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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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Directive ( EU) 2019/882, also known as the European Accessibility Act (the EAA) Adopted across the EU in April 2019, this is a significant piece of legislation shaped by a marketplace increasingly seeking accessible products and services, and by a rising number of citizens with disabilities—a consequence of longer life spans. The EAA is grounded in the UN Convention on the Rights of Persons with Disabilities ( UNCRPD), the first international, legally binding instrument to set minimum standards for the rights of disabled people. It sits within the Strategy for the Rights of Persons with Disabilities 2021–2030, which seeks to enhance the lives of persons with disabilities in Europe and worldwide, building on the European Disability Strategy 2010–2020. The EAA was initially proposed to complement Directive ( EU) 2016/2102, the EU Web Accessibility (adopted in 2016 to make...
This Practice Note sets out when a prospectus is needed under Regulation ( EU) 2017/1129 (the EU Prospectus Regulation), with a particular emphasis on debt securities. It also provides a Checklist to support advisers on debt offerings in assessing whether a prospectus must be prepared for a transaction under the EU Prospectus Regulation. The EU Prospectus regime: background and legislation package The EU Prospectus Regulation appeared in the Official Journal of the EU on 30 June 2017, with all provisions taking effect from 21 July 2019. While it establishes the core framework, it is complemented by level 2 technical measures ( Commission Delegated Regulations containing detailed disclosure annexes for various categories of issuers and securities) and ESMA level 3 guidelines, technical advice and Q& As. EU Listing Act Regulation ( EU) 2024/2809 (the Amending Regulation), forming part of the EU Listing Act package, was...
Short selling: the two key types Regulation ( EU) 236/2012 (the EU Short Selling Regulation) took effect on 25 March 2012 and has applied since 1 November 2012. Article 2 of the EU Short Selling Regulation provides the definition of short selling. In simple terms, it is a method where a trader arranges to sell a security they do not own. The trader’s goal is to profit by selling short initially and, later, repurchasing the security at a lower price so it can be returned to the original holder. Short selling is present in cash equity markets, and there are derivative approaches that replicate a short position. For example, a trader can take a short view via index futures, options, and spread bets. In summary, there are two forms of short selling: covered short selling – this is where a short seller borrows shares from a...
Adoption of MLD5 The Fifth Money Laundering Directive ( EU) 2018/843 ( MLD5), which updates the Fourth Money Laundering Directive ( EU) 2015/849 ( MLD4), appeared in the Official Journal of the EU on 19 June 2018 and came into force on 9 July 2018. Member States had to transpose MLD5 into domestic law by 10 January 2020. This Practice Note summarises the principal provisions of MLD5. MLD4, as revised by MLD5, has been brought into effect in the UK through the Money Laundering, Terrorist Financing and Transfer of Funds ( Information on the Payer) Regulations 2017, SI 2017/692 (the MLRs); see Practice Note: The Money Laundering Regulations 2017 ( MLRs)—essentials for financial services. The EU and UK anti-money laundering ( AML) and counter-terrorist financing ( CTF) frameworks under MLD4, as amended, have undergone reform. These developments can be followed in AML/ CTF/...
ARCHIVED : This Practice Note has been archived and is no longer maintained. The EU’s Recast Second Wire Transfer Regulation ( EU) 2023/1113 ( Recast WTR2) overhauls and supersedes the EU’s Second Wire Transfer Regulation ( EU) 2015/847 ( EU WTR2). It came into force on 9 June 2023 and will apply from 30 December 2024. For details, see Practice Notes: EU Recast Second Wire Transfer Regulation ( Recast WTR2)—transfers of funds and EU Recast Second Wire Transfer Regulation ( Recast WTR2)—cryptoasset transfers. The EU’s Second Wire Transfer Regulation ( EU) 2015/847 ( EU WTR2), otherwise referred to as the Second Funds Transfer (or Transfer of Funds) Regulation ( EU FTR2), came into force on 26 June 2017, alongside the Fourth Money Laundering Directive ( EU) 2015/849 ( MLD4). Together, MLD4 and EU WTR2 revised and sought to bolster the EU’s anti-money...
What is a credit rating agency methodology? A credit rating agency ( CRA) methodology is the set of practices, procedures and rules a CRA applies when assigning or updating a credit rating. CRAs issue three main types of ratings: ratings of corporates ratings of sovereigns ratings of securities issued in a securitisation or similar transaction (structured securities) where a special purpose vehicle ( SPV) holds a pool of underlying assets, and payments to holders of the structured securities depend on cash flows generated by those assets A corporate or sovereign rating is typically derived from analysis of: the creditworthiness of the entity before any external support any external support that could be available to the entity if it encounters financial difficulties the particular financial instruments being rated A rating of structured securities is usually based on analysis of: the credit...
