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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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This Practice Note explores the scope and application of declarations pursuant to CPR 8 within the context of adjudication proceedings. It addresses the different points at which such relief might be pursued—prior to commencement of an adjudication, whilst one is ongoing, and following delivery of an adjudication decision. For general guidance on Part 8 claims, refer to Practice Note: CPR Part 8 claims (alternative procedure for claims). Why are Part 8 proceedings used? In relation to adjudication proceedings, declarations under CPR Part 8 are typically sought to: obtain clarification before or during the adjudication—eg to resolve a potential breach of natural justice or a jurisdictional challenge; secure final determination on a point, the effect of which is to trump the adjudication decision (see, for example, Leeds City Council v Waco) The latter route is considerably more prevalent because it is usually not possible to stave off...
For earlier years, see the Construction case law tracker—2024; Construction law case tracker (2021–2023, with cases in reverse chronological order); 2020; 2019; 2018; 2017; 2016; and 2015 archives. Public procurement decisions appear in the UK public procurement case tracker and the EU public procurement case tracker. Key forthcoming appeals are listed in the Construction horizon scanner. Judgment date 19 December 2025 Case The H. D. Lee Company Inc v Luis Eduardo Caicedo S. A. ( Lec S. A.) Topic Arbitration News Recovery of arbitration costs from defaulting parties—the recent ruling of the Colombian Supreme Court Summary The Supreme Court of Justice of Colombia recognised a partial arbitral award issued by an ICC tribunal seated in New York. The award required the respondent to repay US$125,000 to the claimant, who had advanced the portion of arbitration costs the respondent failed to fund. The court held that the duty to pay advances on arbitral costs is...
Payments and price under the NEC Engineering and Construction Contract ( ECC) This Practice Note examines how payments are made and how the contract sum is worked out under the NEC Engineering and Construction Contract ( ECC). It sets out how each principal pricing option operates, how the price for the works is determined and how the risk of rising costs is allocated between the parties. For broader information on payment in construction contracts, see Practice Notes: Interim payments in construction contracts, Interim payments in construction contracts and The final account in construction and engineering contracts. This Practice Note addresses both NEC3 and NEC4 editions of the ECC. For consistency, the term ‘ Client’ is used throughout this Practice Note, as that is the expression adopted for the developer/employer in NEC4 contracts (the NEC3 ECC uses the term ‘ Employer’). The term ‘ Scope’ is also used...
This Practice Note identifies key authorities on construction contract payment mechanisms under the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), as modified by the Local Democracy, Economic Development and Construction Act 2009. For further assistance, see Practice Notes: Interim payments in construction contracts and Interim payments in construction contracts. In respect of interim payments, see also Practice Note: Interim payments in construction contracts. Further guidance is available in the above Practice Notes on interim payments within construction contracts for reference. CAUTION: From December 2014 (when judgment was given in ISG v Seevic) through to February 2018 (when the Technology and Construction Court ( TCC) issued judgment in Grove v S& T), payment disputes proceeded on the footing that if a payer failed to serve a payment notice or a pay less notice for an interim payment, it was taken to have...
This Practice Note explores whether, and in what circumstances, a duty of good faith can be implied into a construction contract, and reviews standard form construction agreements that include express commitments to act in good faith, together with the impact of those clauses on the parties’ obligations. English law, unlike many other legal systems, has long rejected any overarching duty of good faith. Such a duty arises only in narrow classes of contractual agreement, for example certain insurance and employment contracts, and in fiduciary settings. Accordingly, a universal obligation to act in good faith will not, as a rule, be implied into a construction contract in most cases. While various standard forms do contain wording requiring parties to act in a spirit of good faith, the likely consequence, as discussed in this Practice Note, is that any effect on the parties’...
Where an agreement for lease is silent on insurance, the open contract position applies: neither party has a duty to arrange cover for the premises; and the risk transfers to the tenant on exchange of the agreement for lease. In short, absent an express clause, there is no automatic cover and the tenant carries the peril once the agreement is exchanged. If the agreement adopts the Standard Commercial Property Conditions ( Second or Third Editions) or the Standard Conditions of Sale (5th Edition), the default (absent express variation) is identical: the seller/landlord need not insure the property, so the buyer/tenant bears the risk from exchange. That default applies unless the parties agree a different arrangement. Consequences of either of those scenarios For an unconditional agreement for lease, the effect is that the tenant must complete the lease even if the property is destroyed after...
Practice Note This Practice Note sets out who may seek remediation orders and remediation contribution orders, explains the subject matter of such orders, identifies potential respondents, and outlines the steps to apply. The Building Safety Act 2022 ( BSA 2022) introduces provisions designed to shield certain leaseholders of ‘relevant buildings’ from bearing the expense of remedying specific historic building safety defects, while creating routes to recover those sums from persons who are landlords under leases of the building (or any part of it), pursuant to sections 116–124 and Schedule 8. As a consequence, in defined circumstances, landlords will be prevented from passing on, through the service charge, some or all of the costs they incur in addressing fire safety related defects to leaseholders via the service charge mechanism......
