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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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ARCHIVED: This Practice Note has been archived and is not maintained. The Construction law case tracker brings together significant judgments from 2021, 2022 and 2023 of interest to construction lawyers, presented with the most recent first. For earlier material, refer to the 2020, 2019, 2018, 2017, 2016 and 2015 archives. Public procurement decisions are captured in the UK public procurement case tracker and the EU public procurement case tracker. Notable forthcoming appeal matters appear in the Construction horizon scanner ( Appeal cases). Judgment date • Case • Topic • News • Analysis • Summary 15 December 2023 — Jenni Glover & Littleton Glover v Fluid Structural Engineers and Technical Designers Ltd [2023] EWHC 3219 ( TCC) — Consultant appointments; Payment — Court reviews engineers’ scope of duty and potential liability to return fees ( Glover v Fluid Structural Engineers). The TCC declined to strike out a claim...
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 Unforeseen ground conditions Subsurface or site conditions that could affect the works (whether on cost, timing, or programme) and were neither identified nor expected when the contract was made and agreed. They may require a change to how the works are undertaken and sequenced, call for remediation, or otherwise cause delay or disruption to the completion of the works. Unliquidated damages An alternative term for general damages. Such damages seek to return the wronged party to the position it would have been in had the breach of contract not occurred......
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 LADs Refer to Liquidated and ascertained damages ( LADs or LDs). Late Payment of Commercial Debts ( Interest) Act 1999 The Late Payment of Commercial Debts ( Interest) Act 1999 grants a statutory right to recover interest on overdue sums. See Practice Notes: Remedies for non-payment under construction contracts and Late Payment of Commercial Debts ( Interest) Act 1998. Latent defects Flaws inherent in a property’s design or construction that are not evident upon inspection. See Practice Note: Latent defects. Latent defects insurance Cover that insures against damage to a property arising from latent defects which emerge during the policy term. Such insurance typically runs for 10 or 12 years from practical completion and is arranged on payment of a single premium......
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 JCT contracts The leading standard form of building contracts, which are issued by the Joint Contracts Tribunal ( JCT). For further information, see the Practice Note: JCT contracts. Joint Contracts Tribunal ( JCT) Industry organisation with representatives from all parts of the construction sector......
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 GC Works A suite of construction contracts produced by the government (by what was then the Department of the Environment, Transport and the Regions) for building and engineering projects in the public sector. They are no longer updated. General requirements An alternative name for project overhead costs, ie essential expenses incurred during the project that are not directly connected to construction activity (for example, the hire and rental of contractor's premises and general support and supervisory staff costs)......
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 Off-site construction A project delivery method in which a portion of construction work is undertaken in factory conditions and then transported to the site later on. It commonly involves fabricating modules that are also subsequently assembled on site. See also News Analysis: Off-site construction—the legal implications and Practice Note: Modern Methods of Construction. O& M manuals See Operation and maintenance manuals below. On default bond A conditional bond that is callable upon the contractor’s default......
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 Back end Contentious, disputes‑focussed legal services, for instance representing a party in litigation... Benchmarking A method for assessing whether service quality and pricing align with prevailing market levels (where they exist) without running a formal competition. It can also be applied to track improvement or evaluate performance... Best value The obligation on every local authority to arrange for continual improvement in how its functions are carried out, having regard to economy, efficiency and effectiveness ( Local Government Act 1999, s 3). This entails considering costs, securing value for money, and ensuring services reflect community needs and the authority’s priorities. See Practice Note: Best value in public procurement... Bid bond Also called a tender bond (or guarantee). Used within the tender process to secure...
These training resources comprise Power Point slide templates with accompanying notes for trainers delivering an overview of construction law to trainee solicitors and other newcomers to construction. Subjects addressed span the framework and timetable of construction projects, legislation pertinent to construction lawyers, a primer on building contracts, consultant appointments, collateral warranties and third-party rights, construction disputes, and terminology used by construction lawyers. The materials are offered in both Power Point and Word formats and are fully customisable. Click the link below to download the presentation: Contents What do construction lawyers do? Construction projects parties structure timeline Legislation (the ‘ Construction Act’ and other legislation) Construction documents ...
