Featured documents
This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
Most recent Practice notes
This Practice Note examines whether a receiver may undertake building works and, in particular, whether the receiver can finish a development left incomplete at the date of appointment. It identifies a range of points the receiver should evaluate before moving ahead with any works and deciding whether to proceed. For ease when considering these issues, and to streamline the discussion, it is assumed that: the developer is a corporate mortgagor of the property; and the mortgagor procures works in the usual way by appointing a building contractor and a professional team of architect, engineers, quantity surveyors and others (collectively, the Professional Team) References to the mortgagor include, where appropriate, the mortgagor acting through the receiver. A receiver in this context means a fixed charge receiver or a Law of Property Act...
This Practice Note sets out, step by step, how to assemble all the components of a construction contract ready for execution from the outset. In the haste to start the works, gathering the complete suite of documents that constitute the contract is sometimes overlooked, or not collated promptly. At times, works even commence before negotiations are concluded or the agreement executed, typically under a letter of intent (see Practice Note: Letters of intent—construction). This is generally unwise; it is essential to finalise the contract and to ensure a full set of documents is compiled and readily accessible to each party at all times, to support efficient and consistent contract management and administration, and to ensure issues and potential disputes can be handled effectively and smoothly throughout the works. General...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note offers advice for public procurement exercises started before the Procurement Act 2023 ( PA 2023) came into force on 24 February 2025. Procurements within scope that commence on or after that date are subject to PA 2023. Under the Act’s transitional and savings provisions, the former public procurement regimes remain in operation as needed so contracting authorities can finalise and manage procurements initiated before PA 2023 took effect (ie procurements that are still ongoing). This Practice Note should be read on that basis. For background reading, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Further practical guidance on PA 2023 is provided in a separate subtopic, see: Procurement Act 2023—overview. Public procurement under the Public Contracts Regulations 2015 Under the Public Contracts Regulations 2015 ( PCR 2015), SI...
These training materials This pack includes pre-built Power Point slide templates with accompanying trainer notes, for use by a trainer when delivering a training session on collateral warranties in construction law, aimed at trainee solicitors and others new to construction. Subjects addressed comprise, among others, what collateral warranties are, which parties issue and receive them, the principal clauses you should expect to see in a warranty, plus drafting guidance and also practical considerations when handling collateral warranties in practice. The materials come in both Power Point and Word formats and are entirely customisable. Click the......
Practice Note This Practice Note explores the nature of a collateral warranty, identifies which stakeholders on a construction project commonly require such warranties, and explains their rationale. It sets out the typical categories of beneficiaries and the rights they gain against the warrantor in respect of the building contract, a consultant’s appointment, or a sub-contract. As a core rule of contract law, only a party to a contract may sue on it, a principle referred to as privity of contract. Consequently, absent another direct contractual nexus, a contractor or consultant will usually owe no contractual duty of care to anyone other than its immediate client. ( That position has been adjusted by the Contracts ( Rights of Third Parties) Act 1999 which, in specified situations, enables a third party to enforce terms in a contract made by others for its benefit. For more detail see...
The Chartered Institute of Building ( CIOB) issued the ' CIOB Contract for use with Complex Projects, First Edition 2013' ( CPC 2013) in April 2013, aligning it with the principles set out in the CIOB’s Guide to Good Practice in the Management of Time in Complex Projects (the CIOB Guide). Drafted with a clear emphasis on the management of time in complex construction and engineering projects, the form prioritised programme control. It broke new ground as the first standard form contract to address Building Information Modelling ( BIM) in detail, and it advocated a collaborative stance on design. In November 2015, CPC 2013 was replaced by a revised edition of the contract, retitled the ' 2015' ( TCM 2015). Most of CPC 2013’s provisions were carried forward into TCM 2015, with moderate redrafting prompted by customer feedback, together with some...
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). See Practice Notes: Construction ( Design and Management) Regulations 2015 and CDM Regulations 2015—what’s changed? [ Archived]. Introduction Preparing the Construction Phase Plan (the ‘ Plan’) is a core responsibility of the Principal Contractor on each notifiable project (for details of the Principal Contractor’s duties, see the Practice Note: CDM Regulations 2007—the role of contractors [ Archived]). Alongside the ‘ Health and Safety File’ (the ‘ File’), the purpose of the Plan is to ensure health and safety, so far as reasonably practicable, throughout the construction phase of the works (see CDM Regulations 2007—the Health and Safety File [ Archived]). Please note that, within this...
