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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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Environment Act 2021 Key date Royal Assent: 9 November 2021 Subject Environmental principles, governance, regulation, air pollution, waste and plastics, biodiversity, water and resource planning Context The Environment Act 2021 ( EA 2021) obtained Royal Assent on 9 November 2021. A number of substantive measures started on 9 January 2022, with further provisions commencing, and continuing to commence, via secondary legislation made by the Secretary of State, the Welsh Ministers, the Scottish Ministers or, where relevant, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland: The Environment Act 2021 ( Commencement No 1) Regulations 2021, SI 2021/1274, initiated specified provisions of EA 2021, Part 1, from 17 November 2021 The Environment Act 2021 ( Commencement No 2 and Saving Provision) Regulations 2022, SI 2022/48, activated further provisions under EA 2021, Parts 1 and 3–7, with effect from 24 January 2022, 1 April 2022, 1 May 2022 and 30...
CASE HUB Archived — This archived case hub captures the position as at the date the transaction was abandoned on 2 February 2021 and is no longer being updated. See further: timeline and commentary. Case facts Outline European Commission merger review of Fincantieri’s proposed purchase of a 50% interest in Chantiers de l’ Atlantique ( Case M.9162). The deal raised horizontal overlaps in cruise shipbuilding markets. Latest developments On 2 February 2021, the notification to the Commission was abandoned and withdrawn. Parties Fincantieri S.p. A: An Italian shipbuilding group majority-owned by Cassa depositi e prestiti, itself majority-owned by the Italian State. Fincantieri focuses on designing and building merchant and military vessels and high‑tech offshore ships. It also serves shipowners and produces systems and components. Chantiers de l’ Atlantique ( CAT): A French shipbuilder majority-owned by the French State via the Agence des...
This tracker considers the case law on vicarious liability. These decisions show how the courts have treated this developing area. They are arranged chronologically to trace the doctrine’s growth. When liability is in issue, a claimant usually seeks to prove fault by a named defendant (in workplace matters, often the employer). Sometimes an alternative route exists—the employer’s vicarious liability for the acts or omissions of its employee or agent. It is called vicarious because the breach of duty is the employee’s. The employer’s liability is often described as strict; it arises without proof of any breach by the employer. As Gross LJ noted in Allen v Chief Constable of the Hampshire Constabulary, to succeed against a defendant on vicarious liability for an employee’s negligence, the claimant must meet a two-stage test: there must be a relationship between the employer and the tortfeasor...
Introduction to overseas production orders The Crime ( Overseas Production Orders) Act 2019 ( C( OPO) A 2019) introduces overseas production orders ( OPOs), empowering UK investigators to require the disclosure of electronic data held outside the UK. OPOs offer a route to secure electronic material that avoids the frequently time-consuming Mutual Legal Assistance ( MLA) process. See Practice Note: Mutual legal assistance ( MLA). OPOs continue to operate after Brexit because their use rests on international agreements and does not depend on EU membership. An OPO may only be made where an international co-operation arrangement (or treaty) between the UK and the country in which the subject is located permits it, see: Designated co-operation agreements under C( OPO) A 2019. Procedural rules have been set which provide the framework for making an application for an OPO in the UK, see: Procedure for OPO...
What is the impact of Brexit on the GB electricity market (including in relation to EU law applicable to transmission licencing)? As at 31 January 2020 (exit day), the UK ceased to be a Member State of the EU. From that date, an implementation period commenced during which, for many purposes, the EU continued to treat the UK as if it were still a Member State. At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period established following the UK’s withdrawal from the EU came to an end. At that moment in time (known in UK law as ‘ IP completion day’), core transitional measures expired and far‑reaching changes started to take effect across the UK’s legal framework. The European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) obtained Royal Assent on 26 June 2018......
ARCHIVED: This Practice Note is archived and not maintained On 2 April 2019, the Government of the Hong Kong Special Administrative Region ( HKSAR) and the Supreme People’s Court of the People’s Republic of China ( PRC) concluded the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings (the Arrangement). Through this Arrangement, Hong Kong became the first offshore jurisdiction with a formal mechanism with Mainland China enabling parties to seek interim relief from Mainland courts in support of institutional arbitrations seated in Hong Kong. Parties in institutional arbitrations seated in the Mainland may apply to the Hong Kong courts for comparable interim measures to support those proceedings. The Arrangement took effect on 1 October 2019. Background to the Arrangement Hong Kong and Mainland China already have reciprocal arrangements for the enforcement of arbitral awards and court judgments......