This Practice Note monitors the development of UK legislation brought forward under the legislative programme linked to the UK’s departure from the EU. It also features a Brexit SI database that compiles details of both draft and made secondary legislation related to Brexit. Quick links Use the links below to go directly to the relevant section or tracker. Practice area trackers Follow the links below for trackers focused on Brexit legislation across specific practice areas: Commercial Corporate Crime Dispute Resolution Employment Energy Environment Financial Services Information Law Intellectual Property Life Sciences Local Government Pensions Property R& I Tax For further updates and guidance tailored to individual practice areas, see: Brexit collection......
Expert determination is a form of alternative dispute resolution ( ADR). This Practice Note outlines expert determination for technical or contract interpretation disputes. It describes the process, addresses how the parties agree to select or appoint the expert, and considers the expert’s jurisdiction. It also covers the binding effect of the expert’s decision, as well as procedure, limitation and potential claims against experts. For general guidance on ADR and other options, see the following Practice Notes: What is ADR? Which form of ADR? What is expert determination? Expert determination is a binding mechanism where an independent expert in the relevant discipline decides a dispute between parties in accordance with provisions they have agreed. It is most often used where an existing agreement provides for referral of a particular issue to an expert. It is especially suited to technical disputes, such as: Rent...
This Practice Note explores the situations in which a court may permit changes to a party’s statement of case once a relevant limitation period has expired (or may have expired). It cites section 35 of the Limitation Act 1980 ( LA 1980) and reviews the pertinent provisions of the Civil Procedure Rules, in particular CPR 17.4, concerning the introduction of new causes of action. It also expressly considers limitation issues that arise in relation to counterclaims. For guidance on determining limitation periods under LA 1980, together with illustrative authorities, see the following Practice Notes: Limitation Act 1980—general application Limitation—the principal limitation periods Limitation—illustrative decisions Limitation and extensions of time—key and illustrative decisions [ Archived] See also Practice Notes: Amending a statement of case—introduction and Amending a statement of case—permission to amend for general information on amending statements of case where limitation is not in issue....
This Practice Note outlines the principal distinctions between mediation and litigation in England and Wales, alongside their likely benefits and drawbacks. What is mediation? Mediation is one of the most familiar and widely used forms of alternative dispute resolution ( ADR). It is a confidential procedure in which an impartial third party (the mediator) helps the parties work towards an agreed outcome to settle their dispute. For a summary of the process, see: Mediation—overview. In July 2021, the Ministry of Justice issued a ‘guide to a civil mediation’ explaining the advantages of civil mediation and how to identify a suitable mediator. Why consider mediation? There are many grounds for seeking a negotiated resolution, including: Preserving the commercial relationship between the parties Minimising the cost and duration of court proceedings Keeping the dispute confidential For general guidance on settling disputes, see Practice Note: Settling...
Building Safety Act 2022 ( BSA 2022) The government presented the Building Safety Bill (the Bill) to Parliament in July 2021, with the intention of implementing the recommendations and principles from Dame Judith Hackitt’s ‘ Independent Review of Building Regulations and Fire Safety’. The Bill received Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). The BSA 2022 brings fundamental reforms to the law and regulation of building safety, aiming to ‘secure the safety of people in or about buildings and improve the standard of buildings’. For an outline of the BSA 2022’s scope and analysis of its principal measures, see Practice Note: Building Safety Act 2022-key provisions and issues. Reforms introduced by the BSA 2022 include new statutory rights of action against parties who have supplied cladding and construction products that cause a residential property to be ‘unfit for...
This Practice Note gives guidance on the scope and interpretation of section 38 of the Building Act 1984 ( BA 1984) The government signalled that BA 1984, s 38 would commence ‘alongside’ the legislative changes that took effect under the Building Safety Act 2022 on 28 June 2022, but no regulations have yet been published to commence it. Section 38 states that, where a duty set by the building regulations is breached and damage results, the breach is actionable. In effect, parties who do not comply with the building regulations may face civil liability. This Practice Note clarifies what the building regulations cover, who may bring or face claims under BA 1984, s 38, and the damages that might be recovered in a claim relying on s 38. The focus is on those regulatory provisions that prescribe standards for building work, where...
Background to Planning Gateway One In the aftermath of the Grenfell Tower tragedy on 14 June 2017, the government asked Dame Judith Hackitt to lead the Independent Review of Building Regulations and Fire Safety. The review stressed the need to overhaul the fire and building safety system and advised that, when local planning authorities ( LPAs) consider planning submissions, certain minimum fire safety matters must be addressed with input from suitably qualified experts. From June 2019 to April 2020, the government consulted on ‘ Building a safer future: proposals for reform of the building safety regulatory system’. This introduced ‘ Planning Gateway One’ in England, comprising two principal elements: requiring developers to submit a fire statement, setting out fire safety considerations specific to the development, with any relevant application for planning permission involving one or more relevant buildings; and ...
