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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:
Most recent Practice notes
PSC The PSC is a long‑form consultancy appointment, published as part of the NEC suite of contracts. The NEC4 suite was released in June 2017. Amendments arrived in January 2019, October 2020 and, subsequently, in January 2023—the 2023 update contains contract‑wide clarifications together with new optional provisions pertinent to the PSC, which should be checked carefully against any project‑specific Contract Data. The earlier form, NEC3, last issued in April 2013, was at that time called the Professional Services Contract (note the subtle difference). This Practice Note considers both NEC4 and NEC3 versions of the PSC—highlighting changes in approach and identifying different clause references where appropriate. Throughout, the Practice Note uses the term ‘ Client’, as adopted in the NEC4 suite; under NEC3 the term ‘ Employer’ was used. The PSC also takes a different tack from other published consultant...
MF/1 Formerly titled ‘ Model Form A’, MF/1 sets out Conditions of Contract for the design, supply and installation of electrical, electronic and mechanical plant. First issued by the Institution of Electrical Engineers ( IEE), the Institution of Mechanical Engineers ( IMech E) later joined as publisher, broadening coverage to mechanical works. In 1988 the edition was retitled and merged with the export version as MF/1. This Practice Note reviews the 2024 Revision 7 of the form, now published on behalf of the Institution of Engineering and Technology ( IET) and the IMech E. Other Model Forms include: MF/2 and MF/3 – conditions for supply only MF/4 – professional services See Practice Notes: MF/2 Rev 2 (1999), MF/3 Rev 1 (2001) and MF/4 (2003). MF/1 is intended for projects with a significant mechanical, electrical and electronic plant element and has been used on schemes such as: ...
The Construction Industry Council ( CIC) issues a standard consultant appointment: the Conditions of Contract for the Appointment of Consultants on Major Building Projects. This Practice Note reviews the 2011 second edition, which superseded the 2007 original, and confirms the CIC Conditions suit any discipline, with or without design responsibility, and are presented in two volumes. Volume 1 Volume 1 opens with a form of agreement capturing the parties’ details and a description of the consultant’s role and the project. It permits execution under hand or as a deed and organises the agreement into six parts. 1— Contract Details: Sections 1-1 to 1-14, completed in manuscript, set out project-specific particulars, including the site description, the client’s brief (also to be appended to the appointment), and other team members; any optional provisions from Part 6 intended to apply should be flagged here......
What is a global claim? As schemes grow in scope, technical intricacy and cost, claims tend to increase as well. These factors, among others, make straightforward claims harder to present; when there are multiple breaches of contract and other matters, their consequences can be tangled, overlapping and intensified. Put simply, a global claim arises where a contractor has suffered loss due to two or more employer‑risk events but is unable, or unwilling, to pinpoint the loss or delay attributable to each separate event. As a result, a single claim is pursued for all losses stemming from the various events. It is also worth noting that global claims are sometimes described in commentary as ‘total cost’, ‘cumulative effect’ or ‘cumulative impact’, ‘composite’ and/or ‘rolled‑up’ claims. In truth, these are variants of global claims and refer to the way the claim is...
This Practice Note examines termination by the Contractor under the FIDIC Red, Yellow and Silver Books 2017. It does not cover termination rights at law, and the governing law of the Contract could influence how certain clauses operate. For further detail on termination by the Contractor in the pre-2017 Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts (pre-2017 editions)—termination by the Contractor... Who can terminate? Either the Employer or the Contractor may bring the Contract to an end. The relevant procedures are: Clause 15 for Employer termination Clause 16 for Contractor termination Sub- Clause 11.4 [ Failure to Remedy Defects] for additional Employer termination rights Sub- Clause 18.5 [ Optional Termination] permitting termination by both Parties Sub- Clause 18.6 [ Release from Performance under the Law] permitting termination by both Parties For guidance on Employer...
FIDIC contracts adopt a tiered dispute resolution pathway that progresses from adjudication by a dispute adjudication board ( DAB), through amicable settlement, and ultimately to arbitration. The dispute clauses appear at 20.2 to 20.8 in the 1999 Red, Yellow and Silver Books and the Pink Book, and at 20.3 to 20.11 in the Gold Book. This Practice Note examines the dispute resolution provisions in the 1999 Red, Yellow and Silver Books, the 2010 MDB Harmonised edition of the Red Book (the Pink Book), and the 2008 Gold Book. FIDIC published updated Red, Yellow and Silver Books in 2017. Unless stated otherwise, references in this Practice Note to FIDIC contracts and/or the Red, Yellow and Silver Books are to the pre-2017 forms. For guidance on the 2017 contracts, see Practice Note: FIDIC contracts 2017—dispute resolution. When does a 'dispute'...
