Featured documents
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:
Most recent Practice notes
This Practice Note sets out the key features of the Infrastructure Conditions of Contract ( ICC) Measurement Version 2011. Previously known as the ICE ( Institution of Civil Engineers) Conditions of Contract, the ICC Measurement Version 2011 continues a line begun in 1945, when the ICE first issued these terms, later updating them through seven editions to 1999. In August 2011, the ICE stepped back from the ICE Conditions; the suite was rebranded as the ICC and issued by the Association for Consultancy and Engineering with the Civil Engineering Contractors Association, who had published the ICE conditions. ICC contracts are intended for civil engineering projects, including tunnelling, dredging, harbour works, road and bridge construction, and airport runway schemes......
This Practice Note explains the prosecutions policy of the Health and Safety Executive ( HSE) in England, Wales and Scotland. In England and Wales, HSE may bring criminal proceedings for breaches of health and safety law; it determines whether a case should be taken and brings prosecutions before the criminal courts. While the same policy governs Scotland, charging decisions rest with the Crown Office and Procurator Fiscal Service ( COPFS), with HSE submitting recommendations to COPFS in accordance with the enforcement approach set out in this Practice Note. For guidance on enforcement of health and safety contraventions in Scotland, see Practice Notes: Health and safety investigations in Scotland and Prosecution process for health and safety cases in Scotland. For further material on duties created by health and safety law, methods of enforcement, prosecution of contraventions, and potential sentences on conviction, consult the Health and safety...
On 1 November 2023, the Scottish Government laid the Housing ( Cladding Remediation) ( Scotland) Bill (the Bill) before the Scottish Parliament. Its introduction followed the Scottish Government’s Programme for Government announcement in September 2023. Its purpose was to confer on the Scottish Government ‘new powers to remediate buildings with unsafe cladding that present a risk to life’. The Bill gained Royal Assent on 21 June 2024, thereby becoming the Housing ( Cladding Remediation) Scotland Act 2024 ( H( CR)( S) A 2024). H( CR)( S) A 2024 commenced on 6 January 2025. This Practice Notes considers the principal provisions of H( CR)( S) A 2024 and what they mean for property developers in Scotland. Background to H( CR)( S) A 2024—the Cladding Remediation Programme Scotland’s framework for building and fire safety differs from that in England and Wales. This is because building...
These training resources comprise sample Power Point slides and companion notes for trainers delivering an introduction to the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), commonly called the ‘ Construction Act’, for trainee solicitors and anyone new to construction. Topics include when the HGCRA 1996 applies, which construction contracts are excluded, the Scheme for Construction Contracts, payment under the HGCRA 1996, and adjudication under the HGCRA 1996. The materials are supplied in Power Point and Word formats and are fully customisable. Click the link below to download the presentation: Contents What is the HGCRA 1996 and when does it apply? HGCRA 1996 key dates When does the HGCRA 1996 apply? Exclusions The Scheme for...
This Practice Note explores ground conditions within construction and engineering schemes. It addresses who bears responsibility at common law and highlights contractual mechanisms that can be included in building contracts to manage situations where the contractor meets adverse ground conditions, setting out how that risk is shared between contractor and employer. It also summarises how the JCT, NEC and FIDIC standard forms approach allocation of ground condition risk... What are ‘ground conditions’? ‘ Ground conditions’ typically describes the site’s geology, hydrology, soil characteristics and any contamination present. Such conditions may arise naturally, be the result of human activity, or a mixture of both. Artificial or man-made conditions or obstructions can include: Antiquities Landfill Asbestos Disused or existing sewers Unexploded ordnance The phrase does not normally cover short-lived surface features like litter or leaves, nor climatic factors. While ‘ground...
This Practice Note offers direction on the distinct rules governing the prescriptive period for obligations to pay damages (previously, to make reparation). It ought to be read alongside Practice Note: Prescription in Scotland. Read it in tandem with that note for context and alignment within the overall wider prescriptive framework in Scotland. For insight into the law of limitation in Scotland, consult Practice Note: Limitation of actions in Scotland, which likewise addresses the distinctions between limitation and prescription in Scots law. Key: PL( S) A 1973— Prescription and Limitation ( Scotland) Act 1973 P( S) A 2018— Prescription ( Scotland) Act 2018 PL( S) A 1973, s 11 concerns obligations to pay damages (irrespective of the obligation’s source). It applies to every action in contract or delict where damages are claimed. Until 28 February 2025, the section referred to obligations to ‘make...
The Grenfell Tower fire of 14 June 2017 is widely recognised. In the wake of this devastating event, it became apparent that particular cladding products used on Grenfell Tower, along with other building features, had accelerated the fire’s spread. Consequently, serious questions arose about the suitability of cladding systems and fire safety provisions on other buildings in the UK and overseas. The disaster prompted multiple actions by the UK government—including establishing a public inquiry into the events of 14 June 2017 (the Grenfell Tower Inquiry), and introducing reforms to the legal and regulatory regimes for building and fire safety. For details on these changes, see Practice Note: Fire safety developments following the Grenfell Tower fire. The possible scale of fire safety shortcomings within existing UK buildings has driven those who own, occupy, or are charged with maintaining potentially defective properties to assess whether...
