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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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This Practice Note explores the mechanics of construction due diligence and the ways a construction lawyer becomes involved when a client is acquiring a property, or purchasing a company holding property assets, as part of a transaction. It also highlights the principal points to address when drafting construction provisions in a sale and purchase agreement, which will vary according to the stage reached by the relevant construction works. What is construction due diligence? Where a client intends to buy a property (or properties) or to buy a company whose assets comprise properties, due diligence must be undertaken to confirm the properties are satisfactory and that good title can be secured, in each case as part of a careful and proper pre-acquisition review. If the property includes a building completed less than 12 years ago, or if significant construction activities have been undertaken at the...
This training pack offers template Power Point decks with accompanying notes for trainers delivering an introductory session on construction disputes to trainee solicitors or anyone new to the construction sector. It explores a construction disputes lawyer’s role and the typical issues that surface on projects, and outlines fundamentals of adjudication, dispute boards, proceedings in the Technology and Construction Court ( TCC), construction arbitration, and alternative dispute resolution ( ADR). The resources come in Power Point and Word formats and are entirely customisable. Use the link below to download the presentation: Contents The work of a construction ......
ARCHIVED: This Practice Note has been archived and is not maintained. This year’s annual round-up surveys notable developments from 2017 and looks ahead to 2018. It covers: new standard form construction contracts issued in 2017 case law on design, delay, payment and adjudication anticipated amendments to building regulations and fire safety laws Lexis Nexis® content updates, with highlights from the past year and what is planned over the next 12 months Reviewing 2017 Standard form construction contracts What happened? The NEC4 contracts were released on 22 June 2017, while FIDIC’s 2017 suite ( Red, Yellow and Silver Books) was launched on 5 December 2017 and published shortly afterwards. What are the practical implications? NEC4 supersedes NEC3, first published in 2005 and updated in 2013. The NEC has characterised NEC4 as an evolution rather than a revolution, with most revisions aimed at reflecting good practice and/or...
Introduction Delay analysis is undertaken by planning/programming specialists to determine the extent of delay to a project and the reasons for any movement to the completion date. This involves defining the critical path through the works and identifying delay events that fell on that path, thereby causing critical delay. Numerous methodologies exist and are typically chosen at the planning/programming analyst’s discretion. Several are endorsed by industry guidance, including the Association for the Advancement of Cost Engineering International ( AACEI) Recommended Practice 29R-03 and the 2nd Edition of the Society of Construction Law Delay and Disruption Protocol ( SCL Protocol). Specialist programming software, such as Primavera P6 or Asta Powerproject, is commonly employed to undertake a delay analysis, although, as this Practice Note explains, some techniques place greater reliance on the programmes than others. The six main delay analysis methodologies are: Impacted...
This Practice Note examines the principal features of the Contracts ( Rights of Third Parties) Act 1999 ( C( RTP) A 1999), together with the way third party rights are deployed in construction agreements and appointments. It explores the use of third party rights as a substitute for collateral warranties, the character of the entitlements actually afforded to third parties, and approaches to step-in rights in this setting in practice and drafting and related considerations. The C( RTP) A 1999 arose from the Law Commission Report: ‘ Privity of Contract: Contracts for the benefit of Third Parties’ (1996), which reviewed the doctrine of privity of contract and made recommendations for its reform. The C( RTP) A 1999 took effect in November 1999 and applies to agreements and contracts entered into on or after 11 May 2000. In a construction setting, the Act supplies an...
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 D& B See Design and build beneath. DBO See Design, build and operate beneath. Date for completion/completion date Means the date stated therein in the building contract (typically within the contract particulars/contract data) by which the contractor must finish the works—ie the point by which practical completion is to be achieved (see Practice Note: What is practical completion?). This completion date may change over the course of the project, for instance where the contractor receives an extension of time. Should the works not be completed by the completion date, the contractor is liable to the employer for liquidated damages (where the contract so provides) or, failing that, general damages for delay in completion (arising from breach of contract...
The characteristics of construction projects, their contracts and the surrounding legal framework mean that parties frequently pursue claims. This Practice Note points to the issues construction practitioners most often face, including defects, requests for extra time to finish the works (or employer claims for late completion), variations and payment. Less typical claims, which are not addressed here, can include copyright infringement, nuisance, trespass and health and safety matters... Claims against contractors and consultants Employers may bring claims against one or more members of the construction team during the project or after completion. Common allegations, outlined below, include: Defects in the works or design shortcomings Delay in completing the works Third parties may also have recourse against the construction team. For instance, if a scheme is sold following completion, purchasers or tenants may take an assignment of rights under the...