ARCHIVED This Practice Note is archived and no longer updated. The Construction horizon scanner showcases key forthcoming developments for construction lawyers; when a development materialises, it is placed in the archive for the appropriate year. This page collects events that happened in 2017. For case law, refer to: Construction case tracker—2017 [ Archived]. Legislation Tax: Outcome of consultation on supply chain fraud — 22 November 2017. HMRC consulted from 20 March to 9 June 2017 on measures to tackle supply‑chain fraud involving labour provision in the construction industry. In the Autumn Budget 2017 (see below), the government announced a VAT domestic reverse charge aimed at preventing VAT losses. See News Analysis: Fraud on provision of labour in construction sector—consultation on VAT and other policy options. Payment reporting: First deadline to report on payment practices — 4 November 2017 (for...
The Construction case tracker compiles notable 2021 and 2022 judgments of interest to construction lawyers, arranged with the newest first. For earlier decisions, refer to the 2020, 2019, 2018, 2017, 2016 and 2015 archives. Public procurement rulings appear in the UK public procurement case tracker and the EU public procurement case tracker. Key forthcoming appeals are highlighted in the Construction horizon scanner ( Appeal cases). Judgment date Case Topic News Analysis Summary 18 Feb 2022 — Struthers v Davies (trading as ‘ Alastair Davies Building’) and another [2022] EWHC 333 — Defects; Termination; Contract law — Homeowners succeed in defects claim against contractor ( Struthers v Davies). The TCC held the defendant contractor was in repudiatory breach, awarding the claimant homeowners damages for defective workmanship and losses arising from termination. The court dismissed the contractor’s contentions that the termination was invalid and that...
ARCHIVED This Practice Note is archived and no longer updated. The Construction case tracker sets out significant 2019 judgments of relevance to construction lawyers, arranged in reverse chronological order. See also: Construction law case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2018 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2016 [ Archived] Construction case tracker—2015 [ Archived] Public procurement decisions appear in the UK public procurement case tracker and the EU public procurement case tracker. Notable forthcoming appeals are listed in the Construction horizon scanner ( Appeal cases). December 2019 27 Dec 2019 — Babcock Marine v HS Barrier Coatings Limited [2019] CSOH 110 — Adjudication — Scottish court declines to enforce adjudication decision owing to undisclosed assistance of a QS ( Babcock Marine v HS Barrier Coatings). The Court of Session, Outer House, refused...
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 Taking- Over Certificate The certificate issued by the Engineer under a FIDIC form (or by the Employer under the Silver Book) confirming that the Works, or a Section, have reached the level of completion required by the contract, together with the date this milestone was met; akin to a JCT certificate of practical completion. See Practice Notes: FIDIC contracts 2017—time and FIDIC contracts (pre-2017 editions)—time. Taking off The noting of measured dimensions extracted from drawings or schedules. This is the initial step in assembling bills of quantities. Target cost contract A form of cost reimbursable contract where the contractor is paid the actual cost of delivering the works, subject to a target cost agreed by the parties at project...
ARCHIVED This Practice Note is archived and no longer maintained. The Construction case tracker presents key 2016 judgments relevant to construction lawyers, arranged with the most recent first. See also Construction law case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2019 [ Archived] Construction case tracker—2018 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2015 [ Archived] Public procurement cases can be found in the UK public procurement case tracker and the EU public procurement case tracker. December 2016 Case | Judgment date | Summary SSE Generation Limited v Hochtief Solutions AG [2016] CSOH 177 — 21 December 2016Defects: The Scottish Court of Session ( Outer House) held that, under Option M of an NEC2 contract, the contractor was liable for defects only where it failed to exercise reasonable skill and care in meeting the works...
