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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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Unlike maintained schools, academies and free schools receive their funding straight from the Department for Education ( Df E), rather than from or through the local authority for the area in which they are based. This central government money is managed on the Df E’s behalf by the Education and Skills Funding Agency ( ESFA). Note: there are no academies in Wales. While the Academies Act 2010 ( Ac A 2010) does extend to Wales, the sections allowing the establishment and financing of new academies apply solely in England......
Chairing meetings If the chairman of a local authority meeting (also known as the mayor or maer in a city or borough council without a directly elected mayor) is in attendance, they are required to take the chair. Where the chairman is absent from a full council meeting, the vice-chairman will preside or, if they too are not present, another councillor selected by those in attendance will take the chair. In these circumstances, a Cabinet member is not eligible to preside. For parish and community councils, the chairman or vice-chairman must chair the meeting and, if both are away, any councillor chosen by the members present may do so. At parish meetings where the parish has a separate council, the chairman of that council must preside or, if unavailable, the vice-chairman of that council. Where there is no separate parish council, the chairman of the...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note applies solely to England. There are no free schools in Wales. Although the Academies Act 2010 ( Ac A 2010) does extend to Wales, the provisions on creating and funding new free schools operate only in England. This category of independent school was introduced in 2010 as a new type. Free schools are technically defined as independent schools; however, the independence in question is from the local authority of the area in which they sit, not from the state itself. Free schools are funded and regulated by the Department for Education ( Df E). Free schools and academies In legal terms, free schools are academies created or operated under the Ac A 2010. A practical distinction is that academies commonly began, when first established, by replacing earlier maintained schools, usually in the same...
The constitutions of maintained schools This Practice Note sets out how governing bodies for maintained schools in England are formed and how their composition is fixed by reference to the instrument of government. It also outlines governors’ powers and responsibilities, as well as the processes for their appointment and removal. In Wales, governance operates under a regime closely aligned with that in England. Every maintained school in England, including each maintained nursery school, has a governing body that stands as a statutory corporation. The make-up of that governing body is prescribed by its instrument of government, which records, among other matters, the school’s name, its category (eg voluntary aided or community), and the number of each class of school governor who will constitute the governing body. Under the School Governance ( Constitution) ( England) Regulations 2012, SI 2012/1034, the instrument of government is drafted by the...
This Practice Note This Practice Note concerns the public’s legal entitlement to use vehicles, to ride a horse, or to drive animals along most highways. It outlines that the commonest ways of categorising highways are by the traffic allowed (for example, a footpath or bridleway) and by the maintaining authority (for example, a classified road or GLA road). It also provides an alphabetical list with descriptions of the principal highway types in England and Wales. The essential public right over a highway is for any person to pass and re‑pass along its length. On the majority of highways—though not every one—there is, in addition, a lawful right to use vehicular transport and/or to ride a horse and/or to drive animals from one place to another. The most usual classifications of highways into types are by permitted traffic and by maintenance authority. The...
This Practice Note discusses the common law on highway diversions It sets out that the essential feature is movement from A to B, rather than the specific parcel of land over which the right of way is believed to lie, and it also covers highway closure brought about by natural forces. It further explains that where a highway on or close to the coast is destroyed by incursions from the sea, the courts will not require the authority charged with its maintenance to reinstate it to a serviceable condition. While the common law acknowledges the force of the maxim ‘once a highway, always a highway’, there are, inevitably, some exceptions. In R v Secretary of State for the Environment, ex p Burrows; R v Secretary of State for the Environment, ex p Simms, Purchas LJ observed: ‘ At common law the rule was and...
This Practice Note This Practice Note sets out that determining a highway’s breadth is essentially a matter of fact. Under the common law, there must be evidence amounting to proof of the least width needed to accommodate the traffic entitled to use it. If such proof is absent, the Highways Act 1980 ( Hi A 1980) specifies minimum and maximum widths as defaults. The Note also outlines the various kinds of boundaries, explaining that there is frequently physical indication of a highway’s lateral limits, yet each instance turns on its own facts. It further notes that, under the Hi A 1980, highway authorities may widen a highway, or build fresh bridges or footbridges. Historically, the breadth of a highway seldom gave rise to dispute. The highway right was (and remains) a right to pass and re-pass; a right to travel from A to B......
