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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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ARCHIVED—this case hub records the position as at the judgment dated 16 April 2019; it is no longer maintained or updated. NOTE— In July 2019, the Supreme Court granted Mastercard permission to appeal. See the timeline, commentary and related cases for further details and context. Case facts Outline An appeal against the CAT’s judgment of 21 July 2017, which refused an application for a collective proceedings order in relation to potential follow‑on actions brought against Mastercard. Latest development On 16 April 2019, the Court of Appeal delivered its judgment, allowing the appeal and sending the CPO application back to the CAT for a re‑hearing. In particular, the Court of Appeal held that the CAT had applied the incorrect test when considering the commonality of the claims—at the certification stage the proposed representative need only show that he has a real prospect of success (here, regarding...
ARCHIVED: This archived Practice note provides links to relevant News Analyses on Brexit featured on Private Client and found in the Brexit collection. Date, News Analysis and a brief description are set out below. 26 January 2021 — Private Client— Brexit considerations Private Client analysis: On 24 December 2020, one week before the Brexit transition ended at 11pm on 31 December 2020 ( IP completion day), Prime Minister Boris Johnson confirmed the UK and EU had reached a deal. Angharad Lynn, senior associate at VWV, assesses the effect of the Trade and Cooperation Agreement ( TCA) on private client law in the UK. 22 January 2021 — Pensions after Brexit and the UK- EU trade deal Pensions analysis: Rosalind Conner and Danyal Enver, managing partner and associate respectively at Arc Pensions Law, examine the consequences for pensions after Brexit in the wake of the...
ARCHIVED—this case hub captures the position as at the decision of 8 July 2021 and is no longer maintained. NOTE—appeal lodged before the General Court in Case T- 87/22. See further, timeline and commentary. Case facts Outline European Commission Article 101 TFEU investigation into limiting competition in the development of technology to clean diesel passenger-car emissions (ie nitrogen oxide abatement) ( Case AT.40178). Latest development On 8 July 2021, the Commission issued an infringement decision after the three companies settled with it and accepted their role in the cartel. Overall fines of €875m were imposed. Fines per company were: Volkswagen—€502.362 (with a 45% leniency reduction and a 10% settlement reduction) BMW—€372.827m (including a 10% settlement reduction) Daimler—no fine (as it received immunity) Parties Bayerische Motorenwerke AG ( BMW): a German car manufacturer based in Munich Daimler AG ( Daimler): a German car...
ARCHIVED : This Practice Note explains the position if the UK and the EU reach no agreement on taking evidence after the UK leaves the EU. During the implementation period beginning on exit day (ie the day the UK departs the EU), the withdrawal agreement’s provisions apply. For guidance on that period and its effect on evidence-taking, see Practice Note: Brexit implementation period—taking of evidence [ Archived]. It considers the consequences of a no-deal exit for securing evidence in civil and commercial cases. Two principal UK regulations address a no-deal Brexit and the taking of evidence: The Service of Documents and Taking of Evidence in Civil and Commercial Matters ( Revocation and Saving Provisions) ( EU Exit) Regulations 2018, SI 2018/1257, which revokes the key EU instrument in this area, namely Regulation ( EC) 1206/2001 ( Taking of Evidence...
This Practice Note explores the function and significance of boilerplate clauses within a contract. It highlights the boilerplate provisions most frequently seen in transaction-related agreements and considers the method to adopt when reviewing or drafting agreements that contain boilerplate terms. Solicitors handle an extensive range of transactions, yet every one of them will, in some respect, involve written contracts. Each of those contracts ought to include certain boilerplate provisions. What is boilerplate? There is no universally accepted definition of a ‘boilerplate’ clause. Such clauses are often regarded as standard, catch-all terms. They are routinely accepted with minimal thought or bargaining, but treating them this way is risky. It is better to view ‘boilerplate’ as a label for the clauses inserted to govern the mechanics of how the agreement operates and the legal considerations common to most transactions. They are typically located at the start and the close of an...
This Practice Note sets out the remedies open to a landlord where a tenant is in breach of a covenant governing use of the premises: forfeiture, an injunction and/or damages. For guidance on use-restricting covenants and when consent to change may reasonably be withheld, see Practice Note: Permitted use, change of use and preventing a competing use — leases......
ARCHIVED This Practice Note is no longer being updated. It is kept for historical interest and to give practitioners a quick snapshot of developments in extradition case law across 2019. The Note logs extradition appeal judgments month by month from January 2019. For key 2018 decisions, see Practice Note: Extradition appeals tracker—2018 decisions [ Archived]. If you know the judgment date, use the list below or the links on the left-hand side of the screen to jump straight to the relevant table. Alternatively, search this Practice Note with [ CTL]+[ F] using the case name, citation, or a suitable term. Extradition appeal cases by month January 2019 February 2019 March 2019 April 2019 May 2019 June 2019 July 2019 August 2019 September 2019 October 2019 November 2019 December 2019 December 2019 Case: Asenov v Local Court of Arad Romania [2019] EWHC 3489 ( Admin), [2019] All ER ( D) 142 (...
