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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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Under an agreement for lease that includes development obligations, the tenant’s duty to take the occupational lease only arises once the developer’s works are finished and suitable for the tenant to assume control and occupation. This point is reached when the works are certified as ‘practically complete’. Practical completion under the building contract may carry the same meaning as practical completion for the purposes of the agreement for lease, yet the agreement for lease may impose further conditions, as outlined in this Practice Note. It should be noted that the term ‘completion’ is often used within an agreement for lease and should be kept distinct from ‘practical completion’ of the construction works under a building contract, a concept familiar to construction lawyers. Completion under an agreement for lease typically refers to completion of the lease itself. Completing (or entering into) the lease can occur at a...
Partnering The idea of partnering arose in response to the criticisms directed at relationships in the construction sector by the Latham and Egan reports during the 1990s. Partnering highlights collaborative ways of working and continual improvement through performance measurement and long-term relationships, seeking to prevent many of the issues that stem from ‘traditional’ building contracts which, in certain respects, seem to expect failure rather than encourage success and advancement. A standard-form construction contract embodies many of the partnering principles championed by Latham. See Practice Note: Partnering. It was commissioned by the Association of Consulting Architects ( ACA) and prepared by Trowers & Hamlin LLP. First released in 2000, further editions appeared in 2003, 2008 and 2013. It was the first standard-form partnering contract. In principle, the contract can be used for any kind of project and in any...
Introduction Project Partnering Contracts originated from the work of Professor David Mosey Ph D at King’s College, London, whose scholarship examines the cross-disciplinary links between construction law and the changing practices of procurement and project management. This embraces study of partnering, alliancing, joint ventures and other routes to collaborative working. The contracts are backed by King’s College and the Association of Consultant Architects. PPC2000 was revised in 2003, 2008 and again in 2013, which is the current edition. It is thought there are no reported cases on PPC2000, suggesting either its effectiveness or, alternatively, its limited deployment. Pricing under PPC2000 Under the PPC2000 Partnering Contract, pricing follows a two-stage approach designed to achieve transparency and cost certainty, while encouraging the pursuit of cost savings, added value and value engineering. The pricing mechanism is split into two phases: the...
This Practice note maps the timeline of a PPC2000 contract, explaining when the separate contracts are entered and when other key documents are prepared/finalised. For more on the style and structure of the PPC2000 form, the partnering ethos underpinning it, and the features that distinguish it from other industry standard forms, see Practice Note: PPC2000. Stage 1— Pre-contract Initial actions of the Client The Client must bring together the initial Partnering Team. At this stage the Partnering Team will typically consist of the Client, the Constructor, the Client’s Representative, at least one designer, a cost consultant, and possibly one or more Specialists. The Client must produce: The Project Brief — The Project Brief sets out the Client’s requirements for the project, either in performance terms (i.e. what it wants the project to achieve) or, where established, prescriptive terms. It should include all...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note sets out how to assess and adjust key contractual provisions so they are fit for use after 11 pm on 31 December 2020, the moment (known as IP completion day) when the implementation period for the UK’s departure from the EU concluded. It is primarily designed to support organisations updating their standard form contracts for post‑ IP completion day use, rather than revising live agreements, though it may assist with those too. While the underlying legal landscape has shifted considerably, most contracts are largely unaffected and English contract law itself remains unchanged. The Trade and Cooperation Agreement ( TCA) between the EU and the UK concerning their future relationship does not materially alter the consequences of the end of transition. For more detail, see: LNB News 24/12/2020 76 and LNB News...
The immediate aftermath of an incident Whatever the event, the first priority is, naturally, to deal with any medical needs of injured people, ringing the emergency services where appropriate. You must also assess any ongoing, immediate risks to the safety of everyone on site, addressing any remaining hazards. This could, for example, mean clearing and evacuating the site as a precaution. The contractor—typically the site manager or the person with responsibility for the site at the time—must make sure the site’s emergency response plan is implemented in a way that fits the circumstances and is communicated to relevant personnel. Efforts should be made, where feasible and safe to do so, to protect the scene and to ensure that all items and equipment that might hold evidential value remain untouched. That said, it is permissible to interfere with the scene if others’ welfare is...
