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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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Solicitors Regulation Authority The Solicitors Regulation Authority ( SRA), the independent regulator of the Law Society of England and Wales, offers guidance, information and support to help solicitors meet professional standards. Its contact centre responds to enquiries, and further details, including telephone, email and postal contact points, are available on the SRA website. The SRA Standards and Regulations took effect on 25 November 2019, replacing the SRA Handbook. A professional ethics helpline, staffed by trained advisers, gives guidance on the Standards and Regulations: telephone 0370 606 2577. Solicitors can also write to or email the Professional Ethics guidance team for advice. The SRA Update e-newsletter shares the latest news about the SRA’s work. The Practice Standards Unit oversees compliance, delivers talks to groups or firms, and may decide to offer more direct support by visiting a firm to assist with...
This Practice Note This Practice Note examines the debtor’s position where a creditor seeks to enforce a judgment, court settlement, or authentic instrument concerning an uncontested claim under Regulation ( EC) 805/2004—the European Enforcement Order Regulation (the EEO Regulation)—by relying on an EEO. References to “judgments” in this Note should be understood to include court settlements and authentic instruments. A core requirement for an EEO is that the claim was uncontested, as described in Recital (5) of the EEO Regulation: this covers situations where, after verified absence of any challenge by the debtor to the nature or amount of a pecuniary claim, the creditor has obtained either a court decision against the debtor or an enforceable document requiring the debtor’s express consent, whether a court settlement or an authentic document. Once a judgment is certified as an EEO, for enforcement it is treated as if...
This tracker monitors the EU’s negotiated trade deals that are already in force. It covers provisional arrangements that facilitate commerce whilst talks on a definitive free trade agreement are underway, or until a final free trade agreement enters into force. It also lists agreements with a trade element, even where these do not amount to a comprehensive free trade agreement. Country Agreement Albania — Stabilisation and Association Agreement Algeria — Euro- Mediterranean Association Agreement Andorra — Customs Union Antigua and Barbuda — Economic Partnership Agreement Armenia — Comprehensive and Enhanced Partnership Agreement Azerbaijan — Partnership and Cooperation Agreement Bahamas — Economic Partnership Agreement Barbados — Economic Partnership Agreement Belize — Economic Partnership Agreement Bosnia and Herzegovina — Stabilisation and Association......
This Practice Note reviews the arbitration process under the Grain and Feed Trade Association ( Gafta) Arbitration Rules No. 125 ( Gafta 125) once a party has invoked arbitration. References to ‘ Rules’ are to Gafta 125, in force for contracts dated from 1 March 2022, unless stated otherwise. For guidance on launching an arbitration under Gafta 125, see Practice Note: Gafta—commencing an arbitration under Gafta Arbitration Rules No. 125. For an outline of the Gafta appeals process, see Practice Note: Gafta—appeals under Gafta Arbitration Rules No.125. Exchange of submissions To commence an arbitration under Gafta 125, the claimant must, within the prescribed time, serve the respondent with a notice confirming its intention to refer the dispute to arbitration (the Notice of Intention). After the Notice of Intention is served, the claim generally progresses as follows: Under Rule 4.1, the claimant prepares a ‘clear and full’...
This Practice Note explores the appeals route under the Gafta Arbitration Rules No. 125 ( Gafta 125). References to ‘ Rules’ in this Practice Note are to the Gafta 125 rules in force for contracts dated from 1 March 2022, unless stated otherwise. For guidance on starting arbitration under Gafta 125, see Practice Note: Gafta—commencing an arbitration under Gafta Arbitration Rules No. 125. For an outline of the first-tier arbitration, see Practice Note: Gafta—the arbitration process under Gafta Arbitration Rules No. 125. Under Gafta 125, an appeal is a de novo (ie a wholly new) hearing of the dispute before a different Gafta tribunal. Accordingly, the parties may present evidence and submissions not advanced at first instance, and the Board of Appeal may affirm, vary, amend or set aside any part of the award ( Rule...
This Practice Note explains when a beneficiary may bring a negligence claim against a professional Will drafter and offers guidance on how to lessen the likelihood of such a claim arising. For fuller coverage of professional negligence claims and client care and management, consult Lexis+® UK (subscription required). Duties owed to beneficiaries by professionals drafting Wills As a general principle, solicitors owe no duty in tort to third parties who are not their clients, though there are rare situations in which the solicitor will be taken to have assumed a duty of care to someone else. One recognised exception is where a solicitor prepares a Will intended to benefit a particular, identified third party. In White v Jones, the House of Lords held that such a duty did exist. The justification for imposing a duty to beneficiaries was described by Lord Goff along these lines: unless such a...
