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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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Overview of the The NEC Professional Service/ Services Short Contract ( PSSC) sits within the NEC3 and NEC4 contract suites (see Practice Note: NEC contracts—introduction). Under NEC3 it carried the title Professional Services Short Contract; in NEC4 it is retitled the Professional Service Short Contract. Often abbreviated to PSSC, it is aimed at simpler professional service appointments and operates as a shorter-form option in NEC3/ NEC4 alongside, and as an alternative to, the longer NEC3 Professional Services Contract and NEC4 Professional Service Contract ( PSC), used for appointing consultants and discussed in Practice Note: NEC Professional Service Contract. Before the April 2013 NEC3 edition introduced the Professional Services Short Contract, the PSC was the sole NEC3 agreement without a corresponding ‘short’ form for straightforward commissions. NEC4 has continued the Professional Services Short Contract, albeit with certain adjustments set out in this Practice Note,...
This Practice Note looks at how defects are dealt with under the NEC3 and NEC4 Engineering and Construction Contract ( ECC). For a wider discussion of defects, consult Practice Note: Defects claims in construction. It addresses defects within the ECC framework as a whole. This Practice Note spans both the NEC3 and NEC4 editions of the ECC, treating them together. For uniformity, the term ‘ Client’ is used throughout this Practice Note, mirroring the NEC4 description of the developer/employer ( NEC3 uses ‘ Employer’). The term ‘ Scope’ is also adopted throughout, in line with NEC4, to identify the document that specifies and describes the works the Contractor is to undertake (called ‘ Works Information’ in NEC3). For an explanation of NEC terminology, see Practice Note: NEC contracts—glossary. Where no specific distinction is drawn between clause numbers, the clause references in this Practice Note are...
This Practice Note explores the treatment of compensation events within the NEC3 and NEC4 contracts. When compensation events occur, the Contractor may qualify for extra time and/or payment. It focuses specifically on the NEC3/ NEC4 Engineering and Construction Contract ( ECC), although similar provisions appear across the suite of contracts. Key features The compensation event framework in the NEC contracts is set out in section 6 of the core clauses. Key features include: there is a single, integrated procedure addressing the Contractor’s claims for additional time and money, alongside a single schedule of qualifying events. This stands in contrast to the JCT contracts, where grounds entitling the Contractor to extra time (‘ Relevant Events’) and to money (‘ Relevant Matters’) are treated separately. ......
This Practice Note sets out the principal considerations in the NEC3 and NEC4 suites, explains how the NEC approach diverges from other standard forms, and explores ways in which users can tackle issues that may concern either the employer or the contractor. Its emphasis is on the provisions of the NEC4/ NEC3 Engineering and Construction Contract ( ECC), while noting that comparable provisions appear throughout the wider suite. It addresses both the NEC3 and NEC4 editions of the ECC. For consistency, the term ‘ Client’ is used throughout, mirroring the NEC4 ECC usage for the developer/employer (the NEC3 ECC refers to the ‘ Employer’). Likewise, ‘ Scope’ is adopted, following the NEC4 ECC, to denote the document that specifies and describes the works to be undertaken by the Contractor (termed ‘ Works Information’ in the NEC3 ECC). For a glossary of NEC...
ARCHIVED: This Practice Note is archived and no longer maintained NEC3 2013 edition NEC3 comprises a family of construction agreements centred on pro-active project management, highlighting the importance of clear and effective communication and co-operation between the parties (refer to Practice Note: NEC contracts—introduction). A refreshed suite was issued by NEC in April 2013, succeeding the earlier edition published in June 2005 and marking the first comprehensive update since then. The 2013 suite introduced several amendments to the 2005 form—some previously released as supplements to that edition and now folded and consolidated into the 2013 texts—principally to reflect the 2011 amendments to the HGCRA 1996, to provide for project bank accounts in line with government fair payment guidance, and to revise the compensation event mechanisms, amongst other updates and refinements. In addition, NEC released seven new 'how to' guides within the April 2013...
Produced in association with 4 Pump Court This Practice Note explores the feasibility of adjudication involving three or more participants (commonly referred to as multi-party adjudication in practice), such as where an employer seeks a decision about a defect attributed to both a contractor and a consultant. Adjudication is generally ill-suited to disputes with multiple parties—managing pleadings from just two sides within a 28‑day time period can already be demanding, before introducing extra complexity overall (not least when the two respondents must address each other’s points as well as those of the referring party). Consequently, most adjudication frameworks, and the Scheme for Construction Contracts, do not provide for multi‑party adjudications. For direction on which commonly used adjudication rules and standard form agreements allow multi‑party disputes, see Practice Note: Introduction to adjudication clauses and procedures. That said, some contractual arrangements purport to permit the joining of...
