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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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The terms of an agreement can be so imprecise or indeterminate that they have no real meaning and are therefore not enforceable. Nevertheless, where parties have concluded a bargain, a court will seek to give that bargain effect. This Practice Note explains the nature of the certainty requirement and the ways in which courts have attempted to narrow its reach. For guidance on the general approach when assessing whether an enforceable contract exists and identifying its terms, see Practice Note: Forming enforceable contracts—the court’s general approach. Requirement of certainty—the basic principle A court will not enforce a contract that cannot be given a definite meaning ( G. Scammell & Nephew v Ouston). In Scammell, the House of Lords decided that an agreement to obtain goods ‘on hire-purchase’ was too uncertain to enforce because there were many varieties of hire-purchase operating on very different terms. As a...
Priorities of creditors When insolvency arises, most jurisdictions prescribe the sequence in which creditors are satisfied from the debtor’s estate, commonly referred to as the payment waterfall. Certain creditor groups may receive preferential ranking for all or part of their claims. If restructuring or insolvency could proceed in several countries, differences in creditor priority may influence where proceedings are started (see Practice Note: Forum shopping and practical ways to move COMI). Country order of priorities Lexology Panoramic Guide (see in particular Qs 38–41) Austria Preferential claims—such as the costs of the proceedings, disbursements for preserving and managing the insolvency estate, specified early termination liabilities, claims for performance of contracts requiring actions by both the debtor and the counterparty (where the insolvency administrator opts to perform), remuneration of certain creditors’ associations participating in the case, and pension deficits accruing after the opening of...
Practice Note This Practice Note summarises the principal provisions of the Marriage ( Same Sex Couples) Act 2013 and its effect on existing legislation, together with implementation dates and the arrangements for converting same-sex civil partnerships. The Marriage ( Same Sex Couples) Act 2013 ( M( SSC) A 2013) received royal assent on 17 July 2013. Its core purpose is to allow same-sex couples to marry, either by a civil ceremony (ie a civil ceremony held in a register office or on approved premises such as a hotel) or, where the relevant religious organisation agrees, on religious premises with the marriage solemnised through a religious ceremony. M( SSC) A 2013 retains civil partnerships for same-sex couples but permits those already in a same-sex civil partnership to convert that relationship into a marriage should they wish (see: Conversion of civil...
The Sentencing Council ( SC) issues detailed offence-specific guidance on sentencing for courts in England and Wales, to be applied in both the magistrates’ court and the Crown Court jurisdictions. This Practice Note closely examines how sentencing is approached in cases involving sexual offences. The SC has developed an extensive range of offence-specific guidelines for particular sexual offences. These are available here. There are also specific guidelines explaining how courts in England and Wales should sentence those convicted of arranging or facilitating sexual offences against a child. In addition, the SC publishes several important overarching guidelines that must be taken into account in every sentencing exercise, see Practice Note: Sentences imposed following conviction. Among them, the General guideline—overarching principles (the General guideline) is intended to be used alongside offence-specific guidelines and addresses seriousness, together with expanded advice on aggravating and...
This tax tracker outlines the current position of US FATCA intergovernmental agreements ( IGAs) and UK FATCA IGAs. It is organised into three sections: US FATCA— IGAs in force US FATCA— IGAs signed, or agreed in substance, but not yet in force UK CDOT—automatic exchange of information agreements between the UK and Crown dependencies and overseas territories US FATCA— IGAs in force Set out below is a compilation of IGAs between the US and another country that are currently in force. Be aware that the date an IGA took effect may differ from the date on which that jurisdiction is regarded, under US law, as having an IGA in effect. For further detail, see Practice Note: US: Foreign Account Tax Compliance Act ( FATCA)—summary — What is an intergovernmental agreement?. This list is drawn from US Treasury Department sources and was last...
This Practice Note This Practice Note outlines the narrow bases on which a party to international arbitration may seek the correction, review or interpretation of an award from either the arbitral tribunal or the administering institution, under institutional rules including: International Court of Arbitration of the International Chamber of Commerce ( ICC) London Court of International Arbitration ( LCIA) Hong Kong International Arbitration Centre ( HKIAC) Singapore International Arbitration Centre ( SIAC) Dubai International Arbitration Centre ( DIAC) International Centre for Dispute Resolution ( ICDR) United Nations Commission on International Trade Law ( UNCITRAL) arbitration rules It also considers whether, under these frameworks, parties may challenge or appeal arbitral awards before tribunals or institutions, where applicable, and concludes that such avenues are generally unavailable within the institutional process and must instead be pursued before the courts at the seat of...
