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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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Scope of this Practice Note This Practice Note sets out the Financial Conduct Authority’s ( FCA’s) competition law powers under the Financial Services and Markets Act 2000 ( FSMA 2000), together with associated investigative tools and sanctions for infringements. It also examines the secondary objective on international competitiveness and growth, introduced for the FCA and the Prudential Regulation Authority ( PRA) by the Financial Services and Markets Act 2023 ( FSMA 2023). In addition, it summarises the FCA’s programme of market studies, calls for input and other competition-focused reviews... Overview of the FCA’s competition law powers Under FSMA 2000, the FCA holds a statutory objective to foster effective competition for the benefit of consumers across markets for regulated financial services and for services supplied by a recognised investment exchange. When pursuing its other two statutory aims—protecting consumers and safeguarding market integrity—it must likewise further...
What is a health care associated infection? Health care associated infections ( HCAIs) describes any infection acquired: as a direct consequence of treatment received in, or contact with, a health or social care setting as a direct consequence of health care delivered in the community from an infection first picked up outside a health care setting (e.g. in the community) and then brought into a health care setting by patients, staff or visitors and transmitted to others within that environment (e.g. norovirus) There is a closely corresponding legal definition in section 20(6) of the Health and Social Care Act 2008 ( HSCA 2008): ‘health care associated infection’ means any infection for which an individual may face exposure or become susceptible (or more susceptible) in circumstances where: (a) health or social care is being, or has been, provided to that...
Such payments are now made only in restricted circumstances. These may include: following an infant settlement where some protection is required on behalf of a child or protected party after a conditional court order As in all litigation, payment into court is no longer used specifically as a tactical device concerning costs under the CPR 36 regime. Infant and protected party settlements Once the settlement is sanctioned, the court has a duty under CPR 21.11(2) to issue directions on how the damages are to be managed. Historically, the usual approach was for the court to place the funds in the special investment account ( SIA) at the Court Funds Office ( CFO). Although this remains prudent where protection is needed against incompetence or dishonesty by litigation friends or legal representatives, it will generally be the exception. See Practice Note: Claims involving a...
Practice Note This Practice Note outlines the process to be followed when seeking a pension sharing order or a pension attachment order within family proceedings, covering the form the application should take, the information required about the relevant pension scheme, the steps to be taken during the proceedings, how to draft the order, and the actions needed to put the outcome into effect. It also explains the requirements for deploying Form P1 or Form P2. An application for pension provision is made using Form A under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, typically alongside an application for other financial orders. The fast-track (shortened) financial remedy procedure is not available. See also Practice Note: Issuing financial proceedings in Form A (standard procedure). Where a pension order is pursued following an overseas...
This Practice Note examines the actions commonly undertaken by companies in the setting of finance transactions and outlines the steps that can be taken to confirm the capacity and authority of a company incorporated under English law. There are various types of company incorporated in England and Wales that may participate in a finance transaction. For more information on different types of company, see: Types of borrowers— Companies. For the purposes of this Practice Note, the assumption is that the entity in question is a private company limited by shares, since most finance transactions in England and Wales will feature at least one such company as borrower or as a provider of security... Why is it important to understand the acts a company will perform in a finance transaction? Lender's perspective A lender will seek to understand the acts a company will carry out in a...
This Practice Note This Practice Note reviews the range of acts typically undertaken by English law partnerships in the context of finance transactions and sets out the practical steps that can be taken to check and evidence the capacity and authority of an English law partnership. There are two categories of partnership recognised in English law—a general partnership and a limited partnership ( LP). Each is subject to its own legislative regime and associated guidance, as follows: general partnerships are governed by the Partnership Act 1890 ( PA 1890)—see Practice Note: The nature of a general partnership and its legal framework; and limited partnerships are governed by the Limited Partnerships Act 1907 ( LPA 1907)—see Practice Note: The nature of a limited partnership and its legal framework. These are distinct from limited liability partnerships ( LLPs), which are corporate bodies...
Note—to verify whether notification thresholds in France and around the world are met, please refer to: Where to Notify. 1. Have there been any recent developments regarding the French merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in France? In 2025, the French Competition Authority ( Autorité de la Concurrence, FCA) was particularly active in merger control, assessing a record 328 transactions, compared with 296 in 2024 and 266 in 2023. Proposed increase of merger control thresholds In April 2024, the former French economy minister, Bruno Le Maire, brought forward a draft bill aimed ‘to simplify economic life’......
