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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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What is insurance law? Insurance law divides into three strands: insurance contract law, setting the rules of the bargain between policyholders and insurers the law of intermediaries, governing insurance arranged via agents (as with the majority of placements) insurance company law, addressing prudential soundness, integrity and the supervision of insurers This Practice Note focuses chiefly on insurance contract law. For wider regulatory material, see our ‘regulation of insurance’ subtopic, including Insurance & Reinsurance—regulatory framework—overview and Insurance & Reinsurance— Regulated activities—overview. Reform of the insurance sector In January 2006, the Law Commission and the Scottish Law Commission (together, the Law Commissions) began consulting on modernising insurance contract law. Their programme was then separated into three streams: consumer insurance law reform: pre-contract disclosure and misrepresentation insurance contract law reform: business disclosure, warranties, insurers’ remedies for fraudulent claims, and late payment insurance contract law...
Introduction to the Insurance Act 2015 The Insurance Act 2015 ( IA 2015) was granted Royal Assent on 12 February 2015 and, save for Part 6, commenced on 12 August 2016. It marks the most far-reaching overhaul of the statutory framework of English insurance contract law since the Marine Insurance Act 1906 ( MIA 1906). This Practice Note examines the principal provisions of IA 2015 and the ways in which they reform the law. It also reviews reforms introduced by the Enterprise Act 2016 ( EA 2016), with relevant sections taking effect in May 2017. This Practice Note addresses IA 2015 provisions relating to: the duty of fair presentation remedies for a breach of that duty warranties and other terms fraudulent claims amendments to the Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) ...
What is insurable interest? This Practice Note examines insurable interest, including its role in construction and liability insurance. It also addresses insurable interest in subrogation, co-insurance and double insurance, and the Insurable Interest Bill. It is a doctrine of insurance contract law that requires the insured to have a legally recognised relationship with the insured subject-matter. Broadly, only those who have some connection to the subject-matter of the insurance contract, by which they would be prejudiced by its loss, or may incur liability in respect of it, can insure that subject-matter. Conversely, a person who lacks such a relationship has no insurable interest and therefore cannot take out insurance on that subject-matter. The burden lies on the insured to establish that an insurable interest exists. The rationales for requiring an insurable interest are that: it is the characteristic of an insurable interest that...
Given the complexities of construction works and disagreements, calling on a specialist in the relevant discipline is frequently essential. The Technology and Construction Court Guide ( TCC Guide) acknowledges this, and also notes that parties often need to retain experts at a very early, pre-action stage. Experts may equally be engaged outside litigation, for example to assist in identifying liability at the outset of a claim, to provide opinions on remedial options, or to support adjudications and other dispute resolution processes, including negotiation, mediation and arbitration. This Practice Note addresses key matters arising once the choice is made to appoint an expert (whether as an expert adviser or expert witness), such as the timing of the instruction, the contents and scope of the instruction letter, and the documentation to be provided. For details on the obligations an expert may have, see Practice Notes:...
This Practice Note briefly explains insolvency issues in PFI/ PF2 projects. It is designed to give restructuring and insolvency practitioners a concise, high-level overview of key contractual terms, restructuring routes, and steps that may safeguard a client’s position, presented in a practical format in routine professional practice. What are PFI/ PF2 projects? The Private Finance Initiative ( PFI) is a form of public–private partnership ( PPP) used to commission and deliver a range of public assets and services, such as schools, hospitals, prisons, rail links, roads and social housing across the public sector. PFI schemes are financed by private sector lenders, with private contractors assuming the burden and risk in relation to design, construction and/or day-to-day operations. A typical PFI arrangement is long term, enduring for around 25–30 years. Private Finance 2 ( PF2) was launched by the government in December 2012 with the intention of...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note provides general guidance for public procurement activities launched before the Procurement Act 2023 ( PA 2023) came into force and effect on 24 February 2025. Procurements within scope that commence on or after that date are governed by PA 2023. Under PA 2023’s transitional and savings provisions, the earlier procurement regimes continue to operate as appropriate insofar as necessary for contracting authorities to finalise and oversee procurements initiated prior to commencement (ie procurements still ongoing). This Practice Note ought to be read on that footing. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Further practical guidance concerning PA 2023 is provided elsewhere in a separate subtopic: Procurement Act 2023—overview. Public procurement under the Public Contracts Regulations 2015 A contracting authority is required to apply one of the five...
The mix of participants on an infrastructure scheme hinges on the project type and the way it is procured and funded. Set out below is a typical party involved in such projects. Employer The employer is the party seeking delivery of the infrastructure asset and overseeing the procurement. Examples of employers include: government bodies commissioning roads, rail networks, pipelines, schools, prisons, hospitals or energy schemes private companies commissioning mining developments, oil and gas exploitation, energy schemes or processing plants Ordinarily, the employer prepares a project brief defining the asset’s required function and performance, then invites contractors to tender. Once a preferred bidder is chosen, the employer appoints a contractor (or several) to design and build the asset. The employer typically provides the finance and pays the contractor. Often—though not invariably—the employer also owns the site where the asset will be...