EU Short Selling Regulation—background and purpose Regulation ( EU) 236/2012 (the EU Short Selling Regulation) took effect on 25 March 2012, with its provisions applying from 1 November 2012. It creates a harmonised regime for requirements and supervisory powers covering short selling and credit default swaps ( CDS), promoting greater alignment across Member States in both the drafting of short selling rules and the circumstances in which emergency action should be triggered. Boost transparency around investors’ short positions in specified EU securities; Equip Member States with explicit powers to act in exceptional circumstances to curb systemic risk and threats to financial stability and market confidence linked to short selling and CDS; Foster coordination between Member States and the European Securities and Markets Authority ( ESMA) in exceptional situations; Limit settlement risk and other dangers associated with uncovered (‘naked’) short...
This Practice Note analyses the disclosure and reporting duties under the Alternative Investment Fund Managers Directive ( Directive 2011/61/ EU) ( AIFMD). It covers continuing investor notifications by alternative investment fund managers ( AIFMs), the drafting of annual reports for alternative investment funds ( AIFs), and supervisory reporting and disclosure to competent authorities. It further considers the added disclosure obligations for AIFMs running leveraged AIFs and those managing private equity funds ( AIFs that obtain control of non-listed companies), together with AIFMD measures aimed at preventing asset stripping... What is the AIFMD? The AIFMD ( Directive 2011/61/ EU) took effect across EU Member States on 22 July 2013 and governs the management, administration and marketing of AIFs throughout the EU. As implemented, it applies to every EU AIFM that manages one or more AIFs, whether those funds are EU AIFs or non- EU AIFs. In EU...
Orphan medicinal products ( OMPs) Orphan medicinal products ( OMPs) are medicines intended to prevent, diagnose or treat rare medical disorders and conditions. Because patient numbers are extremely small, and in the absence of incentives, pharmaceutical firms may doubt whether sales would ever cover the research and development ( R& D) costs of creating medical products to diagnose, prevent and treat such rare diseases. In EU law, ‘rare’ means affecting fewer than five in 10,000 people across the EU. Yet most rare diseases impact fewer than one in 100,000 individuals. Although each rare disease is uncommon, they carry notable public health significance and enduring relevance. It is estimated there are more than 6,000 rare diseases; thus, while each is infrequent, together they account for a substantial patient population, in aggregate roughly one in every 12 people in the EU (all rare diseases...
This Practice Note covers: what cultural awareness means and why it matters at work the importance of cultural diversity in workplaces how organisations can show and build cultural awareness at work the risks of lacking cultural awareness in the workplace ways to engage colleagues from varied cultural backgrounds key areas or skills individuals should develop to enhance cultural awareness top tips for managers leading a multi-cultural team Cultural awareness Defining culture is not straightforward. In general, it reflects distinctive patterns of thinking, feeling and behaving, commonly shaped by four sources: family influences schooling and education experiences in the workplace wider life experiences These thoughts and behaviours are acquired, refined and reinforced across our lives, and each culture carries its own norms. Avoid the pitfall of stereotyping cultures. Although people may share...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note outlines the principal changes to the Criminal Procedure Rules 2020, SI 2020/759 ( Crim PR) made by the Criminal Procedure ( Amendment) Rules 2024, SI 2024/62, which came into force on 1 April 2024. The amendments comprise: extending live link direction provisions to extradition proceedings; additional and revised rules for correcting court records; re-drafted confiscation rules, including new provisions to meet requirements imposed by the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023); amended rules on cost orders in restraint proceedings; and updated rules on disclosure management, witness companions, and applications to vary conditions of pre-charge bail. Live links In August 2022, the Criminal Procedure ( Amendment No 2) Rules 2022, SI 2022/815, introduced various provisions supplementing statutory powers in the Police, Crime,...
Key dates On 6 June 2019, the European Council approved Directive ( EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019, known as the Restructuring and Second Chance Directive. It covers preventive restructuring frameworks, discharge of debt and disqualifications, and seeks to improve the efficiency of procedures on restructuring, insolvency and debt discharge, amending Directive ( EU) 2017/1132. The Directive became effective on 17 July 2019 (20 days after its publication in the Official Journal on 26 June 2019) and Member States had to implement it by 17 July 2021 (within two years of commencement; see: LNB News 26/06/2019 67 and LNB News 06/06/2019 70). Obligations to use electronic communications (see Articles 28 and 34.1) apply as follows: Filing of claims — compliance required by 17 July 2024 Submission of restructuring or repayment plans — compliance required by 17 July 2024 ...
UK status From 31 January 2020 (exit day), the UK is no longer an EU Member State. Under the Withdrawal Agreement there was an implementation period during which EU law continued to apply. From 1 January 2021, however, the key operative aspects of Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19)—the Recast Regulation on Insolvency—on automatic recognition no longer apply to the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency). Other Member States still give effect to the EU Recast Regulation on Insolvency where its conditions are met, and this note examines how it functions between those Member States. EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency brought substantial reforms to the EC Regulation on Insolvency, Regulation ( EC) 1346/2000. For the complete text of the EU Recast Regulation on Insolvency, click here. Although the EU Recast...
