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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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If a building owner intends to carry out work on an existing party wall or construct a new wall, what steps must they take? This Practice Note outlines the categories of work covered by the Party Wall etc Act 1996 ( PWA 1996), formal notice requirements, the dispute resolution route, plus party wall awards, costs, access, special foundations, and safeguards for adjoining owners. The PWA 1996 sets out rights and duties for property owners wishing to: undertake works to existing party walls or party structures erect a new wall or structure on the boundary with an adjoining property excavate within three or six metres of an adjoining building or structure, depending on how deep the works will be Owners proposing such works must serve notice on any affected adjoining owners. In the absence of consent, a dispute resolution process generally follows,...
Produced in association with 4 Pump Court This Practice Note examines whether an adjudicator may order one party to bear, in full or part, the other party’s legal costs—termed ‘party costs’. It also considers a party’s scope to recover party costs under the Late Payment of Commercial Debts ( Interest) Act 1998 ( LPCD( I) A 1998) or by claiming damages. For an adjudicator’s fees and expenses, see Practice Note: An adjudicator’s fees and expenses. As a general rule, the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), as amended by the Local Democracy, Economic Development and Construction Act 2009 ( LDEDCA 2009), aims to prevent parties from agreeing terms that place the whole costs risk on one side. Section 108A of the HGCRA 1996 renders ineffective any agreement on liability for party costs, subject to a narrow exception: parties may agree how such costs are...
This Practice Note sets out what partnering means, its core characteristics and why this route can benefit a construction scheme. It further reviews the principal standard partnering contracts and the matters parties should weigh when deciding whether to choose this route. What is partnering? In the 1990s, the Latham and Egan reports exposed the inefficiencies arising from adversarial relationships in the UK construction sector and promoted longer-term alliances to lift performance and cut costs. Consequently, partnering evolved. Partnering is not a procurement method in its own right. Rather, it frames behaviour and processes around procurement and delivery. The expression describes the stance the parties adopt towards procurement and the way they collaborate to deliver and complete projects. In essence, it concerns how parties organise procurement and jointly steer projects to completion. It places strong emphasis on structured collaboration and on driving continuous...
This Practice Note examines parallel loan agreements in PFI and PF2 projects. It explores the origins of these arrangements (stemming from the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996)) together with the purpose and key elements of the parallel loan agreement itself. Note that, in the 2018 Budget (delivered on 29 October 2018), the government announced it will no longer use PFI or PF2 for new projects (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). Existing PFI and PF2 projects will continue to operate as before. Background to parallel loan agreements To understand what a parallel loan agreement is, it is necessary to appreciate the legislative backdrop that produced them. The HGCRA 1996 applies to all ‘construction contracts’, as defined by the Act, and sets out a statutory framework that parties to a...
The large and public client off-payroll regime This regime generally applies where a public authority or a private sector organisation (other than one that is small or lacks a UK connection) engages a worker via an intermediary, such as a personal service company ( PSC), and where, ignoring that intermediary, the link between the individual and the end client would be one of employment. The large and public client off-payroll regime places the duty to decide if IR35 is applicable on the end client. If the regime applies, the obligation to withhold income tax and National Insurance contributions ( NICs) falls on the fee-payer, meaning the party nearest to the PSC in the contractual chain—this could be the end client where it contracts directly with the PSC, or another intermediary in more complex supply chains. This allocation of...