What is multi-contracting? It is a procurement approach where multiple contractors are appointed separately for the distinct work packages making up a project—the employer contracts with them directly to deliver those individual packages. This procurement route is often adopted for energy schemes (power stations, wind farms, and the like) as an alternative to an EPC contracting model (see also Practice Note: EPC, split EPC and multi-party contract projects). The employer takes responsibility for co-ordinating all work packages and for handling the interfaces between them. A diagram sets out the contractual arrangement for a scheme let on a multi-contract basis (that arrangement may vary from scheme to scheme, although the diagram shows the contractual matrix). Contractors are usually engaged under target cost contracts. This type of contractual framework suits projects where the employer is best placed to assume certain...
MF/4 forms part of the Model Forms issued on behalf of the Institution of Engineering and Technology ( IET) and the Institution of Mechanical Engineers. It is intended for use, either domestically (ie UK) or overseas, as an agreement under which engineering consultants deliver consultancy services. The IET's commentary accompanying MF/4 indicates that it is chiefly aimed at investigative or advisory work, and that it is not suitable where a consultant is engaged to: lead, project manage, or undertake other services connected with a complex project provide design services to a contractor As a services contract linked to a construction or engineering project, MF/4 may amount to a 'construction contract' for the purposes of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). However, its conditions do not reflect the relevant statutory requirements on payment terms, nor do they provide for the...
‘ MF/3’ is part of the Model Forms suite issued on behalf of the Institution of Engineering and Technology ( IET) and the Institution of Mechanical Engineers. It is designed for domestic (i.e. UK, not overseas) contracts covering supply only of electrical and mechanical goods, without erection, and its full designation is MF/3 (rev 1) Model Forms of General Conditions of Contract for the Supply of Electrical and Mechanical Goods ( Home without Erection). The principal conditions have remained unchanged since 2001. As MF/3 concerns goods supply only, it is unlikely to amount to a ‘construction contract’ under the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). Consequently, the MF/3 conditions do not mirror the statutory rules relating to payment terms, and they also omit any provision for the adjudication of...
MF/2 MF/2 sits within the IET and Institution of Mechanical Engineers’ suite of Model Forms. It is intended for domestic ( UK) or international agreements dealing solely with the supply of electrical, electronic or mechanical plant, and its full name is MF/2 Model Form of General Conditions of Contract for use in connection with home or overseas contracts for the supply of electrical, electronic or mechanical plant. The core terms have remained unchanged since 1999, save for amendment slips addressing the Contracts ( Rights of Third Parties) Act 1999 ( C( RTP) A 1999) and proposals to align it with MF/1 revision 5. Depending on the contractor’s scope and site characteristics, MF/2 can amount to a contract for ‘construction operations’ and fall within the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). It contains no adjudication provision and its payment terms do not...
This Practice Note summarises the minimum energy efficiency standards ( MEES) for the private rented sector arising from the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962. It sets out how the rules operate for both non-domestic and domestic private rented properties, and points to guidance, strategy, policy and consultations concerning the bar on letting substandard domestic and non-domestic private rented property... Minimum energy efficiency standards ( MEES)—background Legislation The UK has put in place several statutory targets on energy efficiency and carbon reduction, including the obligation in section 1 of the Climate Change Act 2008 ( CCA 2008), as amended by the Climate Change Act 2008 (2050 Target Amendment) Order 2019, SI 2019/1056, to reduce carbon levels by at least 100% from 1990 levels by 2050 (capturing greenhouse gas emissions from...
This Practice Note outlines the effect on both landlords and tenants of non-domestic private rented ( NDPR) property of the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, together with the exclusions and exemptions relevant to NDPR property. It forms part of our series of Practice Notes on minimum energy efficiency standards ( MEES). MEES Regs 2015, SI 2015/962, reg 27 (prohibition on letting substandard NDPR property) Under reg 27, a landlord must not let substandard NDPR property unless: 'relevant energy efficiency improvements' are undertaken ( MEES Regs 2015, SI 2015/962 reg 29), or one of the exemptions in MEES Regs 2015, SI 2015/962 chapter 4 (consent, devaluation or temporary exemptions) apply An exemption must be registered on the national PRS Exemptions Register ( PRS Exemptions Register) before it can be relied on. The...
This Practice Note outlines how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented ( NDPR) property. It explores the interface between the MEES Regs 2015, SI 2015/962 and the Landlord and Tenant Act 1954 ( LTA 1954), considers challenges for landlords and tenants when subletting NDPR premises that are substandard, examines points arising for a landlord with a consent exemption on assignment, highlights due diligence considerations, and flags issues in real estate finance transactions where the asset is substandard (that is, holds an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’). It forms part of our Practical Notes series on minimum energy efficiency standards ( MEES). Under MEES Regs 2015, SI 2015/962, reg 27, a landlord must not let...