UK status From exit day, 31 January 2020, the UK ceased to be an EU Member State. Under the Withdrawal Agreement there followed an implementation period, during which EU law continued to apply to the UK. From 1 January 2021, however, the core provisions on automatic recognition in Regulation ( EU) 2015/848 ( OJ L 141, 5.6.2015, p. 19), the Recast Regulation on Insolvency ( EU Recast Regulation on Insolvency), no longer apply in the UK (see Practice Note: Brexit—impact on Recast Regulation on Insolvency). Other Member States nonetheless still apply the EU Recast Regulation on Insolvency where its conditions are met, and this Practice Note considers how it operates between those Member States... EU Recast Regulation on Insolvency The EU Recast Regulation on Insolvency introduced significant reforms to the EC Regulation on Insolvency, Regulation ( EC) 1346/2000 ( EC Regulation on...
This Practice Note offers a concise overview of the matters that warrant attention at the outset of a dispute, including: Is there a dispute resolution procedure or clause? Assess whether a specified dispute resolution mechanism or clause governs the issue at hand. Where one applies, reflect on: the procedural steps and conditions stipulated by the clause the governing law applicable to that clause the forum with jurisdiction over the dispute (and whether that forum is in fact a court) Where proceedings are commenced in defiance of an arbitration clause, the court must stay the claim. Mediation provisions, if expressed with sufficient certainty, must likewise be honoured, and non-compliance may attract an adverse costs order. If a mediation or other dispute resolution clause exists and has not been observed, the court will generally pause any action to enable the parties to fulfil their...
What are insurance-linked securities? Insurance-linked securities ( ILS) serve as a risk management tool for insurers and reinsurers. Insurers typically handle their risk exposure by arranging structures whereby: the insurer keeps its primary obligation to its policy holders, while another entity receives sums reflecting a portion of the premia paid by policy holders to the insurer, and must pay the insurer amounts mirroring an agreed share of the losses the insurer suffers Under this structure, amounts linked to premia and to covered losses are apportioned to an agreed ratio, while the insurer’s duties to policy holders remain unaffected. This practice is also known as risk mitigation or risk transfer. The predominant method of insurance risk management is reinsurance, in which the insurer...
EU EMIR REFIT Regulation ( EU) 2019/834 ( EU EMIR REFIT) was published in the Official Journal of the EU on 28 May 2019 and takes effect from dates starting 17 June 2019. Regulation ( EU) 2019/2099 ( EU EMIR 2.2) appeared in the Official Journal on 12 December 2019 and applies from 1 January 2020. This Practice Note outlines the amendments to Regulation ( EU) 648/2012 ( EU EMIR) made by EU EMIR REFIT and EU EMIR 2.2. For current EU EMIR materials, see: EU EMIR—essentials, EU EMIR—one minute guide, EU EMIR—level 2 and level 3 measures, and the EU EMIR—timeline. EU EMIR REFIT The following summarises the principal changes under EU EMIR REFIT, effective from 17 June 2019 unless noted otherwise: Categorisation of counterparties ( Article 2(8) of Regulation ( EU) 648/2012): the definition of a financial counterparty ( FC) is revised to: ...
This Practice Note sets out details of the Financial Conduct Authority ( FCA) powers found in Part 18A of the Financial Services and Markets Act 2000 ( FSMA 2000) and in the Financial Services and Markets Act 2000 ( Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001, SI 2001/995, (the Recognition Requirements Regulations) to suspend or remove financial instruments from trading, together with related provisions contained in the FCA Handbook. For information on the EU’s Mi FID II framework for suspending or removing financial instruments from trading, see Practice Note: EU Mi FID II: Suspension and removal of financial instruments from trading. Background and definitions Part 18A of FSMA 2000 empowers the FCA to suspend or remove financial instruments from trading, whereas the Recognition Requirements Regulations set out the relevant statutory requirements for suspension and removal by a UK recognised...
This Practice Note outlines the UK framework for product governance that firms must meet for the design, approval, marketing and continuing oversight of products across their lifecycle, and explains how the requirements introduced by the recast Markets in Financial Instruments Directive ( Directive 2014/65/ EU) ( Mi FID II) were given effect in the UK, as set out in the Financial Conduct Authority’s ( FCA’s) Product Intervention and Product Governance sourcebook ( PROD), together with the present status of those requirements following the UK’s departure from the EU. For details on the EU’s Mi FID II product governance regime, see Practice Note: EU Mi FID II product governance requirements. UK implementation of Mi FID II product governance requirements In September 2016, the FCA issued its third consultation on Mi FID II implementation, CP16/29, which set out proposals to transpose the Mi FID II product...
What is a credit default swap? A credit default swap ( CDS) is a two-party contract that takes its value from the credit risk of a third party, called the reference entity, and from specified or general obligations of that entity, known as reference obligations. The reference entity might be a corporate, a sovereign, a municipality or a comparable organisation, and it is not a party to the CDS. The main objective of a CDS is to separate the reference entity’s credit risk from its other risks and from owning the reference entity’s obligations, including any reference obligation. Under the CDS, the protection seller accepts the reference entity’s credit risk, while the protection buyer makes regular payments to the seller. If a credit event occurs—such as default, bankruptcy, or another situation recognised as affecting the reference entity’s...
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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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