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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: This Practice Note is archived and not kept under review. NOTE: THIS PRACTICE NOTE IS FOR HISTORIC PURPOSES ONLY. Introduction—the nature of the changes and transitional arrangements The principal aim behind creating the Supreme Court was to disentangle the judicial role of the House of Lords from its parliamentary function. A further objective was to improve openness and ease of use of the appellate process at the nation’s highest court. These reforms did not amount to a complete overhaul of access. The avenues for appealing to the Supreme Court mirror those that previously led to the House of Lords. In the main, the reforms are not far-reaching, save, arguably, for bringing within the Supreme Court’s jurisdiction the determination of devolution issues (formerly heard by the Privy Council). Beyond that, the alterations are largely presentational: refreshed terminology, a different procedural style and tone, and a more modern...
This Practice Note examines issues arising under the Limitation Act 1980 ( LA 1980) as they relate to tort claims. It outlines the limitation period for tort-based actions, with consideration of joint tortfeasors, overlapping contractual and tortious duties, contingent loss, continuing wrongs and latent damage. For broader guidance on limitation, see Limitation—overview and the following Practice Notes: Limitation Act 1980—general application Limitation—the principal limitation periods Initial considerations A tort is a breach of duty that gives the injured party a private law entitlement to recover compensatory damages at common law from the person responsible ( SAAMCO). Where a claim is founded in tort, the limitation period is six years from the date on which the cause of action accrues ( LA 1980, s 2). Be aware that the language of LA 1980, s 2 is broadly cast and is capable of covering newly...
ARCHIVED: This Practice Note is archived, is not maintained, and is provided solely for background information. Moreover, some links may not lead to the provisions as they stood on the date this Practice Note’s guidance was issued. For details of earlier and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Amendments to the Civil Procedure Rules ( CPR) (subject to the exceptions noted below) took effect on 6 April 2010. This note summarises the key changes, and all affected practice notes have been updated accordingly. Accordingly, it should be treated as background only and not relied upon for up-to-date procedural requirements at this time alone. Electronic Working Scheme A new Practice Direction 5C was introduced on 1 April 2010, enabling the electronic filing of claims and subsequent steps in: Admiralty, Commercial and London Mercantile Courts ...
This Practice Note considers case management on the fast track of civil claims that are issued before 1 October 2023. This Practice Note reviews how fast-track civil claims issued before 1 October 2023 are managed. Rules on directions and case management in the fast track differ depending on whether proceedings were issued before or after 1 October 2023. The main sources for fast-track case management are CPR 26, CPR PD 26, CPR 28 and CPR PD 28, all of which were amended with effect from 1 October 2023. Consequently, this Practice Note deals solely with fast-track case management for civil proceedings issued before 1 October 2023. For details on the approach to fast-track case management where proceedings are issued on or after 1 October 2023, see Practice Note: Fast track—case management—position on or after 1 October 2023. Note also that, in personal injury claims, the...
ARCHIVED : This archived Practice Note examines a number of matters arising in trial preparation in the sphere of factual witness evidence. It sets out the factors to weigh when deciding whether to call a particular witness, including the dangers of putting forward material as hearsay, and the important distinction between preparing and coaching a witness. It also deals with a solicitor’s code of conduct requirements and the need to ensure that all those whose oral testimony you plan to call at trial have filed witness statements in compliance with CPR 32.4(2). It is not maintained and is provided for background information purposes only. For guidance on interviewing witnesses and preparing them to give evidence at trial, see Practice Note: Witnesses—interviewing and preparing for trial [ Archived]. This Practice Note gives guidance on the interpretation and application of the relevant provisions of the CPR....
Amendments in force on 14 July 2017 ARCHIVED: This Practice Note has been archived and is not maintained. The European Small Claims Procedure Regulation ( EC) No 861/2007, together with Regulation ( EC) No 1896/2006 establishing a European Order for Payment Procedure, was amended by Regulation ( EU) 2015/2421. The revisions to the European small claims procedure took effect on 14 July 2017, except for Article 25, which applied from 14 January 2017 as it required Member States to provide information by 13 January 2017. This Practice Note has been revised to reflect these amendments. For details of the provisions in force from 14 July 2017, see Practice Note: European small claims procedure—from 14 July 2017 and European small claims procedure amendments—checklist [ Archived], which presents the original text alongside the updated wording. When the procedure applies EC Regulation 861/2007 applies to...