This Practice Note explores the Hague Convention on Choice of Court Agreements and how it operates when enforcing a court judgment or a judicial settlement. It addresses what counts as a judgment and a judicial settlement, the criteria for recognition and enforcement of a court judgment, including severability, together with enforcement of non-monetary orders and judicial settlements. The Practice Note also outlines the steps for recognition and enforcement, the supporting documents needed, and points specific to England and Wales. Finally, it considers the bases for refusing recognition or enforcement under the convention. For practitioners using the Convention, an explanatory report by Trevor Hartley and Masato Dogauchi offers detailed commentary on each article. It further signposts severability within judgments and the treatment of non-monetary relief and settlements under the convention. Does the Convention...
This Practice Note explores the Financial Conduct Authority ( FCA)’s expectations of culture within financial services firms, and how regulatory instruments such as the Senior Managers & Certification Regime ( SM& CR) and the Consumer Duty are used to direct FCA supervision and enforcement towards firms’ cultural frameworks. Although the FCA is the dominant conduct regulator in this space, the Prudential Regulation Authority ( PRA) also scrutinises how culture influences prudential risks, which is considered below. Key points addressed include: regulators’ position that culture is a principal driver of conduct outcomes and market integrity the expectation that culture is actively owned and overseen by firms and their senior managers the connection between culture, psychological safety and challenge, and how the SM& CR, amendments to the Conduct Rules to reflect the FCA’s expectations on...
HMRC is made up of specialist teams that handle defined aspects of employment-related securities ( ERS) and share plans. The HMRC team you should approach varies according to the precise matter at hand. General employment related securities Previously, technical questions on tax-advantaged share schemes and ERS were channelled to the Employee Share Schemes Unit, while technical questions about enterprise management incentives ( EMI) went to the Small Company Enterprise Centre. Following Employment Related Securities Bulletin 30 ( October 2018), HMRC appeared to be actively steering such questions—other than advance assurance applications (see: EMI advance assurance below)—through the non-statutory clearance route. This stance was confirmed, with further explanation, in Employment Related Securities Bulletin 39 ( August 2021). Nevertheless, in contrast to that direction, HMRC later amended its Contact HMRC page to say that for any general ERS matters, including registering ERS schemes and...
This Practice Note outlines the insolvency regime brought in by the Technical and Further Education Act 2017 ( TAFEA 2017), the Further Education Bodies ( Insolvency) Regulations 2019 ( FEBR 2019), SI 2019/138, and the Education Administration Rules 2018 ( EAR 2018), SI 2018/1135, which took effect on 31 January 2019. TAFEA 2017 establishes the structure of an insolvency framework applying to further education and sixth form colleges in England and Wales. It also introduces a special administration regime designed to protect the interests of learners where a college becomes insolvent. Background The Further and Higher Education Act 1992 ( FHEA 1992) created a new further education sector providing full-time education for 16–18 year olds and introduced a distinct corporate legal entity, the ‘further education corporation’. The Association of Colleges reports that over 95% of institutions in the sector are either further education...
Scope of this Practice Note This Practice Note addresses matters linked to technology used to help firms comply with their regulatory duties—often referred to as ‘regtech’. It reviews how the Financial Conduct Authority ( FCA) and the Bank of England ( Bo E) (including the Prudential Regulation Authority ( PRA)) engage with regtech, highlights industry activity, and records both the proposal and subsequent withdrawal of an FCA ‘ Robo Handbook’. It examines these facets of what has come to be known as ‘regtech’: what is regtech? the FCA’s approach FCA Tech Sprints digital sandbox other regulator-side developments towards a Robo Handbook industry-side developments other initiatives What is regtech? Regtech is a broad label for the use of technology to help firms discharge regulatory requirements more efficiently and effectively than legacy systems allow—and, at times, for the use of...
This archived Practice Note captured the principal developments anticipated to influence the corporate governance regime in 2019. It has not been updated since 2019. For developments from January 2020 onwards, see Practice Note: Corporate governance horizon scanning—2020 and beyond. Please send suggestions for topics we might track to Knowhow Lawyers Corporate@lexisnexis.co.uk... Mini-index January 2019 February 2019 March 2019 April 2019 June 2019 July 2019 September 2019 October 2019 No specific date in 2019 confirmed 2020 and beyond January 2019 From 1 January 2019, the revised UK Corporate Governance Code ( UKCG Code) applies to premium listed companies with accounting periods beginning on or after that date. The update stems from the government’s response to the Green Paper Consultation on Corporate Governance Reform, together with the Hampton- Alexander Review and the Parker Review. Headline changes address...