This Practice Note examines performance and testing under the 1999 editions of the Red, Yellow and Silver Books, the Gold Book 2008 and the Pink Book 2010. It reviews performance and testing under the 1999 Red, Yellow and Silver Books, together with the Gold Book 2008 and the Pink Book 2010. For detailed guidance on the 2017 Red, Yellow and Silver editions, see Practice Note: FIDIC contracts 2017—performance and testing requirements. A principal concern for both the employer and the contractor (the 'parties') is determining when the works are to be treated as 'complete'. The employer will want confirmation that the works have been fully executed in accordance with the contract requirements, while the contractor will want certainty about what those requirements are and the method by which they can be satisfied. Consequently, it is essential that the contract sets out, in explicit terms, the...
This Practice Note examines the insurance provisions in the 2017 FIDIC Red, Yellow and Silver Books. It addresses liability for the Works, cover for the Works, and the additional policies the Contractor is required to arrange, such as professional indemnity, public liability and employer’s liability insurance. For commentary on the 1999 forms, see Practice Note: FIDIC contracts (pre-2017 editions)—insurance. The 2017 Books set out, for each policy, who must insure, the sums and the scope of cover, and these requirements appear in: the Contract Data the Special Conditions (amendments to the General Conditions) the General Conditions The order above governs which provisions prevail (clause 1.5). The remainder of this Practice Note summarises the requirements in the General Conditions. Liability or risk in the Works The Contractor’s liability for the Works, which establishes its insurable interest, is stated at clause 17.1. From the Commencement Date until the issue of the...
This Practice Note reviews the insurance provisions in the 1999 editions of the FIDIC Red, Yellow and Silver Books. For guidance on the 2017 editions, see Practice Note: FIDIC contracts 2017—insurance. The FIDIC insurance provisions The insurance requirements in the FIDIC contracts—identifying which party arranges cover, the quantum and the nature of insurance—are located in: the letter of acceptance of tender the particular conditions (amendments to the general conditions) the general conditions This sequence sets the order of precedence for deciding which insurance provisions apply. The following summarises the requirements in the general conditions. Liability or risk in the works The Contractor’s risks The Contractor’s liability for the works, which gives it an insurable interest, is stated at clause 17.2. The Contractor must care for the works until take over, and any damage must be made good at the Contractor’s own risk and expense unless caused by an Employer risk......
Comparison with traditional building or engineering contract The label ‘ EPC’ contract (or ‘turnkey’ contract) is not a technical term. Perhaps the clearest way is first to set out how it diverges from other forms of agreement. A turnkey arrangement means that, once the project is finished and ready to pass to the user, it should need nothing more than the ‘turn of a key’ for the user to run it immediately. EPC denotes engineering, procurement and construction, and signals, in particular: a significant transfer of risk and responsibility placed on the contractor under such agreements, and a minimal need for the client to participate in the Works (beyond essential monitoring) in normal circumstances This contrasts with traditional domestic building or engineering contracts, where risks and duties (including those relating to design) are spread more evenly between contractor and client, and the client, through its...
EPC arrangements are typically structured so the contractor shoulders most of the project’s inherent risk, rather than the employer, from the outset. The employer’s focus is on timely delivery and compliance with the specification, leaving the contractor to decide how to achieve this and to determine the means of execution. Consequently, the employer usually pays a higher contract sum for transferring the bulk of those risks to the contractor, reflecting the premium demanded by that allocation. Having agreed a premium for the works, the employer expects actual completion on time and performance in line with the stated requirements, as outlined in the specification. It will also seek mechanisms to enforce these outcomes, or to recoup losses where they are not met, ensuring there is recourse if obligations are missed. This Practice Note considers the remedies available to an employer under an EPC...
Design Build Operate ( DBO) Rising demand for public infrastructure during periods of tight public finances, coupled with limited public sector expertise in delivering complex facilities (such as water treatment works and energy plants), has prompted greater private sector involvement in the procurement and operation of public infrastructure. There are numerous possible frameworks for bringing public sector risk and expertise into the procurement of public infrastructure, covering a wide spectrum of structures. One such arrangement is Design Build Operate ( DBO). It is especially popular for water treatment plants. For information on variations of the DBO structure, see Practice Notes: Infrastructure projects—project structure and BOT contracts. Under DBO, a government (often through a government body or local authority) engages a single contractor to: design and construct the infrastructure facility operate the facility for a period (typically between 10–30 years) The government typically funds the...
