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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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Capital maintenance rule Under English company law, a limited company with share capital is required to preserve that capital. The capital maintenance principle exists to safeguard a company’s creditors by making sure that the assets which represent the company’s capital remain available to them for future recourse. A company’s share capital can be affected by certain events that occur from time to time over the course of its life, in accordance with the provisions of the Companies Act 2006 ( CA 2006). These include: the issue of shares, on incorporation and thereafter, including bonus issues the redenomination of share capital the sub-division and consolidation of shares reductions of capital share buybacks the issue of redeemable shares and their eventual redemption This Practice Note sets out, in brief, the accounting treatment for each of these possible events in turn. It also considers matters relating to distributable reserves, including the payment of...
This summarises completed EU merger enforcement actions since 2014 For details on live EU merger enforcement work, see EU mergers—ongoing cases tracker. For concluded Commission phase I merger reviews, see EU phase I mergers—closed cases tracker. For concluded Commission phase II merger reviews, see EU phase II mergers—closed cases tracker. For information on appeals before the General Court, see General Court appeals—ongoing cases tracker; for appeals before the Court of Justice, see Court of Justice appeals—ongoing cases tracker. 2023 Case: Illumina/ GRAIL ( M.10493, M.10483, M.10938 and M.10939) Industry sector: Production of basis pharmaceutical products and pharmaceutical preparations Issues: Gun jumping Decision: Decision withdrawn following Case C- 611/22 Commission adopts restorative measures requiring Illumina to unwind its completed acquisition of...
Brexit: On 31 January 2020, the UK left EU membership and moved into an implementation phase, during which EU law continues to apply to it and it remains subject to the existing EU legal framework. Throughout this time, the GDPR remains in force in the UK and, for EEA and UK data protection purposes, the UK is still broadly regarded as an EU (and EEA) state. Accordingly, any mention of EEA or EU states in this Practice Note should be understood as also covering the UK until that implementation phase concludes. For more detail on that period, its length, and the data protection regime expected to follow its end, see Practice Note: Brexit—implications for data protection [ Archived]. ARCHIVED: This Practice Note is archived material and describes the landscape before the General Data Protection Regulation took effect. It is provided for general background only and is not...
Brexit: On 31 January 2020, the UK ended its status as an EU Member State and entered an implementation period, during which EU law continued to apply to the UK. Throughout this period, the GDPR applies in the UK and, for EEA and UK data protection law purposes, the UK is broadly treated as an EU (and EEA) state. Consequently, any references to EEA or EU states in this Practice Note should be read as also including the UK until the end of the implementation period. For further guidance on that period, its duration, and the data protection laws and arrangements anticipated to apply after it concludes, see Practice Note: Brexit—implications for data protection [ Archived]. ARCHIVED: This Practice Note is archived content and reflects the position prior to the General Data Protection Regulation becoming applicable. It is provided for background...
Brexit: On 31 January 2020, the UK stopped being an EU Member State and moved into an implementation period, during which EU law still applies. Throughout that window, the GDPR remains in force in the UK and, for EEA and UK data protection purposes, the UK is broadly regarded as an EU and EEA state. Consequently, any mentions of EEA or EU states in this Practice Note should be interpreted as also covering the UK until that period ends. For more on the timing of that phase and the data protection framework expected afterwards, see Practice Note: Brexit—implications for data protection [ Archived]. ARCHIVED: This Practice Note is archived material, captures the situation before the General Data Protection Regulation became applicable, serves as background only and is not updated. The General Data Protection Regulation ( EU) 2016/679 was published in the Official Journal of the EU on 4 May...
This Practice Note examines the power of immigration bail This Practice Note explores immigration bail as the sole mechanism of release, effective from 15 January 2018, for individuals subject to detention and those liable to be detained under immigration powers in particular where relevant. For guidance on liability for detention and related Home Office policies, see Practice Note: Immigration detention. The purpose here is to outline immigration bail; it does not, for instance, address the inherent jurisdiction of the High Court or Court of Appeal to grant bail, nor the bail jurisdiction of the Special Immigration Appeals Commission, as detailed analysis of those subjects currently falls outside the scope of Lexis+® UK. The majority of the bail provisions in Schedule 10 to the Immigration Act 2016 ( IA 2016) commenced on 15 January 2018. For details of provisions not yet in force, refer to...
Homelessness legislation Part VII of the Housing Act 1996 ( HA 1996) forms the main legal framework for preventing homelessness and for assisting people who are threatened with, or already facing, homelessness. The Homelessness Reduction Act 2017 ( HRA 2017) took effect on 3 April 2018, making major changes to England’s homelessness law. Local housing authorities ( LHAs) must have regard to any guidance issued by the Secretary of State when carrying out their homelessness functions. The current statutory guidance was first published in 2018 and is updated on a regular basis. The updated system places obligations on local authorities to act earlier within their areas to stop homelessness arising. It also requires LHAs to offer homelessness services to all those affected, not only those considered to have ‘priority need’. These include: an expanded prevention duty that increases the period during which a...
