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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 offers an introduction to the HMRC tax-advantaged Share Incentive Plan ( SIP). It summarises: the categories of award available under a SIP the principal requirements that must be met to operate a SIP the documentation likely to be needed in relation to a SIP, and the tax treatment for both the employee and the employer Background to a SIP The SIP enables employees to obtain shares in their employer, or a parent company of the employer, in a tax-efficient manner. The legislative framework for the SIP is primarily set out in: Schedule 2 to the Income tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003), which explains how a SIP may operate and the key conditions that must be met for it to qualify as a ‘ Schedule 2 SIP’ ITEPA 2003, Pt 7 Ch 6 (...
How does an in-house lawyer measure the performance of their external law firms? Paul Gilbert sets out some objectives, metrics and examples of incentives. Paul Gilbert outlines objectives, metrics, plus illustrative examples of incentives also......
NOTE—to check whether notification thresholds in Greece and worldwide are satisfied, consult Where to Notify. 1. Have there been any recent developments regarding the Greek merger control regime and are there any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Greece? The Greek merger control system is anchored in the Protection of Free Competition Act ( Law 3959/2011), together with decisions of the Hellenic Competition Commission ( HCC), and the pertinent EU merger control instruments, ie the EU Merger Regulation and the European Commission’s Consolidated Jurisdictional Notice. In substance, the national framework closely tracks the EU model, and HCC determinations are generally aligned with EU case-law and established practice. In January 2022, Law 3959/2011 was revised by Law 4886/2022, introducing a broad suite of reforms across the entirety of Greece’s competition law...
This Practice Note sets out: why companies adopt employee ownership models the principal types of share ownership models, and issues to weigh when implementing a share scheme For a more detailed analysis of why companies use share schemes, see Practice Note: Why do companies use share schemes? Why do companies have employee ownership? Employee ownership usually arises in the following situations: business succession or ownership succession — private owners, such as an entrepreneur or a family business, choose to sell all, or more often, part of their shareholdings to their workforce insolvency or closure threat — employee buyouts can be an effective route to recovery for businesses that might otherwise fail independence — companies may determine that a significant, even majority, employee stakeholding will signal and help protect the company’s independence privatisation — the privatisation of various companies has occasionally created opportunities for employee buyouts, and owner vision and...
Schedule 2 to the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) In Schedule 2 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003), the term ‘award of shares’ denotes shares that are either allocated to employees or acquired on their behalf on a particular occasion. Consequently, where a number of employees receive shares at the same time under a common invitation, each employee is regarded as having taken part in the same award of shares. A company that sets up a share incentive plan ( SIP) enabling the acquisition of partnership shares has no duty to provide free shares, and the reverse also applies. An SIP may specify a qualifying period of employment, and this requirement must be identical for all participants in the plan. The maximum length of any such qualifying period will vary...
Although company share option plan ( CSOP) options are not required to be subject to performance conditions, shareholders typically anticipate that discretionary options—such as CSOP options—will incorporate robust and suitable performance requirements. See Practice Note: Comparison of UK Corporate Governance remuneration principles— Performance targets. What is a performance condition? A performance condition is a predetermined target that must be achieved before a participant can benefit from an option or award granted to them. These conditions may focus on a range of measures, but commonly relate to: the performance of the company overall the results of a division, function, or specific business within the company (that is, the business in which the employee works), and/or the individual performance of the relevant option holder For fuller guidance on performance conditions in general—covering their purpose, design, communication, and associated corporate governance best practice...
CASE HUB ARCHIVED – this case hub is archived and reflects the position as at the judgment dated 27 February 2014; it is no longer maintained. See further: timeline, commentary and related/relevant cases. Case facts Outline Appeals were brought before the General Court seeking partial annulment and a reduction of the fines arising from the Commission’s decision of 8 December 2010 (which was addressed to six recipients), which found infringements of Article 101 TFEU and Article 53 of the EEA Agreement and imposed combined penalties of €648.9m on five companies for their alleged participation in a liquid crystal display panels ( LCD panels) cartel between October 2001 and February 2006. On 27 February 2014, the General Court rejected most of the arguments advanced and, in large part, thereby upheld the substance of the Commission’s decision. Nevertheless, the General Court slightly lowered the fines imposed on each...
ARCHIVED: This Practice Note has been archived and is not maintained. At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s withdrawal from the EU came to a close. From that moment (referred to in UK law as ‘ IP completion day’), core transitional measures ended and significant changes began to apply across the UK’s legal framework. The UK’s participation in the EU Emissions Trading System ( EU ETS) ceased at the end of the implementation period. The UK has established its own UK emissions trading scheme ( UK ETS) and obligations for UK ETS participants commenced on 1 January 2021, marking the start of the UK ETS’s first trading period. Under the Withdrawal Agreement, the UK remained within the EU ETS during the transition, and operators therefore had to comply with obligations for the 2020 scheme year, which...