At common law, highway ferries fall into two types, identified by the routes they take. One type operates between towns or to a specified island, while the more usual type links two named highways, each situated on opposite sides of a body of water. The Highways Act 1980 ( Hi A 1980) deliberately leaves ferries outside the statutory definition of a highway, yet the common law regards them as comparable to highways, carrying particular rights and obligations. What sets a ferry apart from other forms of highway is: a ferry is a franchise vested in an individual or a corporation the power to operate a ferry carries both privileges and duties the ability to use a ferry is qualified and limited A ferry as a franchise The general principle is that anyone with a boat may transport a passenger across a navigable river; however, that principle yields where such use of a...
This Practice Note describes the: the creation of new highways which, once properly built, are intended to be maintained at the public expense the adoption by a highway authority of an existing route, so that it becomes a highway maintainable at the public expense The legal mechanisms for creating a new highway are set out in Practice Note: Creation of highways without express agreement. The obligation to maintain a highway is a distinct issue. Often, an owner will be content to dedicate a road for public use, but will expect the local authority to take on its future upkeep; otherwise, the maintenance liability remains with the landowner. A way becomes a highway maintainable at the public expense in three principal ways: through a procedure started by the landowner through a procedure started by the highway authority by mutual...
FORTHCOMING DEVELOPMENT: On 11 February 2019, the Department for Work and Pensions ( DWP) issued its response to the consultation ‘ Protecting Defined Benefit Pension Schemes— A Stronger Pensions Regulator’, which followed the government’s White Paper ‘ Protection Defined Benefit Pension Schemes’ (19 March 2018). Among other measures, the government proposed working with TPR and the PPF to convert the FSD procedure into a single-stage approach, under which the Determinations Panel would impose a specified form and amount of enforceable financial support on a target. It also confirmed the regime would be retitled Financial Support Notice ( FSN). The regime’s reach would be widened to include individual controlling shareholders of the sponsoring employer. The government would likewise pursue the plan to broaden the potential targets of FSD enforcement activity to ensure pension promises are fulfilled. In addition, it signalled an intention to replace the...
FORTHCOMING CHANGE : The Pension Schemes Bill, anticipated to obtain Royal Assent in 2026, among other measures, would confer on the Pensions Ombudsman powers mirroring those of a competent court where pension overpayments must be recouped. As a result, trustees would no longer need to seek County Court orders in these matters, thereby cutting legal spend, easing administrative effort and promoting a swifter, more streamlined recovery for schemes and members, and ensuring a more efficient process overall. For more detail, see LNB News 05/06/2025 42 and Pension Schemes Bill—tracker — Pensions Ombudsman and overpayments. This Practice Note reviews the scope of the Pensions Ombudsman to handle occupational and personal pension complaints and disputes under its adjudication function, covering: who may bring or refer complaints/disputes which complaints/disputes fall within or outside its remit the powers he can exercise when determining...
This practice note applies to defined benefit occupational pension schemes. What is the employer covenant? Traditionally, within the context of a defined benefit ( DB) occupational pension scheme, the expression ‘employer covenant’ has been taken to cover: the employer’s legal commitments to underpin and sustain the scheme; and its financial capacity to honour those legal commitments in support of the scheme. A statutory definition did not emerge until the Occupational Pension Schemes ( Funding and Investment Strategy and Amendment) Regulations, SI 2024/462 (the Funding and Investment Strategy Regulations 2024). That definition comprises two limbs: the first mirrors the established understanding set out above, while the second goes further by recognising the backing available from contingent assets......
Section 31 of the Senior Courts Act 1981 ( SCA 1981) Section 31 of the Senior Courts Act 1981 ( SCA 1981) sets out the statutory scheme for judicial review. It is not an exhaustive catalogue of powers, and case law can identify or clarify how inherent powers operate in practice (for example, when the High Court will grant bail). The routes and rules for judicial review in the Administrative Court—a specialist ‘list’ within the Queen’s Bench Division of the High Court—are prescribed by the Civil Procedure Rules 1998 ( CPR). CPR 54 and CPR PD 54A address judicial review specifically. From 14 July 2022, fresh remedial powers appear in SCA 1981, s 29A, introduced by the Judicial Review and Courts Act 2022. This discretionary jurisdiction permits the court to make suspended and prospective-only quashing orders. Debate about these powers emerged alongside...