What kind of disputes are suited to mediation? Construction projects commonly give rise to a broad array of disagreements that are well suited to mediation: Money-related disputes, such as non-payment of sums thought to be due, or arguments about the valuation of additional work undertaken. Issues concerning entitlement to time, where the contractor believes it should have extra time to carry out the works, but the employer or contract administrator does not agree. Defects in the building work. For more detail on disputes about defects, see Practice Note: Defects claims in construction. In most building contracts, a contract administrator is appointed to manage the contract, including certifying whether the works are in delay, when the works are deemed practically complete, and when defects arising during the defect liability period have been remedied. Disagreements frequently arise over whether the contract administrator’s certification is correct......
In construction projects, the contractor’s contractual link under the building contract exists solely with the employer. Yet, on most schemes, other third parties will have an interest in the contract terms, the way the works are undertaken and/or the end-product. These parties ordinarily lack any contractual nexus with the contractor and, if they incur loss arising from the contractor’s act or omission, they cannot claim damages for breach of contract. Consequently, both such third parties and the employer will want their interests in the works protected so that, should loss be suffered, there is a viable route to redress... This Practice Note considers the third parties typically involved in construction projects and the common mechanisms used to protect their interests. It also examines how an employer can seek to pass down, within the building contract, obligations it has assumed under separate...
Stop press: A revised RIBA Plan of Work (2020 edition) has been released—see LNB News 14/04/2020 99. We are reviewing this Practice Note accordingly. Parties involved in BIM and their roles In addition to the standard parties to a construction contract, BIM can introduce further roles. At present there is no uniformity over job titles or scope of work for such roles, although this is expected to evolve with time. The roles currently being considered include: Information Manager — The role cited in the CIC BIM Protocol. It is the person appointed initially by the Employer (or the owner of the built asset) to carry out the Information Management Role. That role is defined as establishing and managing the processes, protocols and procedures described in the Information Particulars. The Information Particulars, appended to the Protocol, set out the employer’s information...
This Practice Note outlines Management Contracting and the reasons this procurement route is adopted. Within the UK construction sector, the prevailing choices remain the traditional approach or design and build (see Practice Notes: Traditional procurement of construction contracts and Design and build procurement). Management procurement currently sits in the minority, though that has not always been true. In the late 1980s and early 1990s it was the preferred option for numerous major commercial projects. The market may well pivot back towards it in time. The two principal strands of management procurement are management contracting and construction management. See Practice Note: Construction management. What is management contracting? Management contracting is a variant of the traditional procurement model. It was brought into the UK from the US construction market to mitigate some of the perceived adversarial behaviours that were prevalent at the time…...
Loss and expense claims It matters that both employers and contractors know how to handle loss and expense claims and appreciate the practical actions to take—particularly during economic downturns, when construction output falls and margins are squeezed, and it is widely acknowledged that the volume of loss and expense claims rises. Every standard-form construction contract offers a route for a contractor to seek sums beyond the contract price. These amounts usually make good the impacts of variations and other occurrences for which the contractor bears no responsibility. Each agreement sets out a process that must be observed for any claim to succeed. Failure to comply can put entitlement at risk. Regrettably, disputes frequently arise because contractors do not study the contract thoroughly or adhere to the correct procedure. When properly applied, appropriate measures can help both contractors and employers steer clear of...
Limitation clauses and exclusion clauses in construction contracts This Practice Note offers guidance on the use of limitation and exclusion provisions—often called exemption or exception clauses—within construction contracts. It addresses monetary caps, the exclusion of consequential (indirect) loss and typical carve-outs, together with alternative mechanisms for curbing liability. It also examines the legal constraints on limiting or excluding liability, including those arising under the Unfair Contract Terms Act 1977 ( UCTA 1977), the Defective Premises Act 1972 ( DPA 1972) and the Consumer Rights Act 2015 ( CRA 2015). Construction contracts range from small residential schemes to major infrastructure or commercial development projects. The potential exposure for contractors, as well as consultants and sub-contractors, when something goes wrong can be substantial, particularly where they take on design responsibilities. Professional indemnity insurance may protect parties in respect of certain claims, yet it might not be...
For any construction scheme that relies on external finance, the funder will usually instruct its own team of solicitors to prepare and/or settle the necessary legal paperwork. Among the many agreements to be finalised are the project development and building documents. The funder will also appoint a specialist construction solicitor to carefully scrutinise those construction documents and to negotiate with the borrower’s lawyer wherever it believes amendments are needed. That solicitor will expect the construction suite to safeguard the interests of both the borrower and the lender, in the immediate term (while the works are carried out) and over the longer term (once the works are complete). This Practice Note identifies the construction documents a lender’s lawyer will commonly examine and the issues that typically matter from the lender’s viewpoint. In this Practice Note, the expression borrower refers to the party that is taking funds from 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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