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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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Purpose of listing Listing primarily exists to safeguard buildings of notable architectural or historic significance, together with their surroundings, from alterations that would materially affect the importance of the buildings or their setting. Once a place is listed, any proposed works to the fabric or features of the buildings may require listed building consent, on top of any separate requirement for planning permission, and non‑compliance with the listed building controls can lead to criminal sanctions and formal enforcement action. For the purposes of the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990), a listed building means a building which is, for the time being, entered on a list compiled under P( LBCA) A 1990 (see ‘ What can be/is listed?’ below)......
This Practice Note sets out a concise overview of interim payments, describing what they are, when the entitlement to be paid (most often through monthly instalments or stage/milestone sums) arises, and the contractual routes for securing interim payment. It further considers the need to ensure that any interim payment machinery complies with the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), and explores how the payment regime is addressed in standard forms such as JCT and NEC contracts. See also Practice Note: . For a list of leading cases on the HGCRA 1996 payment provisions, see Practice Note: HGCRA 1996 payment provisions—key cases. In relation to the JCT and NEC suites, see also Practice Notes: JCT contracts—price and payment and NEC contracts—price and payment. What is an interim payment? Construction projects can involve many millions of pounds, with programme periods extending over many months and...
What is the final account? The term ‘final account’ denotes the consolidated statement of the works, submitted by the contractor to the employer once all activities are finished. It sets out the overall amount the contractor says is payable for the work actually performed, as opposed to the scope originally described in the executed contract. Before this stage, most building contracts allow for interim payments as progress is made—see Practice Note: Interim payments in construction contracts. Within the final account, the contractor brings together every valid contractual claim for extra payment. Under certain contract forms, the contractor’s duty extends only to supplying the information the employer requires in order to compile the final account. The final account closes off everything that has occurred regarding payment to the contractor during the life of the contract. Although the parties may be able to agree large parts of it, the...
Highway authorities have a statutory obligation to act to prevent, so far as practicable, the stopping up or obstruction of highways within their areas. This Practice Note sets out guidance on obstructions under the Highways Act 1980 ( Hi A 1980) arising from placing building works, scaffolding or skips on the highway. For broader coverage of highway obstruction, see Practice Note: Obstruction of highways. For details of the tools available to local authorities to address highway obstructions, see Practice Notes: Local authority powers to manage highway obstructions—criminal offences and Local authority powers to manage highway obstructions—civil remedies. Licences for building works, scaffolding and skips Positioning scaffolding, hoardings or skips on the highway (including pavements) constitutes an obstruction and may amount to a nuisance. Under Hi A 1980, s 137(1), a person who, without lawful authority or excuse, wilfully obstructs free passage along a highway commits an...
Dispute boards first appeared on US infrastructure schemes, before being taken up in FIDIC contracts and on ventures backed by the World Bank and other Development Banks. The NEC4 Engineering and Construction Contract, issued in June 2017, includes optional provisions for dispute boards. This Practice Note reviews their role across these contract suites and looks at how they are deployed on UK projects. FIDIC contracts Among standard forms, FIDIC is arguably the best-known user of dispute boards as a core element of its dispute resolution process. Their use was introduced by the 1996 Supplement to the fourth edition of the Red Book, which, when adopted, replaced clause 67—the dispute resolution clause. In its original guise, clause 67 directed disputes to the Engineer for a decision; if either party remained dissatisfied, the sole recourse was arbitration. This arrangement drew particular criticism from...
This Practice Note examines the circumstances in which a construction contract might entitle a contractor to claim additional time in which to complete the works (known as an 'extension of time' or ' EOT'), and the importance of contractual procedures in this regard. Ordinarily, a construction contract will set out the date by which practical completion of the works is to be achieved (see Practice Note: What is practical completion?). That date is usually called the 'completion date' (or a comparable term or label). However, throughout the life of a construction project, it is common for events to arise which delay, or threaten to delay, the progress of the works, affecting the critical path (see Q& A: What is the critical path?) and impacting on the contractor’s ability to meet the completion date. These are often referred to as 'delay events' in...
This Practice Note reviews how price is addressed in the 1999 Red, Yellow and Silver Books, together with the Gold Book 2008 and the Pink Book 2010 editions. For guidance on pricing within the 2017 Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts 2017—price. Price sits at the heart of every construction agreement. FIDIC’s standard forms adopt two distinct approaches to setting the price. The Red and Pink Books operate as remeasurement arrangements, while the Yellow, Silver and Gold Books use lump sum fixed pricing across the works. Remeasurement contracts An opening valuation of the works is produced by quantifying each item of work, which will be set out in a document referred to as a bill of quantities, and applying the agreed rate to that item. This preliminary total is then recalculated at project close, once every quantity has been...