This Practice Note explains how to seek leave to appeal (or permission to appeal) an arbitral award on a point (or question) of law to the courts of England and Wales under section 69 of the Arbitration Act 1996 ( AA 1996) ( England and English are used throughout as convenient shorthand). For an overview and general introduction to challenging and appealing arbitral awards under AA 1996, see Practice Note: AA 1996—challenging and appealing arbitral awards in the English court. Leave to appeal an arbitral award—the statutory and procedural framework Appealing an arbitration award on a point of law under AA 1996, s 69 typically unfolds in two stages as follows: obtaining leave to appeal from the English court (which is required in all cases unless every party to the relevant arbitration agrees to an appeal ( AA 1996, s 69(2))), and the...
This Practice Note addresses restitution and deprivation orders following conviction under the Sentencing Act 2020 ( SA 2020). It sets out the court’s authority in criminal proceedings to order the return of stolen property to victims, and the means of appealing a restitution order. It also outlines the courts’ power to order the forfeiture of property connected with the commission of an offence by making a deprivation order, together with the procedure for obtaining such an order and its effect. Restitution orders A restitution order allows the court to restore to a victim the goods, or the value of goods, that were stolen or otherwise unlawfully taken, using money found in the offender’s possession on arrest. On conviction, the magistrates’ court or the Crown Court before which the defendant is convicted may order restitution of goods. The court may make such an order of its own...
ARCHIVED: This Practice Note is no longer being updated Repeal of foreign travel orders and transitional provisions Foreign travel orders have now been superseded by (a) sexual harm prevention orders and (b) sexual risk orders, both of which allow for bans on overseas travel. For more information, see the Practice Notes on Sexual harm prevention orders and Sexual risk orders. This change follows the repeal of section 114 of the Sexual Offences Act 2003 ( SOA 2003) by the Anti- Social Behaviour, Crime and Policing Act 2014 ( ABCPA 2014)......
CASE HUB ARCHIVED —this hub is an archive that sets out the position as at the judgment dated 13 June 2013; it is no longer being updated. See further: timeline, commentary and related/relevant cases. Case facts Outline Versalis Sp A (formerly Polimeri Europa Sp A) lodged an appeal against the General Court's ruling, which in part upheld the Commission's decision finding an infringement and imposing a €272.25m fine, to be paid jointly and severally by Versalis and its parent, Eni Sp A, for their alleged role in a European-wide cartel covering the supply of butadiene rubber and emulsion styrene butadiene rubber (hereafter BR and ESBR respectively, or together 'synthetic rubber') between 20 May 1996 and 28 November 2002. While confirming the breach, the General Court reduced the penalty to €181.5m, concluding that the 50% increase applied for recidivism had not been...
The Financial Conduct Authority ( FCA), the Bank of England ( Bo E) — which includes the Prudential Regulation Authority ( PRA) — (together, the regulators) can take steps against individuals and companies that carry on activities without proper authorisations. This Practice Note outlines the regulators’ approach to enforcement in respect of unauthorised business matters. The general prohibition The general prohibition lies at the core of the UK regulatory regime. In essence, any person providing financial services must hold the requisite authorisations and permissions to act lawfully. Since 2013, with the introduction of a UK regulatory structure covering the Bank of England (e.g. for recognised clearing houses), the PRA (which forms part of the Bo E), and the FCA, firms are expected to consider whether authorisation is needed from multiple bodies. In theory, there remains substantial scope for firms to breach the...
This Practice Note examines the benefits payable when a member of an occupational or personal pension scheme retires. It considers how to optimise those benefits in practice and the breadth of their flexibility. The benefits covered include: tax-free cash lump sums; pensions; drawdown pensions; and flexible drawdown pensions. The Practice Note also outlines the position of qualifying recognised overseas pension schemes ( QROPS) and transfers of retirement benefits that could give rise to the overseas transfer charge applying from 9 March 2017. Benefits on retirement—general Since 6 April 2010, the payment of retirement benefits is generally permitted only from age 55 (the normal minimum pension age). There is no upper age by which such benefits must be taken. Individuals do not need to cease work to receive benefits, and a member’s retirement benefits do not all have to vest...
This Practice Note Prepared by Anne Redston, Barrister. It reflects her personal view; she is not authorised to speak for the Tribunals Service or the judiciary. This note explains what happens after your client receives a First-tier Tax Tribunal ( FTT) decision notice. It covers: your options if you are dissatisfied with the decision, including: textual corrections to the decision asking for the decision to be set aside seeking permission to appeal to the Upper Tribunal ( UT) when a taxpayer is likely to obtain permission to appeal the costs consequences of pursuing further litigation Before proceeding, read Practice Note: Appealing an HMRC decision. This and the other Practice Notes on appeals to the FTT provide only a...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 30 October 2018; it is no longer maintained Case facts Outline European Commission investigation under Article 101 TFEU into Brussels Airlines and TAP Air Portugal ( Case AT.39860). Latest development On 30 October 2018, the Commission declared the inquiry closed. The material obtained did not sufficiently substantiate its initial concerns; moreover, since 2014, additional airlines have started to challenge the code-sharing carriers on the Brussels– Lisbon route, to the benefit of consumers. The Commission nevertheless notes that ending this case does not imply that close cooperation between competing airlines cannot give rise to competition issues. Parties Brussels Airlines, based in Belgium (a subsidiary of the German airline Lufthansa) TAP Air Portugal, based in...