Practice Note This Practice Note examines the main points to consider for applications made by dependant children of individuals in work, investment and study routes. In most of these categories, dependant partners and children are permitted. However, there are notable exceptions and limitations: Youth Mobility Scheme — no provision for dependants Student, Graduate and Skilled Worker routes — subject to certain restrictions For the position in those routes, see Practice Notes: Applying under the Skilled Worker route — Dependants, Applying under the Graduate route and Student: eligibility — Dependants. Before the Rules were simplified, the provisions governing dependant partners and children within these routes appeared in Part 8 of the Immigration Rules (covering dependants of relevant Points- Based System migrants and Appendix W workers), or in Part 5 (covering dependants of individuals in other economic routes, notably UK Ancestry and...
This Practice Note introduces non-court dispute resolution ( NCDR) (previously referred to as alternative dispute resolution ( ADR)). It outlines the obligation to consider non-court ways of settling family disputes under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. This includes the duty to attend a family mediation information and assessment meeting ( MIAM) and recognition of the pre-application protocols for financial remedy and private children proceedings. It also explains when the court may adjourn proceedings to allow the parties to undertake NCDR... Pre-application requirements FPR 2010, SI 2010/2955, Pt 3, read alongside FPR 2010, PD 3A, requires all prospective applicants to attend a MIAM before issuing specified applications for a court order in relevant family proceedings, unless an exemption applies. At every stage, the court must assess whether NCDR is suitable and has a general power to adjourn so that NCDR can be...
Please note that the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Any proceedings issued by the court on or after 6 April 2022 will fall under DDSA 2020 and the procedural changes set out under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For more detail, refer to Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Proceedings begun by the court on or before 5 April 2022 will carry on under the pre- DDSA 2020 regime, regardless of submission through the digital platform or by paper forms. These applications will therefore not be affected by DDSA 2020 coming into force, nor by the resulting alterations to procedure. This document sets out the position for proceedings issued before 6 April 2022. As a result of DDSA 2020,...
This Practice Note outlines the meaning of child guardianship under section 5 of the Children Act 1989 and describes the consequences of a guardian’s appointment. It also identifies the principles a court applies when deciding whether to appoint a guardian, and considers appointments made by a parent or guardian, including how an appointment can be made and when it comes into force. In this context, a guardian is the person formally designated to step into the role of a deceased parent and may only be appointed in line with the Children Act 1989. The role is distinct from that of a special guardian under section 14A, and from a children’s guardian under section 41. the court; a parent who holds parental responsibility; an existing guardian; a special guardian. More than one individual can be appointed to act as a child’s...
This Practice Note provides guidance on jurisdiction in children proceedings, having regard to the implications of Brexit. It explains how jurisdiction is to be determined in children proceedings in the context of Brexit. It covers both the regime operating from 1 January 2021 and the arrangements that applied up to IP completion day (31 December 2020), including when transitional provisions apply. See: Jurisdiction on and after 1 January 2021 and Jurisdiction prior to IP completion day (31 December 2020) and where transitional provisions apply. It also outlines the procedure to follow when jurisdiction is in issue in children proceedings, and judicial guidance. This includes the President of the Family Division’s Guidance: Transfer of proceedings, issued on 21 January 2025, which replaces the April 2016 guidance on transfers under Article 15 of Council Regulation ( EC) No 2201/2003 of 27 November 2003...
This Practice Note This Practice Note sets out guidance on appointing a single joint expert witness in financial proceedings under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 25 and the supporting practice directions. It explains what should be weighed up before making a formal instruction, how to apply for permission, what the letter of instruction must include, and how to manage any supplementary instructions. It further outlines the general approach to expert evidence, the expected form and substance of the expert’s report, and the provisions governing meetings and discussions between experts in matters where each party has instructed their own expert......
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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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