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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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Data protection and privacy law issues are likely Like many organisations, you may devote considerable time and energy to your marketing efforts, but you must likewise set aside adequate resources to stay compliant with the rules. In summary, you should weigh the following areas: data protection and privacy requirements, such as the UK General Data Protection Regulation ( UK GDPR) and Privacy and Electronic Communications ( EC Directive) Regulations 2003 ( PECR 2003) consumer protection legislation—see Practice Note: Consumer protection from unfair trading under the Digital Markets, Competition and Consumers Act 2024 codes of practice, such as the Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing ( CAP) Code and the Direct Marketing Association Code ( DMA Code) other advertising and direct marketing law, where relevant—see Practice Note: Advertising law and...
This tracker recorded key developments, legislation, guidance and briefing notes linked to the early response to coronavirus ( COVID-19) from June to August 2020, with an emphasis on updates relevant to local government governance. It serves as a historical snapshot of the legislation and guidance that applied and was used during that timeframe... For the latest position, refer to: Coronavirus ( COVID-19)—governance tracker [ Archived]... Use the links below to go directly to a section: Primary legislation National restrictions Local restrictions Travel restrictions Local authority governance Financial support Government guidance Other sources of information News Analysis Case Law Primary legislation Development Corporate Insolvency and Governance Act 2020 ( CIGA 2020)... When in force Comes into force in part on 26 June 2020, with the remaining provisions commencing on a day appointed by the Secretary of State through...
This Practice Note This Practice Note explains how to address a notice of arbitration ( Notice) served under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, refer to Practice Note: UNCITRAL Rules—background and introduction. To initiate arbitration pursuant to the UNCITRAL Rules, the claimant is required to formally deliver a Notice to the respondent—see Practice Note: UNCITRAL Rules—starting an arbitration......
HMOs are typically private dwellings first planned for a single household, later adapted to accommodate several distinct households or individuals. Such adaptation almost invariably entails shared bathing or kitchen facilities and the use of parts of the building for functions for which they were never intended, creating clear potential issues affecting not only amenity but also the safety of the accommodation. Moreover, Government and Parliament have recognised the necessity for particular measures for HMOs, owing to the unfortunate reality that people and families most in need of social protection, including those with young children, are frequently compelled to reside in housing which, by and large, is liable to be markedly less suitable than purpose-built flats or houses. The Housing Act 2004 ( HA 2004) introduced licensing for houses in multiple occupation ( HMOs). It sets out a precise definition of HMOs and...
This Practice Note This Practice Note examines the overriding objective that must be applied in public law children cases, notably care proceedings under the Children Act 1989 ( Ch A 1989), to ensure matters are resolved fairly with welfare considerations to the fore and with proper regard to welfare issues. It details the court’s obligations to advance that overriding objective and the general approach in children litigation, alongside the duties of the parties and of legal representatives. It also offers guidance on when a judge should step aside. From 22 April 2014, the Public Law Outline ( PLO) governing care, supervision, and other proceedings under Ch A 1989, Pt IV took effect pursuant to the Family Procedure Rules 2010 ( FPR 2010), via FPR 2010, PD 12A. See Practice Note: Public law children procedure— Public Law Outline for practical guidance on the PLO. In 2014, the...
This Practice Note explains how to complete Precedent H (costs budget), the prescribed form for setting out a party’s budgeted costs under CPR 3 and CPR PD 3D. Except in exceptional circumstances, parties are expected to submit only Precedent H and the budget discussion report ( Precedent R). Where the claim is worth less than £50,000, or the costs sought are under £25,000, only the first page of Precedent H must be completed. It should be read alongside Practice Note: Cost budgets—form, content and practical considerations. This Note provides assistance with completing Precedent H, the court form that records a costs budget... Which CPR provisions apply? CPR 3 and CPR PD 3D apply... What is Precedent H? Precedent H is the court form setting out a costs budget. Unless the court orders otherwise......
Where a provision within the Companies Acts permits or obliges documents or information to be delivered or supplied to a body corporate (however phrased), the individual sending or supplying it must observe sections 1144–1148 and Schedule 4 of the Companies Act 2006 ( CA 2006), which set out the company communications provisions. The Companies Acts are defined in CA 2006, s 2, and include CA 2006 itself, save for ss 1182–1283. For the purposes of the company communications provisions, any reference to a document extends to a summons, notice, order, other legal process, or register. The company communications provisions are subject to any requirements imposed, or inconsistent provision made, by or under any enactment. Nevertheless, such a provision is not to be treated as inconsistent with the company communications provisions simply because it expressly authorises a document or information to be sent or...
