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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 FLASHCARD supports your absorption and recall of the essential features of the regime established by the Solvency II Directive (2009/138/ EC) ( Solvency II) of this regulatory framework in outline. What is Solvency II? Solvency II is an EU legislative programme that took effect on 1 January 2016, creating a harmonised, EU-wide supervisory framework for insurers, spanning capital requirements, authorisation, corporate governance, supervisory reporting, public disclosure, and the assessment and management of risk. Directive ( EU) 2025/2, which amends Solvency II, entered into force on 28 January 2025 and must be implemented by Member States from 30 January 2027.......
EU Mi FID II & Mi FIR—third-country regime This Practice Note examines the two avenues by which third-country firms may access the EEA market, namely those set out in Article 39 of the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and in Articles 46–49 of the Markets in Financial Instruments Regulation 600/2014 ( Mi FIR). It additionally addresses (1) the rules on ‘reverse solicitation’, (2) passporting available to third–country firms, and (3) the alterations made to the third-country regime through the prudential framework for investment firms, comprising Regulation ( EU) 2019/2033 ( IFR) and Directive ( EU) 2019/2034 ( IFD). Background to Mi FID II & Mi FIR third-country regime The recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) and the Markets in Financial Instruments Regulation 600/2014 ( Mi FIR) came into force on 2 July 2014 and, with...
ARCHIVED : This Practice Note has been archived and is not maintained . In the EEA, the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), collectively the EU Mi FID II framework, set out the rules for delivering investment services and activities across the EEA. The framework applies to investment firms, regulated markets and credit institutions that provide investment services, and it also captures data reporting service providers within its scope. Most of the Mi FID II and Mi FIR provisions took effect on 3 January 2018. For further detail on Mi FID II and Mi FIR, see Practice Note: EU Mi FID II and Mi FIR—essentials. The framework built in a compulsory review to evaluate the regime’s overall performance after two years of...
This FLASHCARD outlines the instruments that fall within the EU Market Abuse Regulation ( Regulation ( EU) 596/2014) Categories of instrument within the scope of the EU Market Abuse Regulation Four categories fall within scope: traded financial instruments emission allowances and related auctioned products commodity derivatives and related spot commodity contracts benchmarks Additionally, the EU Market Abuse Regulation covers certain off‑trading venue activities. Traded financial instruments The Regulation applies to: financial instruments admitted to trading on an EU‑regulated market, or where an application for admission to trading has been made financial instruments traded on an EU multilateral trading facility ( MTF), admitted to trading on an EU MTF, or where an application for admission to an EU MTF has been made financial instruments traded on an EU organised trading facility ( OTF) other financial instruments whose price or value depends on, or...
This Practice Note outlines the data reporting services providers ( DRSPs) framework introduced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( EU Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( EU Mi FIR). It provides a synopsis of the obligations for approved publication arrangements ( APAs), consolidated tape providers ( CTPs) and approved reporting mechanisms ( ARMs), which are integral to the pre- and post-trade transparency and transaction reporting regimes under EU Mi FIR, and flags the principal updates to the DRSP regime made by Regulation ( EU) 2024/791 (the Mi FIR Review)... Regulatory overview EU Mi FIR requires investment firms, including systematic internalisers ( SIs), to make post-trade information public through an approved publication arrangement ( APA). An APA is a person authorised under EU Mi FIR to provide the service of...
This Practice Note sets out a summary of the European Social Entrepreneurship Funds ( Eu SEF) Regulation ( EU) 346/2013 (the Eu SEF Regulation), as subsequently amended by Regulation ( EU) 2017/1991, Regulation ( EU) 2019/1156 and Regulation ( EU) 2023/2869. It establishes a dedicated alternative investment fund ( AIF) framework, open to alternative investment fund managers ( AIFMs) under the Alternative Investment Fund Managers Directive (2011/61/ EU) ( AIFMD). AIFMs that run qualifying social entrepreneurship funds ( QSEFs) can opt to apply the ' Eu SEF' label to such funds and, using the Eu SEF marketing passport, promote them across the EU to professional investors and specified high net-worth investors. Objective of the Eu SEF Regulation The Eu SEF Regulation seeks to simplify how social enterprises secure financing throughout the EU as a whole. This overarching purpose closely mirrors the EU’s Europe 2020 agenda for...
