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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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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...
Company voluntary arrangement ( CVA) A company voluntary arrangement ( CVA) is a binding contract between a company and its creditors. A CVA proposal must include one or both of the following: paying a lump sum instead of a larger debt or other obligation; and/or providing for less than the full release or discharge of creditors’ debts However, a CVA cannot be used to change the rights of secured creditors, or to alter a preferential creditor’s priority, unless the affected creditors agree. For any CVA put forward within 12 weeks of the end of a moratorium under the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), the holders of any unpaid moratorium debts and priority pre‑moratorium debts effectively have a veto: neither the company nor the creditors may approve the CVA unless those debts are paid in full, unless the creditors consent; CIGA 2020, Sch 3,...
Arbitration under the Abu Dhabi Commercial Conciliation & Arbitration Centre ( ADCCAC) Where an arbitration clause designates the ADCCAC, the proceedings are governed by its Procedural Regulations of Arbitration 2013 (the 2013 Regulations). This Practice Note relies on the ‘official’ English text of the 2013 Regulations. Translation inconsistencies exist between Arabic and English regarding whether terms are mandatory or permissive, particularly in the rendering of compulsory and discretionary wording. The authoritative version is Arabic, which will prevail if any controversy arises over the meaning of the 2013 Regulations. For enforcement purposes, it is essential that any arbitral award satisfies all requirements imposed by the rules under which it is made, and strict adherence to procedural form is required. The provisions extend to every arbitral award, not solely a final award; the Panel (the ADCCAC expression for the tribunal) may issue...
Production orders A production order allows authorities to obtain material connected to an identified person or business, such as bank records and correspondence. The individual named must either deliver the specified material to an officer or permit that officer to access it. The order can be served on a person or an institution, and may extend to authorising entry to premises to reach the material. This mechanism is available for all forms of ‘investigation’, including confiscation, civil recovery, money laundering, exploitation proceeds, detained cash, detained property, and investigations into frozen funds and cryptoassets. The dominant purpose test In R (on the application of Bowles) v Southwark Crown Court, a pre‑ POCA ruling, it was decided that production orders could not be secured under the predecessor to the Proceeds of Crime Act 2002 ( POCA 2002) to further a criminal...
Proving the identity of the driver Where the bench is satisfied the defendant was served with a notice under section 172 of the Road Traffic Act 1988, and the court receives a statement from the defendant admitting they were the driver, that statement is accepted as proof of identity. If no such admission exists—either because a RTA 1988, s 172 notice was not properly served in line with the Criminal Procedure Rules 2025 ( Crim PR 2025), SI 2025/909, Pt 4, or the allegation is not one to which section 172 applies—the magistrates will look to other material. Information provided by the registered keeper to police during interview or questioning Entries held on the police national database See: Creed v Scott [1976] RTR 485 (not reported by Lexis Nexis®) and DPP v Bayliff [2003] EWHC 539 ( Admin) (not reported by Lexis Nexis®). Details supplied to the police may...
Judicial review In essence, any administrative ruling about a person’s immigration status or nationality can be contested, on orthodox public law grounds, by way of judicial review when no other remedy is available. Judicial review denotes the mechanism through which judges of the Administrative Court—within the King’s Bench Division of the High Court of Justice—and, from 1 November 2013, the Upper Tribunal ( Immigration and Asylum Chamber), determine the legality of public bodies’ acts or omissions, and supervise inferior courts and tribunals. In Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock observed that: ‘ Judicial review…provides the means by which judicial control of administrative action is exercised.’ Its role in immigration matters is particularly pronounced, since most decisions no longer carry a right of appeal, leaving judicial review oversight as the sole legal remedy. In O’ Reilly v Mackman the...
This Practice Note considers how civil partnership is defined in the Civil Partnership Act 2004, reflecting amendments effective from 2 December 2019 that extend it to opposite-sex couples. It outlines the formal steps required to enter into a civil partnership Definition On enactment of the Civil Partnership Act 2004 ( CPA 2004), civil partnerships were confined to two people of the same sex. From 2 December 2019, the Civil Partnership ( Opposite-sex Couples) Regulations 2019 ( CP( O-s C) R 2019), SI 2019/1458, took effect and the CPA 2004 eligibility rules were changed to permit opposite-sex couples to register a civil partnership in England and Wales. The Marriage and Civil Partnership ( Minimum Age) Act 2022 ( MCP( MA) A 2022), in force from 27 February 2023, further amends CPA 2004 by raising the minimum age for a civil partnership to 18 (rather than 16), thereby...
The provisions that govern annual accounts and reports for unquoted companies are contained in: Part 15 of the Companies Act 2006 ( CA 2006) the Large and Medium-sized Companies and Groups ( Accounts and Reports) Regulations 2008, SI 2008/410 ( Large Companies Regulations) the Companies, Partnerships and Groups ( Accounts and Reports) Regulations 2015, SI 2015/980 (2015 Regulations) This Practice Note explains the accounting regime as it applies to companies under the 2015 Regulations. A company qualifying for the unquoted companies regime is subject to less onerous accounting and reporting obligations than a company within the quoted company regime. For an overview of the statutory framework for company annual accounts and reports, see Practice Note: Accounts and reports—an outline of the statutory framework. When the unquoted companies regime applies An unquoted company, as defined in CA 2006, is a company formed and...