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 Parent company guarantee ( PCG) A PCG is an agreement between a parent company and a beneficiary under which the parent promises the subsidiary’s performance owed to that beneficiary beneath a separate contract between them (for example, a building contract). If the subsidiary fails to fulfil its obligations to the beneficiary, the parent company can be obliged either to perform those obligations itself or to repay the beneficiary for losses arising from the subsidiary’s failure to perform. See subtopic: Parent company guarantees in construction projects. Partial possession Partial possession arises when the employer takes control of one or more parts of the works before the whole project reaches practical completion; for instance, letting a completed storey to a tenant while work...
This Practice Note explores frequent challenges arising from insolvency within the construction sector. It examines the implications and usefulness of adjudication as a route to recovery where insolvency may be looming, and offers practical pointers on actions to take if a party becomes insolvent. The guidance is general in nature and will not suit every construction insolvency scenario, and it should be weighed carefully against the specific facts of each case. Accordingly, this Note should be read in context and not as a one-size-fits-all solution. Introduction to the construction industry and construction procurement Construction schemes typically involve numerous contributors performing distinct functions across procurement and delivery. A non-exhaustive set of participants includes: employer—the person or organisation seeking delivery of the project and engaging professionals to perform the works. The employer may be from the public or private sector and is often referred to as ‘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 Key date In construction contracts, the phrase can denote a deadline for starting or finishing a specific, identifiable task or milestone. It is additionally a defined expression in NEC3/ NEC4 (see clause 11.2(9) of the NEC3 Engineering and Construction Contract ( ECC) and clause 11.2(11) of the NEC4 ECC). When adopted, the parties set it out in the Contract Data section, together with the condition that has to be satisfied by the relevant date. Key Performance Indicators ( KPIs) Benchmarks and markers by which the contractor’s performance under the contract is assessed and reported. Used chiefly as a tool to measure and to encourage improvement. Most commonly applied in partnering contracts......
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 Quantity surveyor ( QS) Individual or practice appointed by the employer, otherwise a cost consultant......
What standard form framework agreements are published? There are several recognised standard form construction framework agreements: the JCT Framework Agreement ( JCT FA) the ACA Framework Alliance Contract ( ACA FAC-1) the NEC3/ NEC4 Framework Contract ( NEC FC) JCT FA The JCT FA was originally issued in 2005 as a non-binding document, aimed chiefly at private sector use. After criticism that it was unsuitable for public sector adoption (a major user of frameworks), it was updated in 2007. A further 2011 revision aligned it with the amended Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), and the latest version appeared in 2017, described as the 2016 edition to align with the 2016 JCT suite. JCT guidance confirms the JCT FA is intended for procuring works over a period. Call-off contracts made under the JCT FA are to be governed by the JCT form most...
What is a framework agreement? A framework agreement is a high-level umbrella arrangement entered into by a party and one or more suppliers (which may include contractors, sub-contractors, suppliers or consultants). It sets the terms that will govern an ongoing relationship under which the employer may award one or more contracts to the supplier(s) over time. In construction, such arrangements are often made between employers and multiple contractors, suppliers or consultants, and sometimes between contractors and a range of sub-contractors, suppliers or consultants. Despite the variety of relationships that can sit within a framework, for simplicity this Practice Note uses the terms ‘employer’ and ‘supplier’. Framework agreements appear in the private sector, yet they are more prevalent in the public sector, used by central government departments and bodies as well as local authorities. Although, in most instances, a framework agreement is not itself a...
Claims by contractors for time and/or money Requests from contractors seeking additional time and/or payment are commonplace on construction projects. A time claim seeks an extension of time ( Eo T) to complete the works (or achieve a contractual milestone) where a delay event has occurred, whereas a money claim typically pursues reimbursement of extra loss and/or expense incurred by the contractor due to delay or disruption to the works. Such a claim might likewise be brought by a sub-contractor under a sub-contract. These claims are usually founded on an express contractual entitlement—ie the contract specifies situations in which the contractor is entitled to time and/or money—and they are advanced and decided in accordance with the contract terms. They do not, of themselves, involve a breach of contract or require there to be a dispute between the parties, although they may ultimately give rise to...
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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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