ARCHIVED: This Practice Note is archived and no longer updated. It summarises the Finance Act 2014 ( FA 2014), which obtained Royal Assent on 17 July 2014. It is retained for historical reference, tracing the legislation’s passage through Parliament and setting out each measure in the Act, with appropriate links. It is kept solely for historic interest, charting the development of the legislation and directing readers to descriptions of every measure. The Practice Note is arranged in six sections: Progress of FA 2014 Finance Bill Committee stages Published legislation with immediate effect— Budget 2014 Published legislation with immediate effect— Autumn Statement 2013 Published legislation with subsequent effect, and Awaiting draft legislation The tables below are organised by subject area and presented chronologically, with the newest update shown first in each table. Each section contains a brief...
Scope of this Practice Note This Practice Note sets out the exclusions that may apply to the regulated activities of taking deposits and to activities associated with home finance transactions. These exclusions are contained in the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), and appear after the description of each specified activity to which the exclusion relates. Where an exclusion applies, persons who would otherwise be undertaking regulated activities are, for those purposes, treated as not carrying on those activities. The general prohibition Under section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000), a person must not carry on regulated activities in the United Kingdom unless that person is authorised or exempt. This is referred to as the general prohibition. For details on the territorial scope of the general...
CASE HUB ( NOTE—appeals lodged before the Court of Justice in Cases C‑806/19 P and C‑883/19 P ARCHIVED — this archived case hub captures the position as at the final decision of 28 June 2021; it is no longer maintained. See further, timeline, commentary and related cases.) Case facts Outline European Commission Article 101 TFEU probe into a cartel in the Euro interest rate derivatives ( EIRD) market ( Case AT.39914). Latest developments On 28 June 2021, the Commission modified and re‑adopted its decisions concerning the euro interest rate derivatives cartel, following the General Court’s judgment of 24 September 2019, which confirmed HSBC’s involvement in the cartel but annulled the fine imposed on it because the Commission’s decision of 7 December 2016 was insufficiently reasoned in that respect. Parties Barclays Deutsche Bank Société Générale RBS Crédit Agricole HSBC JPMorgan...
A rentcharge A rentcharge is a monetary sum secured on land. It can impact both freehold and leasehold interests, binding each estate alike. Ordinarily, the owner of the rentcharge (the 'rent owner') retains a recurring payment when a property is disposed of on sale, payable at set intervals. Rentcharges were common in the Victorian period, being used to give the seller of freehold land a continuing income from the property after completion of the transaction. The amounts involved were material at the time, but today the yearly sums reserved by rentcharges are typically under £10. They are sometimes, albeit mistakenly, described as 'ground rent' or 'chief rent'. Rentcharges are also employed to make positive covenants, or contributions towards the cost of services, enforceable against successors in title—often called estate rentcharges (see Practice Note: Estate...
This Practice Note considers the status of the programme in a construction contract, what difference it makes if the programme is a contract document and the approach of standard form contracts to the programme. The programme sits at the heart of every construction scheme. It enables the contractor to arrange the job and map out how the works will be executed. It likewise allows the employer and contract administrator to track progress, gauge the contractor’s output and evaluate delay. So, what duties do the parties have concerning the programme? Broadly, save where the construction contract provides to the contrary, the contractor may schedule the works and execute them in whatever sequence it considers appropriate, with the employer having limited sway over the order and tasks. In GLC v Cleveland Bridge and Engineering (1984) 34 BLR 50 (not available in Lexis Nexis®), the court...
This Practice Note explores what liquidated damages provisions are and, in brief, when they are used and in what manner. It then concentrates, in particular, on the judiciary’s method when assessing whether an alleged liquidated damages term is in truth a penalty and thus unenforceable; following the authorities through to the approach now taken after the Supreme Court’s 2015 Makdessi/ Parking Eye ruling and examining, specifically, matters such as when terms for accelerated payment, default interest, or positive inducements may amount to a penalty. Consideration is also given to whether liquidated damages endure following termination and to their connection with partial performance. What is a liquidated damages clause? A liquidated damages clause is a contractual term by which the parties to an agreement fix, in advance, a specified sum of money to be paid by the defaulting party to the innocent party upon breach of...