Global demand for public infrastructure is high at a moment when public finances are constrained and banks are less inclined to extend credit, prompting fresh and varied approaches to financing infrastructure development. The following provides a brief outline of the standard funding sources and models used for infrastructure projects. A comprehensive examination of the financial structures and products available for infrastructure funding falls outside the scope of this practice note. Factors influencing source of funding The source of finance for a particular infrastructure scheme will turn on: the procuring party or parties—is it a governmental authority, a private firm or a consortium? Do they have a solid track record? Are the parties or their sponsors investment grade? the procurer’s financial position—do they hold sufficient funds or must they raise external finance? the security package—if finance is required, which entities, assets and documents will form part of the...
This Practice Note reviews the key agreements typically used in an infrastructure project. The documents outlined below will not be applicable to every scheme—the project structure, procurement route, financing approach, and the nature of the project and its participants will dictate what is required. For further detail on the parties mentioned here, see Practice Note: Infrastructure projects—parties. Note that the party called the ‘employer’ in this Practice Note would, in a project finance-structured infrastructure project, usually be the ‘ Project Co’. Construction contract The construction contract is the arrangement between the employer and the contractor for the design (to varying degrees) and the construction of the infrastructure asset. Depending on the procurement route, there may be a single contract covering the entire project (for example, an EPC/ Turnkey contract) or several contracts with different contractors for separate work packages (as under EPCM...
Infrastructure procurement describes how a facility’s delivery is organised. This Practice Note concentrates on arranging the design, engineering and construction of a facility. For information on funding models, see Practice Note: Funding models for infrastructure. A variety of factors will shape the decision on the most suitable way to procure an infrastructure facility. Factors influencing the procurement method Factors significant when deciding on the form of procurement for an infrastructure project include: the nature of the infrastructure project—eg mining, road, port, energy project the project’s complexity—does it involve process technology or multiple facilities? who the owner is—eg a public body using PPP or a Regulated Asset Base ( RAB) model, or a private company experienced in managing works? how the project is funded—by public money, debt or private investment? Lenders may require a particular procurement route the allocation of risk between the parties—is single-point...
Infrastructure spans an extensive spectrum of assets, covering everything from schools, hospitals, highways and rail routes to wind power, electricity, waste and water schemes, as well as oil and gas installations, pipelines and processing facilities. Contractors are increasingly sharpening specialist skills and delivering infrastructure schemes across borders. Consequently, the construction contract forms in play are becoming more internationally standardised. Although infrastructure contracts share core clauses, no single template suits every scheme. Any template must be adapted to reflect the project’s particular issues and subject matter, the parties’ risk allocation, and to comply with the governing law of the contract and the project’s location. In some cases, a bespoke infrastructure construction contract is a better choice than a heavily amended standard form. Choice of contract The contract model adopted for an infrastructure build will depend on the: procurement of the works, for example: ...
This Practice Note provides a review of the 2013 versions of the IChem E Yellow Book (4th Edition) and Brown Book (3rd Edition) sub-contract forms. They are designed to accompany the trio of comparable IChem E main contract forms—the Red, Green and Burgundy Books—used on process plant projects. For the main contracts, refer to the following relevant Practice Notes: IChem E Conditions 5th Edition—‘ Red Book’ IChem E Conditions ‘ Green Book’ 4th Edition IChem E Conditions ‘ Burgundy Book’ 2nd Edition Respectively, the Yellow Book addresses civil engineering works, while the Brown Book deals with ‘subcontract plant’ supplied by a sub-contractor. A full specification of the sub-contract works ought to be included in Schedule 1 of both the Yellow and Brown Books themselves. Nature of sub-contracting The sub-contract works form a subset of the main contract works (and any sub-contract plant may constitute an element of the main...
The Institute of Chemical Engineers ( IChem E) first issued the Model Form of Conditions of Contract for Process Plants for Lump Sum Contracts in the UK in 1968. Subsequent editions followed in 1981, 1995 and 2001. This Practice Note examines the 2013 fifth edition for lump sum arrangements. It revises the 2001 text to reflect current legislation and brings in other targeted alterations. IChem E’s comprehensive clauses on tests on completion and on commissioning mean it is particularly apt for process plant schemes. It is commonly adopted on projects falling outside the statutory definition of ‘construction operations’ under the HGCRA, such as nuclear processing, power generation, water treatment, and the processing of petrochemicals, steel, food and drink. Nonetheless, IChem E’s payment regime fully meets the HGCRA. The contract set comprises general and special conditions, a specification (the plant’s technical...
EPCM ‘ Blue Book’ ( IChem E, March 2023) This Practice Note reviews the engineering, procurement and construction management ( EPCM) form of contract, commonly termed the ‘ Blue Book’, released by the Institute of Chemical Engineers ( IChem E) in March 2023. Construction management is now a widely recognised procurement route; nevertheless, it differs fundamentally from other IChem E contracts, particularly when set against the EPC approach to allocating risk... Where many other contracts prioritise delivery by a single contractor who assumes significant design and construction risk, EPCM dispenses with any sole ‘contractor’ undertaking the works. Instead, trade contractors (the ‘ Contractors’) contract directly with the Purchaser under Works Contracts to design, supply and install goods and materials for the Plant. Their activities are directed by the EPCM contractor (the ‘ EPCMC’), and performance risk is distributed across multiple...
