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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:
Most recent Practice notes
ARCHIVED: This Practice Note is archived and no longer updated. It outlines modifications to the Civil Procedure Rules arising from the Civil Procedure Rules 1998 ( Amendment) ( EU Exit) Regulations 2019 ( SI 2019/521), and the Civil, Criminal and Family Justice ( Amendment) ( EU Exit) Regulations 2020 ( SI 2020/1493), together with related revisions to relevant practice directions recorded in the Making documents for the 107th, 122nd and 126th practice direction updates. The 126th practice direction update also introduced several minor amendments to the 107th practice direction. These adjustments either ensured, or flowed from, changes to existing EU Exit instruments so as to secure alignment with the Withdrawal Agreement between the EU and the UK. CPR Parts subject to change include: Part 5 Part 6 Part 8 Part 12 Part 13 Part 25 Part 30 Part 31 ...
ARCHIVED This Practice Note is archived and is not maintained or updated. It examines how Brexit could affect businesses’ contractual rights and duties for a business, and explores what Brexit means for managing contract risk in advance of IP completion day. For further information and guidance on the impact of IP completion day on contracts and, more generally, on commercial law, see Practice Notes: What does IP completion day mean for contract clauses? and What does IP completion day mean for Commercial? The Note evaluates the effects of Brexit on companies’ contractual rights and obligations and addresses the ramifications of Brexit for contract risk management in practice. It offers practical step-by-step guidance on identifying contractual risk to businesses arising from Brexit and on conducting a Brexit risk-management contract audit and contract review process. See also: Brexit risk management: contract...
ARCHIVED: This Practice Note has been archived and is not maintained. The UK and EU’s tailored proposals for allocating jurisdiction in disputes will be a central concern for UK practitioners. This Practice Note examines how Brexit will influence the identification of jurisdiction and the interpretation of choice of court agreements on the UK’s exit from the EU. It first explains the present regime under Regulation ( EU) 1215/2012, Brussels I (recast). It then outlines the respective approaches of the UK and the EU and weighs the likely outcomes, so far as the current information permits. The Practice Note highlights issues that may surface when the UK leaves the EU. It also reviews alternative frameworks that may assist with jurisdiction determinations, namely the Hague Convention on Choice of Court Agreements and the Lugano Convention 2007. Finally, it addresses the drafting of a...
Building Information Modelling, widely referred to as BIM, is gaining traction on construction projects across the UK. It represents a technology‑enabled way of working that digitally creates, stores and administers information, improving efficiency in design and construction while enhancing collaboration among the project team through information sharing. This Practice Note looks at what BIM is and, in broad terms, how it functions. Its aim is to boost efficiency in design and build and foster team collaboration... Definition of BIM There is no universally agreed definition of BIM. The term describes a collaborative practice centred on digitally sharing and managing information; it is not a mechanism, procedure or a particular software product. Software is used to support project delivery by applying defined approaches and processes to information modelling and information management. In BS EN ISO 19650‑1 (the first part of the ISO 19650 series of...
What is an assignment An assignment involves passing a right or interest held by one party (the assignor) to another (the assignee), such as transferring an employer’s rights under a building contract to the buyer of the finished works. In this Practice Note, the party required to perform the contractual obligations is called the 'obligor'. A properly effected assignment allows the assignee to require performance of contractual duties—for instance, to request rectification of defects and/or to commence proceedings. This Practice Note explores the various mechanisms available by which parties may implement an assignment within construction documentation (eg construction contracts, appointments and collateral warranties), together with the consequences of doing so. It also clarifies the practical impact of each method for parties seeking to secure or enforce rights effectively......
This Practice Note explores why the assignment of rights matters in construction and identifies when parties may need to transfer their rights. It contrasts assignment with novation and outlines the steps required to complete a valid assignment. It also examines the consequences of an assignment and the matters parties ought to note when pursuing claims after an assignment. The implications of the Business Contract Terms ( Assignment of Receivables) Regulations 2018 are also highlighted. When assessing assignment provisions in a construction contract, see: Assignment of construction documents—checklist for the key points to review. For guidance on restrictions on assignments in construction, see Practice Note: Restrictions on the assignment of rights in construction contracts... What is an assignment? This Practice Note concentrates on how assignment operates in the sphere of construction contracts, but the legal principles are relevant across multiple sectors, including banking and finance (see...
These training resources provide sample Power Point decks together with companion notes for a facilitator delivering a session on assignment and novation under construction law, aimed at trainee solicitors and others unfamiliar with the construction sector. Topics include: exploring why assignment and novation matter on construction projects, the ways they can be limited, and practical steps to carry out an assignment or a novation. The materials come in both Power Point and Word formats and are fully customisable. Follow the link below to download the presentation. All content can be tailored to your audience. Contents Assignment What is assignment? When might you assign or acquire rights?......
