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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 considers the ‘e Disclosure Protocol’, whose second edition was released on 9 January 2015, and concerns the relevant disclosure of electronic documents in cases heard in the Technology and Construction Court ( TCC). It explores its layout, the issues and guidance it contains, together with certain key practical considerations. Note 1 : the e Disclosure Protocol pre-dates CPR PD 57AD (in force from 1 October 2022) which governs disclosure in many claims in the TCC. It sets out separate procedures for managing e-disclosure in such cases that are different from those discussed within the e Disclosure Protocol. In many circumstances the provisions of CPR PD 57AD build upon and prescribe more elaborate requirements than the processes described in the e Disclosure Protocol. Public procurement claims and Part 8 claims are not subject to CPR PD 57AD (see paras 1.4(2) and 1.4(7)...
ARCHIVED: This Practice Note has been archived and is not maintained The Construction case tracker compiles notable 2018 judgments relevant to construction practitioners, arranged in reverse chronological order... See also Construction law case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2019 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2016 [ Archived] Construction case tracker—2015 [ Archived] Public procurement cases are included in the UK public procurement case tracker and the EU public procurement case tracker... Key upcoming appeal matters are listed in the Construction horizon scanner ( Appeal cases)... December 2018 Skymist v Grandlane [2018] EWHC 3504 ( TCC) — 19 December 2018: Adjudication — the TCC rejected a jurisdictional objection to an adjudicator’s decision, said to arise from appointment by an incorrect nominating body, or alternatively that the referring party had approbated and reprobated in relation to the...
What are provisional sums? There is no exact, universally accepted definition of a provisional sum, but it is commonly taken to mean an amount included within a bill of quantities, or a contract sum analysis, to make allowance for particular elements of work that cannot be clearly specified, described, or priced when the employer issues the tender documents. This may arise because the work might prove unnecessary, or because its extent or scope is not yet known—for instance, where the contract works involve excavation or below‑ground operations that cannot be reliably investigated until the project is underway. It is termed a ‘provisional’ sum as neither party is bound by the allowance—the eventual cost may come in above or below the stated provisional amount......
This Practice Note sets out who the JCT are and gives a snapshot of the most widely used standard form building contracts they issue. Reference copies of the contracts and their associated guides are available in the relevant JCT subtopics (ie 2024, 2016, 2011, 2005 and 1998) under the ‘ Forms’ tab, and also in the following documents: 2024—reference copies 2016—reference copies 2011—reference copies 2005—reference copies 1998—reference copies Who are the JCT? JCT stands for Joint Contracts Tribunal. Founded in 1931, it now comprises the following member bodies: the Royal Institute of British Architects the Contractors Legal Group Ltd the Royal Institution of Chartered Surveyors the Local Government Association the Scottish Building Contract Committee Ltd Build UK Group Ltd the British Property Federation Each of these organisations nominates a director to sit on the JCT...
Standard building contracts typically set out which liabilities sit with the contractor or the employer, and who must insure them. See, for instance, Practice Notes: JCT contracts—insurance, NEC contracts—insurance, FIDIC contracts (pre-2017 editions)—insurance, and FIDIC contracts 2017—insurance. Where a building contract is made orally, or the written terms omit such matters, the common law position applies. They allocate risk and specify the party responsible for insurance. What are the contractor's potential liabilities? liability in tort to third parties for injury, death or damage to property arising from the contractor’s negligence (see Practice Note: Negligence in construction); liability to the employer for loss or damage to the works caused by the contractor’s own negligence, or for breach of contract (see: Contract law for construction lawyers—overview). The contractor is not responsible to the employer where the works suffer damage from any cause other than the...
This Practice Note offers guidance on subrogation in the insurance context. It sets out the legal basis, purpose and practical operation of subrogation, and indicates how to tell rights of subrogation apart from other mechanisms such as assignment or contribution. It also considers common situations, including subrogation against co-insureds, the use of express subrogation clauses and waivers of subrogation. In addition, it covers how recoveries are allocated and the insured’s duty to co-operate with insurers. What is the right of subrogation? In insurance and reinsurance, the right of subrogation allows an insurer or reinsurer, once it has indemnified the (re)insured, to step into that party’s position and bring proceedings in the (re)insured’s name. For this Practice Note, ‘insurer’ should be read as ‘(re)insurer’ and ‘insured’ as ‘(re)insured’. The insurer may then exercise any of the insured’s rights or remedies against third parties arising from the...