A Notice of Adjudication is the opening step in starting an adjudication. This Practice Note explains what to weigh up before serving the Notice of Adjudication, the reasons it must be issued and the elements it ought to include. It also offers guidance on when to serve the Notice, the manner of service and whether amendments are possible. For a Precedent Notice of Adjudication, see: Notice of Adjudication. What is the Notice of Adjudication? The Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) and the Scheme for Construction Contracts both require service of a written notice of a party’s intention to refer a dispute to adjudication. Under the Scheme for Construction Contracts ( Part I, para 1) this is called the ‘notice of adjudication’. This Practice Note adopts that expression, although case law and other parties may use ‘notice of intention to seek...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 secured Royal Assent on 27 October 2025. For guidance on how the Act affects residential tenancies in England, refer to Practice Note: Renters' Rights Act 2025—key provisions. This Practice Note examines which non-domestic privately rented properties ( NDPR) fall within the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962; it also addresses the prohibition on letting NDPR and the way minimum energy efficiency standards ( MEES) interact with energy performance certificate ( EPC) requirements. It forms part of our MEES Practice Note series... Implementation of the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 For an overview of the background to the development of MEES, see Practice Note: Minimum energy efficiency standards ( MEES) in the private rented...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note is archived and no longer maintained. It addresses the scenario in which the UK and the EU do not conclude an agreement on jurisdiction following the UK’s exit from the EU. Across the implementation period starting on exit day (ie the date the UK leaves the EU), the provisions of the withdrawal agreement will apply. For guidance on the implementation period and the effect of the withdrawal agreement on jurisdiction, see Practice Note: Brexit implementation period—jurisdiction [ Archived]. The Note assesses the impact of the UK departing the EU on exit day without a deal on jurisdictional issues in UK court proceedings that involve EU Member States. Exit day has the meaning assigned by section 20 of the European Union ( Withdrawal) Act 2018, as amended......
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note, prepared in collaboration with Guy Pendell, Liz Williams and Kushal Gandhi of CMS, addresses the scenario in which the UK and the EU do not secure an agreement on jurisdiction after the UK’s departure from the EU. Throughout the implementation period beginning on exit day—the day the UK leaves the EU—the provisions of the withdrawal agreement will apply. For guidance on that period and the withdrawal agreement’s effect on jurisdiction, see Practice Note: Brexit implementation period—jurisdiction [ Archived]. This Note considers the implications of the UK leaving the EU on exit day without a deal for jurisdictional issues in UK court proceedings that involve the European Free Trade Association ( EFTA) States that are parties to the Lugano Convention 2007, namely Iceland, Norway and...
ARCHIVED : This Practice Note addresses the position that arises where the UK and the EU fail to reach arrangements for the cross-border enforcement of judgments after the UK’s departure from the EU. During the implementation period that commences on exit day—that is, the day the UK leaves the EU—the provisions of the withdrawal agreement will apply throughout that period for enforcement. For guidance on the implementation period and the effect of the withdrawal agreement on enforcement, see Practice Note: Brexit implementation period—enforcement [ Archived]. This archived note examines, in particular, the implications of a no-deal exit for the enforcement of judgments arising from civil and commercial claims under the following instruments, namely: Brussels Convention, Regulation ( EC) 44/2001 ( Brussels I), Regulation ( EU) 1215/2012 ( Brussels I (recast)), Lugano Convention 2007 and EC- Denmark...
ARCHIVED: This Practice Note is archived and not maintained. It addresses the position at the close of the implementation period after the UK’s departure from the EU. Throughout the implementation period, which begins on exit day (ie the day the UK leaves the EU), the provisions of the withdrawal agreement apply. For guidance on the implementation period and the effect of the withdrawal agreement on service, see Practice Note: Brexit implementation period—applicable law [ Archived]. This note considers the consequences of the UK leaving the EU without a deal for deciding which law governs a dispute, ie the applicable law (also referred to as governing law). The principal UK measure addressing a no deal Brexit and applicable law is The Law Applicable to Contractual Obligations and Non- Contractual Obligations ( Amendment etc) ( EU Exit) Regulations 2019, SI 2019/834, which modifies two EU...
This Practice Note examines the main forms of policies or guarantees (excluding standalone latent defects insurance products) currently available to shield homeowners and developers from faults in newly built and newly converted properties. It reviews several of the most common warranties: those offered by the National House Building Council ( NHBC Buildmark or Buildmark Choice), Premier Guarantee and Local Authority Building Control ( LABC). These providers jointly launched the Consumer Code for Home Builders (the Code) in April 2010. The Code sets out standards of good practice, processes and information that registered homebuilders must follow... What are new home warranties? A new home warranty is an insurance contract that provides purchasers of a new-build or newly converted dwelling with cover for certain categories of building defects. Such warranties have been in place for many years. Cover applies up to defined limits and for a defined...