When the doctrines of ademption and abatement are engaged, a line is drawn between specific, general, and demonstrative legacies. Classification of legacies The categories were set out in Walford v Walford in these terms: legacies fall into three groups. As the court there expressed it, and that description is adopted. The explanation distinguishes the nature of each gift without altering their substantive effect under the Will and on administration. A specific legacy is a particular res secured to the beneficiary by the testator’s Will at death; it does not abate even if the remaining estate cannot satisfy general legacies; however, it carries the drawback that, should the precise res which forms the subject of the gift cease to exist in the interim, the legatee receives nothing. At the opposite end lies the general legacy, payable from the residue; this abates if the residue is...
Many Wills are relatively straightforward, often providing, for instance, that after debts are settled the estate is left outright to a spouse or to children, sometimes with additional specific legacies. In cases like these, no ongoing trust remains once the estate has been administered, so there is usually little justification for conferring powers on trustees beyond those conferred by the Trustee Act 2000 ( Tr A 2000) and other statutes (although it is not always possible to know in advance whether a trust will arise). At times, however, a continuing trust is the better fit, such as where beneficiaries are under age. A familiar Will trust pattern is a primary gift to the surviving spouse, with the estate instead passing to surviving issue if the spouse fails to outlive the testator, either straightaway or once a specified age is reached. Where the...
Date of death Section 9 of the Wills Act 1837 ( WA 1837) established consistent rules for all wills. It stated that a will is valid only if it is in writing and executed as prescribed: it must be signed at the foot or end by the testator, or by another person in his presence and on his direction; the testator must make or acknowledge that signature before at least two witnesses who are present together, and those witnesses must attest and subscribe the will in the testator’s presence, with no specific form of attestation required. The requirements in WA 1837, s 9 were later revised and, from 1983, provide that no will is valid unless: it is in writing, and signed by the testator, or by another person in his presence and by his direction; it appears that, by his...
Format of a Will There is no mandatory template for a Will, yet long-standing practice has shaped a reliable structure. Though drafting styles vary, the usual sequence of clauses is broadly uniform, aiding comprehension, reducing the risk of omissions, and enabling consistent use of technology to produce Wills. opening and revocation declarations (domicile, funeral wishes, etc) appointment of executors and trustees appointment of guardians general legacies specific legacies and devises residuary gifts powers of executors and trustees attestation Not every clause appears in every case, but following this core pattern helps the draftsperson ensure that everything intended for the Will is included. Opening and revocation The first sentence identifies the testator by name and address, and all aliases should be recorded. However, this can create difficulties if the only name the testator commonly uses or is known by is supplemented......
This overview charts the principal steps of EU legislative procedures concerning data across the Union. On 19 February 2020, the European Commission launched its ‘ European Strategy for data’, with the objective of creating a single market for data that will strengthen the EU’s global competitiveness and enable innovative processes, products and services within the European Union. This tracker highlights non-personal data initiatives and features the following key initiatives: EU Data Governance Act EU Data Act EU Open Data Directive European Health Data Space European Mobility Data Space European Tourism Data Space Access to vehicle data Data collection for short-term rentals Please note this tracker does not include the proposal for a Regulation on a framework for Financial Data Access, issued on 28 June 2023, at present. For further details on other elements of the EU digital...
Does the Disclosure Scheme operate a different disclosure regime for Less Complex Claims? This Practice Note reviews the streamlined route for obtaining Extended Disclosure in Less Complex Claims under the Disclosure Scheme in the Business and Property Courts ( B& PCs) pursuant to CPR PD 57AD. The Scheme took effect on 1 October 2022 following a disclosure pilot. Judgments from that pilot remain pertinent and are included below. Any citations to Appendices 5, 6 or 7 in this Practice Note are to those appendices to CPR PD 57AD. As explained in Practice Note: Disclosure Scheme— Extended Disclosure, the Scheme contemplates a staged approach to disclosure comprising: first, Initial Disclosure served with the statements of case, alongside any potential request for further 'additional disclosure' (see Practice Note: Disclosure Scheme— Initial Disclosure); and second, before the first case management conference ( CMC), the parties must confer and seek to...
CASE HUB ARCHIVED This archived case hub records the position as at the judgment dated 21 February 2022; it is no longer maintained. See further, timeline, commentary and related/relevant cases. Case facts Outline European Commission inquiry into whether Hungary’s veto of VIG’s takeover of two Hungarian subsidiaries of the AEGON Group ( M.10102) amounts to a breach of Article 21 EUMR ( M.10494). Latest development On 21 February 2022, the Commission adopted its decision, finding that Hungary’s prohibition of VIG’s acquisition of two Hungarian AEGON entities infringed Article 21 EUMR. Parties AEGON Hungary Holding BV, AEGON Hungary Holding II VB, AEGON Poland/ Romania Holding BV and AEGON Turkey Holding BV (together, AEGON CEE): AEGON CEE comprises the Hungarian, Polish, Romanian and Turkish operations of the AEGON Group. It is active in life and non-life insurance, pension fund management, asset management services and related ancillary services. Vienna...
