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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 examines what quantum meruit means, the situations most likely to give rise to a quantum meruit claim within a construction project, and how the court may appraise such a claim and decide what counts as a ‘reasonable sum’. See also, more generally, Practice Note: Unjust enrichment and contract claims—failure of basis and quantum meruit. It addresses when such claims commonly occur on projects and the court’s approach to fixing a reasonable figure. All within the construction context. What is quantum meruit? The phrase ‘quantum meruit’ translates as ‘as much as he has earned’. A quantum meruit claim is therefore a demand for a reasonable payment—ie the amount the party is fairly entitled to, having regard to the work or services it has provided. When does a quantum meruit claim arise? A claim founded on quantum meruit will usually stem from a...
This Practice Note This Practice Note considers the principal factors a party to a construction contract should address when preparing the quantum elements of a claim. It covers routine contractual claims (for example, loss and expense), as well as scenarios where the dispute stems from breach of contract or negligence, i.e. a claim for damages. It also examines frequent categories of recoverable loss, including: damages relating to defects claims future losses wasted management time loss of a chance third party settlement sums Beyond establishing whether a loss is recoverable and its value, additional quantum issues may include whether to advance a ‘global claim’, mitigation and betterment considerations, contributory negligence, and any contractual limits or exclusions. On the issue of loss within a dispute, the claimant bears the burden of proving both the fact of the loss and the amount claimed. For a...
The principal project participants in a standard project finance arrangement are: the sponsor(s) the project vehicle (called in this Practice Note the 'project company'), which is usually the borrower of the project loans a holding company contractors and sub-contractors suppliers off-takers the host government The principal finance parties in a typical project finance transaction are explained in Practice Note: Project finance—key finance parties. Sponsor The sponsor is the party that originates and oversees the project. It is usually a private company or a group of companies. The government of the country where the project is located (the host government) may at times be a sponsor, especially in public service schemes, eg infrastructure (roads, rail, ports etc), social facilities (schools, hospitals, prisons etc) or natural resources (oil, gas, mining etc). Even if the host government does not initiate the project, it often plays a vital part in making it viable—see Host...
This Practice Note examines the standard of care in professional negligence, rooted in Bolam v Friern Hospital as the touchstone of ‘reasonable skill and care’, and how that test is applied in practice; it also addresses the Montgomery v Lanarkshire Health ‘material risk’ inquiry, the duty to warn, and the role of industry opinion. It surveys practical illustrations across sectors and notes the position of trade unions. Given the wealth of case law in this area, the standard expected of solicitors and barristers is considered separately in Practice Note: Standard of care—solicitors and barristers. The discussion explains how Bolam operates in real‑world settings and where Montgomery informs the scope of warning obligations and the significance of prevailing professional views. Practical application of these principles is shown through sector‑specific examples. Construction Financial services Accountancy Trade unions...
MF/1 Formerly titled ‘ Model Form A’, ‘ MF/1’ sets out Conditions of Contract for the design, supply and installation of electrical, electronic and mechanical plant. First issued in 1903 by the Institution of Electrical Engineers ( IEE), further editions appeared across the twentieth century. In 1926 the Institution of Mechanical Engineers joined the IEE as co-publisher, broadening the scope to include mechanical works. The 1988 edition adopted the MF/1 name and merged with the export version. This Practice Note reviews the 2014 Revision 6 of the form, now published on behalf of the Institution of Engineering and Technology ( IET) and the Institution of Mechanical Engineers. Other contracts within the Model Form suite cover supply only ( MF/2 and MF/3) and professional services ( MF/4). See Practice Notes: MF/2 Rev 2 (1999), MF/3 Rev 1 (2001) and MF/4 (2003). MF/1 is...
Practical completion signals the close of a project’s construction phase, the point at which the works are sufficiently ‘finished’ for the employer to take possession and/or put them to use. It commonly triggers the commencement of the defects liability period or maintenance period. As set out below, this milestone carries weight, bringing notable commercial, contractual, financial and practical consequences for both the employer and the contractor. Determining whether a scheme has actually reached practical completion often provokes contention, becoming a regular flashpoint for disagreements and disputes across the construction industry. In some contracts, practical completion is described as ‘substantial completion’ or simply ‘completion’. What does 'practical completion' mean? Many of the difficulties that arise on construction projects in relation to practical completion stem from uncertainty over what the term really entails. The phrase is frequently included in building contracts with minimal, if any,...