Trading obligation for derivatives under the Markets in Financial Instruments Regulation ( EU) 600/2014 ( EU Mi FIR) This Practice Note outlines the derivatives trading obligation under EU Mi FIR, alongside the recast Markets in Financial Instruments Directive 2014/65/ EU ( EU Mi FID II), which came into force on 3 January 2018, and considers: the regulatory framework underpinning the trading obligation, the categories of in-scope counterparties (specified financial counterparties and certain non-financial counterparties), the prerequisite that any derivative deemed subject to the trading obligation must already be within the clearing obligation under the European Market Infrastructure Regulation ( EU) 648/2012 ( EU EMIR), the derivative types that fall under the trading obligation, the approach to package orders or transactions, the exemption available for post-trade risk reduction services, the recognised trading venues on which these derivatives must be executed (regulated markets, multilateral trading facilities ( MTFs), organised trading...
This Practice Note summarises how firms should structure their organisations in line with Article 16 of the Markets in Financial Instruments Directive ( Directive 2014/65/ EU), together with the pertinent level 2 measures: Commission Delegated Regulation ( EU) 2017/565 (the Mi FID II Delegated Regulation) and Commission Delegated Directive ( EU) 2017/593 (the Mi FID II Delegated Directive). Background to Mi FID II and organisational requirements The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II), alongside the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), entered into force on 2 July 2014. The bulk of Mi FID II and Mi FIR provisions (together, the Mi FID II framework) began to apply on 3 January 2018. This framework revised the Mi FID I ( Directive 2004/39/ EC) organisational requirements for firms, widening and...
This Practice Note outlines the corporate governance obligations under the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) that apply to investment firms and their management bodies, as set out in Article 9 of Mi FID II and Articles 88 and 91 of the Capital Requirements Directive ( Directive 2013/36/ EU) ( CRD IV). It also addresses the pertinent delegated acts adopted by the European Commission and the guidelines issued by the European Supervisory Authorities ( ESAs). It should be considered alongside the Practice Notes: EU Mi FID II conduct of business and investor protection requirements, EU Mi FID II organisational requirements, and EU Mi FID II product governance requirements, which together explain how a firm should manage itself and its operations. Background to Mi FID II Following the 2008 financial crisis, the European Commission reviewed the Markets in...
Position limits under Article 57 of Mi FID II This Practice Note explains position limits under Article 57 of the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and how they operate for commodity derivatives, or derivatives with a commodity as the underlying, in line with Commission Delegated Regulation ( EU) 2022/1302 of 20 April 2022 ( RTS 21a), as applicable. It also summarises the changes introduced by Directive 2021/338—including the expansion of available exemptions from position limits under Article 57—and the revisions made by Directive ( EU) 2024/790 (the Mi FID II Review) to obligations on position management controls; see Position management controls. The Mi FID II Review, together with Regulation ( EU) 2024/791 amending Regulation ( EU) 600/2014 (the Mi FIR Review), was published in the Official Journal of the EU on 8 March 2024. Member States must...
What is the EU Mi FID II framework? The recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II) alongside the Markets in Financial Instruments Regulation ( EU) 600/2014 ( Mi FIR) took legal effect on 2 July 2014, and the majority of their provisions (collectively referred to as the EU Mi FID II framework) came into application on 3 January 2018. This framework is buttressed by a suite of level 2 and level 3 measures developed under the Lamfalussy process, comprising delegated acts, technical standards, guidance and Q& A documents. Further detail is available in Practice Notes: EU Mi FID II and Mi FIR level 2 measures, and EU Mi FID II and Mi FIR level 3 measures. For an article-by-article guide to Mi FID II and Mi FIR that identifies the level 2 and level 3 measures applicable to each article, consult...
Introduction to the Mi FID II level 2 and level 3 roadmap The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU ( Mi FID II)) and the Markets in Financial Instruments Regulation ( Regulation 600/2014 ( Mi FIR)) were published in the Official Journal of the EU on 12 June 2014 and entered into force on 2 July 2014. Mi FID II and Mi FIR significantly reshaped and broadened the regulatory framework that had been established by the Markets in Financial Instruments Directive 2004/39/ EC ( Mi FID I). As amended, the majority of the Directive and the Regulation began to apply on 3 January 2018, and EU Member States had until 3 July 2017 to transpose Mi FID II into domestic law. Following the Mi FID II/ Mi FIR review, the Official Journal of the EU on 8 March 2024 set out...
Introduction to the Mi FIR level 2 and level 3 roadmap The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) appeared in the Official Journal of the European Union on 12 June 2014 and took effect on 2 July 2014. Mi FID II and Mi FIR materially overhauled and broadened the regulatory framework first set by the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID I). As revised, most provisions of the Directive and the Regulation became applicable on 3 January 2018. EU Member States were given until 3 July 2017 to transpose Mi FID II into their national legislation, whereas Mi FIR applies directly in Member States. On 8 March 2024, Regulation ( EU) 2024/791 amending Mi FIR and...