This Practice Note outlines the scheme for transferring tenancies following relationship breakdown under Schedule 7 to the Family Law Act 1996 ( FLA 1996), applying to those who are or have been spouses/civil partners and to former cohabitants. It identifies the kinds of tenancies caught by the legislation, the circumstances in which the court may make an order, and the principles it applies when deciding an application. The Practice Note further addresses the consequences of the orders available, how these interact with home rights, and the transfer of tenancies via a property adjustment order under section 24 of the Matrimonial Causes Act 1973 ( MCA 1973) and the corresponding provision in the Civil Partnership Act 2004 ( CPA 2004), together with Schedule 1 to the Children Act 1989 ( Ch A 1989). For practical guidance on procedural issues, see Practice Note:...
Note: the Swiss cases referred to below are not reported by Lexis Nexis®. Introduction and the Structure of this Note The question of immunity arises most often in relation to diplomats, and also consular officials and employees. Immunity is enjoyed by foreign states; numerous intergovernmental and international organisations under headquarters agreements with the Swiss Confederation; the assets of foreign central banks; and state cultural property, whether brought to Switzerland with or without a return guarantee. No immunity applies to foreign state-owned enterprises or to ordinary foreign state-owned banks. Immunity operates solely as a shield. Where an individual, entity, or state benefits from it, the host state may neither exercise jurisdiction over them nor enforce against their assets. Nevertheless, they remain part of legal life and may choose to participate in legal transactions within this forum. Swiss law, like most systems,...
This Practice Note examines the use of expedited (or fast-track) arbitration procedures pursuant to the London Court of International Arbitration ( LCIA) Arbitration Rules 2020 (the LCIA Rules), effective from 1 October 2020. The LCIA does not presently provide a fast-track variant within the LCIA Arbitration Rules. Even so, parties are free to embed a bespoke fast-track process in (i) an arbitration clause; or (ii) a submission agreement concluded before, or upon, commencing an LCIA arbitration. For practical guidance on arbitrations conducted pursuant to the LCIA Rules 2020 and 2014, please refer to the relevant Practice Notes here: LCIA arbitration—overview. For guidance on the general subject of expedited (aka fast-track) arbitration, see Practice Note: Expedited (aka fast-track) arbitration. Fast-track arbitration procedure under the LCIA Rules Expedited arbitration regimes typically supply users with a non-exhaustive suite of procedural tools aimed at ensuring the...
CASE HUB ARCHIVED This archived case hub reflects the position as at the judgment of 7 December 2022; it is no longer maintained. See further, timeline. Case facts Outline Appeal before the General Court seeking annulment of the Commission’s readopted infringement decision of 17 December 2020, which imposed a reduced fine amounting to €9.4m ( AT.39563). Latest development On 7 December 2022, the General Court delivered its judgment and dismissed the appeal in full. In particular, it found that: (i) CCPL grasped the Commission’s reasoning, and the material presented by CCPL was insufficient to overturn the presumption applied by the Commission that CCPL exercised decisive influence over entities within the CCPL group; and (iii) the Commission did not err in concluding that a fine reduction can only be warranted by the aim of preventing the undertaking’s economic viability from being irreparably endangered and its assets stripped of value, so the...
This Practice Note contains a spreadsheet, collating detailed data breach examples provided by UK and European regulators, ie: ICO, Personal data breaches: a guide EDPB, Guidelines 01/2021 on Examples regarding Personal Data Breach Notification The spreadsheet can be consulted to help you judge whether specific kinds of data breach should be reported to the Information Commissioner’s Office ( ICO) and/or to affected data subjects; nonetheless, you must always undertake your own assessment of any breach that occurs within your organisation. The reporting threshold for the ICO is lower than the threshold for notifying data subjects—this is outlined below and also indicated via notes within the relevant spreadsheet columns. The examples are set out as detailed scenarios, which are......
What is repo? A repo, the market shorthand for a 'repurchase transaction', is an arrangement whereby one party (the seller) sells an asset to another (the buyer) with a simultaneous contractual undertaking that the seller will repurchase the asset from the buyer on a future date for a specified price agreed between both parties in advance. Any asset capable of being transferred from one person to another may, in principle, be the subject of a repo transaction. The assets most commonly used in repos are debt securities (bonds), equity securities (shares) and other financial assets, including loans and commodities. However, commodity repos can raise distinctive documentary, structural and legal issues, which are not addressed in this Practice Note. For guidance on commodity repos, see Practice Note: Commodity repo transactions and true sale considerations......