What are planning conditions? Planning conditions are attached to planning permissions to govern how development proceeds. They can raise the standard of schemes or allow proposals that might otherwise fail in planning terms to go ahead, by offsetting, limiting or managing harmful impacts. Conditions may likewise feature in a local development order or a neighbourhood development order. Their use is circumscribed by legislation, case law and policy, as outlined below. Powers to impose planning conditions Local planning authorities ( LPAs) hold broad powers to attach conditions when granting permission under the Town and Country Planning Act 1990 ( TCPA 1990), notably sections 70 and 72, with further statutory powers in sections 73, 73A, 96A and Schedule 5. The Secretary of State ( So S) can also impose conditions on appeal by virtue of sections 77, 79, 177 and Schedule 6. Section 70 TCPA 1990 provides that, upon...
Why have an oversail licence on a construction project? Under English law, a freeholder will in most cases own the column of air above their plot unless the instrument that vested title in them specifically carves it out. A lease does not automatically confer rights to the airspace above the premises; whether it does turns on the wording of the particular lease. That said, it is not invariably obvious if the demised premises include or exclude the airspace (see Can an oversail licence protect a tenant? below). Whether the airspace forms part of the demise is therefore a matter of construction. When a contractor proposes to install a tower crane to execute the works, it should, at the outset of the scheme, assess whether the jib (the horizontal arm) will have to pass over—i.e. oversail—any neighbouring land that is not within the...
This Practice Note explores how climate change and the drive by the UK and other governments globally to reach net zero affect the construction sector and the way construction contracts are drafted. This influences the construction industry and the drafting of construction contracts. Climate change risks and ramifications for construction contracts It is widely recognised that climate change brings multiple threats across many industries, with a higher chance of severe and erratic weather, such as floods, drought and intense heat, which in turn would push hundreds of millions into poverty, diminish biodiversity and lead to species extinctions. In response, governments worldwide are acting to deliver ‘net zero’, meaning a condition where greenhouse gas ( GHG) emissions are counterbalanced by GHG removal, delivering an overall net zero emission over appropriate timescales. See also Practice Note: Sustainable...
The NEC3 and NEC4 contracts champion a continuous, proactive stance on tracking and handling risks, and anyone administering or working under these forms must give careful attention to the risk management procedures. This Practice Note focuses on the risk management terms in the NEC3/ NEC4 Engineering and Construction Contract ( ECC), although similar mechanisms are present across the wider suite. Risk allocation First, it is important to distinguish between risk management and risk allocation within the NEC contracts. These forms adopt the opposite approach to allocation when compared with some other standard forms, expressly stating which risks fall to the Client (referred to as the ‘ Employer’ in NEC3). By implication, all remaining risks sit with the Contractor. The risks taken on by the Client—called the ‘ Client’s liabilities’ in NEC4 and the ‘ Employer’s risks’ in NEC3—are listed in clause 80.1, and this...
Practice Note First issued in 2008, it was updated in 2011 to reflect changes to the Housing Grants, Construction and Regeneration Act 1996 introduced by the Local Democracy, Economic Development and Construction Act 2009. A further revision arrived in 2017 (described as the 2016 edition as it sits within the 2016 JCT suite), with the latest iteration in 2024. This Practice Note reviews the 2016 and 2024 editions, whose provisions are, for the most part, very similar... Forms Pre- Construction Services Agreement ( General Contractor) ( PCSA)—entered into by the ‘ Employer’ and ‘ Contractor’ Pre- Construction Services Agreement ( Specialist) ( PCSA/ SP)—entered into by the ‘ Purchaser’ and ‘ Specialist’ The primary focus here is the PCSA, although the PCSA/ SP adopts broadly comparable terms. Both sets of provisions align closely with those typically seen in a...
This Practice Note provides easily searchable links to PDF versions of the JCT 2024 standard form contracts...
What is force majeure? Force majeure denotes an occurrence outside the parties’ control that prevents them from meeting their contractual obligations. The courts have previously indicated that force majeure goes further than what is commonly meant by the expressions ‘act of God’ or ‘vis major’. There is, nevertheless, no exact legal definition of force majeure, so whether an event qualifies will depend on how the contract is construed. Standard form building contracts approach force majeure in varying ways (see below: Force majeure in standard form building contracts). Parties might, or might not, choose to set out a definition of force majeure within their agreement. As a result, predicting with any certainty what will amount to force majeure in any given situation is difficult—the language of any force majeure clause, together with the particular facts, must be carefully analysed in each instance....
What are fluctuations? Fluctuations provisions are terms in construction contracts that permit the contract sum to be varied to reflect shifts in the cost of labour, materials and other expenses over the course of a project. For example, if a contractor prices a tender using rates current at the tender date, and inflation then increases the cost of delivering the works during the job, the contractor must absorb that increase. Where a building contract omits fluctuations provisions, the contractor is treated as having allowed for inflation and accepted the risk of price rises within its pricing. By contrast, in the absence of a fluctuations clause, if market prices fall, the contractor might benefit from those savings. If fluctuations clauses are included, the contractor may be entitled to reimbursement of some or all additional costs caused by rising prices. The uplift can be...