This Practice Note examines facilities management ( FM) contracting, explaining what it involves and its advantages and disadvantages... A strategic approach to service provision FM contracting is, at heart, a commercial services contracting model, which may comprise: Hard FM – covering the upkeep and fabric of premises, such as mechanical and electrical systems Soft FM – covering support functions within a building, including cleaning, security and helpdesking Total FM – bundled packages that may integrate multiple hard and soft FM services The worth of FM contracting as a contractual mechanism is both economic and operational, enabling organisations to apply FM in strategic and tactical ways to reframe their own business activities... What makes FM different? FM is distinguished as a service sector by the binding contractual relationship between the FM contractor and the client, under which the contractor undertakes services that were...
What is Contractors’ All Risks insurance? Construction insurance falls into two principal categories: ‘property’ and ‘liability’. Property insurance provides cover for damage to physical assets and can be extended to include consequential losses (e.g. business disruption, loss of profits, etc). Liability insurance provides cover for claims made against the insured by third parties, contractors, employees and others, for personal injury, property damage or loss of profits. Cover for damage to the construction works themselves is referred to as Construction All Risks, of which Contractors’ All Risks ( CAR) is one form. CAR is a type of Construction All Risks policy drafted to identify who is intended to benefit from the insurance, rather than to specify the particular damage it insures. The market has not settled on uniform standard definitions, and underwriters continue to produce their own policy wordings to address market...
Stop Press : From 24 February 2025, the core provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are reviewing and refreshing our materials accordingly. Please note that any procurement initiated on or after 24 February must proceed under PA 2023. Procurements commenced under the preceding regimes — the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011 — must continue to be run and administered under those rules. For background, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. This Practice Note examines call-off mechanisms within framework agreements in the construction sector. It focuses mainly on how call-offs are made in the private market, while also addressing public sector framework call-off procedures and signposting to fuller guidance for that...
This Practice Note outlines key authorities on whether a dispute can be referred to adjudication—including whether the dispute has crystallised, is a single dispute, or has already been determined or settled. We recommend first reviewing Practice Note: Adjudication—is there a ‘dispute’?, which sets out the relevant principles. Crystallised dispute For guidance on the requirement that a dispute must have crystallised, see Practice Note: Adjudication—is there a ‘dispute’? ( Crystallised dispute). Guiding principles Case law offering general guidelines or summaries of the law includes the following: the court in AMEC v Secretary for Transport identified seven guiding propositions on what a crystallised dispute entails, including: The word “dispute”, found in many arbitration clauses and in s 108 of the Housing Grants Act, carries its ordinary meaning; it is not endowed with any special or technical meaning by lawyers. Despite the apparent simplicity of the term...
This Practice Note explores how Dispute Avoidance/ Adjudication Boards ( DAABs) operate under the FIDIC Red, Yellow and Silver Books 2017. Each form requires disputes to be submitted to a DAAB, which then delivers a decision that binds the parties involved. Beyond formal determinations, a DAAB may provide informal guidance and support during the works, aiming to settle matters before they harden into disputes. The DAAB mechanism forms the opening tier in a multi-tier dispute resolution procedure. Where a party remains unhappy with a DAAB decision, it may move the matter to amicable settlement and, if necessary, to arbitration, as long as contractual time limits are observed. For further detail, please see Practice Note: FIDIC contracts 2017—dispute resolution. FIDIC’s practice notes on dispute boards FIDIC has issued three practice notes on dispute boards: Practice Note I— Dispute...
Practice Note This Practice Note explores what performance bonds are, the reasons they are sought, and how they sit within the standard documentation package typically required for a construction project. It further considers practical matters pertinent to negotiating and preparing such bonds. For assistance with making a demand under a bond, refer to Checklists: Calling on a conditional bond—checklist and Calling on an on demand bond—checklist for guidance......
This Practice Note outlines what must be in place for a dispute to be fit for referral to adjudication. In brief, a dispute must: have crystallised—such that the responding party has had a chance to review the claim and reject it before any Notice of Adjudication is served comprise a single dispute (though it can encompass several issues) not have been previously decided (in a prior adjudication, court or arbitration) or resolved by agreement For guidance on the entitlement to adjudicate generally, see Practice Note: The right to adjudicate. Crystallised dispute If no dispute has crystallised, nothing can be put before an adjudicator under HGCRA 1996, s 108(1), and the adjudicator will accordingly have no jurisdiction......
ARCHIVED: This Practice Note has been archived and is not maintained. The Construction case tracker gathers notable 2020 judgments relevant to construction lawyers, presented in reverse chronological sequence. See also Construction law case tracker Construction case tracker—2019 [ Archived] Construction case tracker—2018 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2016 [ Archived] Construction case tracker—2015 [ Archived] Public procurement decisions are recorded in the UK public procurement case tracker and the EU public procurement case tracker. Key appeals on the horizon are noted in the Construction horizon scanner ( Appeal cases). Judgment 31 Dec 2020 — JSM Construction Ltd v Western Power Distribution ( West Midlands) Plc [2020] EWHC 3583 ( TCC) Topic: Payment The court examined the requirements of sections 109 and 110 of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) ( JSM Construction v Western Power Distribution). The claimant maintained that, as the parties’ contract omitted a final...