CASE HUB NOTE— appeals lodged before the Court of Justice in Case C-403/18 P (in relation to the main appeal); and in Case C-386/15 (in relation to the General Court’s order made on 16/06/2015) ARCHIVED — this archived case hub reflects the position as at the judgment of 10 April 2018; it is no longer maintained. See further, timeline, commentary and related/relevant cases. Case facts Outline Alcogroup and Alcodis brought an appeal before the General Court against two Commission decisions dated 12 March 2015 and 8 May 2015. The first concerned how Commission inspectors conducted dawn raids on 24 March 2015 in case AT.40244, alleging that legally privileged correspondence was unlawfully analysed and seized. The second related to the Commission’s letter refusing the applicants’ request to suspend any investigative act regarding them in AT.40054 and...
THIS PRACTICE NOTE RELATES TO REGISTERED PENSION SCHEMES By means of Schedule 4 to the Finance Act 2016 ( FA 2016), the government brought in an allowance protection regime designed to sit alongside the cut in the lifetime allowance from £1.25m to £1m on 6 April 2016. Termed fixed protection 2016 ( FP 2016), it mirrors earlier fixed protection regimes respectively launched on 6 April 2012 (fixed protection 2012, or simply ‘fixed protection’) and 6 April 2014 (fixed protection 2014). This Practice Note focuses on FP 2016, which is the subject of this Practice Note. The original purpose of FP 2016 was to give transitional protection to people who, before 6 April 2014, had already accumulated pension savings above £1m, or who expected to do so on the basis that the lifetime allowance would be maintained at no less than £1.25m. Although the...
THIS PRACTICE NOTE RELATES TO REGISTERED PENSION SCHEMES Through Schedule 22 of the Finance Act 2013 ( FA 2013), the government brought in and implemented an allowance protection framework to accompany and facilitate the reduction in the lifetime allowance from £1.5m to £1.25m on 6 April 2014. This framework, called fixed protection 2014 ( FP 2014), builds on the fixed protection regime first launched on 6 April 2012 (referred to as fixed protection 2012, or simply ‘fixed protection’). FP 2014 is the focus of this Practice Note. The initial, stated purpose of FP 2014 was to provide transitional protection for individuals who, before 6 April 2014, had already accumulated pension savings exceeding £1.25m, or who intended to do so on the assumption that the lifetime allowance would stay at least at £1.5m. Although the lifetime allowance was subsequently abolished with effect from 6 April 2024, FP 2014...
THIS PRACTICE NOTE RELATES TO REGISTERED PENSION SCHEMES Under Schedule 18 to the Finance Act 2011, the government set up an allowance protection framework to sit alongside the reduction in the lifetime allowance from £1.8m to £1.5m on 6 April 2012. That framework, called fixed protection 2012 ( FP 2012), was the first iteration of fixed protection introduced, and it is the focus of this Practice Note. FP 2012 was intended to provide transitional cover for individuals who had already accumulated pension savings on the assumption that the standard lifetime allowance would remain at least £1.8m. Although the lifetime allowance was abolished with effect from 6 April 2024, FP 2012 still offers certain transitional safeguards for a person’s entitlement to: (i) the lump sum allowance; (ii) the lump sum and death benefit allowance; and (iii) a tax-free lump sum. For more detail, see The...
CPR 52.6(2)(b) superseded rule 52.3(7)(b), and CPR 52.18 replaced rule 52.9, in October 2016. The wording was unchanged, so authorities decided before October 2016 in this field remain binding. For broader guidance on applications for permission to appeal, see the following Practice Notes: Permission to appeal—preliminary considerations Permission to appeal—the application Permission to appeal—hearing and next steps For targeted guidance on limited permission to appeal, see Practice Note: Permission to appeal—hearing and next steps— Limited permission to appeal in the Court of Appeal. Conditions on an appeal—introduction There are two principal provisions regulating conditions on an appeal: CPR 52.6(2)(b) allows the court, when granting permission on a first appeal, to impose terms—that is, to give permission subject to conditions CPR 52.18(1)(c) permits the appeal court, when considering setting aside permission or striking out an appeal notice, to impose new...
