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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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Read this Practice Note alongside Practice Notes: The statutory test for section 106 agreements and interaction with Community Infrastructure Levy ( CIL), and Drafting section 106 agreements—practical advice for developers. What can planning obligations do? Agreements under section 106 of the Town and Country Planning Act 1990 ( TCPA 1990)—commonly called planning obligations or s 106 agreements—are entered into by developers or landowners together with local planning authorities ( LPAs) within the relevant area. They are tied to a planning permission and serve to render development acceptable where, in planning terms, it would otherwise not be acceptable without such control. Under TCPA 1990, s 106(1)(a)–(d), a person with an interest in land within an LPA’s area may enter into a planning obligation with the LPA to: limit how land is developed or used secure that particular operations or activities are carried out in, on, under or...
What is terrorism? The Reinsurance ( Acts of Terrorism) Act 1993 ( R( AT) A 1993) characterised terrorism as acts by persons acting for, or connected with, any organisation whose activities are directed towards overthrowing or influencing, by force or violence, His Majesty’s Government in the United Kingdom or any other government, whether de jure or de facto (section 2(2)). The Terrorism Act 2000 ( TA 2000), later amended by the Terrorism Act 2006 ( TA 2006) and the Counter- Terrorism Act 2008 ( CTA 2008), reframed the concept. Under this legislation, terrorism includes actions that: involve serious violence against a person cause serious damage to property endanger someone’s life (other than that of the terrorist) pose a risk to the health or safety of the public are intended seriously to interfere with or disrupt an electronic system The purpose behind such actions is to influence the government or an...
Expert determination is a type of alternative dispute resolution ( ADR). This Practice Note explains when an expert’s decision might be contested or set aside. For broader guidance on expert determination, including clauses, appointment and process, see Practice Note: Expert determination. For ADR more generally, see: ADR and dispute resolution clauses-overview. General principles As a general rule, the ability to challenge an expert determination is restricted. There is no statutory entitlement to appeal or otherwise contest an expert’s decision. As the expert’s power to decide stems entirely from the parties’ agreement, the courts will turn to that agreement to assess whether the determination can be challenged ( Premier Telecom Communications Group v Webb-see News Analysis: Court of Appeal: expert valuations and mistakes of law ( Premier Telecom Communications Group v Webb)). Most agreements referring disputes to expert determination state that the expert’s decision is final and...
This Practice Note This Practice Note explores the reasons and timing for parties to use alternative dispute resolution ( ADR) to settle civil disputes, both at the pre-action stage and after proceedings have started, and does so to help parties assess suitability. It also looks at the court’s powers under the Civil Procedure Rules ( CPR) to prompt or direct parties to engage with ADR, and the court’s capacity to stay proceedings so they can try to resolve matters through ADR. Additional provisions may apply, depending on the court dealing with your case, and should be kept in mind. For more detail, see: Court specific guidance. For guidance on the courts’ powers to impose costs sanctions where a party breaches an order for ADR or unreasonably declines to participate in ADR, see the Practice Notes: Costs consequences of refusing to consider ADR in civil...
This Practice Note addresses the initial issue to consider when confronted with a prospective negligence claim—whether a duty of care exists between the claimant and the defendant so that, if that duty is breached, liability may arise. For analysis of what may then constitute a breach, see Practice Note: Negligence—when is the duty of care breached? For specific guidance on banks and the duty of care, see Practice Note: Negligence—banks and the duty of care. For specific guidance on breach of statutory duty, see Practice Note: Negligence—breach of statutory duty. For specific guidance in professional negligence claims, see: Professional negligence claims—overview, including Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity. Duty of care—what are the requirements to establish a duty of care? The tort of negligence fixes liability for loss or injury arising from a want of care. Two core...
Express and implied contractual terms distinguished Contractual terms may be either express or implied: Express terms—provisions set out in a written contract or clearly stated in an oral agreement at the point of formation (and they may comprise a combination of written and spoken terms) Implied terms—provisions not expressly stated but read in ‘by implication’ to reflect the parties’ intentions when the contract was made Terms may be implied by fact, by law, or by custom. For guidance on implying terms into contracts, see the following Practice Notes: Contract interpretation—terms implied by fact Contract interpretation—terms implied by law Contract interpretation—terms implied by custom and usage Issues with express contractual terms Even where terms are expressly agreed, issues can arise as to: incorporation—what has actually been included as an express term of the contract, and construction or...