This Practice Note outlines some key and/or recent cases concerning, or relevant to, liquidated and ascertained damages ( LADs) in construction contracts. It highlights issues that frequently arise in disputes about claims for LADs and the interpretation of LADs provisions, and offers summaries of decisions in which the courts have addressed those matters. It is not intended as an exhaustive review of all authorities on LADs, but may serve as a helpful starting point for construction lawyers pursuing LADs claims, or drafting LADs provisions. For further material on LADs in construction contracts, including the distinction between LADs and general damages, LADs terms in standard form contracts, the development of the law on penalty clauses, and grounds for resisting LADs claims, see Practice Note: Liquidated damages in construction contracts. For guidance on negotiating and drafting LADs provisions in construction contracts, see...
Background The term ‘ MMC’ The Ministry of Housing, Communities & Local Government’s specialist sub-group has produced a definition framework for MMC, setting out seven categories: Category 1- Pre- Manufacturing-3D primary structural systems Category 2- Pre- Manufacturing-2D primary structural systems Category 3- Pre- Manufacturing- Non systemised structural components Category 4- Pre- Manufacturing- Additive Manufacturing Category 5- Pre- Manufacturing- Non-structural assemblies and sub-assemblies Category 6- Traditional building product led site labour reduction/productivity improvements Category 7- Site process led labour reduction/productivity improvements The framework seeks to standardise and clarify how MMC is described, capturing the wide array of innovative construction approaches now used across the market. Further details can be found here. For practitioners, establishing whether your scheme uses MMC and how extensively it influences delivery is valuable-particularly for key contractual risks such as structuring payments, title or insolvency exposure, programme, design responsibility, addressing climate change, and handling issues like materials shortages or fire...
Provisions dealing with Relevant Events and Relevant Matters sit at the heart of how risk is shared, allocated and handled under the JCT suite of contracts. Together, the Relevant Events and Relevant Matters form exhaustive schedules of circumstances and risks that give the Contractor entitlement to extensions of time and to reimbursement for loss and/or expense. The guidance in this Practice Note draws on the wording of the JCT Standard Building Contract With Quantities 2016/2024 ( SBC Q), Standard Building Contract With Approximate Quantities 2016/2024 ( SBC AQ), Standard Building Contract Without Quantities 2016/2024 ( SBC XQ), and Design and Build Contracts ( DB) 2016/2024, while noting that comparable provisions appear across other JCT forms of contract as well. Introduction to the Relevant Events and Relevant Matters Within the JCT forms of contract, distinct, separate mechanisms are expressly provided for adjusting, where...
This Practice Note reviews and comments on the schedule of compensation events set out in clause 60 of the NEC3 and NEC4 engineering and construction contracts ( NEC3 ECC and NEC4 ECC). It explores the practical application of the various events in use, cites case law on the subjects, and proposes ways the parties might adjust the compensation event provisions where appropriate. This Practice Note complements Practice Note: NEC contracts-compensation event regime, which explains in detail the procedure and steps for pursuing compensation events under the NEC3 ECC and NEC4 ECC. Note that the NEC3 suite uses the term ‘ Employer’, whereas, in the NEC4 suite, that role is re-titled the ‘ Client’. For ease of reference, this Practice Note consistently adopts ‘ Client’ for both agreements throughout. For definitions of NEC terminology and expressions used within these materials, please see Practice Note: NEC...
Early stages of adjudication are extremely time-sensitive: an adjudicator has to be named within seven days of the referring party’s Notice of Adjudication, and the matter must likewise be sent to the adjudicator within that window. Moreover, construction agreements often require appointment via an application to an adjudicator nominating body ( ANB), and that can only occur once the Notice of Adjudication has been issued. Consequently, the procedural steps for appointment have to be wrapped up briskly. In addition, where-as is usual-the chosen adjudicator insists the parties accept bespoke terms and conditions of appointment ( T& Cs), there is little time for scrutiny. Even so, the adjudicator’s T& Cs should not be overlooked. It matters not only that parties grasp their exposure to the adjudicator’s fees and expenses, but also that they know their rights and duties should the process deviate from the...
Introduction This Practice Note explains how construction contracts are ordinarily managed on projects. It concentrates on the contract administrator’s role and how administration varies with the chosen procurement route and contract form, with particular emphasis on the JCT, NEC ECC and FIDIC suites. What is contract administration? In essence, contract administration is the supervision and tracking of a construction project to ensure successful delivery. It covers both hands-on oversight as the works get under way (eg inspecting the works, monitoring progress and conducting tests) and the handling, issuing and reviewing of the documents required by the contract (including payment notices and the evaluation of claims). In this Practice Note, ‘contract administrator’ is used as a generic label; however, different standard forms adopt different titles for the person performing this function-this is considered further in Who is responsible for the...
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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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