This Practice Note on economic torts This note summarises, at a high level, the key differences when pursuing claims for lawful means conspiracy, unlawful means conspiracy, the tort of unlawful interference, and procuring a breach of contract. Practice Notes: Civil conspiracy claims (economic tort) Lawful means conspiracy (civil action) Unlawful means conspiracy (civil action) Economic tort of unlawful interference The tort of procuring a breach of contract Closely connected to procuring a breach of contract is the so‑called ‘ Marex tort’, a cause of action founded on an alleged deliberate infringement by the defendant of the claimant’s rights in a judgment debt; see Practice Note: The Marex tort (interference with a judgment debt). These claims may (though need not) involve a fiduciary or agent, including company directors. For further guidance, see: Claims against directors—key...
Introduction This Practice Note sets out an overview of flooding matters that can arise in property transactions. It is intended to equip clients to check flood risk at a property and to weigh the key points when buying or selling. For material on heightened flood risk, climate change and the solicitors’ duty to warn clients about climate-related risks, see News Analysis: The legal duty to advise and warn about climate risk—developments for property lawyers. The Law Society of England and Wales has issued an updated practice note entitled ‘ Climate Change and Property’. That guidance expresses the Law Society’s view of sound professional practice on climate-related risks in property work, highlighting physical, transition and liability risks as potentially relevant. It recommends that solicitors, acting within the scope of their instructions and competence, consider whether to bring such risks to clients’ attention and suggest...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES This Practice Note cites decisions of the Court of Justice of the European Union and refers to its case law. For direction on whether EU judgments bind UK courts, see Practice Note: Assimilated law — Assimilated case law. Amending the amendment power Efforts to expand (or limit) a scheme’s amendment power are often legally precarious and may later be attacked as an improper use of the scheme’s own amendment power. They can also risk eroding the very objective of having an amendment power in the first place. Ability to amend the power of amendment At its core, the amendment power may only be modified—whether by imposing or removing restrictions—where the power itself authorises that outcome. The amendment power must be exercised only for the purpose for which it was bestowed......
All lending arrangements rely upon the borrower’s solvency and its capacity to meet its financial obligations under the arrangement. A receivables financing facility follows exactly the same principle too......
This Practice Note outlines what a statutory demand is and what it is intended to achieve in corporate and personal insolvency, assuming the debtor is located in England and Wales. The statutory demand—the general position A statutory demand (in both corporate and personal contexts) is a formal request for a debt—either immediately payable or due at a specified future time—served on the debtor by one or more of their creditors. Across both regimes, if the debtor, within 21 days of service, does not pay the sum, does not satisfy it or provide security to the creditor’s satisfaction, or does not take the proper steps to stop the creditor acting further upon it, a presumption of insolvency arises on an inability to pay basis in respect of the debtor. Where the debtor is an individual, an unanswered statutory demand supplies a creditor with one of only two bases on which a...
Article 102 TFEU Across the EU, behaviour by single-firm or otherwise dominant businesses is controlled under Article 102 TFEU and applies throughout the Union. That clause bars undertakings that, alone or together, enjoy a dominant position in the internal market, or a material portion of it, from exploiting that power—absent objective justification—where such conduct may influence trade between Member States. Equivalent rules appear in Member States’ national competition regimes and closely mirror Article 102’s approach. Article 102 imposes a special responsibility on dominant undertakings, intended to ensure that powerful companies do not skew markets, deal unfairly with customers, or blunt competitive pressure by shutting out rivals, notably by: setting, directly or indirectly, unfair purchase or selling prices, or imposing other unjust trading terms, restricting output, markets, or technological progress to the detriment of consumers, applying unequal terms to...
Practice Note This Practice Note summarises the principal requirements and considerations surrounding disciplinary and grievance procedures in broad terms. It explains the advantages of carefully drafted, written procedures for discipline and grievances. It addresses the obligation to include specified information about these procedures in written statements of particulars, the core principles underpinning them, the effect of the Acas Code of Practice on Disciplinary and Grievance Procedures, and the statutory right to be accompanied. It also examines the use of disciplinary warnings, contractual issues where procedures are binding terms, and the implications of the right to a fair hearing under Article 6 of the European Convention on Human Rights ( ECHR). Many employers maintain their own processes for managing discipline or enabling staff to raise grievances, commonly set out in employee handbooks or staff manuals, and in some organisations made available by other means, for...
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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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