Time limits for implementing planning permission Sections 91 and 92 of the Town and Country Planning Act 1990 ( TCPA 1990) provide that every grant of planning permission must carry a planning condition that fixes the timeframe for implementation. Under sections 91 and 92, local planning authorities ( LPAs) have discretion to set whatever period they regard as appropriate when issuing permission. The usual position is that: For a full planning permission, development must be started within three years in England, or five years in Wales, from the date permission is granted, unless a planning condition specifies otherwise. For an outline planning permission concerning land in England, any application seeking approval of a reserved matter must be lodged within three years from the date the outline permission is granted, and the development authorised by the permission must be begun within two years of the final approval of the...
This Practice Note reviews the current law of prescription in Scotland. Major reforms were introduced by the Prescription ( Scotland) Act 2018 ( P( S) A 2018). Sections 5 and 13 of the P( S) A 2018 took effect on 1 June 2022. The remainder came into force on 28 February 2025 under the Prescription ( Scotland) Act 2018 ( Commencement, Saving and Transitional Provisions) Regulations 2022, SSI 2022/78. For guidance on: the specific rules governing the prescriptive period for obligations to make reparation/pay damages, see Practice Note: Short negative prescription in Scotland—the prescriptive period for obligations to pay damages the law of limitation in Scotland, see Practice Note: Limitation of actions in Scotland, which also addresses the distinctions between limitation and prescription in Scots law the nearest equivalent in England and Wales, see:...
This Practice Note This Practice Note explores the preparation of NEC contracts and, when required, how to modify them. NEC agreements function quite differently from other standard contract forms, so there are several aspects users should assess when assembling an NEC form for a project. Whereas JCT contracts are generally chosen for building-related works (either constructing new facilities or refurbishing/repairing existing ones), NEC agreements are most frequently adopted on infrastructure schemes, having been endorsed by the UK government, which recommends their use on all public sector projects. Notable examples include the procurement of venues and infrastructure for the London 2012 Olympic Games, the Thames Tideway and Crossrail projects in London, the building of the Hinkley Point C nuclear power station and the delivery of High Speed 2. In contrast to other standard forms, NEC does not commit to a specific...
Applications in the Technology and Construction Court If your case is proceeding in the Technology and Construction Court ( TCC), the provisions of the TCC Guide apply to any application you bring. This Practice Note sets out guidance on applications in the TCC, with reference to the appropriate sections of the TCC Guide. It focuses on preparing for an on-notice application hearing in the TCC, particularly the documents that must be readied before the hearing, and the manner and timing of providing them to the court. For help with the overall process of making an application in the TCC, from pre-application considerations through to issue, see Practice Note: Making an application in the Technology and Construction Court ( TCC). The following general points should be noted: The TCC Guide offers practical information about TCC proceedings but is not a substitute for the CPR and must be read...
ARCHIVED: This archived Practice Note sets out a comparison between the first and second editions of the Protocol. The second edition took effect on 9 November 2016. Full versions of the first and second editions of the Protocol can be found here: for reference and ease of consultation. Heading First edition Second Edition Changes Introduction 1.1 This pre-action protocol extends to all construction and engineering disputes, including professional negligence claims against architects, engineers and quantity surveyors. 1.1 This pre-action protocol covers every construction and engineering dispute, inclusive of professional negligence claims against architects, engineers and quantity surveyors. No change. Exceptions 1.2 A claimant need not comply with this Protocol before starting or issuing proceedings insofar as the intended proceedings (i) seek enforcement of an adjudicator’s decision made on a reference under section 108 of the Housing Grants, Construction and Regeneration Act 1996 (“the 1996 Act”), (ii) include a claim for interim...
This Practice Note reviews the Employer’s termination rights under the FIDIC Red, Yellow and Silver Books (1999), the Gold Book (2008) and the Pink Book (2010). For the 2017 editions of the Red, Yellow and Silver Books, see Practice Note: FIDIC contracts 2017—termination by the Employer... Who can terminate? Either the Employer or the Contractor may end the Contract. Clause 15 outlines the Employer’s procedure, while Clause 16 sets out the Contractor’s. Termination is also considered in Sub- Clauses 9.4, 11.4 and 19.6, and in Sub- Clause 10.7 of the FIDIC Gold Book. For more on termination by the Contractor, see Practice Note: FIDIC forms of contract (pre-2017 editions)—termination by the Contractor... Termination by the Employer for cause Grounds for termination for cause by the Employer The Employer may terminate for cause, for convenience, or due to Force Majeure. Sub- Clause 15.2 sets out several bases on which the...