The following records and condenses finalised inquiries undertaken by the European Ombudsman linked to DG Competition, as well as competition law matters since 2014. 2025 Case Type of complaint Issues Relevant Commission investigation or decision Developments Case 1880/2025/ MAS Access to documents This matter related to a bid for public access to a report that set out an assessment of the ‘ Do No Significant Harm’ principle for a project under a State aid inquiry Case SA.101151 30/09/2025—the Ombudsman identified no maladministration and closed the file Decision Case 275/2024/ NH Access to documents This case involved a request for public access to papers concerning a State aid investigation into railway services in Portugal Unknown 20/01/2025—the Ombudsman decided that no further enquiries were warranted and closed the case Decision Case 275/2024/ NH Access to documents This case concerned a plea for public access to...
CASE HUB ARCHIVED –this archived case hub reflects the position at the date of the decision of 17 December 2018; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission probe under Article 101 TFEU into vertical limits on online advertising and cross-border sales attributed to Guess ( Case AT.40428). Latest developments On 17 December 2018, the Commission adopted an infringement decision against Asus, levying €39.821m (following an ‘informal settlement’) for restraining retailers’ online advertising and blocking cross-border sales to consumers in other Member States (‘geo-blocking’), in breach of Article 101 TFEU. Parties Guess is a United States-based clothing brand and retailer that designs, distributes and licences apparel and accessories under several trade marks, including “ GUESS?” and “ MARCIANO”. In the EEA, Guess operates a selective distribution...
CASE HUB NOTE—appeal lodged before the General Court in Cases T‑837/19, T‑64/20, T‑58/20 and T‑69/20 ARCHIVED—this archived case hub sets out the position as at the decision date of 18 July 2019; it is no longer maintained. See further, timeline, commentary and related cases. Case facts Outline European Commission review of a merger concerning Vodafone’s intended acquisition of Liberty Global’s businesses in Germany, the Czech Republic, Hungary and Romania ( Case M.8864). The deal gives rise to concerns in markets for telecommunications services, especially in the Czech Republic and Germany. Latest developments On 18 July 2019, the Commission granted conditional approval, subject to commitments. It accepted from Vodafone a package of remedies designed to address its competition concerns. Parties Vodafone is a UK-based telecommunications operator. It is primarily engaged in running mobile telecommunication networks and in supplying mobile telecommunication services, including mobile voice, messaging and data services. Certain...
CASE HUB ARCHIVED This archived case hub sets out the position as at the decision date of 7 December 2018; it is no longer maintained or updated. See further, timeline, commentary and related/relevant cases. Case facts Outline European Commission Article 102 TFEU inquiry into the electricity interconnector linking Western Denmark and Germany, operated by Tenne T (case number AT.40461). Latest development On 7 December 2018, the Commission accepted commitments from Tenne T under Article 9. These commitments, which will apply for nine years, provide that: Tenne T will offer to the market the maximum capacity consistent with the safe operation of the interconnector between Western Denmark and Germany and, in any case, will ensure a minimum hourly capacity of 1 300 megawatts on the interconnector (approximately 75% of its technical capacity); this minimum guaranteed hourly capacity will be achieved following an...
CASE HUB ARCHIVED —this archived case hub reflects the position at the date of the judgment of 6 December 2018; it is no longer maintained. See further: timeline and commentary. Case facts Outline Appeal before the General Court against the European Commission’s decision finding an infringement and imposing penalties on, amongst others, Coveris Rigid France ( Coveris), for taking part in a cartel concerning retail food packaging trays in France. Outcome On 6 December 2018, the General Court ruled and rejected Coveris’ argument that liability for a €4.8m penalty should pass to the purchaser of assets sold by its parent group from the business implicated in the cartel; the Court held Coveris remained responsible. Parties Applicant: Coveris Rigid France Defendant: European Commission Coveris manufactures flexible packaging and supplies varied packaging...
ARCHIVED: This content was published in 2018 and is not maintained. This Market Standards Trend Report reviews current market practices and developments arising from the FTSE 350 annual general meeting ( AGM) season for 2018......
CASE HUB NOTE—appeal lodged before the General Court in Case T-583/20 ARCHIVED—this case hub records the position as at the decision of 12 April 2019 and is no longer maintained. See further, timeline. Case facts Outline of the European Commission’s merger probe into Nidec’s proposed acquisition of Embraco, Whirlpool’s compressor business ( Case M.8947). The deal features horizontal overlaps in the markets for refrigeration compressors. Latest developments On 12 April 2019, the Commission conditionally approved the transaction, subject to commitments. The commitments comprised a remedies package offered by Nidec including: divestment of its refrigeration compressor business covering household and light commercial applications; and a commitment to provide significant funding to the purchaser of the divested business for future investments in the facilities. Parties Nidec Corporation is a Japan-based company engaged in the engineering, manufacture, and distribution of a wide range of electric motors and motor...
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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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