The purpose of this Practice Note This Practice Note closely monitors the progress of the level 2 measures that the European Commission is required to adopt in connection with the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) (together, the EU Mi FID II framework), and also tracks amendments to those level 2 measures. Mi FID II and Mi FIR took effect on 3 January 2018, and significantly revised and broadened the regulatory regime first introduced by the original Markets in Financial Instruments Directive (2004/39/ EC) ( Mi FID). For further detail and background on the EU Mi FID II framework, see Practice Notes: EU Mi FID II and Mi FIR—essentials and EU Mi FID II and Mi FIR—one minute guide. ESMA’s...
This document is archived and will no longer be updated. For information on EU EMIR, please see Practice Note: EU Mi FID II and Mi FIR—essentials and the EU Markets in Financial Instruments Directive ( Mi FID II) and Markets in Financial Instruments Regulation ( Mi FIR)—timeline. Introduction to the Mi FIR level 1 roadmap The recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II), together with the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), was published in the Official Journal of the European Union on 12 June 2014 and came into force on 2 July 2014. Taken as a package, Mi FID II and Mi FIR substantially revised and enlarged the regulatory framework first created by the Markets in Financial Instruments Directive ( Directive 2004/39/ EC) ( Mi FID I). As amended, the bulk of the new...
This document is archived and will not be updated. For details on Mi FID II, see Practice Note: EU Mi FID II and Mi FIR—essentials and the EU Markets in Financial Instruments Directive ( Mi FID II) and Markets in Financial Instruments Regulation ( Mi FIR)—timeline. Introduction to the Mi FID II level 1 roadmap The recast Markets in Financial Instruments Directive (2014/65/ EU) ( Mi FID II) together with the Markets in Financial Instruments Regulation (600/2014) ( Mi FIR) were published in the Official Journal of the European Union ( EU) on 12 June 2014 and entered into force on 2 July 2014. Collectively, Mi FID II and Mi FIR substantially revised and expanded the regulatory framework first set by the Markets in Financial Instruments Directive (2004/39/ EC) ( Mi FID I). As amended, most provisions of the updated Directive and...
EU MIFID II & MIFIR— Transaction Reporting This Practice Note examines the transaction reporting framework established by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) alongside the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR). The objective of that framework is to enable competent authorities to identify and investigate suspected market abuse, and to supervise the fair and orderly functioning of markets as well as the activities of investment firms. Regulation ( EU) 2024/791 (the Mi FIR Review) was published in the Official Journal of the EU on 8 March 2024 and brings amendments to the transaction reporting framework. The Mi FIR Review entered into force on 28 March 2024 but—as outlined in Date of application of certain provisions of the Mi FIR Review below—specific Mi FIR provisions amended by the Mi FIR...
This Practice Note sets out how firms ought to run their affairs under the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the associated level 2 measures, such as Commission Delegated Regulation ( EU) 2017/565 (the Mi FID II Delegated Regulation) and Commission Delegated Directive 2017/593/ EU (the Mi FID II Delegated Directive). It further outlines amendments to Mi FID II conduct of business and investor protection rules introduced by Directive ( EU) 2024/2811 (the Listing Act). Background to Mi FID II and conduct of business requirements Mi FID II and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR) took effect on 2 July 2014, with most provisions across Mi FID II and Mi FIR (collectively, the Mi FID II framework) applying from 3 January 2018. When delivering investment services or, where...
This Practice Note sets out the obligations introduced by the Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) for investment firms and trading venues in relation to algorithmic and high-frequency trading ( HFT), market making, direct electronic access ( DEA) and tick sizes. It summarises level 1 legislation together with the relevant level 2 provisions and level 3 guidance. It also draws attention to changes made by Directive ( EU) 2024/790 (the Mi FID II Review) and Regulation ( EU) 2024/791 (the Mi FIR Review). Among other measures, Mi FID II requires firms and trading venues to put in place effective systems and risk controls, and to ensure trading systems are resilient and have adequate capacity. Overview of Mi FID II and microstructural issues Mi FID II and the Markets in Financial Instruments Regulation ( Regulation 600/2014) ( Mi FIR) were...
Introduction to MIFID II and Mi FIR Level 1 Glossary Arranged alphabetically, this glossary presents every term defined in the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) and the Markets in Financial Instruments Regulation ( Regulation ( EU) 600/2014) ( Mi FIR), as amended, providing definitions and citing where those terms are set out in Mi FID II and Mi FIR. It also reflects definitions revised by Regulation ( EU) 2024/791 (the Mi FIR Review) or Directive ( EU) 2024/790 (the Mi FID II Review). For further information on Mi FID II, see Practice Notes: EU Mi FID II and Mi FIR—essentials and EU Mi FID II and Mi FIR—one minute guide. Term • Definition • Source reference A Actionable indication of interest – a communication sent by one member or participant to another within a trading system about...
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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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