Key information EU Single Use Plastics Directive Official title: Directive ( EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on reducing the impact of certain plastic products on the environment Commencement: 2 July 2019 Transposition deadlines: 3 July 2021, subject to: Member States must put in place measures to meet Article 6(1) (design requirements) from 3 July 2024 Member States must put in place measures to meet Article 8 (extended producer responsibility) by 31 December 2024. For extended producer responsibility schemes set up before 4 July 2018, and for single-use plastic products listed in section III of Part E of the Annex, Article 8 should have applied by 5 January 2023 National...
Introduction to EU REACH ‘ EU REACH’ refers to Regulation ( EC) 1907/2006 of the European Parliament and the Council on the registration, evaluation, authorisation and restriction of chemicals. Taking effect on 1 June 2007, it consolidated various EU chemical Directives and Regulations into a single regime, directly applicable in all EU Member States. REACH places the onus on those manufacturing and/or importing goods that contain chemicals to understand and manage the risks of substances placed on the EU market and how they are used. The key aims of REACH are to: deliver a high level of protection for human health and the environment enable the free movement of substances within the EU market strengthen the EU chemicals industry’s competitiveness and drive innovation support alternative methods for assessing hazardous properties, such as quantitative structure-activity relationships This Practice Note is part of a broader suite of guidance on EU REACH. For...
Introduction to EU REACH EU REACH is the shorthand for Regulation ( EC) 1907/2006 of the European Parliament and the Council, which addresses the registration, evaluation, authorisation and restriction of chemicals. Taking effect on 1 June 2007, EU REACH consolidated various EU chemical Directives and Regulations into a single legislative framework that applies directly across all the EU Member States. Under EU REACH, the duty to identify and control risks linked to chemicals placed on the EU market, and how they are used, falls on those who manufacture and/or import goods that contain such substances. It applies directly to all the Member States of the EU. It replaced many EU Directives and Regulations with one law. The core objectives of REACH are to: secure a high standard of protection for human health and the...
Introduction to EU REACH ‘ EU REACH’ denotes Regulation ( EC) 1907/2006 of the European Parliament and of the Council, addressing the registration, evaluation, authorisation and restriction of chemicals. Effective from 1 June 2007, it replaced multiple EU chemical directives and regulations with a single, coherent regime, directly applicable across all EU Member States. Under EU REACH, the obligation to understand and manage the risks of chemicals placed on the EU market—and how they are used—falls on those who manufacture and/or import goods containing such substances. The regulation seeks to: secure a high level of protection for human health and the environment enable the unrestricted movement of substances within the EU market strengthen the EU chemicals industry’s competitiveness and drive innovation encourage methods other than vivisection and/or animal testing to assess hazardous...
Introduction to EU REACH ' EU REACH' is the short form for Regulation ( EC) 1907/2006 of the European Parliament and the Council, addressing the registration, evaluation, authorisation and restriction of chemicals. Effective from 1 June 2007, EU REACH merged multiple EU chemical Directives and Regulations into a single legal framework, applying directly in every EU Member State. The system puts the onus on those manufacturing and/or importing goods that contain chemicals to understand and manage the risks of chemicals placed on the EU market and their use. The core objectives of EU REACH are to: secure a high level of protection for human health and the environment enable the free circulation of substances within the EU market boost the competitiveness and innovation of Europe’s chemicals sector encourage assessment methods other than vivisection and/or animal testing for...
Key information EU EIA Directive: Directive 2011/92/ EU of the European Parliament and of the Council of 13 December 2011 on assessing the effects of certain public and private projects on the environment (codification) (the EU EIA Directive) Entry into force: 2 January 2012 Amending documents: Directive 2014/52/ EU of the European Parliament and of the Council of 16 April 2014, which amends Directive 2011/92/ EU on the assessment of the effects of certain public and private projects on the environment. In force: 15 May 2014 Subject: Planning; Environmental impact assessment What is environmental impact assessment? The term ‘environmental impact assessment’ ( EIA) refers to a process that must be undertaken for specified projects before ‘development consent’ is granted. The procedure includes: preparation and submission of an EIA report by the developer. Before the 2014 updates to the EU EIA...
Introduction to REACH ‘ EU REACH’ is the shorthand for Regulation ( EC) 1907/2006 of the European Parliament and of the Council concerning the registration, evaluation, authorisation and restriction of chemicals. Coming into force on 1 June 2007, it replaced a range of EU directives and regulations on chemicals with a single legislative framework, applying directly across all EU Member States. REACH places the responsibility for identifying and controlling the risks of chemicals on the EU market—and their uses—on those manufacturing and/or importing goods that contain them. The key aims of REACH are to: ensure a high level of protection for human health and the environment facilitate the free movement of substances within the EU market strengthen the competitiveness and innovation of the EU chemicals industry, and promote alternative methods for assessing hazardous properties, such as quantitative...
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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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