This Practice Note examines the New Homes Quality Code ( NHQC) alongside the Consumer Code for Home Builders ( Consumer Code). It outlines their principal elements, identifies those required to adhere to them, and explains their overarching objectives. It also contrasts their scope and intended outcomes. Purchasers of newly built properties should confirm which code applies to their transaction. Building Safety Act 2022 and the new homes ombudsman scheme Under section 136 of the Building Safety Act 2022 ( BSA 2022), the Secretary of State is empowered to set up a new homes ombudsman scheme. Section 142 of BSA 2022 further allows the Secretary of State to issue or endorse a code of practice covering expected standards of conduct and quality for scheme members. These measures have not commenced. However, the government indicated that the new homes ombudsman scheme would begin within 12–18 months of BSA 2022...
Climate change and sustainability are now central issues for the property sector The built environment accounts for a significant share of greenhouse gas ( GHG) emissions, and clients—developers, investors, real estate investment trusts ( REITs), pension funds, funders and asset managers—are facing rising regulatory demands and sharper market scrutiny. UK and EU regimes require compulsory disclosures on GHG emissions, energy performance and broader environmental, social and governance ( ESG) considerations. Alongside this, a swell of voluntary frameworks and benchmarks have produced an ‘alphabet soup’ of standards that investors, occupiers and lenders are increasingly insisting upon. At the same time, eligibility for sustainable or green finance is tied to demonstrable sustainability outcomes. This Practice Note outlines the principal implications of climate change, net zero and sustainability, together with the mandatory and voluntary reporting landscapes, with a particular emphasis on those applicable to property in England and Wales. It...
This Practice Note explores net contribution clauses—also termed proportional or proportionate liability clauses—and their use in collateral warranties and consultants’ appointments. It explains why consultants, some contractors, and their professional indemnity insurers frequently press for a net contribution clause to be inserted into such warranties and appointments, and why employers are often reluctant to accept them. It further reviews the ability to claim a contribution from others under the Civil Liability ( Contribution) Act 1978 where no net contribution clause is in place. It also considers case law concerning the effectiveness and enforceability of net contribution clauses. For suggested written guidance to provide to clients on net contribution clauses, see also Precedent: Advice to clients— Net Contribution clauses. What is a net contribution clause? In modern construction projects, multiple parties are typically engaged to contribute to the design process. If that design is...
The payment terms in a construction contract will ordinarily allow the contractor to submit applications (though submissions are not invariably required) either each month or at the close of defined phases (eg when the works hit stated milestones), and may prescribe what those applications must include as well as arrangements for settling the final account. The agreement should likewise specify the deadlines for service of the various notices in line with the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). It will also typically include clauses dealing with loss and expense payments, interest on late payment and the withholding of retention, and may incorporate other provisions connected to payment. Many of these payment clauses will be uncontroversial and will mirror terms commonly found in the market. There are, however, several issues concerning payment that are routinely the focus of...
This Practice Note sets out the principal components for bringing a negligence claim. For targeted guidance on negligence concerning company/parent company liability, banks, and professional negligence, see: Practice Note: Tortious liability—companies Practice Note: Negligence—banks and the duty of care Professional negligence claims—overview Negligence—what are the key ingredients to establish a claim in negligence? To found liability in negligence, four essential elements must exist: a duty of care owed by the defendant to the claimant a breach of that duty loss or damage resulting from the breach the damage being reasonably foreseeable These tests can intersect, and in some situations strict compartmentalisation is somewhat artificial on close analysis. Nonetheless, addressing each in turn is a vital framework for assessing whether an actionable negligence claim has emerged. Negligence—a duty of care is...
This Practice Note is archived and no longer updated or maintained. It outlines the differences introduced in the NEC4 standard form construction contracts when set against the NEC3 versions. It also summarises the changes from NEC3 across the standard forms. The spotlight is on the NEC4 Engineering and Construction Contract ( ECC), though many ECC revisions mirror those rolled out across the broader NEC suite. Many of the points made in relation to the ECC are indicative of suite-wide adjustments. The NEC characterises NEC4 as an ‘evolution not revolution’, building on NEC3. The bulk of NEC4’s revisions appear aimed at embedding sound practice and/or cutting reliance on Z clauses (ie bespoke amendments). For further details on NEC contracts in general, including their structure, see Practice Note: NEC...
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Y options These are optional clauses in NEC3/ NEC4 contracts, termed as secondary......
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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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