This Practice Note This Practice Note clarifies the meaning of applicable law—sometimes, depending on context, called governing law, proper law or the choice of law—namely the law applied to resolve a dispute between parties. It does not encompass procedural law. It identifies which applicable law regime operates in the courts of England and Wales ( English courts). The regime engaged will differ according to whether the dispute is contractual or non-contractual and, for contractual matters, whether the parties selected the applicable law via a choice of law (governing law) clause, including any subsequent variation of that agreement. In a world where international travel, trade and communication are routine, cross-border complications arise with ease. Parties conclude contracts daily across different countries and continents. Goods and services move across frontiers, and individuals suffer accidents outside the states where they ordinarily live and work. When a claim has a...
This Practice Note outlines the purpose and functions of sea carriage documents in relation to the delivery of cargo, with particular attention to bills of lading and sea waybills. It explains that a bill of lading may be issued as a charterers’ bill or an owner’s bill, and that such documents operate both as evidence of the contract of carriage and as security for finance. Sea carriage documents A sea carriage document is produced to obtain release of goods, either at the port of discharge or at the nominated place of delivery, depending on the form issued by the carrier to the shipper. That document will be either: a bill of lading a sea waybill For more detail on bills of lading and sea waybills, see the Practice Note: Bills of lading and sea waybills. Bill of lading A bill of lading may be: bearer bill of...
This Practice Note considers good faith in commercial agreements It explores the meaning of good faith and the degree to which it features in commercial arrangements, whether as an express commitment or as a term implied by law, including in the sphere of relational contracts. It also addresses agreements to negotiate in good faith, how other jurisdictions approach a duty of good faith, the operation of Braganza-type duties within commercial contracts, and offers drafting pointers for clauses dealing with good faith provisions. The orthodox position taken by the English courts has been to refrain from implying a general duty of good faith into commercial agreements, stating that, if parties intend to create such an obligation, it must be articulated expressly ( Mid Essex Hospital Services). Nonetheless, the courts may in some situations recognise an implied duty of good faith, either by applying the...
Practice Note This Practice Note outlines the principal features of guarantees and indemnities, the situations in which they are applied, and the matters beneficiaries and lenders ought to evaluate regarding the form of any guarantee or indemnity, including where such indemnities or guarantees are provided by either individuals or corporate bodies......
General This Practice Note summarises the restraints a franchisor will usually require of a franchisee to protect the franchisor’s business, including treatment of the franchisor’s confidential information, non-compete obligations (restrictive covenants), no-poaching clauses, severability and the enforceability of restraints, together with practical guidance on drafting restrictive covenants. It does not specifically address competition law issues—see the Practice Notes mentioned below for further detail. Granting a franchise typically involves the franchisor sharing confidential material with: actual and prospective franchisees (including unit franchisees, master franchisees and developers), and employees and agents of the franchisees Such confidential information includes the methods underpinning the franchised concept and associated know-how. Misuse by any recipient—especially where it is employed in competition with the franchisor—can be highly detrimental to the franchisor’s business. The franchisor should therefore aim to prevent recipients from disclosing the information for unauthorised purposes, including using it to...
The nature of a discretionary trust Underhill and Hayton: Law of Trusts and Trustees offers a clear account of what marks out a discretionary trust. Such a trust exists where beneficiaries’ shares are not predetermined but hinge on the use of discretionary dispositive powers held by trustees or other authorised holders. A straightforward illustration is a settlement under which assets are placed with trustees to divide the income among such of A’s children and grandchildren as they consider appropriate. Less intuitively, the label also applies where beneficiaries hold fixed distributive rights that can nevertheless be defeated if a power is exercised to appoint the property to another person (see Underhill and Hayton— Fixed and discretionary trusts [5.5]). In a discretionary trust, the trustees are empowered to pay or apply income, capital, or both, to or for the benefit of all, or any one or more, to the...
Cy-près definition In situations where a clear charitable intention is articulated, but it will not potentially fail because the chosen mode cannot be carried out, the cy-près doctrine permits another means to be adopted that is the closest possible to the donor’s specified method, which is why the doctrine bears its name. The cy-près doctrine now has a partial statutory basis in Part 6 of the Charities Act 2011 ( CA 2011). This note preserves much of the pre‑2011 material. A separate Practice Note deals with charitable schemes, including cy-près schemes, established under CA 2011, s 67......