ARCHIVED: This archived Practice Note monitored how bills moved through Parliament throughout the session running from June 2017 to October 2019, which concluded with the Prorogation of Parliament on 8 October 2019 as noted here. Prorogation brings to a close all outstanding Parliamentary bills that have not obtained Royal Assent, unless a motion in either House carries them over in the usual way. Two of the bills from that Parliamentary session were carried over to the next session. Parliament is scheduled to re-open on 14 October 2019, and measures progressing in the subsequent session will be tracked separately. On 24 September 2019, the Supreme Court ruled that the prorogation of Parliament, made by Order in Council dated 28 August 2019, was unlawful, null and of no effect. Consequently, Parliament was not in fact prorogued on 9 September 2019. For more detail, see: LNB News 24/09/2019 21. See Q& As: What is...
Services of general economic interest ( SGEI) The notion of ‘services of general economic interest’ is not expressly defined in the EU Treaties or in secondary legislation. Its contours are set out in Article 14 TFEU and, in particular, Article 106(2) TFEU, which provides that undertakings entrusted with an SGEI remain subject to the TFEU unless applying those rules would impede the particular task assigned. Further, the development of intra‑ Community trade must not be affected in a manner that runs counter to the EU’s interest. Protocol No 26 to the TFEU highlights the importance of SGEI and affirms the discretion of Member States in defining them. It also clarifies why there is no single EU definition: SGEI vary between Member States due to differing needs arising from distinct historical, geographical, cultural and social circumstances. The role of SGEI also evolves with...
The Financial Services Enforcement Database The Financial Services Enforcement Database holds detailed information on all substantive FCA and PRA Final Notices and, where available, Decision Notices issued from 2014 onwards. It can be queried and refined across multiple fields. Rule or legislation breached Keyword and sector Date Financial penalty and analysis of penalty components Outcomes, including redress and prohibition orders Other actions, such as referrals to the Upper Tribunal In the UK, oversight of financial services is carried out by two distinct regulators, the Financial Conduct Authority ( FCA) and the Prudential Regulation Authority ( PRA), each with enforcement powers. The FCA operates a judgement-based as well as risk-based model, evaluating a firm’s position in the wider market to place investor interests at the heart of business models, while also delivering an appropriate level of consumer protection. The FCA’s primary objective is that UK financial markets function...
Introduction This Practice Note sets out the principal documents usually required at financial completion of an onshore wind farm or large scale ground mounted photovoltaic (pv) solar project in Great Britain ( GB), together with concise explanations of each. It is prepared on the basis of a primary transaction in which a special purpose vehicle ( SPV)—commonly termed ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and finances the project, and at close the following are executed or provided: project documents (energy and operations, property, planning, and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries Nevertheless, this documents list can also serve as a reference in a secondary market onshore wind farm or solar transaction, since many documents needing review and/or amendment will be identical. For a...
ARCHIVED: This Practice Note is archived and no longer maintained. Background and scope For a comprehensive overview of the nature and functions of the companies within the National Grid plc group, refer to Practice Note: The role of National Grid in the Great Britain energy market. This Practice Note sets out, in detail, how the Transmission Owner ( TO) and System Operator ( SO) roles and licences were unbundled in 2019 between National Grid Electricity Transmission plc ( NGET) and National Grid Electricity System Operator Limited ( NGESO). The National Energy System Operator ( NESO) will be a new, independent public body established under the Energy Act 2023, which received Royal Assent on 26 October 2023. NESO’s remit includes operating the Great Britain electricity system, i.e. taking on the SO function previously carried out by NGESO. Once NESO becomes operational, NGESO will no longer exist....
Part XII of the Financial Services and Markets Act 2000 ( FSMA 2000) Under Part XII, any controller or would-be controller must secure consent from the Financial Conduct Authority ( FCA) or the Prudential Regulation Authority ( PRA) before taking or increasing control of a UK authorised firm, and must notify the relevant regulator when reducing or ceasing control. The FCA and PRA likewise require UK authorised firms to inform them whenever a person acquires, increases or reduces control in the firm, with the notification made by the firm alone or jointly with the controller or proposed controller. Firms must also monitor their controllers and submit an annual report to the appropriate regulator, identifying all controllers. These requirements are designed to ensure the appropriate regulator receives the information needed to fulfil its responsibility to monitor and, in some instances, provide prior approval of firms’...
Introduction This Practice Note outlines the principal documents commonly required at financial close for a merchant waste to energy project, together with a brief summary of each. It is prepared on the basis of a primary deal where a special purpose vehicle ( SPV)—typically known as ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and funds the project, and where the following are executed or provided at financial close: project documents (energy and operations, property, planning, environmental and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries That said, this list can equally serve as a reference point for a secondary market merchant waste to energy transaction, since many documents requiring review and/or amendment will be the same. For a companion template of this completion documents list, without document...