General overview of asset sales Whether a buyer acquires assets from a solvent owner, or from a distressed seller subject to a formal insolvency process in the asset transaction context, a range of differing legal and practical issues and considerations will arise for those involved on all sides in practice. The Insolvency Act 1986 ( IA 1986) sets the rules and regulates various formal insolvency procedures affecting both corporate bodies and individuals alike in defined circumstances. In England and Wales, the principal corporate procedures are administration and liquidation in particular: if the company is in liquidation (compulsory or voluntary) and the appointed liquidator cannot sell the business as a going concern, the liquidator will realise the insolvent company’s assets—ideally as a single job lot where feasible and appropriate, otherwise piecemeal where necessary as needed—to ultimately maximise the funds available for...
CASE HUB ARCHIVED – this archive sets out the position as at the decision dated 29 March 2018; it is no longer maintained. See further, timeline and commentary. Case facts Outline CMA Article 101 TFEU/ Chapter I investigation into two cartels in the furniture sector, involving market sharing, price-fixing, bid-rigging and the disclosure of commercially sensitive information (case CE/9882-16). Latest developments On 29 March 2018, the CMA delivered its infringement decision. The following penalties were imposed: CPL – £2,816,514 Fuel Express – £627,867 Both penalties include reductions under the CMA’s settlement procedure. Parties CPL Distribution Limited and CPL Industries Holdings Limited (together, CPL), the largest coal merchant in the UK. Fuel Express ......
Sections 242 and 243 of the Insolvency Act 1986 ( IA 1986) In Scotland, these provisions regulate the two principal forms of antecedent transaction that a company may undertake. They do not apply to individuals or to companies registered in England and Wales; for the position in England, refer to the Practice Notes on transactions at an undervalue under section 238 and on preferences under section 239 of the Insolvency Act 1986. For Scottish individual/personal debtors, consult the Practice Note on gratuitous alienations by individual debtors. For a glossary of frequently used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. Unfair preferences What constitutes an unfair preference? An unfair preference is any transaction entered into by a company, whether before or after 1 April 1986, that has the effect of giving one creditor priority over the general body of creditors ( IA 1986, s...
This Practice Note examines how pivotal expert testimony and credibility are at trial, and therefore the weight the court may ascribe to expert material. It reviews why a court might prefer one expert’s opinion to another’s, when the court will choose between expert evidence and its own evaluation, what follows if an expert is neither called nor cross-examined, including the weight of unchallenged evidence, and offers practical guidance for giving expert evidence. Expert witnesses, and those instructing them, should have regard to: relevant CPR rules and Practice Directions the Guidance for the instruction of experts in civil claims (the Guidance). On 1 December 2014, the Guidance replaced the ‘ Protocol for the Instruction of Experts to give Evidence in Civil Claims’ formerly annexed to CPR PD 35 Practice Direction Pre- Action Conduct and Protocols, para 7 court-specific guidance found in court...
ARCHIVED: This archived Practice Note is preserved for historical interest and to give practitioners a concise snapshot of developments in case law during 2018. It tracked extradition appeal decisions by month across 2018. For details of leading cases from 2017, see Practice Note: Extradition appeals tracker—2017 decisions [ Archived]. If you know the date of the judgment you need, use the list below or the links on the left-hand side to move straight to the relevant table. Alternatively, search this Practice Note with [ CTL]+[ F] for the case name, citation or a relevant search term. Cases by month: January 2018 February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018 September 2018 October 2018 November 2018 December 2018 December 2018 Case name Abstract/ Summary Search terms Scerbatchi v First District Court of Bucharest, Romania [2018] EWHC 3612 ( Admin), [2019] All ER ( D) 79 ( Jan) —...
This is a glossary of common words and expressions used in Scottish insolvency law with the nearest England and Wales insolvency law equivalent (where relevant) Absolute insolvency Meaning: When a person’s liabilities are greater than the overall worth of their assets. Nearest English equivalent: Balance sheet insolvency. Accountant in Bankruptcy ( Ai B) Meaning: A Scottish Government agency overseeing the regulation of personal bankruptcy (sequestration and Protected Trust Deeds) in Scotland, and able to serve as trustee in sequestrations where no insolvency practitioner is appointed. It also maintains records of corporate insolvencies in Scotland (receivership and liquidations only) but does not perform the role of Official Receiver. See Practice Note: Scotland: the Accountant in Bankruptcy. Nearest English equivalent: N/ A. Accountant of Court Meaning: A court-appointed officer within Scottish Courts and Tribunals who administers funds consigned to the Accountant of Court pursuant to a Court of Session...
Below is a summary of completed national references to the Court of Justice relating to how the EU Merger Regulation is interpreted since January 2013. For live national references before the Court of Justice, consult Court of Justice—ongoing national references. 2018 Case C-633/16, Ernst & Young Origin: Danish court Clarifies the scope of the EU Merger Regulation’s standstill duty ( Article 7) as it applies to the merger at issue specifically......
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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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