Construction dispute resolution Construction dispute resolution features layered, fast‑tracked processes, interim decisions with binding effect, and a pronounced policy drive to keep cash moving throughout projects. The core interim tools on projects—statutory adjudication and dispute boards, including those found in standard forms such as FIDIC—are intentionally built to yield determinations that bind even if mistaken in law, fact or technical assessment. By opting for these routes, the parties accept allocation of risk as to both result and potential error. The bargain, underpinned by statute and judicial approach, is that speed, certainty and procedural economy outrank perfection on the merits, with mistakes corrected, if at all, only through tightly limited avenues, until the matter proceeds to final determination. Consequently, the room for appeal, challenge, or resistance to enforcing interim binding outcomes is purposefully constrained. True merits appeals are typically reserved for court...
ARCHIVED : This Practice Note has been archived and is not maintained From 31 January 2020 (exit day), the UK ceased to be an EU Member State and its relationship with the EU is governed by the Withdrawal Agreement, which took effect on 1 February 2020. Under the Withdrawal Agreement, on exit day the UK entered an implementation period, during which it continues to be regarded as a Member State for many purposes, including trade. As a third country, the UK can no longer take part in the EU’s political institutions, agencies, offices, bodies and governance structures (save to the limited extent agreed), but the UK must continue to comply with EU law and remain subject to the continuing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in the Withdrawal...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
Statutory duty to consider heritage impacts in determining planning applications Until 4 November 2024, the framework for heritage assets in Wales—including conservation areas and listed buildings—was contained in the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990). The Historic Environment ( Wales) Act 2023 ( HE( W) A 2023), which gained Royal Assent on 14 June 2023, consolidated and replaced legislation concerning Wales’s historic environment from 4 November 2024 onwards. Statutory duty in England Section 66 of the P( LBCA) A 1990 provides that, when determining whether to grant planning permission for development affecting a listed building or its setting, the local planning authority ( LPA)—which, for these purposes, includes the Mayor of London where planning permission is granted by Mayoral development order—or the Secretary of State must give special regard to the desirability of preserving or enhancing the...
What is an intrusive site investigation? An intrusive (phase 2) site investigation involves geotechnical and geo-environmental specialists collecting detailed and reliable information on a site’s physical and chemical ground conditions. These findings are then applied to: the design of earthworks and foundations, and determining whether contamination is present The UK follows a risk-based framework for the identification, assessment and management of contaminated land, based on the idea of a contaminant linkage (once called a pollutant linkage), ie contaminant-pathway-receptor. For further information, see Practice Note: Contaminated land—risk assessment. Site characterisation is generally carried out in a clear staged manner: screening phase: an initial investigation consisting of a desk study phase 1: a site walkover and qualitative risk assessment phase 2: intrusive site investigations involving the analysis of soil, groundwater and/or gas samples and a quantitative risk assessment For further information on desktop studies and phase 1 assessments, see Practice Note:...
This Practice Note explores the principal parties commonly engaged in a PFI or PF2 project. It outlines the functions of public sector participants, private sector counterparts, finance providers and sub-contractors, together with support providers and other professionals involved. In the 2018 Budget (delivered on 29 October 2018), the government confirmed it would cease using PF2 for new schemes (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). Nonetheless, live PFI and PF2 arrangements remain in operation and, given the usual duration and lifespan of these schemes, are expected to do so for many years to come. Public Sector Authority/ Trust This is the public sector organisation that originates and procures the PFI scheme in question and seeks to have the asset constructed and properly maintained (the label ' Trust' applies only to NHS schemes). The public body will typically be a local...
This Practice Note explores the Compensation Event and Relief Event frameworks in the Project Agreement for a PFI or PF2 scheme. It examines the key features of each framework and the differences between them under PFI and PF2 (also occasionally called PFII). In the 2018 Budget, presented on 29 October 2018, the government confirmed that PF2 would no longer be used on new projects (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). Nevertheless, existing PFI and PF2 projects will continue to operate and, given the typical lifespan of such arrangements, are likely to remain in place for many years to come. Context Compensation Events and Relief Events are categories of 'supervening events'; circumstances in which some contractual relief is appropriate and justified. The objective is to manage the allocation of risks between the parties arising from unintended...
Background to the Construction Sub-contract PFI structure—diagram sets out the basic structure of a PFI project This Practice Note considers the Construction Sub-contract linking Project Co with the Construction Sub-contractor (also known as the Construction Contractor) within a PFI or PF2 arrangement. In the 2018 Budget, presented on 29 October 2018, the government confirmed it would cease using PFI and PF2 for new schemes (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). Nonetheless, live PFI and PF2 schemes will continue, and, given their usual duration, are expected to operate for many years... Where a project involves a built asset (as is commonly the case), a Construction Sub-contract (also termed the ‘ Construction Contract’) is entered into between Project Co and the Construction Sub-contractor. Under it, the Construction Sub-contractor undertakes the construction stage of the project (the period when the assets are...