Identifying asbestos waste Asbestos occurs in several forms, with chrysotile (white), amosite (brown) and crocidolite (blue) being the most widespread. Every variety is toxic and carcinogenic, posing serious risks to human health and the environment. It is highly persistent, breaking down very slowly and remaining in the environment for extended periods. Owing to these hazards, the import, supply and use of all asbestos types have been prohibited in the UK since 1999, subject to a few narrowly defined exceptions. Although new applications are banned, asbestos-containing products installed before the prohibition may stay in place. They must, however, be appropriately managed and kept in a safe condition to prevent harm to people or the environment. See Practice Note: Control of asbestos—duty to manage. Asbestos was historically used extensively in buildings. Consequently, during demolition or when undertaking works to a structure, there remains a...
ARCHIVED: This Practice Note has been archived and is not maintained. The UK and EU’s particular proposals for addressing the enforcement of judgments across the EU will be a central concern for UK practitioners. This Practice Note examines how Brexit will affect the enforcement of court judgments in the EU once the UK leaves the bloc. It reviews the existing framework under Regulation ( EU) 1215/2012, Brussels I (recast), sets out the respective stances of the UK and the EU, and evaluates the probable outcomes based on the information currently available. The Note highlights issues that may arise upon the UK’s exit and points to regimes that could support the enforcement of court judgments, including the Hague Convention on Choice of Court Agreements and the Lugano Convention 2007. It provides a concise summary of the current position and the foreseeable scenarios for...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note records recent updates concerning certain high-profile UK infrastructure and energy projects. Crossrail (the Elizabeth line) Railway linking Reading/ Heathrow with Shenfield/ Abbey Wood via central London. 28 September 2022 — Elizabeth line Bond Street station to open on 24 October 2022. See: LNB News 28/09/2022 77 24 May 2022 — Elizabeth line opens. See: LNB News 24/05/2022 26 4 May 2022 — Tf L announces the Elizabeth line will open on 24 May 2022. See: LNB News 04/05/2022 60 24 August 2021 — Whitechapel Elizabeth line station handed over to Tf L. See: LNB News 24/08/2021 26 12 May 2021 — Trial running begins and Tottenham Court Road Elizabeth line station handed over to Tf L. See: LNB News 12/05/2021 106 5 March 2021 —...
ARCHIVED: This Practice Note is archived and is no longer maintained. It charted the progress of UK primary legislation introduced as part of the legislative preparations for the UK’s exit from the EU during the 2017–19 Parliament. Following the prorogation of the 2017–19 Parliament on 8 October 2019, the Brexit Bills moving through Parliament that had not yet secured Royal Assent fell, namely: Agriculture Bill Financial Services ( Implementation of Legislation) Bill [ HL] Fisheries Bill Immigration and Social Security Co-ordination ( EU Withdrawal) Bill Trade Bill For further reading, see: Brexit Bulletin—key Bills fall away on prorogation of Parliament, LNB News 09/10/2019 64......
This Practice Note considers agreements to agree, explaining why a promise to settle particular contractual terms at a later date has traditionally been treated as unenforceable. It also examines those situations where courts have nevertheless upheld contracts as binding, despite an apparent lack of certainty over fundamental terms. Principle Traditionally, contracts that contain an agreement to agree future contractual terms have been viewed as too uncertain to enforce. Whether a binding contract exists is assessed by an objective test, namely: on the evidence, a reasonable person would conclude the parties were in agreement and intended to create legal relations (the parties’ own views are disregarded), and the contract is sufficiently certain to be enforceable. Agreement For a contract to be binding, its terms must be definite enough for the court to give them practical effect and, in particular, those terms must be enforceable without the need for any further...
This Practice Note explores how an agreement for lease with development obligations may oblige the landlord to make good defects in the works. It also considers whether adjudication under the Housing Grants Construction and Regeneration Act 1996 ( HGCRA 1996) applies to agreements for lease, and outlines other avenues by which the landlord and tenant may resolve disputes arising under an agreement for lease. Defects Deficiencies in the works, whether minor or significant, commonly arise on construction schemes. Trivial items are typically captured on a ‘snagging list’ and can be addressed after practical completion, yet serious shortcomings, in either design or construction, can endanger the building’s overall structural integrity. Some will be addressed before completion, others shortly afterwards, in accordance with the snagging process. Certain ‘patent’ defects will be apparent before practical completion and the contractor will be required to remedy them before a...
Seen from a construction lawyer’s viewpoint, whether advising a developer/landlord or a tenant, a crucial element of an agreement for lease is the section setting out the development obligations—that is, the works and related requirements the developer must complete before the tenant is required to enter into the lease. This Practice Note introduces the principal construction provisions commonly found in an agreement for lease, including development obligations. The clause or suite of clauses defining the developer’s duties will typically address a range of matters, with the key topics including: the character, scope and quality standard of the works variations (requested by the landlord and/or the tenant) the scope of the developer’s obligations limits on the developer’s liability the period allowed for completing the works measurement of the works insurance obligations construction...