CASE HUB ( Appeals filed at the General Court – see Case T- 58/14 Stührk Delikatessen Import v Commission ( Shrimps cartel) and Case T- 54/14 Goldfish and Others v Commission ( North Sea shrimps cartel)) ARCHIVED – this archived case hub captures the status as at the decision dated 27 November 2013; it is no longer updated. See timeline. Case facts Outline European Commission Article 101 TFEU inquiry into a cartel in the North Sea shrimps market (case number AT.39633) Latest developments Fines amounting to €28m were levied on 27 November 2013......
Foreign direct investment ( FDI) remains an ever more significant driver within the world economy today, and its importance continues to grow. For multinational groups, and any enterprise hoping to launch operations in another jurisdiction, a key consideration is the legal stability of that location when entering a host market. Careful investors will wish to be confident their capital is safe and shielded from improper intervention by the host state, both now and in future. Shifts in political or economic conditions can prompt state action that may, directly or indirectly, diminish an investment; in the most severe cases, the nationalisation of industries or sectors may lead to expropriation of assets (see, for example, Practice Note: Expropriation—investment treaty arbitration). In those situations, investors might possess rights and remedies arising under the contractual frameworks through which the investment was made, depending on the terms agreed. Often,...
ARCHIVED: This Practice Note is archived and not maintained. It considers the Public Bodies Act 2011 ( PBA 2011) and the contractual effects that should be assessed where a public body or business is impacted by it. Background On 14 October 2010, Francis Maude, the Minister for the Cabinet Office, set out in a written ministerial statement that the arrangements for public bodies required radical reform to enhance transparency and accountability, eliminate duplicated activity, and bring to an end work that is no longer necessary. In response, the PBA 2011 received Royal Assent on 14 December 2011. The Act is intended to enable the government to simplify the landscape of public bodies by, among other measures, abolishing so‑called quangos (ie quasi‑autonomous non‑governmental organisations). Quangos include non‑departmental public bodies ( NDPBs), a term commonly used by the government......
Scope of this Practice Note This Practice Note sets out the relevant offences that may arise in connection with the general prohibition in section 19 of the Financial Services and Markets Act 2000 ( FSMA 2000). Namely, FSMA 2000, ss 23 and 24 create two distinct offences, each of which may result in imprisonment and/or fines. The general prohibition Under FSMA 2000, s 19, no person may carry on regulated activities in the UK, or claim to do so, unless that person is duly authorised or otherwise exempt. This is generally referred to as the general prohibition. For further information about the territorial scope of the general prohibition, see Practice Note: Territorial scope of the prohibition. An authorised person is an individual or entity that has been duly granted permission by the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) under FSMA 2000, Part 4A to...
This Practice Note This Practice Note explores how an employer should handle an employee they suspect of malingering. In this context, a ‘malingerer’ is an employee who is absent while claiming illness or injury as the reason, yet the employer: does not accept the employee’s stated explanation for being off work later discovers the individual was not actually ill or injured but, for example, was on holiday, and/or does not regard the reported condition as sufficiently serious to justify staying away from work The absence in question may cover whole weeks (such as taking sick leave to go on holiday) or comprise a pattern of short-term absences, often single days......
Interim and conservatory measures from the tribunal Within arbitrations governed by the Dubai International Arbitration Centre Arbitration Rules ( DIAC and the DIAC Rules), the tribunal holds authority to make provisional directions or impose other interim or conservatory steps (including injunctions) it considers necessary in the proceedings, such as preserving relevant goods comprising any element of the dispute's subject matter ( Appendix II, Article 1)......
Scope of this Practice Note The exemptions from the financial promotion restriction are set out in the Financial Services and Markets Act 2000 ( Financial Promotion) Order 2005, SI 2005/1529 (the FPO), as updated from time to time (for example by the Financial Services and Markets Act 2000 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/632). For further information on the financial promotion restriction, see Practice Note: The financial promotion regime—essentials. The FPO carve-outs extend to communications concerning all forms of controlled activity. The exemptions are organised into four categories: provisions relevant to all controlled activities ( Pt IV) provisions addressing deposits and insurance ( Pt V) provisions for certain controlled activities ( Pt VI) provisions for controlled claims management activities ( Pt VIA) This Practice Note considers the exemptions that apply to communications relating to deposits and contracts of insurance other than life policies. These...
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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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