This Practice Note This Practice Note addresses the criteria governing an employer’s vicarious liability in tort, arising from particular legal relationships and specified conduct, including wrongful acts. It further reviews liability within ‘relationships akin to employment’ and the circumstances in which more than one employer may share responsibility (dual vicarious liability). It analyses, in particular, the ‘close connection test’, which identifies the necessary link between the relationship and the wrongdoing, as re-examined by the Supreme Court in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB. It sets out the stance regarding liability for the acts of independent contractors, and proceeds to outline when an employer might be answerable for torts committed by someone else’s employees, and where liability to third parties in contract (express and ostensible agency) can arise in practice. This Practice Note also details liability for breaches of...
Prepared in collaboration with 4 Pump Court, this Practice Note examines an adjudicator’s power to award interest, and the different grounds on which a party may pursue interest in an adjudication. General principles Unlike court proceedings, there is no statutory discretion given to an adjudicator to grant interest on damages or debt, so the referring party must establish a basis for any interest claim. Interest should be expressly sought (and the foundation for the interest claim identified) in the Notice of Adjudication and the Referral Notice, to ensure the claim is properly made and within the adjudicator’s jurisdiction to decide. The claim should set out a rate of interest and confirm whether the interest sought is simple or compound and, if compound, the appropriate rests......
The matter of payment and cash flow is vital across all sectors, and especially within construction. Where a party is not paid, it may find itself unable to perform its project obligations. Non-payment under construction contracts can arise in several ways: late payment reduced payment no payment at all There are a number of remedies open to the party awaiting payment. The most appropriate remedy, or combination of steps, will depend on the nature and seriousness of the dispute. The options include: a statutory right to suspend (this can also be included as a contractual right) a statutory right to refer a dispute to adjudication (this can also be included as a contractual right) a right to claim interest (statutory or contractual) commencement of court or arbitration proceedings for recovery of payment or damages ...
This Practice Note provides a primer on arbitration in Scotland under the Arbitration ( Scotland) Act 2010 ( A( S) A 2010) and associated topics. It concentrates on how A( S) A 2010 diverges from the Arbitration Act 1996 ( AA 1996) as it applies in England, Wales and, separately, Northern Ireland (using ‘ England’ and ‘ English’ as convenient shorthand). For an overview of AA 1996, see Practice Note: A guide to the Arbitration Act 1996 ( AA 1996). Background to A( S) A 2010 Scotland’s legal system (‘ Scots law’) evolved independently from that of England and Wales. Its foundations lie in customary law, canon (church) law and Roman law, brought into Scotland in the late medieval era when Scottish jurists returned from study in the Netherlands and other continental European jurisdictions. After the 1707 union of the Scottish and English...
What is a prime cost contract? Put simply, where a deal is let on a ‘prime cost’ basis, the contractor recovers the expenditure it incurs in delivering the works — such as labour and materials (including those supplied by sub‑contractors) — plus a management fee on top to cover overheads and profit. This differs from the usual lump sum arrangement, under which the employer and contractor fix the total contract price payable to the contractor at the outset (subject to any clauses permitting adjustments as the works proceed) and the contractor bears the risk of any rise in the cost of the works. Management contracting is a common setting for prime costs in practice. The management contractor is remunerated with a fee for its services plus the prime costs it incurs in performing its functions. Those costs include amounts paid to the works...
Construction contract pricing structures This Practice Note contrasts the pricing models most often used on construction projects, considering lump sum, remeasurement, prime cost and target cost contracts. Lump sum Also referred to as: Fixed price In brief: the contract sum is settled before any works begin. Features At the outset, employer and contractor agree the total amount payable for the project, prior to commencement. The price is not remeasured as the works proceed, so adequate tender information is essential for accurate pricing. Where the contractor is not responsible for design, pricing is typically based on drawings and: a bill of quantities prepared by a quantity surveyor in line with a published standard method of measurement, listing the work items, labour and materials needed to complete the works. During...
Dispute resolution under the NEC3 and NEC4 ECC This Practice Note reviews the dispute resolution route under the NEC3 and NEC4 contracts, encompassing dialogue between Senior Representatives, adjudication, Dispute Avoidance Board ( DAB) recommendations, and, if needed, final determination through litigation or arbitration. It concentrates on the Engineering and Construction Contract ( ECC). The relevant provisions sit in Options W1, W2 and, in the NEC4 ECC, W3; one of these must be chosen by the parties when the contract is formed. Parties must also complete essential entries in the Contract Data, for example, confirming whether disputes are to be finally resolved by litigation (ie court proceedings) or by arbitration. If the agreement is caught by the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), Option W2 must be adopted, as it is the only option that permits disputes to be referred to...