An advance payment bond is a specific type of performance bond, almost always issued as an ‘on demand’ instrument. See Practice Notes: Performance bonds—construction projects and On demand performance bonds—construction projects. This Practice Note considers: the nature of advance payment bonds why they are used in the construction sector the key features of the wording used in an advance payment bond Why are advance payment bonds used? Under a standard building contract, the usual payment regime is that the contractor receives instalments as each stage of the works is completed, following inspection, measurement and certification by the contract administrator. In essence, sums are paid in arrears for work already performed. There are occasions when an advance is made to the contractor, for instance to fund mobilisation activities, or to enable orders to be placed for the long-term manufacture and delivery of steel or other...
Note: this Practice Note provides tailored guidance for proceedings in the Technology and Construction Court ( TCC) under the provisions contained in CPR 60, CPR PD 60 and the TCC Guide. As these sit in addition to the overarching rules found elsewhere in the CPR, this Practice Note should be read alongside general guidance on preparing for and attending trial, including the material in Trial—overview which, in turn, links to detailed guidance on distinct aspects of getting ready for, and appearing at, trials within the TCC shorter and flexible trials schemes—claims issued on or after 1 October 2015 in the TCC may qualify for, and/or be governed by, one or both schemes under CPR PD 57AB: the shorter trials scheme and the flexible trials scheme. For further details on these regimes, see Practice Notes: Business and Property...
This Practice Note explores an adjudicator’s jurisdiction/authority, including how it comes about, whether an adjudicator can issue a binding ruling on their own jurisdiction, and the effect (if any) of mistakes of fact, errors of law or procedural irregularities on that jurisdiction. For guidance on contesting an adjudicator’s jurisdiction, see Practice Notes: Grounds for a jurisdictional challenge in an adjudication and Making a jurisdictional challenge in an adjudication. What is the adjudicator’s jurisdiction? The adjudicator’s jurisdiction (or authority) is, at its core, the power to decide matters concerning the parties’ rights. The adjudicator’s authority derives from: the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) the contract between the parties, and/or the applicable adjudication rules, such as the Scheme for Construction Contracts ‘ Adjudicator’s jurisdiction’ is also used to describe the scope of what they may determine, namely the dispute set out in the...
This Practice Note sets out the circumstances in which an adjudicator may step down, whether by choice or because they must, and summarises the applicable resignation procedure. For guidance on which party bears the adjudicator’s fees after a resignation, see Practice Note: An adjudicator’s fees and expenses. On the ability of a referring party to terminate an adjudication, see Practice Note: Abandoning the adjudication. Voluntary resignation Whether an adjudicator can resign of their own accord is dictated by the rules that govern the adjudication; in practice, if an adjudicator is unwilling to continue, there is little the parties can do (or may wish to do) to compel them to carry on. Typical grounds include illness or unforeseen personal matters, but most rules that allow voluntary resignation do not expressly oblige the adjudicator to provide reasons. Under the Scheme for Construction Contracts, an...
Prepared in collaboration with 4 Pump Court, this Practice Note explores the option of invoking insolvency proceedings to secure compliance with and give effect to an adjudicator’s decision. For direction and guidance on whether an insolvent party may commence an adjudication, as well as enforce any award made by an adjudicator, refer to the Practice Notes: The right to adjudicate— Restrictions and limitations on right to adjudicate; and Adjudication—resisting enforcement using a stay of execution— Claimant in liquidation, administration or a CVA. Use of insolvency proceedings in adjudication enforcement Insolvency proceedings are seldom the most efficient or suitable route to compel performance of an adjudicator’s decision. The Technology and Construction Court’s ( TCC’s) enforcement mechanisms are designed specifically for swift adjudication enforcement, and the applicable test differs from that ordinarily applied in insolvency matters and proceedings. In Harlow & Milner v Linda Teasdale, the TCC...
Produced in association with 4 Pump Court ARCHIVED: This Practice Note has been archived and is not maintained This Practice Note details how Part II of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) provisions on payment and adjudication in construction contracts were altered by the Local Democracy, Economic Development and Construction Act 2009 ( LDEDCA 2009). It also flags amendments to the Scheme for Construction Contracts. The HGCRA 1996, in its original form, commenced on 1 May 1998, and the LDEDCA 2009 changes apply to agreements entered into on or after 1 October 2011 in England and Wales. For background and a synopsis of the revisions, see Practice Note: Changes to HGCRA 1996 as at 1 October 2011 [ Archived]. Unless stated otherwise, the links in the table below point to the current (ie amended) versions of the HGCRA 1996 and the...
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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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