Prepared in collaboration with 4 Pump Court ARCHIVED: This Practice Note is archived and is not being maintained. It addressed a requirement relevant only to agreements made before 1 October 2011 (in England and Wales) or before 1 November 2011 (in Scotland). As enacted, section 107 of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) confined the Act to construction contracts that were ‘in writing’. Section 139 of the Local Democracy, Economic Development and Construction Act 2009 ( LDEDCA 2009) repealed that section, so this Practice Note is pertinent solely to contracts concluded before the LDEDCA 2009 took effect. Note that the HGCRA 1996, as it now operates, still requires certain adjudication provisions to be recorded in writing; where these are missing, the corresponding terms in the Scheme for Construction Contracts are implied into the agreement. Refer to Practice Note:...
MPCC The ( MPCC) was established by JCT in response to JCT contracts being heavily reworked by parties for application on larger schemes. It was intended to meet the requirements of sophisticated employers (with internal contractual procedures) and their contractors, mirroring the commercial stance on allocating risk. Its purpose was to lessen the reliance on lengthy schedules of amendments to the standard provisions found in the JCT Design and Build and Standard Building Contracts... The first edition, issued in 2003, was called the ‘ JCT Major Project Form’ and brought in elements now familiar in other JCT forms, such as the design submission process. It was subsequently included, with certain adjustments, in the 2005, 2011, 2016 and 2024 JCT suites as the ‘’. It is briefer than several other JCT forms, and leaves the particulars of various matters to be agreed by the parties, rather than...
STOP PRESS: From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) have commenced. Procurements started on or after that date must be conducted pursuant to PA 2023, while procedures initiated under the earlier legislation—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in line with those regimes. See Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. PCR 2015 as assimilated law PCR 2015 constitute EU-derived domestic legislation and are therefore assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. The public procurement regime The domestic public procurement regime is founded on several sets of...
A no loss defence frequently emerges from the contractual matrix that surrounds construction projects. By way of illustration, an agreement might be novated, the employer may lack ownership of the land where the works are carried out, or the development could be sold after completion before any defects come to light. Such situations (among others) can each trigger a no loss defence from a contractor or consultant said to be in breach of contract. What is the no loss defence? Damages for breach of contract are compensatory, aiming to place the claimant in the position it would have occupied had the contract been performed as intended. If a breach results in no loss, no damages—or at most only nominal damages—will be awarded. See Practice Note: Contractual damages—general principles. Where a breach does cause loss, but that loss is suffered by a third party, the...
This Practice Note reviews the categories of construction schemes for which the NEC family is intended to be used, and highlights the principal characteristics of the NEC3 and NEC4 suites of contract. It explains the form and overall framework of the NEC3/ NEC4 agreements (covering the main options, secondary options and Z clauses), together with the drafting approach adopted by the NEC when preparing them. It further addresses elements that set the NEC apart from other industry-standard templates (for example, the Risk Register/ Early Warning Register and the early warning process and mechanism). Be aware that the NEC3 suite refers to the ‘ Employer’, whereas in NEC4 that party is retitled the ‘ Client’. For simplicity and consistency, this Practice Note applies ‘ Client’ to both suites throughout. For definitions of NEC terminology, see Practice Note: NEC...
This Practice Note examines the Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) and the Third Parties ( Rights Against Insurers) Act 1930 ( TP( RAI) A 1930), which may enable a party under a construction contract to pursue a claim directly against another party’s insurer where the defaulting party is insolvent, in appropriate circumstances. It addresses claims by an employer against a contractor or consultant, though the same principles equally govern claims by other participants in a construction project (and parties to any other type of contract). Common law position At common law, a third party cannot sue another party’s insurer directly at all. An insurance policy is personal between the insured and the insurer; for instance, a consultant’s professional indemnity ( PI) policy is personal between the consultant and its insurer and is not intended for third...
This Practice Note should be considered alongside: Practice Notes: Expert evidence—general considerations; Applying for permission to adduce expert evidence; Instructing an expert; Instructing an expert under the Guidance for the instruction of experts in civil claims; and Changing an expert witness Checklist—letter of instruction to expert Duty of the solicitor When appointing experts you should take into account: all applicable CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims (‘the Guidance’), which took effect on 1 December 2014, replacing the earlier protocol for instructing experts Practice Direction Pre- Action Conduct and Protocols Practical tip: consider supplying your expert with copies of these materials so they appreciate their obligations; this can be especially significant if they are later cross-examined on their understanding. Under the Guidance, an expert must state in their report that they...
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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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