it has carried out those duties and obligations in accordance with that contract. For further general information on collateral warranties, see Practice Note: What are collateral warranties? The JCT suite of collateral warranties The JCT has issued a number of standard form collateral warranties, with the following being the most commonly used: JCT Contractor Collateral Warranty for a Funder ( CWa/ F) JCT Contractor Collateral Warranty for a Purchaser or Tenant ( CWa/ P& T) JCT Sub- Contractor Collateral Warranty for the Employer ( SCWa/ E) JCT Sub- Contractor Collateral Warranty for a Funder ( SCWa/ F) JCT Sub-...
For further information and guidance about what deferred prosecution agreements ( DPAs) are and how they operate, see Practice Note: Deferred prosecution agreements. When does a deferred prosecution agreement expire? A DPA generally ends on the date set out as a term of the agreement, unless it is brought to an end for breach. See Practice Note: Breach of a DPA. The SFO has released details and information on how DPAs it has agreed have been complied with. This material can be found within the SFO’s website. Several DPAs agreed to date include built-in flexibility through terms allowing an early conclusion, if the financial penalties, costs and disgorgement of profits elements are satisfied (see SFO Deferred Prosecution Agreement with Rolls- Royce and SFO Deferred Prosecution Agreement with Sarclad). For more on the DPAs entered into so far, including operative periods, see Practice Note: DPAs entered into to...
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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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