This practice note addresses the 2nd Edition of the Burgundy Book, released in 2013, with particular emphasis on its role as a target cost form. In line with all IChem E agreements, the Burgundy Book contains thorough requirements for testing at completion and for commissioning, making it especially well suited to process engineering sectors such as nuclear, water, petrochemicals, and food. The suite adopts an almost entirely uniform structure across clauses, presentation and schedules. Departure from the standard drafting occurs only where needed to set out the mechanism delivering the risk/reward regime—in this instance, remuneration on a target cost footing. See also Practice Notes: IChem E Conditions 5th Edition—‘ Red Book’ and IChem E Conditions ‘ Green Book’ 4th Edition. Nature of Target Cost Contracts Target cost denotes that the contractor receives payment of the ‘actual cost’ it incurs (as defined), akin to a...
Following the 1968 publication of the Conditions of Contract for Process Plants for Lump Sum Contracts, the Institute of Chemical Engineers ( IChem E) introduced in 1976 a reimbursable contract form titled the ' Green Book'. The second and third editions of the Green Book were issued in 1992 and 2001 respectively. This Practice Note considers the 2013 (4th Edition) Green Book, concentrating on the nature of cost reimbursable contracts. As with other IChem E agreements, the Green Book sets out detailed provisions for testing at completion and for commissioning, making it well suited to process engineering fields including nuclear, water, petrochemicals, steel and food. The Green Book adopts an almost identical format to the Red Book in respect of clauses, layout and schedules. Its drafting is likewise very close, departing from the Red Book text only so far as required to reflect the...
Practice Note This Practice Note examines a procedure that contracting parties may choose to adopt for resolving disputes under a construction contract, regardless of whether the HGCRA 1996 applies. A dispute board comprises a panel appointed to help resolve disagreements arising from the contract. See Practice Note: Dispute boards—what are they and what are their advantages and disadvantages?. The intention is to secure prompt outcomes without resorting to court proceedings or arbitration. Various organisations issue rules for dispute boards, and some forms, including FIDIC, call for disputes to be determined by such a board (see Practice Notes: FIDIC contracts 2017— Dispute Avoidance/ Adjudication Boards and FIDIC contracts (pre-2017 editions)—dispute adjudication boards). The Institution of Civil Engineers ( ICE) provides several dispute resolution services and publishes standard procedures for handling disputes, including one such procedure. It prescribes rules on appointing a board, making a...
The Infrastructure Conditions of Contract ( ICC) for Civil Engineering Works began life in 1945 as the ICE Conditions of Contract. After a series of revisions, a substantial overhaul arrived in 2014 with the publication of a new ‘ With Quantities Version’ (see Practice Note: ICC With Quantities Version 2014). In June 2018, two further ICC forms were issued—the Target Cost ( TC) Version and the Design and Construct Version (see Practice Note: ICC Design and Construct Version 2018). This Practice Note offers guidance on the ICC TC Version 2018. Back in 2011, the Association for Consultancy and Engineering released the first TC Version, derived from the ICE Conditions of Contract 7th edition and tailored for target cost application. The 2018 TC Version is a full rewrite, aligning with the structure and drafting approach of the 2014 Without Quantities Version....
This Practice Note reviews the Dispute Board Rules (‘2015 Rules’) issued by the International Chamber of Commerce (‘ ICC’), which took effect on 1 October 2015 and superseded the 2004 Rules (‘2004 Rules’). The 2015 Rules can be accessed via the ICC website. Approach of the rules The 2015 Rules set out a thorough framework covering nearly all matters that may emerge from the moment parties seek to establish a Disputes Board (‘ DB’) through to the conclusion of its mandate. A DB’s primary role is to help parties avert disputes, whether by prompting them to do so themselves or by giving informal support. The 2015 Rules were introduced following a three-year update led by the ICC Commission on Arbitration and ADR (‘ Centre’), begun in 2012, drawing wide contributions from the international dispute board community, including the International Federation of Consulting Engineers and members of other...
The Infrastructure Conditions of Contract ( ICC) governing civil engineering projects began life in 1945 as the ICE Conditions of Contract. After successive updates over many years, a significant overhaul arrived in 2014 with the release of a new ‘ With Quantities Version’. June 2018 introduced two further standard ICC forms—the Design and Construct ( D& C) Version and the Target Cost Version (see Practice Note: ICC Target Cost Version 2018). This Practice Note offers specific guidance on the ICC D& C Version 2018. Do not confuse the 2018 D& C Version with the 2011 D& C Version, despite their identical covers. The latter was, in essence, simply a reprint of the ICE Design and Construct Contract 2001. By contrast, the 2018 edition is wholly distinct, developed from the 2014 With Quantities Version (see Practice Note: ICC With Quantities Version 2014) and...
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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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