This Practice Note outlines the nature and purpose of the Information Release Schedule ( IRS), how it operates within JCT contracts, and key practical points to bear in mind when deploying the IRS and embedding it in a JCT agreement. Information Release Schedule Under JCT, the IRS—see, for instance, the fifth recital of the JCT Standard Building Contract Without Quantities—sets out which information the Architect or Contract Administrator will issue, together with the timing of that release. In effect, it functions as a programme governing the orderly flow and delivery of design information. An IRS is required on a project where comprehensive design data is not available at the tender documentation stage, or will still be incomplete by the time the contract is executed. This arises most acutely on fast‑track schemes, where external drivers—typically determined by the project’s business case, for example a harvest deadline on a...
For an at‑a‑glance, high‑level outline of the civil court structure and hierarchy in England and Wales, see: Courts and Tribunals Judiciary— Structure of Courts and Tribunals System. Several civil courts issue a court guide explaining how business in that court should be managed, which operates alongside, and in addition to, further guidance given in the Civil Procedure Rules ( CPR). For further details, see Practice Note: Court guides and other guidance. For information on: claims that must be brought and issued in the County Court, see Practice Note: Starting civil claims in the County Court commencing a claim under CPR 8 (alternative procedure for claims where there is no substantial dispute of fact), see Practice Note: CPR Part 8 claims (alternative procedure for claims) High Court or the County Court? Whether proceedings ought to be issued in the High Court or the County Court is, in the main,...
This Practice Note sets out a comparison of headline aspects of the FIDIC 2017 and NEC4 suites, highlighting similarities and distinctions across their principal features. It specifically concentrates on the NEC4 Engineering and Construction Contract ( ECC) and the FIDIC Red Book 2017 ( Red Book), used primarily where the Contractor constructs to the Employer’s design in practice (although, where the scope includes any Contractor design, the Red Book accommodates this). For commentary on the 1999 edition of the FIDIC Red Book, see Practice Note: FIDIC 1999 and NEC4 contracts compared. Overall philosophy FIDIC FIDIC contracts are the leading international standard-form construction agreements. They are often described as ‘written by engineers, for engineers’. The suite is also recognised for balanced risk distribution, with liabilities generally allocated to the party best able to manage them (the EPC/ Turnkey variant, widely referred to as the Silver Book, is...
Main contracts • FIDIC This guide offers direct links to PDF versions of the principal FIDIC standard form agreements, spanning the 2017 editions and the 1999 editions of the Red Book, Yellow Book and Silver Book. A complete catalogue of current FIDIC agreements is provided in Practice Note: FIDIC contracts—introduction. For access to additional materials on FIDIC agreements, refer to the subtopics: FIDIC contracts pre‑2017 editions and FIDIC contracts 2017 onwards......
Slip rule An adjudicator may, within a reasonable period after handing down their decision, put right any accidental error or omission. Commonly described as the ‘slip rule’, it operates where the adjudicator’s mistake is an inadvertent slip that fails to capture their first intention. Though this principle was implied by common law in the absence of any contrary agreement, it is now set out expressly in section 108(3A) of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). Section 108(3A) was introduced by the Local Democracy, Economic Development and Construction Act 2009 and applies to contracts entered into on or after 1 October 2011 in England and Wales, and on or after 1 November 2011 in Scotland. Under HGCRA 1996, s 108(3A), a contract must contain a written term permitting the adjudicator to correct their decision so as to remove a...
ARCHIVED : This Practice Note has been archived and is no longer maintained. From 1 October 2025, CPR PD 51O was revoked and superseded by CPR PD 5C. For guidance on CPR PD 5C, consult Practice Notes: How to use CE- File—from 1 October 2025 and When and where is CE- File applicable?—from 1 October 2025. Note: the CE- File pilot is scheduled to end on 1 November 2025. As of 1 October 2025, CPR PD 5C takes the place of CPR PD 51O and confirms CE- File as permanent. For direction on the new rules, including how CPR PD 5C differs from CPR PD 51O, see Practice Notes: How to use CE- File—from 1 October 2025 and When and where is CE- File applicable?—from 1 October 2025. This Practice Note offers assistance on construing and applying the pertinent provisions of the CPR....
In construction and engineering projects Across construction and engineering works, a contractual breach can carry serious financial fallout. Where performance is defective or delayed, the employer may face remedial expenditure, sunk or wasted costs, lost profit, loss of business and diminished revenue. Recovery is confined to losses that satisfy the remoteness rule in Hadley v Baxendale; in other words, the loss must be either a direct loss or a consequential (also termed ‘indirect’) loss. The sense of these expressions is expanded below. Deciding whether any given head of loss is direct or consequential can be challenging and is always fact‑specific. The divide matters in construction in particular, as numerous construction contracts restrict or exclude liability for consequential loss. For guidance on excluding or capping consequential loss in construction contracts, the care required when drafting those clauses, and the stance taken in standard form...
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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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