This training pack offers template Power Point decks with accompanying notes, intended for trainers when delivering a general introduction to the Building Safety Act 2022 ( BSA 2022). It covers: the background and overview of BSA 2022, the Building Safety Regulator, dutyholders, the Higher- Risk Building Regime, and claims and liabilities arising from building safety defects and construction products. The materials are available in both Power Point and Word file formats and are fully customisable throughout......
The Building Act 1984 ( BA 1984) authorises the Secretary of State and the Welsh Ministers to make Building Regulations for a range of purposes, including protecting the health and safety of people in or around buildings. It creates criminal liability for contraventions of those regulations and confers enforcement powers on local authorities. This Practice Note outlines guidance on the enforcement of Building Regulations. See Practice Note: Obtaining building regulations approval for guidance on when approval is required and how Building Regulations approval is secured. General power of local authorities to enforce Building Regulations and exemptions from enforcement BA 1984, s 91(2) states that enforcing the Building Regulations within their area is a function of local authorities. This is subject to situations where BA 1984, ss 91ZA or 91ZB provide that the Building Safety Regulator ( BSR) is the building control...
ARCHIVED This Practice Note is now archived and is not being updated. The Construction horizon scanner monitors notable forthcoming developments of interest to construction lawyers. When a development materialises, it is transferred into the archive for the appropriate year. This archive covers developments that took place in 2020. Legislation What happened? CIGA 2020: Corporate Insolvency and Governance Act 2020 published. When? 26 June 2020 ( Royal Assent on 25 June 2020). Find out more Brought in as a response to the coronavirus ( COVID-19) pandemic, the CIGA 2020 introduces a range of reforms to insolvency law. Notably for the construction sector, and subject to specified exclusions, suppliers of goods or services are restricted from relying on contractual provisions to terminate a contract or cease supply due to the...
Adjustments to the agreed drawings and specifications are commonplace on substantial construction schemes—see Practice Note: What is a variation on a construction project? Standard form building contracts cater for such changes, and agreements for lease should mirror this. In the agreements for lease context, both sides (that is, landlord and tenant) may wish to alter the intended works. Each will seek to regulate the other’s ability to do so; accordingly, the agreement for lease must set out the mechanism for making variation requests and define the categories or scope of works each party is allowed to change. It should also clarify the nature and extent of works that each party is permitted to vary. This Practice Note considers how an agreement for lease can accommodate variations proposed by both landlord and...
Created in collaboration with 4 Pump Court, this Practice Note examines typical features of adjudication clauses in construction contracts, together with the adjudication processes set out in standard form construction contracts and widely used adjudication rules, such as the Scheme for Construction Contracts (the Scheme) and those issued by industry bodies. Adjudication clauses in construction contracts These clauses most often appear in construction agreements, principally because the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) requires every construction contract to include a compliant adjudication procedure. If a contract omits compliant terms, the provisions of the Scheme for Construction Contracts (the Scheme) are implied (under HGCRA 1996, s 108(5)). Typically, an adjudication clause identifies the process or rules that will govern matters if either party elects to begin an adjudication—see Precedent: Adjudication...
Choosing the joint venture vehicle A joint venture is not recognised in English law as a separate legal form. Rather, it is a commercial arrangement in which two or more parties agree to combine resources to deliver a defined project or other business activity. The term spans a wide range of scenarios, from structural solutions that establish or shift economic control of a legal entity—such as joint venture companies or partnerships—to non‑structural approaches, including contractual joint projects and informal, undocumented collaborations. A joint venture may be set up for a single initiative, a set timeframe, or as an ongoing business relationship. Parties considering a joint venture have several structural routes open to them, and the most suitable model will turn on their particular circumstances. Commonly used structures include: Corporate joint venture—creating a separate limited company in which each party holds shares Joint...
This Practice Note reviews the FIDIC Conditions of Contract for Construction 1999, often referred to as the FIDIC Red Book 1999. A revised Red Book was released by FIDIC in December 2017—see Practice Note: FIDIC contracts—introduction to the FIDIC Red Book 2017 for guidance on that edition. In relation to the 1999 suite, see also Practice Notes: FIDIC contracts—introduction to the Yellow Book 1999 and FIDIC contracts—introduction to the Silver Book 1999. For what type of project is the contract suitable? The FIDIC Red Book 1999 is recommended for building and engineering works where the Employer (or its representatives) prepares most, or all, of the design. It is not appropriate where the Contractor undertakes the design—in such cases the FIDIC Yellow or Silver Book should be used instead. Like the other FIDIC forms, the Red Book 1999 is intended for...