This Practice Note examines the FIDIC Conditions of Contract for Plant and Design Build 1999, widely referred to as the FIDIC Yellow Book 1999. FIDIC released a new edition of the Yellow Book in December 2017—see Practice Note: FIDIC contracts—introduction to the FIDIC Yellow Book 2017 for guidance on the 2017 edition. In respect of the 1999 suite, also consult Practice Notes: FIDIC contracts—introduction to the Red Book 1999, FIDIC contracts—introduction to the Silver Book 1999 and FIDIC contracts (pre‑2017 editions)— Yellow and Silver Books compared. For what type of project is the contract suitable? The FIDIC Yellow Book 1999 is recommended for supplying electrical and/or mechanical plant, and for building or engineering works where the Contractor undertakes the design. The FIDIC Yellow Book 1999 is not appropriate where the Employer performs the design—in that case, the FIDIC Red Book 1999 should be used...
This Practice Note provides an overview of the FIDIC Green Book 2021 (the Short Form of Contract), rather than a detailed clause-by-clause analysis. In December 2021, FIDIC released the second edition of the Green Book. For background on that release and the main changes from the first edition, see News Analysis: FIDIC Green Book 2021—what’s changed? For guidance on other documents in the FIDIC suite, see: FIDIC contracts 2017 onwards—overview FIDIC contracts pre-2017 editions—overview For what type of project is the Green Book suitable? The FIDIC Green Book is principally aimed at projects with a low perceived risk profile and/or where the parties want a straightforward form that does not demand substantial contract administration and management resources. Its scope is not limited to simple or repetitive works, short programmes, or low capital value projects. It stands as an alternative to the FIDIC Red or...
This Practice Note offers an overview of the FIDIC Conditions of Contract for Design, Build and Operate Projects 2008, widely referred to as the Gold Book 2008. For what type of project is the Contract suitable? The FIDIC Gold Book 2008 is a design, build and operate form (‘ DBO’)—for general background on DBO arrangements, see Practice Note: DBO contracts. It presumes a greenfield design‑build‑operate model with a 20‑year operations and maintenance term. It is unsuitable for brownfield schemes, i.e. the enhancement of an existing asset. According to the FIDIC DBO Contract Guide (1st edition, 2011—issued by FIDIC), the Gold Book may suit infrastructure undertakings where the completed facility is expected to generate income or receipts for the Employer, and where the Employer may lack the capability or know-how to run the facility and might otherwise appoint a service provider or operator. It is...
Performance and testing provisions—2017 Red, Yellow and Silver Books This Practice Note reviews the performance and testing clauses in the 2017 iterations of the Red, Yellow and Silver Books. It considers testing carried out during execution of the works, as well as tests at completion and thereafter. For details of the performance and testing obligations under the 1999 editions of the Red, Yellow and Silver Books, and under the Pink and Gold Books, see Practice Note: FIDIC contracts (pre-2017 editions)—performance and testing requirements. In any construction contract, a central concern for both employers and contractors is determining when the works will be regarded as ‘complete’. The employer seeks assurance that the works are delivered strictly in accordance with the contract, while the contractor requires clarity on those obligations and the actions needed to achieve them. Accordingly, it is crucial that the contract...
Guide to executing simple contracts across jurisdictions This guide explains the requirements for signing simple contracts in a range of international jurisdictions. A table gives a quick-reference snapshot of the execution formalities for companies, individuals and partnerships in different countries. Fuller commentary for each overseas jurisdiction listed in the table appears in the sections below. For guidance on the execution of deeds in various jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For electronic signatures, see Practice Note: E-signatures—jurisdictional guide. For the formation of contracts, see Practice Note: Contract formation—jurisdictional guide. For executing documents under Scots law, see: Execution— Scotland—overview. Please note: this is an introductory resource only, and local advice from suitably qualified legal professionals in the relevant country should be obtained where appropriate. Summary table What are the requirements for companies when executing contracts? What are the requirements for...
Planning permission—does demolition constitute 'development'? Under section 57(1) of the Town and Country Planning Act 1990 ( TCPA 1990), any works amounting to development on land require planning permission. Development is widely cast to include building, engineering or mining operations, as well as any material change of use. By virtue of TCPA 1990, s 55(1A)(a), demolishing a building is specifically identified as a building operation and therefore comes within the statutory concept of development. Accordingly, planning permission is generally needed for most demolitions. See Practice Note: Operational development. For these purposes, ‘building’ in TCPA 1990, s 336 covers any structure or erection and any part of a building, but excludes plant or machinery contained within a building. However, TCPA 1990, s 55(2)(g) permits certain categories of demolition to be removed from the definition of development where the Secretary of State issues a...
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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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