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 Referral Notice After a Notice of Adjudication is issued and an adjudicator is appointed, the dispute must be put before the adjudicator in a formal manner. The Referral Notice is the written document that submits the dispute to the adjudicator. See Practice Note: Adjudication—the Referral Notice and Precedent: Referral Notice for an adjudication. Referring party The party initiating the adjudication of the dispute, ie the claimant. Rejoinder The responding party’s second submission in an adjudication, provided in answer to the Reply from the referring party. Relevant Event Under the JCT form of contract, an occurrence that entitles the contractor to an extension of time to finish the works. See Practice Notes: JCT contracts—time and JCT—interpreting the lists of Relevant Events and Relevant...
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 Schedule of amendments A compiled list of changes to a standard form contract in which the parties record their agreed departures from the issued terms. Accordingly, it should be read alongside the underlying standard form. The parties should ensure any negotiated and agreed schedule of amendments is duly incorporated into the contract. Within NEC3/ NEC4 suites, such alterations to the standard form are known as Z clauses. Refer to Practice Notes: Construction contract documents and Selection of standard form construction contracts, and to our relevant Precedent schedules under the Precedents tab in subtopics: JCT contracts 2024—overview, JCT contracts 2016, JCT contracts 2011, NEC contracts and Other standard form construction...
Development of the rules CIMAR denotes the Construction Industry Model Arbitration Rules, issued by the Society of Construction Arbitrators ( SCA) together with the Joint Contracts Tribunal ( JCT). Prompted by the Bill that became the Arbitration Act 1996 ( AA 1996), the SCA set in motion the creation of model arbitration rules intended for uptake across construction bodies. Committees were convened under Lord Justice Auld’s chairmanship—a plenary group, a steering group and a drafting sub-committee—which adopted the title CIMAR. The SCA released the first edition in 1998. In 2005 the JCT produced its own iteration, followed by updates in November 2011, June 2016 and April 2024 to align with its 2011, 2016 and 2024 contract suites; however, the text itself was unchanged from the 2005 version. Broadly, the Rules mirror AA 1996. Provisions of immediate relevance from AA 1996 appear after the...
An increasing cohort of developers is reporting that co-located battery storage schemes have secured project finance. This marks significant progress, given that as recently as 2018 grid-scale batteries were treated as an emerging asset class, with many funders having written them off as unsuitable for project finance. This Practice Note sets out key considerations for both lenders and developers looking to project finance co-located battery storage projects. For more information on: construction considerations for co-located battery storage projects, see Practice Note: Energy storage—construction issues property aspects regarding co-located battery storage projects, see Practice Note: Battery storage projects—property issues planning matters, including in relation to co-located battery storage, see Practice Note: The planning regime for energy storage in England and Wales battery storage projects more broadly, see Practice Notes: Scaling up energy storage—revenue opportunities in Great Britain and Energy storage...
BIM comes in several guises. On 4 April 2016, building information modelling ( BIM) level 2 became compulsory on all centrally-procured UK government projects. Consequently, the use of BIM must increasingly be reflected within contractual documentation throughout the construction supply chain and within the professional team. See Practice Note: What is BIM? Do not pursue change merely for the sake of it; at each stage of the contract it is sensible to assess what, in contractual terms, has shifted from the status quo due to the introduction of BIM on a project. There are, however, a number of areas where amendments are likely to be required to ensure the additional requirements of BIM are catered for. This can be delivered through ‘light touch’ adjustments to administrative clauses, or through more extensive revisions to incorporate early engagement and reflect...
This Practice Note outlines the core principles for recovering damages arising from contractual breach. It addresses the compensatory purpose of damages; categories covering pecuniary and non-pecuniary loss; nominal damages; damages available under the Sale of Goods Act 1979 ( SGA 1979); the operation of default damages clauses; contractual mechanisms for remedying a breach; and the availability of interest. As stated by Baron Parke in Robinson v Harman, the party who suffers loss through breach should, in terms of damages, be placed in the position they would have occupied had the contract been performed... Compensatory function of damages for breach of contract The ordinary role of contractual damages mirrors that in tort: they are compensatory (see, for example, British Westinghouse v Underground Electric Rlys). The purpose is to make good the actual loss sustained by the innocent party and, so far as money can achieve it, to place them in...
When considering a claim for damages When a claim for damages is assessed (see Practice Note: Contractual damages—general principles and related content), the court applies the doctrines of causation and remoteness. A party’s responsibility to reduce its loss is addressed in Practice Note: Mitigation in civil damages claims. For assistance on causation within professional negligence, consult Practice Note: Causation and remoteness in professional negligence claims. For tort-based claims, see Practice Note: Causation and remoteness in tort and negligence claims. Note: matters concerning causation and the ‘but for’ test within the specific arena of insurance policy wording fall outside this Practice Note, but were examined in depth in the coronavirus ( COVID-19) test case, The Financial Conduct Authority ( FCA) v Arch Insurance ( UK) Ltd, the judgment emphasising the necessity of homing in on the central issue in ‘but for’...
Popular documents
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 ]...
Discover more from LexisNexis