This Practice Note explores the nature and scope of an expert witness’s duties when preparing to give, and giving, evidence within their expertise, by reference to the Civil Procedure Rules and case law. It addresses the expert’s overriding obligation to the court and considers what may follow if an expert does not fulfil those duties. Key principles for experts CPR 35.3 states that an expert must assist the court on issues within their expertise, and that this obligation overrides any duty owed to the instructing party. The most commonly cited account of an expert’s responsibilities is found in the judgment of Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co (the Ikarian Reefer) [1993] 2 Lloyds Rep 68 (not reported by Lexis Nexis®): expert evidence should be, and be seen to be, the expert’s independent product,...
This Practice Note outlines the main formats an offer to settle a dispute may take, including open offer letters, Calderbank (without prejudice save as to costs) ( WPSAC) letters and Part 36 offers; it assesses their respective pros and cons, the implications for costs exposure, and how to draft these offer letters. For wider guidance on without prejudice communications, including Calderbank ( WPSAC) letters, see Practice Notes: Without prejudice communications, Without prejudice explained and Without prejudice—exceptions to protection from admissibility... Although this Practice Note only summarises the core features of Part 36 settlement offers, comprehensive guidance on making, receiving, varying, accepting and rejecting a Part 36 offer, together with detailed precedents, is available at: Part 36 offers—overview... For advice on making an offer or recording a settlement, and on drafting settlement agreements, see Practice Notes: • Settling disputes—how to document a settlement • Settling...
This Practice Note considers Employer’s Requirements (often abbreviated to ERs) within a building contract. It clarifies what Employer’s Requirements are and explains that, depending on the procurement route and the form of contract, the party bearing responsibility for them may differ. It also outlines how certain standard forms address Employer’s Requirements and notes the relevance of the CIS v Henry Boot decision. What are Employer's Requirements? In JCT and FIDIC contracts, ‘ Employer’s Requirements’ ( ERs) describes the documents issued by the employer that set out its project needs, on which the design and construction of the works are founded. These typically include: performance specifications drawings initial designs The NEC suite takes a different tack. Under NEC3, the employer’s requirements are contained within the ‘ Works Information’, identified in Part One of the Contract Data. NEC4 adopts the same structure as NEC3, but...
Once a duty of care is confirmed (see Practice Note: Negligence—when does a duty of care arise?), the next step is to assess whether that duty has been breached. The answer turns on several factors outlined below and is judged against the objective baseline of reasonableness, taken from an impersonal standpoint and the general background against which reasonableness is assessed. Breach of duty of care—reasonableness To decide if there has been a breach, the law applies the artificial, objective measure of the ‘reasonable person’, setting aside the realities of the defendant’s position insofar as their abilities diverge from that norm, notwithstanding any inexperience or personal shortcomings ( Glasgow Corpn v Muir, per Lord Macmillan). Breach of duty of care—objectivity This objective demand for a reasonable level of competence covers skills attainable only through training and effort, as well as ordinary attributes most people are expected to have....
Reliable cash flow underpins the construction sector—without it, schemes would swiftly stall and delivery would suffer. Where both sides owe money to one another (for instance, an employer must pay the contractor for completed works, yet the contractor owes the employer for damage caused during those works), it is commercially sensible to use a device that results in a single net payment rather than two separate transfers between the parties involved. That device is ‘set-off’. This Practice Note outlines set-off (in general terms and within the construction sphere), describes how it operates day to day and provides practical pointers and issues to consider when handling set-off under construction contracts. What is set-off? From a commercial perspective, set-off is a tool parties use to regulate cash flow across their dealings. It permits opposing monetary claims to be netted off so that only one balance is payable...
This Practice Note Explores the allocation of risk and the insurance obligations within the NEC Engineering and Construction Contract ( ECC). It identifies the insurances each party is expected to maintain, including Contractor’s All Risks insurance and public liability cover, and indicates the scope of cover to be in place... For wider context on NEC3 and NEC4, and how insurance is addressed under other standard forms, see: Practice Note: NEC contracts—introduction Practice Notes: JCT contracts—insurance, FIDIC contracts 2017—insurance and FIDIC contracts (pre-2017 editions)—insurance This guidance applies to both the NEC3 and NEC4 editions of the ECC. For consistency, the term ‘ Client’ is used throughout, aligning with NEC4 usage for the developer/employer (the NEC3 ECC uses ‘ Employer’). For defined NEC expressions, refer to Practice Note: NEC contracts—glossary. Where no distinction is made between clause numbers, all clause references in this Practice Note are...
Popular documents
When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
Discover more from LexisNexis