Key legislation, licences and guidance Source Details Legislation The Feed-in Tariff ( Fi T) scheme is principally founded on the Feed-in Tariffs Order 2012 ( Fi T 2012), SI 2012/2782, which has been updated by: Feed-in Tariffs and Contracts for Difference ( Amendment) ( EU Exit) Regulations 2018, SI 2018/1092 Feed-in Tariffs ( Closure, etc) Order 2018, SI 2018/1380 Feed-in Tariffs ( Amendment) ( Coronavirus) Order 2020, SI 2020/375 Feed-in Tariffs ( Amendment) ( Coronavirus) ( No 2) Order 2020, SI 2020/957 Feed-in Tariffs ( Amendment) Order 2023, SI 2023/127 Fi T 2012 was made under the Energy Act 2008 ( En A 2008). Licence provisions Beyond the legislation, the operation of the Fi T scheme is set out in the Standard Conditions of Electricity Supply Licences ( SLCs), Conditions 33 and 34. Guidance Ofgem publishes the core guidance for the Fi T scheme, notably: Feed-in...
An interview with Mark Katz, a partner at the Canadian firm Davies Ward Phillips & Vineberg LLP, exploring central questions about merger control in Canada. NOTE—to check if notification thresholds in Canada and worldwide are satisfied, refer to: Where to Notify. General overview of the key merger control regimes in Canada General overview of the Competition Act merger control regime The Competition Act (the Act) authorises the Commissioner of Competition (the Commissioner) to contest mergers that are likely to prevent or lessen competition substantially in a relevant market affecting Canada. The Commissioner leads the Competition Bureau (the Bureau), which is tasked with investigating merger transactions to assess whether they are expected to produce the specified anti-competitive effect. For these purposes, the concept of a merger is expansive. Beyond acquisitions that confer control—defined as securing a greater than 50% interest in the target entity—a merger also captures any...
Dividend A company possesses an implied authority to distribute its profits to its members, unless its articles of association stipulate otherwise. A dividend represents one form of distribution made by a company to its members; indeed, dividends are, in practice, the form of distribution most commonly made by companies. To make a lawful distribution, the company must comply with Part 23 of the Companies Act 2006 ( CA 2006) and with the common law rules on distributions, as those rules are modified by the statutory provisions just mentioned. For discussion of the law and practice applicable to company distributions, see Practice Note: Distributions. For an outline of the consequences of failing to comply with the law on distributions, see Practice Note: Unlawful distributions. In ordinary parlance, ‘dividend’ means a share of profits, whether at a fixed rate or otherwise, allocated to the holders of a...
CASE HUB ARCHIVED —this archived case hub sets out the position as at the judgment of 4 September 2014; it is no longer being maintained. See further: timeline, commentary and related/relevant cases Case facts Outline An appeal was brought challenging the General Court’s judgment, which upheld the Commission decision of 19 September 2007, in so far as it concerned YKK Corporation and its subsidiaries’ participation in a price‑fixing cartel for fasteners and attaching machines (the ' Fasteners cartel'). The matter centres on questions tied to joint and several liability and, notably, how to calculate the 10% turnover upper limit for fines imposed in the setting of successive liabilities. Parties Appellants: YKK Corporation ( YKK) YKK Holding Europe BV ( YKK Holding) YKK Stocko Fasteners Gmb H ( YKK Stocko) Other party: European Commission YKK, a Japanese undertaking, is a global leader in the zip fasteners market and is active in...
is widely acknowledged as an ‘exclusionary’ abuse under Article 102 TFEU: behaviour by a dominant undertaking that deliberately targets competitors and seeks to remove them or erode their viability as rivals (either by driving them out of the market or by deterring entry). In essence, a dominant firm forgoes profit in the short term to oust or discourage competitors. Once the dominant firm has effectively shut out current competitors or potential entrants, the dominant undertaking will have reinforced its position and be able, at least in theory, to levy supra-competitive prices and/or diminish its downstream offerings without facing consequences as a result of exclusion......
The tables set out completed appeals brought by UK competition regulators before the Competition Appeal Tribunal, the Court of Appeal and the Supreme Court, relating to market studies and market investigation references under the Enterprise Act 2002. For live appeals, see UK competition appeals—ongoing cases tracker. For closed market studies and market investigation references, see UK market studies and market investigation references—closed cases tracker. Appeals to the Competition Appeal Tribunal Case (case number): B& M European Value Retail S. A. v CMA (1301/6/12/18) Issues: Application for review under section 179(1) of the EA 2002 of the CMA decision dated 01/11/2018 designating B& M as a ‘ Designated Retailer’ pursuant to Part 2, Article 4(1)(b) of The Groceries ( Supply Chain Practices) Market Investigation Order 2009......