This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR when seeking a stay. Depending on the court handling your case, additional rules may apply—see: Court specific guidance. It addresses when the court may impose a stay and the steps to remove it. It also sets out situations in which a party might seek a stay, for example to facilitate: a challenge to jurisdiction in a cross-border dispute arbitral proceedings settlement discussions awaiting the result of other proceedings, including linked criminal cases time to meet a procedural step or court direction In some circumstances, CPR 15.11 provides for an automatic stay of the claim—see Practice Note: Stay of civil proceedings—automatic stay under CPR 15.11. For guidance on staying an order or judgment while an appeal is pending, see Practice Note: Grounds for...
Both a straightforward Murabaha and a commodity Murabaha can be arranged either for a one-off deal or set up as a revolving facility, allowing multiple deals to be undertaken under a single umbrella. In each case, the documentation sets out the core mechanics for entering into transactions. For revolving arrangements, however, the customer (the Customer) and the financier (an Islamic financial institution ( IFI)) typically conclude a master agreement, which governs the fundamental terms of their subsequent dealings, while the specifics for any particular trade are confirmed at the point of execution. In look and effect, this echoes familiar conventional products, including the revolving loan facility and the note purchase facility. Across these structures, a customer may seek a transaction (whether a sale transaction, a loan, or a note issuance, as applicable) by reference to the baseline terms in the...
This Practice Note offers a concise overview of intercreditor agreements and their key provisions. This Practice Note: sets out why an intercreditor agreement is used and when it is chosen instead of a deed of priority or a subordination deed directs you to practical material on preparing and negotiating an intercreditor agreement effectively identifies the principal parties involved in an intercreditor agreement explains the core provisions commonly included in an intercreditor agreement, such as the following: ranking and subordination restrictions on payments to junior creditors amendments and variations to transaction documents limits on commencing enforcement action control of the security enforcement strategy release of claims on...
Alongside limited partnerships ( LPs), limited liability partnerships ( LLPs) commonly serve as vehicles for owning UK real estate. This Practice Note considers the direct tax position (ie corporation tax, income tax and capital gains tax ( CGT)) and the annual tax on enveloped dwellings ( ATED) for a UK LLP in a property setting. In this note, CGT denotes capital gains tax and corporation tax on chargeable gains, unless indicated otherwise. For wider guidance on the taxation of an LLP, see Practice Note: Taxation of UK LLPs. The direct tax treatment of an LP in a property context is addressed in Practice Note: Tax treatment of a UK limited partnership. The indirect tax treatment (ie VAT and SDLT) of an LLP differs from the direct tax position and sits outside the scope of this Practice Note. For further...
Scope of this Practice Note This Practice Note sets out advice on initiating appeals in both the County Court and the High Court. Its emphasis is on lodging and serving the appellant’s notice, and on seeking extra time for doing so where required. It further addresses applications for permission to appeal in the County Court and the High Court under CPR PD 52B, and explains that an applicant may ask for an oral reconsideration of a permission decision. Be aware that distinct rules govern appeals arising from contempt matters. For further information, see Practice Note: Civil contempt proceedings—appeals, purges and discharge. Guidance is also provided on the provisions in CPR PD 52B, which regulate appeals in the County Court and High Court, operating alongside CPR 52 and the other practice directions within Part 52. This Practice Note should be read together with the general...
The solicitors’ profession operates within a tightly controlled framework. Alongside the core legal regulators, including the Legal Services Board ( LSB) and the Solicitors Regulation Authority ( SRA), several other regulatory and public bodies influence the profession and its oversight. This Practice Note outlines how the Financial Conduct Authority ( FCA), the Information Commissioner’s Office ( ICO) and the Equality and Human Rights Commission ( EHRC) interact with the regulation of solicitors. For detail on the principal legal regulators, refer to Practice Note: Relationship between legal regulators. Financial Conduct Authority ( FCA) The FCA is the UK’s sole statutory supervisor for financial services. Its remit and aims stem chiefly from the Financial Services and Markets Act 2000, as amended ( FSMA 2000). Functioning independently from government, the FCA is wholly financed by the firms within its regulatory perimeter. The FCA Handbook can be accessed online, where all FCA...
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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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