While its prominence has dipped in recent years as developers opt for permissive licences like MIT, and notwithstanding the release of a newer edition—the GNU GPL 3.0—a large body of code is still governed by GPL 2.0. Alongside GNU GPL 3.0, it remains a contentious and much-debated licence, chiefly due to copyleft effects that clash with prevailing commercial software licensing models. Under GPL 2.0, any work that is distributed or made public which, in whole or in part, includes or is derived from the GPL programme, or any portion of it, must be licensed in its entirety, free of charge, to all third parties. Among other obligations, this means recipients must be permitted to copy, alter, and share the work, and the licensee must provide access to the source code. There is extensive argument about the events that trigger this clause. In...
Data—and by extension, adherence to data protection rules—sits at the heart of clinical research, whether for clinical trials, pharmacovigilance activities or wider scientific inquiry. This Practice Note examines the data protection ramifications of running clinical research. In particular, it addresses who is accountable for compliance, the lawful bases relied upon, and how transparency should be delivered in this context... Allocation of responsibility for data protection compliance in clinical research Appropriate legal grounds for processing personal data for research purposes Transparency duties owed to participants and other data subjects Collaborative research arrangements and data sharing practices Derogations from data subject rights when processing for research A practical checklist of data protection points to consider when planning research activities The GDPR regimes On 25 May 2018, the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR) became directly...
The Tribunals system The tribunals framework provides a forum for resolving disputes and operates as an integral component of the wider courts structure. HM Courts and Tribunals Service ( HMCTS) runs it, with its powers and organisation set out in the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007). Part 1 of that Act introduced a two‑level structure, comprising the First‑tier Tribunal and the Upper Tribunal. The Courts and Tribunals Judiciary website hosts a diagram of the tribunal tiers and the available appeal routes. The First‑tier Tribunal ( Property Chamber) ( FTT) is made up of judges alongside other members. Judges can be appointed directly to the FTT, or moved across from elsewhere—for instance, where the FTT has inherited work from a predecessor body of which they were a member, such as a rent assessment committee or the Adjudicator to HM Land...
CASE HUB ARCHIVED This archived case hub records the position as at the abandonment date of 27 February 2019; it is no longer being updated. For more detail, see the timeline and commentary. Case facts Outline of the UK merger inquiry into the proposed purchase by Experian Limited of Credit Laser Holdings Limited ( Clear Score). The deal featured horizontal overlaps in UK markets for credit-score checking and related services. Latest developments On 27 February 2019, the parties withdrew from the deal. On that same day, the CMA revoked the merger reference. Parties Experian is a group headquartered in Ireland (listed on the London Stock Exchange) and is the world’s foremost information services company. Experian operates across 37 countries. Credit Laser Holdings ( Clear Score) is a UK-based business that offers free credit score checks to UK...
Key primary resources on closure of the Fi T Government consultation dated 19 July 2018 on the outlook for new small scale renewables after Fi T closure, with a follow-up on 8 January 2019: The Future for Small- Scale Low- Carbon Generation: a call for evidence ( Future Support Consultation) Government consultation (19 July 2018) and decision (18 December 2018) confirming Fi T closure: The Feed- In Tariffs scheme—closure to new applications after 31 March 2019, and administrative measures ( Fi T Closure Consultation) The Feed-in Tariffs ( Closure, etc) Order 2018, made 17 December 2018 and effective from 1 February 2019: SI 2018/1380 ( Fi T Closure Order) Ofgem FAQ covering the end of the Fi T: FAQ: FIT scheme closure ( Ofgem Fi T Closure FAQs) Ofgem guidance on winding down the Fi T: Feed-in Tariffs: Essential guide to closure of the scheme ( Ofgem Fi T...
When can a landlord exercise the right to forfeit a lease? Forfeiture is the landlord’s ability to terminate a lease because the tenant has breached it. A landlord can only bring the tenancy to an end by forfeiture where either of the following applies: there is an express right in the lease, ie the tenancy includes a forfeiture clause permitting the landlord to forfeit for the tenant’s alleged breach. For instance, the lease might state that the landlord may forfeit if rent is unpaid for 14 or 21 days after the due date, on the happening of a specified event in the lease (for example any form of insolvency listed as giving rise to forfeiture), or for any other breach of a tenant covenant. By way of example, see our Precedent: Lease of whole building; or there has been a breach by the...
When does risk pass to the buyer? The core rule applied in most contracts is that risk transfers to the buyer at exchange of contracts. Parties rarely depart from this unless the seller is undertaking works or there is an extended gap between exchange and completion. This mirrors the common law stance (the ‘open contract’ position) and is endorsed by the Standard Commercial Property Conditions ( Third Edition—2018 Revision) ( SCPCs), condition 8.1: ‘ The property is at the risk of the buyer from the date of the contract.’ The timing of the transfer of risk is distinct from the question of who provides insurance during the period between exchange and completion. That issue depends on whether the sale is with vacant possession or subject to existing leases. Regardless of the insurance arrangement, risk must lie with the buyer, as loss may arise from perils that are...
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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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