The UK’s formal withdrawal from the EU took effect at 11 pm on 31 January 2020 (exit day). At that point, the withdrawal period under Article 50 TEU concluded, and the ratified Withdrawal Agreement, which set the legal terms of the UK’s departure, entered into force. On exit day, the ratified Withdrawal Agreement was released in the Official Journal of the European Union, together with the Political Declaration outlining the framework for the future relationship between the UK and the EU: Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.20, p 7-187 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.20, p 1-16 Exit day stood as a significant milestone, being the date on which the UK...
What is the World Trade Organization ( WTO)? The WTO oversees trade agreements that regulate commerce between states. It is also a venue for governments to negotiate bilateral or multilateral trade agreements and to settle trade disputes, helping countries trade with as little friction and disruption as possible. For background reading on the WTO, see: WTO— Who we are and WTO— In brief. The WTO came into being on 1 January 1995, though its trading rules are older. The General Agreement on Tariffs and Trade ( GATT) has provided a framework for global trade in goods since 1948, amended through successive negotiating rounds. Talks in the mid-1980s and early 1990s, known as the Uruguay Round, sought to extend the system to services and intellectual property. That round concluded with an agreement signed on 15 April 1994 by most of the 123...
The Building Safety Act 2022 ( BSA 2022) case tracker This case tracker sets out notable landlord-and-tenant BSA 2022 decisions delivered by the First-tier Tribunal ( Property Chamber) ( FTT), the Upper Tribunal ( Lands Chamber) ( UT), and the courts, which we regard as pertinent to property disputes lawyers. Entries are arranged in reverse chronological order. The tracker uses the following definitions: Relevant defect: anything done or omitted, or used or not used, in connection with ‘relevant works’ that gives rise to a building safety risk (namely the spread of fire or the collapse of part or all of the building) RO: in England, the FTT may make a remediation order ( RO) on the application of an ‘interested person’ (for the purposes of ROs this includes the Secretary of State (in England)), the Building Safety Regulator, the local...
This Practice Note offers guidance on the interpretation and application of the relevant CPR provisions. Depending on the court in which your case progresses, you should also be alert to any additional provisions—see: Court specific guidance. CPR PD 57AB covers both the shorter and flexible trials schemes and took effect on 1 October 2018, following a successful pilot run under CPR PD 51N in the Rolls Building only. It applies to claims issued on or after 1 October 2015 within the Business and Property Courts. This Practice Note addresses only the shorter trials scheme ( STS). For guidance on the flexible trials scheme, see Practice Note: Business and Property Courts—flexible trials scheme. For general guidance on the Business and Property Courts, see Practice Note: Business and Property Courts. Purpose of the shorter trials scheme The STS is designed to secure resolution of...
Japanese knotweed Japanese knotweed was brought to the UK in the 19th century as an ornamental garden plant. In Japan it had been used to stabilise sand banks, and it has been suggested it served a similar role in the UK on embankments. Free from the competitors, diseases and animals that restrain it in its native range, its unchecked, invasive habit soon made it a pest here. Because only female plants were introduced, there was no pollen from male plants, so fertile seeds failed to form. Consequently, virtually all knotweed in the UK has spread from tiny fragments of plant material, mainly roots, carried to new places within knotweed-contaminated soil. The plant expands rapidly below ground and sends up annual shoots each spring. Roots and shoots alike can exploit cracks in buildings and hard surfaces such as concrete and tarmac, gradually causing...
This Practice Note explores how to commence proceedings in the Technology and Construction Court ( TCC). It focuses on the principles drawn from West Country Renovations v Mc Dowell—reflected in the Technology and Construction Court Guide, para 1.3.2—on deciding whether to issue in the High Court in London, the High Court outside London, or the County Court. It should be read alongside Practice Note: Where to start a civil claim, which provides general guidance on the appropriate venue for civil claims. What types of claims are suitable for the TCC? The kinds of disputes managed by the TCC are described in the Technology and Construction Court Guide, para 1.3. High Court or County Court? Both the High Court and the County Court handle TCC work. As the TCC sits within the Business and Property Courts ( B& PCs), any relevant guidance issued for the B& PCs must also be...
Created in collaboration with 4 Pump Court, this Practice Note examines in detail the responding party’s defence to a Referral Notice in an adjudication—commonly termed the Response. Its function is to present, plainly and succinctly, the respondent’s position, effectively combining pleadings, evidence, and both opening and closing submissions into a single, self‑contained submission. The Note addresses whether and when a Response may or must be served, the timetable for service, what matters it can properly cover, and offers practical guidance on drafting it, as well as signposting useful approaches. Related summaries that may assist can be found in Checklists: Key issues to consider on receipt of a Notice of Adjudication and Key issues to consider when preparing an Adjudication Response. Entitlement to serve a Response Neither the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) nor the Scheme for Construction Contracts expressly...