What are reserved matters? Outline planning permission gives a decision on the overarching principles for developing a site. It is granted while keeping back specific aspects for later sign-off by the local planning authority ( LPA) or the Secretary of State; these are known as reserved matters. In England, article 2 of the Town and Country Planning ( Development Management Procedure) ( England) Order 2015 (the 2015 DMPO), and in Wales, the Town and Country Planning ( Development Management Procedure) ( Wales) Order 2012 (the 2012 DMPO), describe reserved matters as any of access, appearance, landscaping, layout and scale, where details have not accompanied the outline planning application. The 2015 DMPO and the 2012 DMPO set out the following meanings: Access — the means of reaching and moving within the site for vehicles, cycles and pedestrians, including the siting, positioning and treatment of entry points and...
Ownership, leasing or any other lawful use of land typically depends on being able to get to it, so that the land can be enjoyed. The public may use roads and footpaths adopted by local authorities and, where a plot abuts an adopted road, gaining access is usually uncomplicated. Where access must cross another person’s land, recourse to common law or statute might be available, but buyers will ordinarily prefer a formal arrangement—such as a contractual right or servitude—where none already exists. If land is held in common or jointly, each owner may reach and traverse it without needing separate access rights. This Practice Note outlines the typical access questions that can arise in Scottish property deals and the matters a seller’s and a buyer’s solicitor may need to consider. The same themes can arise in lease transactions between landlord and tenant...
This Practice Note explores the incorporation of a charterparty jurisdiction clause into a bill of lading. It concentrates on: the distinctive English-law rules on importing charterparty terms into bills of lading recent authorities concerning jurisdiction and dispute resolution wording in bills of lading practical issues stemming from standard terms used in carriage contracts and bills of lading the stance of consignees and holders when incorporated bill terms are invoked It serves as an introductory guide for lawyers handling shipping and aviation work. It should be read alongside Practice Note: Jurisdiction agreements by incorporation—principles, which addresses the broader principles governing incorporation of jurisdiction clauses, particularly by reference to standard terms and conditions. Key takeaways in bills of lading, the issue is one of construction, yet English law adopts a rigorous approach to incorporation general wording will ordinarily import only terms germane to...
This Practice Note outlines leading cases and related materials on obtaining the company’s property, books, papers or records under section 234 of the Insolvency Act 1986 ( IA 1986). The cases are grouped by subject area and cover: the applicant getting in the company’s property disputes over ownership the court’s discretion office-holder immunity For more detail on this area, see Practice Notes: Basic principles—the delivery-up of information and property to the insolvency office-holder Getting in the company’s property under section 234 of the Insolvency Act 1986 The applicant Smith ( Administrator of Cosslett ( Contractors) Ltd) v Bridgend County Borough Council [2001] UKHL 58, [2001] All ER ( D) 118 ( Nov) (8 November 2001): IA 1986, s 234 provides a swift, summary mechanism enabling an office-holder to fulfil their functions and gather assets that the company appears...
This Practice Note provides step-by-step guidance for personal representatives ( PRs) on completing Form IHT35 when claiming relief on estate shares or securities sold at a loss against their value at the date of death, where that value was included in the IHT400 and inheritance tax has been paid. It should be read alongside: Claim for relief loss on sale of Shares Listed stocks and shares IHT411 The Note assumes an understanding of the background and the mechanics of submitting an IHT400 account, together with the ability of PRs to claim loss relief on a sale of shares. It is intended to assist with preparing the following document: Claim for relief loss on sale of Shares This form is also available through Lexis®Smart (subscription sensitive): Claim for relief loss on sale of Shares. The basic conditions for claiming relief under section 179 of the...
Planning conditionality A large proportion of property deals entail various rights and duties that depend upon, or are activated by, the granting of (a satisfactory) planning permission......
Context Jurisdiction clauses frequently appear in commercial contracts and are typically framed as either: Exclusive jurisdiction clauses (see Practice Note: Jurisdiction agreements—exclusive jurisdiction agreements) Non-exclusive jurisdiction clauses (see Practice Note: Jurisdiction agreements—non-exclusive jurisdiction agreements) Where parties have chosen an exclusive jurisdiction term, the default position is that the English court will ordinarily ‘exercise its discretion… to secure compliance with the contractual bargain’. Such provisions now appear ever more often in trust instruments. Nevertheless, several questions arise concerning: the drafting of such clauses the areas to be covered by such clauses the interpretation and effects of such clauses Two examples of jurisdiction clauses As presently encountered, trust jurisdiction provisions create a series of connected issues, including how they are drafted, what they should cover, and how they are interpreted and what they achieve. Before considering their operation, it is useful to look at a couple of...
This how-to guide outlines, at a high level, what a body carrying out public functions should do when faced with a threatened or lodged judicial review. It focuses on the stages up to the court’s decision on permission. For measures to guard against a successful challenge, see Practice Note: Avoiding a judicial review. Take legal advice The extent to which a threatened judicial review has already attracted legal input will differ. It turns on the nature of the impugned decision—major policy is more likely to have been advised upon than a one-off administrative act—and on who the decision-maker is. On receipt of a pre-action letter, the immediate issue is to ask whether any clear flaws exist in the decision under challenge, and, if so, whether these can be communicated to the decision-maker. How far such advice can shape the...
This Practice Note This Practice Note sets out how to apply for a domestic abuse protection order ( DAPO) within the pilot established by FPR 2010, PD 36ZG— Part 3 of the Domestic Abuse Act 2021: Provision during piloted commencement, in the courts identified for the pilot. It also outlines the actions required after a DAPO is granted, including service of the order, notifying the police, and information concerning any electronic monitoring requirement. For details of participating courts, how to apply under FPR 2010, PD 36ZG on notice or without notice, the measures a DAPO may contain, and the availability of legal aid, see Practice Note: Domestic abuse protection orders in the Family Court—application to order (pilot scheme). The DAA 2021 provisions for DAPOs in the Family Court take effect only for the purposes of the pilot in the specified courts under FPR 2010, PD 36ZG....
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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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