ARCHIVED This Practice Note is archived and is no longer maintained. It addresses the position where the UK and the EU fail to conclude arrangements on jurisdiction after the UK’s departure. Throughout the implementation period commencing on exit day, that is, the day the UK leaves the EU, the provisions of the withdrawal agreement will apply. For commentary on that period and its effect on jurisdiction, refer to Practice Note: Brexit implementation period—jurisdiction [ Archived]. This Note evaluates the consequences of the UK exiting the EU without a deal when addressing jurisdictional issues before courts in EU Member States, with particular focus on how the Brussels regime would be applied. It considers practical implications for proceedings and the treatment of jurisdictional rules accordingly in practice......
This Practice Note examines estoppel by representation and estoppel by convention (often regarded as a sub-species of estoppel by representation). For overarching guidance on what estoppel is and when it may be pleaded, see Practice Note: Estoppel—what, when and how to plead. For guidance on other forms of estoppel, see Practice Notes: Contractual estoppel Promissory estoppel Proprietary estoppel Estoppel by representation—what is it? Estoppel by representation arises where one party ( A) makes, through words or behaviour, a unilateral assertion of fact or law to another ( B), intending B to rely on it (or in circumstances where A’s conduct would lead a reasonable person to understand it was meant to be acted upon), and B does rely on it to their detriment. In that situation, A is prevented from later resiling from the original representation. A representation of fact may be made by positive conduct (eg, by words or...
EPs ( EPs) provide a framework for identifying, evaluating and controlling environmental and social risks within project financings. Launched in 2003 by the International Finance Corporation ( IFC), backed by ten financial institutions, they have evolved into the financial sector’s baseline for due diligence and oversight, guiding responsible risk decisions. Institutions adopt the EPs to confirm that financed projects are delivered in a socially responsible way and embody robust environmental management; after adoption, they commit to offer financial services to project financings only where the EPs’ criteria are satisfied. The EPs have directed the project finance market’s focus towards social and community standards and accountability, encompassing stringent requirements for indigenous peoples, labour protections, and engagement with locally affected communities. They have also encouraged alignment around shared environmental and social norms and helped catalyse the creation of additional responsible environmental and social management practices across the...
This Practice Note sets out how building energy performance is controlled via Energy Performance Certificates ( EPCs), the circumstances in which EPCs are required, and the obligations under the principal EPC legislation—the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regs 2012), and the Building Regulations 2010, SI 2010/2214 ( Building Regs 2010)—which give effect to the recast Energy Performance of Buildings Directive 2010/31/ EU (recast EPBD directive). It forms part of a suite of notes on EPCs and the minimum energy efficiency requirements ( MEES). What is an Energy Performance Certificate ( EPC)? Buildings account for nearly 40% of the UK's energy use and carbon output, so knowing how to curb and manage that consumption is vital for meeting carbon reduction goals and cutting a building's operating costs. EPCs are designed to drive better energy...
UK energy projects commonly follow three principal procurement routes: engineering, procurement and construction ( EPC) contract procurement split EPC contract procurement multi-party contract procurement This Practice Note summarises each route and explores selected advantages, disadvantages and practical points to bear in mind. It is intended as a straightforward guide; seek professional legal advice before deciding on a procurement pathway for your specific scheme. EPC contract procurement The EPC route is the predominant procurement model for UK energy, as well as other large-scale, complex infrastructure developments. Under an EPC arrangement, a single contractor undertakes end-to-end delivery of the project, including design, engineering, procurement of materials, construction, and the testing of mechanical elements. For additional guidance on EPC arrangements, refer to the following Practice Notes: Introduction to EPC contracts; EPC contracts—handover, testing and commissioning; and EPC contracts—limits of liability. The diagram below depicts the core contractual structure for a project procured via the EPC...
Context An environmental impact assessment ( EIA) evaluates the potentially significant environmental consequences of a scheme. Certain categories of development require an EIA before planning permission can be issued. Through this process, the public and the local planning authority ( LPA) can understand the importance of predicted impacts and how they might be reduced prior to any decision. See Practice Note: Environmental impact assessments—key points. The outcomes are captured in an environmental statement ( ES). Producing an ES helps developers integrate environmental considerations at the project design stage. Carrying out a thorough and comprehensive EIA may enhance the likelihood of obtaining planning permission... Legislation and guidance EIA for town and country planning matters is governed by: the Town and Country Planning ( Environmental Impact Assessment) Regulations 2017 ( English EIA Regulations), SI 2017/571 in England, and the Town and Country Planning (...
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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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