Spotting the early symptoms of client insolvency First and foremost, a consultant should stay vigilant about the client’s financial condition Pay attention to continuing rumours about the client’s position, whether reported in the press or spread by word of mouth Monitor official communications to shareholders and the stock market, for example profit warnings Identify any unexpected or uncommercial omissions from the employer’s project Remain aware of the employer’s non-payment or late payment to the contractor or other parties, on this scheme or on other schemes run by the employer If the employer suspends the scheme without sufficient explanation or a sound commercial rationale, this may indicate reluctance to fund further work Substantiate concerns by obtaining a Dun & Bradstreet search/report, which should disclose, for instance, any unsatisfied court judgments against the...
Arbitration may proceed under self-run ad hoc mechanisms or through institutional rules and processes. In real-world settings, the preference for ad hoc or institutional models shifts across sectors and turns on the character of the dispute. This Practice Note explores how institutional and ad hoc arbitration differ, with a focus on construction matters, and weighs the respective pros and cons. For broader commentary on institutional and ad hoc approaches, see Practice Note: Comparing institutional and ad hoc arbitration. What is institutional arbitration? An institutional arbitration is overseen by a recognised arbitral body and unfolds in line with that body’s prescribed procedures and rules. Typically, the parties’ contract includes an arbitration clause naming a chosen institution to act as administering authority. That designation provides administrative support and a procedural framework throughout the proceedings......
What is arbitration? Arbitration is an alternative method of resolving disputes to litigation, in which parties refer their disagreement to an arbitrator, or a panel of arbitrators, to decide the matter instead of a court. It operates by consent, meaning it applies only where the parties agree that it should. Origins in England Arbitration developed from international and local tribunals created during the Middle Ages as substitutes for the royal courts. Merchants pressed for a different forum for commercial disputes because the royal courts were slow, ill-adapted to mercantile issues, and difficult to access for those not resident in England. A key characteristic of those tribunals was the relaxation or setting aside of strict formalities in commercial matters so that justice could be delivered swiftly. The practice later obtained a statutory footing in England when Parliament enacted the first Arbitration Act in 1698. Later statutes...
Note: This Practice Note provides targeted guidance on cases in the Technology and Construction Court ( TCC) governed by CPR 60, CPR PD 60 and the TCC Guide. As these sit alongside the general CPR, it should be read with the wider materials on preparing for and attending trial, including Trial—overview, which in turn signposts detailed guidance on specific aspects of trial preparation and attendance. Shorter and flexible trials schemes—claims issued on or after 1 October 2015 in the TCC may qualify for, and/or be managed under, one or both of the schemes in CPR PD 57AB: the shorter trials scheme and the flexible trials scheme. For further detail, see the Practice Notes: Business and Property Courts—shorter trials scheme and Business and Property Courts—flexible trials scheme. Electronic working—for guidance on e-working within the TCC, see Practice Note: TCC—starting a claim— High Court or County Court?—...
Key steps for compliance with Construction Pre- Action Protocol—checklist This Practice Note reviews the obligations under the second edition of the Pre- Action Protocol for Construction and Engineering Disputes (the Protocol) that parties must satisfy before commencing proceedings in construction or engineering disputes, including professional negligence claims against architects, engineers and quantity surveyors. It sets out the required documents and meeting, offers guidance and practical points for each stage, and addresses other aspects of the Protocol such as objections to jurisdiction, the use of expert evidence, and the scope to extend time for compliance. Issue a letter of claim Provide a letter of response Serve any reply to a counterclaim Attend a without prejudice meeting A concise overview of the essential actions is provided in: Key steps for compliance with Construction Pre- Action Protocol—checklist. Parties need not follow the Protocol if they agree otherwise, or where a...
This Practice Note supplies links to adjudication Precedents for use by either a referring or responding party, applicable during adjudication and within enforcement proceedings, including applications seeking a stay of enforcement......
Produced in association with 4 Pump Court. This Practice Note explores the matters a referring party should weigh up when arranging the appointment of an adjudicator, including the following: the timetable and overall timescale whether a named adjudicator applies or one is selected by an adjudicator nominating body ( ANB) any particular requirements for the adjudicator limits on, or attempts to exclude, specified persons from deciding the dispute It also offers guidance on corresponding with the adjudicator. For an adjudicator’s ability to resign and/or a referring party’s ability to end their appointment, see Practice Notes: Resignation by the adjudicator and Abandoning or ending an adjudication early. Introduction Once the Notice of Adjudication has been served, the referring party must secure the appointment of an adjudicator without delay. Where the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) applies, the adjudicator must be appointed and the Referral Notice served on them...