Process and effect Liquidation, or winding up, is the method by which a company’s affairs are concluded and the company’s existence is brought to a close. When a company enters liquidation: its trade stops, although it may need to be continued for a short period during the winding up (for example, to enforce any valuable agreements) its assets are realised, meaning converted into a liquid form the resulting proceeds are paid out to those entitled A liquidator must perform this role in accordance with the duties imposed and powers given to them under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016, SI 2016/1024. For more details, see Practice Note: Role, powers, functions and duties of a liquidator......
This Practice Note sets out guidance on the construction and application of the relevant provisions of the CPR. Depending on the court in which your case is underway, you should also remain alert to any additional provisions—see: Court specific guidance. CPR PD 57AB addresses both the shorter trials scheme and the flexible trials scheme, and took effect on 1 October 2018, following a successful pilot conducted under CPR PD 51N in the Rolls Building only. It applies to claims issued on or after 1 October 2015 within the Business and Property Courts. This Practice Note confines itself to the flexible trials scheme. For direction on the shorter trials scheme, see Practice Note: Business and Property Courts—shorter trials scheme. For wider guidance on how the Business and Property Courts operate, see Practice Note: Business and Property...
ARCHIVED: This Practice Note has been archived and is not maintained. It reviews which types of construction dispute are most amenable to mediation (and those for which it is less likely to be appropriate). It also draws attention to the benefits of mediation in settling construction disputes. Type of dispute Mediation can provide an effective forum for a negotiated, compromise outcome in construction disputes where: the solution is not clearly a straightforward win for either side there is genuine potential for compromise both parties can recognise the risk that their arguments may fail in court Sometimes a dispute may seem to have an evident answer, yet one party will not accept it and gives no reason. Even then, mediation can still assist. In mediation, the party unwilling to agree has the chance to share its difficulties confidentially with the mediator, which often enables the mediator to identify a middle ground that both...
Building Safety Act 2022 ( BSA 2022) In July 2021, the government laid the Building Safety Bill before Parliament, aimed at delivering the recommendations and principles from Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, and confronting the urgent safety issues exposed by the Grenfell Tower tragedy of July 2017. Branded as the most significant overhaul of building safety rules in a generation, it obtained Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). BSA 2022 makes sweeping changes to the law and regulation of building safety, with the objective of securing the safety of people in or around buildings and improving the standard of buildings. This Practice Note outlines for construction lawyers the principal elements of BSA 2022, including its reshaping of regulatory regimes and standards for building and fire safety and for...
This Practice Note explains when the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) applies. In summary: the HGCRA 1996 extends to construction contracts what amounts to a construction contract is set out in HGCRA 1996, s 104 a construction contract concerns construction operations as defined in HGCRA 1996, s 105 a construction contract must contain specified terms dealing with adjudication and payment for hybrid agreements (ie covering construction operations alongside other matters), the HGCRA 1996 applies only to the construction operations the mandatory provisions are disapplied for contracts with residential occupiers for contracts made before 1 October 2011, the HGCRA 1996 only applied where the contract was in writing Significance of contract being a construction contract Statutory adjudication Parties have a mandatory right to adjudicate under the HGCRA 1996 only if the relevant agreement is a construction contract (as defined by HGCRA 1996, s 104). Where an agreement is a...
This Practice Note examines a party’s right to adjudicate, addressing its sources (arising under statute, contract and/or on an ad hoc basis), the timing of its use, and whether a dispute has emerged under a construction contract. It also reviews assignment, novation and third party rights, the conduct of serial adjudications, and adjudication where the referring party is in liquidation. For direction on questions about the scope of a dispute, see Practice Note: Adjudication—is there a ‘dispute’? which considers whether a dispute has crystallised, amounts to a single dispute (even if comprising several issues), is not the same or substantially the same as one already decided in adjudication, court or arbitral proceedings, and matters relating to settlement. For practical points to weigh before starting an adjudication, consult Checklist: Issues to consider before commencing an adjudication and Practice Note: The Notice of...
What is retention? Holding back a retention from interim payments is a common feature of commercial construction contracts, particularly those using standard forms. Retention describes the portion of each interim payment an employer withholds as security for the contractor’s future performance and as an incentive to ensure every obligation is fulfilled. A set percentage is deducted from each payment; this amount is referred to as the ‘retention’ (or ‘retentions’). This approach is often mirrored down the supply chain—for example, a main contractor may retain sums from a sub-contractor. The arrangement facilitates part-payment as the works advance, while postponing the balance until all contractual duties are completed. In addition to promoting completion of the works, the retained funds can be used to pay for correcting defects where the contractor is in default under the contract. How much retention is...
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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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