This Practice Note This Practice Note addresses the overarching duty of fairness when dismissal arises by reason of redundancy, concentrating on the essential stages of a fair process in a collective redundancy context. It sets out the triggers for collective consultation and outlines the collective redundancy pathway, covering warning and consultation, the details to be supplied to employee representatives about the rationale for the proposed redundancy, exploring ways to avert dismissals, defining the selection pool, establishing objective selection criteria and implementing them consistently, reviewing and consulting on suitable alternative employment, and handling an appeal where required effectively......
ARCHIVED : This Practice Note has been archived and is not maintained. The Liechtenstein Disclosure Facility ( LDF) was a voluntary route for disclosure that covered all principal taxes, including, but not limited to, income tax, corporation tax, PAYE, capital gains tax, VAT and inheritance tax. Launched in September 2009, it was initially intended to run until 2015, then extended to 5 April 2016, before the end date was brought forward to 31 December 2015. The LDF was open to all UK taxpayers, including individuals, executors, trustees, partnerships and companies. While directed at those with UK tax liabilities connected to Liechtenstein, taxpayers without an existing link could bring themselves within scope by, for example, opening a bank account in the jurisdiction. It enabled disclosure of tax irregularities for the ten years prior to April 2009 and allowed settlement on favourable terms, alongside a...
The UK’s domestic sanctions framework is underpinned by the Sanctions and Anti-money Laundering Act 2018 ( SAMLA 2018) together with regulations made under it. For further detail, see Practice Notes: The UK sanctions framework under SAMLA 2018 and International sanctions—an introduction. Licences to disapply financial sanctions prohibitions The Office of Financial Sanctions Implementation ( OFSI), part of HM Treasury, can issue a licence (written authorisation) to set aside financial sanctions prohibitions for an activity that would otherwise be barred. The authority to grant licences arises within the individual sanctions regimes, so lawyers advising on licences and exemptions must consult the specific sanctions regulations relevant to their matter. Any individual or organisation wishing to undertake conduct restricted by UK financial sanctions (including UN financial sanctions that apply in the UK) may apply for a licence. Under the SAMLA 2018 framework, general licences have become a more common...
NOTE: This archived Practice Note outlines the European framework for mergers between companies established in no fewer than two distinct member states of the EEA, as it stood up to the end of the Brexit implementation period. Brexit impact The position of UK companies regarding participation in EU cross-border mergers has been altered as a direct consequence of Brexit. Specifically, once the Brexit implementation period concluded, the Companies ( Cross– Border Mergers) Regulations 2007 (the Regulations) were repealed by the Companies, Limited Liability Partnerships and Partnerships ( Amendment etc.) ( EU Exit) Regulations 2019, SI 2019/348. For further information and context, see the Proposed revocation of the Regulations following Brexit below. For more general details on the effect of Brexit on the UK takeover regime generally, see Practice Note: Brexit— UK takeover...
CASE HUB ( NOTE—appeal lodged before the General Court in Case T- 604/18) ARCHIVED – this hub captures the status as at the 18 July 2018 decision and is no longer being maintained. See the timeline, commentary, and related cases. Case facts Outline: European Commission Article 102 TFEU probe into Google LLC ( Google) concerning exclusivity arrangements tied to the Android operating system ( Case AT.40099). Latest development On 18 July 2018, the European Commission delivered its final decision in the case against Google for abusing a dominant position through Android-related exclusivity agreements. The Commission imposed a €4.34bn fine on Google and its parent, Alphabet Inc. ( Alphabet). Google immediately stated its intention to appeal. Parties Google and Alphabet. Beyond its search service, Google owns the technology underpinning the Android smartphone operating platform and licences it to mobile handset manufacturers. In 2005, Google acquired the original creator of the Android mobile...
This Practice Note sets out categories of documents that serve both as a document of title and as an instrument under which goods are carried across borders. Instruments under which goods are carried, and those evidencing title to goods, are vital to the efficient operation of international trade. By far the pre-eminent example in international trade is the bill of lading; see Practice Note: Bills of lading and sea waybills. Documents of title In international carriage and/or sales of goods, documents of title commonly enable the holder or bearer to: clearly demonstrate ownership take delivery of goods from a carrier Describing a document as a ‘document of title’ applies the Hague- Visby Rules to the contract of carriage, under provisions of the Carriage of Goods by Sea Act 1971......
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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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