ARCHIVED: This Practice Note is archived and not maintained. Note: The Construction ( Design and Management) Regulations 2015, SI 2015/51 came into force on 6 April 2015, replacing the Construction ( Design and Management) Regulations 2007, SI 2007/320. See Practice Notes: Construction ( Design and Management) Regulations 2015 and CDM Regulations 2015—what's changed? [ Archived]. Introduction Designers play a central part in shaping a project and greatly affect how it develops, from the first architectural drawings to the selection of roofing materials. As design features at every stage of a construction project, the Regulations impose duties on designers to avoid foreseeable risks to those who will construct, maintain and use the building. For this Practice Note, any mention of the term ‘client’ is synonymous with ‘employer’ as used in other Practice Notes. ‘ Client’ is employed here to aid reference to the...
ARCHIVED: This Practice Note is archived and no longer maintained. Note: The Construction ( Design and Management) Regulations 2015, SI 2015/51 took effect on 6 April 2015, superseding the Construction ( Design and Management) Regulations 2007, SI 2007/320. Refer to Practice Notes: Construction ( Design and Management) Regulations 2015 and CDM Regulations 2015—what's changed? [ Archived]. Introduction Contractors are the organisations and persons who physically undertake building operations. Because this is a practical, on-site function, contractors are frequently those most exposed to injury or to harm to their health. The Construction ( Design and Management) Regulations 2007, SI 2007/320 (the Regulations) permit contractors to participate in planning and overseeing the construction activities. The Regulations operate in tandem with the general duty on employees, set out in section 7 of the Health and Safety at Work etc. Act 1974 ( HSWA 1974), to take...
ARCHIVED: This Practice Note has been archived and is not maintained. Note: The Construction ( Design and Management) Regulations 2015, SI 2015/51 came into effect and operation on 6 April 2015, replacing the Construction ( Design and Management) Regulations 2007, SI 2007/320. See Practice Notes: Construction ( Design and Management) Regulations 2015 and CDM Regulations 2015—what's changed? [ Archived]. The Construction ( Design and Management) Regulations 2007, SI 2007/320 (the CDM Regs) entered into force on 6 April 2007. Their objective is to embed health and safety as a core consideration in the planning and running of all construction projects, and to clarify the responsibilities of the different participants involved. The CDM Regs seek to lessen the likelihood of injury to those engaged in the construction, occupation, upkeep and dismantling of structures, and set out a framework designed to achieve this aim. The CDM Regs...
This Practice Notice explores how several causes of action can be brought together and resolved within one arbitration, with a particular emphasis on construction disputes. See also Practice Note: Multi-party and multi-contract arbitration—an introduction. Multi-party/multi-contract disputes Construction matters frequently include more than two participants. Typically, an employer contracts with a main contractor, who in turn sub-contracts elements of the works to various sub-contractors. Consequently, a web of linked construction contracts exists between different parties on a single project. When disagreements arise, multiple potential claims may sit under the separate contracts. A single dispute may draw in the employer, the main contractor, and several sub-contractors, suppliers and consultants. Where every contract falls within the court’s jurisdiction, the Civil Procedure Rules provide a straightforward route: the court will gather the connected claims into one set of proceedings through consolidation. By contrast, if some or all contracts contain an...
What are conservation areas? Conservation areas are sections of neighbourhoods identified under the Planning ( Listed Buildings and Conservation Areas) Act 1990 ( P( LBCA) A 1990) as places of particular architectural or historic significance, whose character or appearance it is desirable to preserve or enhance. Managing these areas equips local planning authorities ( LPAs) with a means to safeguard parts of a place on an area-wide basis, assessed by the special architectural or historic interest of buildings within that setting. The conservation area framework affords wider protection than listing single buildings, though the resulting constraints are usually less heavy-handed and prescriptive. The aim of designation is to prevent the area’s character being eroded by certain forms of development. Planning controls are therefore tighter within conservation areas than beyond them elsewhere in a...
Brexit, and public procurement reform The UK’s public procurement framework stems from EU procurement rules and, as a result, was touched by the UK’s departure from the EU—though only in a limited way. In substance, procurement law in the UK has largely carried on with only minor alterations, pending the arrival of the forthcoming procurement reform. For more detail, see Practice Note: Public procurement reform. The Public Procurement ( Amendment etc) ( EU Exit) Regulations 2020 amended and revoked elements of procurement legislation to resolve practical issues arising from Brexit, and to ensure the system continued to function effectively once the UK had left the EU and the related transitional arrangements concluded at 11 pm on 31 December 2020 ( IP completion day). Those changes formed part of the broader domestic legislative programme associated with Brexit, introduced under the European Union (...
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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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