Launched in 1992, the Private Finance Initiative ( PFI) is a form of public–private partnership, later followed in 2012 by the ‘ PF2’ variant. See Practice Notes: Introduction to PFI and PF2, Key parties in a PFI/ PF2 project, and PFI structure—diagram. This Practice Note concentrates chiefly on disputes arising on PFI projects (rather than PF2), as PFI projects are far more numerous. In 2018, the government confirmed it would cease using the PF2 model for new projects. Nonetheless, existing PFI and PF2 projects will continue in operation. Given the usual 25–30 year term, existing projects—and any disputes they generate—are expected to persist for many years to come. The contractual context of PFI disputes Disputes on PFI projects are not unusual: the governing documentation is voluminous, the projects are complex and high‑value, and numerous interested parties are involved. Broadly, PFI projects progress through three...
This Practice Note explores the various forms of performance security instruments used on construction projects in the UK. It offers succinct commentary on parent company guarantees, bonds (covering performance bonds, advance payment bonds and retention bonds), collateral warranties, third-party rights, direct agreements and letters of reliance. It further looks at provisions within construction contracts that deliver performance security, such as payment security mechanisms and performance guarantees. Parent company guarantees Parent company guarantees ( PCGs) are typically supplied to an employer by a main contractor’s holding or parent company. In short, where the main contractor fails to meet its obligations under the construction contract, the employer may pursue the holding/parent company for redress, either in monetary terms or, where the parent has adequate resources, by requiring performance, enabling it to step in and continue delivery of the project in the main...
STOP PRESS: From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements launched on or after that date must follow PA 2023, while those initiated under the earlier regimes must continue to be procured and overseen under those rules, namely: Public Contracts Regulations 2015 ( PCR 2015) Utilities Contracts Regulations 2016 Concession Regulations 2016 Defence and Security Public Contracts Regulations 2011 See Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and construction of assimilated law, see Practice Note: Assimilated law. Where a contracting authority lets a public contract above the relevant financial threshold, it must adopt one of the...
This practical guidance concerns the position before the Procurement Act 2023. It addresses public procurement exercises launched prior to the Act ( PA 2023) taking effect on 24 February 2025. Procurements within scope that start on or after that date fall under PA 2023. Transitional and savings provisions preserve the former procurement regimes insofar as needed for contracting authorities to finalise and manage procurements begun before commencement of PA 2023 (ie ongoing procurements). This Practice Note should be read on that basis. For background, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Further practical guidance on PA 2023 is provided in a separate subtopic: Procurement Act 2023—overview. Public procurement under the Public Contracts Regulations 2015 Unless an exemption applies—for example, where the contract value is below the relevant financial threshold—a contracting authority must adopt one of the five permitted...
Section 3 of the Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015) requires certain large companies and limited liability partnerships ( LLPs) to disclose information about their payment policies and outcomes. This was brought in to tackle the widely reported issue of smaller, economically fragile suppliers being kept waiting lengthy periods for payment for their goods and services. As such, the rules are closely linked to corporate social responsibility and corporate reputation. The Reporting on Payment Practices and Performance Regulations 2017, SI 2017/395, were issued on 20 March 2017 and took effect on 6 April 2017, alongside the equivalent LLP regulations. 2024 Amendment Regulations On 5 April 2024, the Reporting on Payment Practices and Performance ( Amendment) Regulations 2024 ( SI 2024/444) came into force, updating the 2017 Regulations and the LLP Regulations. Changes made by regulation 2(4) apply to each...
This Practice Note explains the circumstances in which the cost of party wall works can be shared, the relevant entitlement of adjoining and building owners to seek security for damage and expenses, and the surrounding case law. Sharing the cost of party wall works Under the Party Wall etc Act 1996 ( PWA 1996), the expense of works (described in PWA 1996 as ‘expenses’) is ordinarily borne by the building owner, save where an exception applies. These exceptions include: where a building owner constructs a new party wall or party fence wall, with the adjoining owner’s consent, the expense is apportioned between the two owners, having proper regard to the use made (or to be made) by each owner, and to the prevailing costs of labour and materials at the time of that use. Accordingly, a building owner may receive no...
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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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