It will hardly surprise practitioners that their older clients are the most vulnerable to financial abuse. Frequently, the wrongdoing is not uncovered or detected until after it has occurred. Whether any redress is available after the event largely depends on the nature of the fraudulent conduct that has been carried out. Accordingly, the principal bases under which a claim may properly be advanced are: common law fraud, sometimes referred to as the law of deceit equitable fraud — breach of fiduciary duty where one party assumes responsibility for the property and affairs of another undue influence where the advantage to one party is entirely out of proportion to the consideration given mistake the liability of third parties Once it is established that the client falls within one of these categories, there are several potential remedies that can be pursued...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) CIGA 2020 emerged as part of the government’s measures addressing the economic shock of the coronavirus ( COVID-19) crisis. Alongside other changes, it added fresh provisions to the Insolvency Act 1986 ( IA 1986), aimed at keeping supplies flowing to companies facing financial distress and finding it hard to pay their supplier, and at curbing the exercise of certain contractual rights in agreements for the sale and supply of goods when insolvency occurs. CIGA 2020 carries notable consequences for the construction sector. The rules most likely to affect participants in construction contracts are the limits on a supplier’s ability to terminate, or to do ‘any other thing’, where the customer has become insolvent, under IA 1986, s 233B (brought in by CIGA 2020, s 14). Within a construction setting, the customer for these CIGA 2020 rules will be...
Background The Mental Capacity Act 2005 ( MCA 2005), together with its Code of Practice (the Code), makes provision for advance decisions. Although numerous cases and judgments had addressed such decisions, MCA 2005 represents an effort to draw together the common law rules and place them within a clear legislative framework. The relevant parts of MCA 2005 are sections 24–26, and these are to be read alongside, and in conjunction with, Chapter 9 of the Code. An advance decision is a declaration by a person, made while they have capacity, about choices of a medical nature that may need to be taken if, at a later stage, they do not have capacity. The common law has long accepted that an individual enjoys complete freedom to decide in advance whether to accept or refuse medical treatment, and any declaration to that effect used to be...
Nature of duties The distinction between a duty and a power is clear: performing a duty is mandatory, whereas powers are, to varying extents, matters of discretion. A trustee’s obligations to a beneficiary are fiduciary in character. Ordinarily, the court will not force a trustee to exercise a mere power against their wishes; however, it will require the performance of powers attached to a trust that possess the nature of a trust or obligation, as recognised in Mc Phail v Doulton: ‘ Where duty and power are coupled the court can compel the trustees to perform the duty.’ A trustee who does not fulfil their duties commits a breach of trust. Trust property The common law duty A trustee must enquire into the trust property, take control of it, and then ensure its preservation: where there are multiple trustees, title to trust property must be in the joint names of them...
Pool Reinsurance Company Limited (also known as ' Pool Re') Formed in 1993 after a spate of terrorist attacks in the early 1990s across London and elsewhere in England connected to the situation in Northern Ireland, Pool Re arose when the scale of losses exposed how hard it was to insure commercial property against terrorism. Potentially vast claims and the absence of any reliable way to predict future losses meant traditional solutions failed. As insurers relied on reinsurers to shoulder exceptionally large claims, both sides concluded they could no longer offer terrorism cover through conventional means. Pool Re is a mutual reinsurer, funded and owned by the vast majority of insurers and Lloyd’s Syndicates that underwrite UK commercial property. The scheme benefits from a government guarantee that will meet claims if the pooled fund is exhausted, reviewed every five years; HM Treasury extended this in March 2022 for a...
This Practice Note is aimed at real estate practitioners. It sets out the fundamentals of liquidation and highlights the principal provisions that contracts for the sale of land should include where the seller is in liquidation. Liquidation, also known as winding up, is the means by which a company is brought to a close. When a company enters liquidation its business comes to an end, though it may need to continue briefly as part of the winding-up process (eg to enforce any valuable contracts). During that process, the company’s assets are realised and the proceeds are distributed to those entitled......
Agricultural Holdings Act 1986 Under the Agricultural Holdings Act 1986 ( AHA 1986), either party—the landlord or the tenant—may require that the ‘rent properly payable’ for the holding ‘from the next termination date’ be fixed by arbitration or by a third party. The ‘next termination date’ is the earliest point at which the tenancy could have been brought to an end by a notice to quit served on the date of the demand. In practice, this is the first anniversary of the term date falling not less than 12 months after the rent review demand. As framed, this statutory mechanism cannot be used to force a rent review for a fixed term tenancy, because only yearly tenancies are capable of determination by notice to quit (this includes fixed terms that have continued under AHA 1986, s 2 once the fixed period has...
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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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