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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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In analysing the causation and remoteness aspects of a professional negligence claim When evaluating causation and remoteness in professional negligence, a sensible point of departure is the pair of 2021 Supreme Court authorities, Manchester Building Society v Grant Thornton (accountants’ negligence) and Khan v Meadows (clinical negligence). In both, heard by the same constitution, the court indicated that adopting the analysis set out below provides a structured way to examine the scope‑of‑duty principle, “but for” causation, and the foreseeability of harm within clinical negligence claims. The result of that exercise informs the proper extent of the claimant’s damages, consistent with the compensatory principle that the law, so far as money can, seeks to place the claimant in the position he or she would have occupied had the defendant not been negligent ( Khan at para [58]). The analysis (at para [6] of...
This Practice Note examines professional indemnity ( PI) insurance in the setting of construction projects—the requirement to carry insurance, the level and basis of cover, and standard clause wording obliging parties to maintain PI cover. For a broader review of professional indemnity insurance, see Practice Note: Professional indemnity insurance—essentials. It also reviews the usual wording found in clauses mandating the maintenance of PI insurance. Although this Practice Note addresses a consultant’s duty to keep PI insurance in force, main contractors and sub-contractors who assume design duties must likewise maintain such insurance, and the same principles outlined below apply equally to them. A contractor with no design role might regard PI cover as unnecessary; however, if it departs from a consultant’s design, an employer might claim the contractor made an ‘on-the-spot design decision’, potentially engaging a PI policy. For further detail, see Practice Note: Design...
This Practice Note sets out an overview of a litigation process for a dispute in England and Wales. This Practice Note provides an outline of the litigation journey for disputes in England and Wales. It also offers a recap of the typical phases most civil cases will involve, spanning pre-action steps, issuing proceedings, trial, enforcement and any appeal, alongside related costs and funding considerations. It further addresses the court’s approach to case and costs management, lay and expert evidence, the obtaining of injunctions and the options for bringing proceedings to a close, including resolution by settlement. The Practice Note is arranged in a way that can be repurposed as a client letter to set out the principal stages of most civil disputes. It includes no outbound links to other Lexis+® UK materials. For links to content aligned to these key stages, refer to...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
Context Under section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is needed for the undertaking of any development of land. The term ‘development’ is set out in TCPA 1990, s 55(1) as: the undertaking of building, engineering, mining or other operations in, on, over or under land, or any material change to the use of buildings or other land Accordingly, consent is necessary for operational development and for material changes of use. See Practice Notes: Operational development and Material change of use. Who can apply for planning permission? Any person may submit a planning application for the development of land; the applicant need not own the land to which the application relates. However, the applicant must notify freehold and leasehold owners of the land concerned prior to submission of the planning application, see: Publicity of planning...
Construction projects frequently rely on a wide range of professional consultants, each undertaking distinct responsibilities. The size of the team varies with the project’s scale, and who makes the appointments will depend on the procurement route. Nevertheless, the principal consultants are broadly consistent across most schemes. This Practice Note outlines the roles of those key consultants and draws attention to their main duties. For a summary of the roles of the parties commonly involved in a construction project (including consultants as well as the employer, contractor and sub-contractor), see Practice Note: Parties in a construction project. For a visual of the contractual framework typical of a construction project, and how consultants are positioned within it, see: Structure of a development...
Introduction This Practice Note aims to: analyse the character and features of the on demand performance bond; outline the principal indicators and key factors for deciding whether a performance bond should be treated as an on demand instrument rather than a 'conditional' guarantee or bond For an overview of performance bonds, see Practice Note: Performance bonds—construction projects. For guidance on making a call under a bond, see Checklist: Calling on an on demand bond—checklist......
What is novation? Novation describes the passing of a contracting party’s rights and duties to a third party. In effect, one party to the agreement (the ‘outgoing party’) is replaced by another (the ‘incoming party’); in legal terms, the original agreement is discharged, amounting to the extinguishing of that contract and the creation of a new contract under which the same obligations must still be performed, albeit by different participants. Novation is not the same as assignment: an assignment transfers only the benefits of a contract, whereas novation moves both the benefit and the burden to the incoming third party. Contractual benefits cover the right to have the contract performed; burdens comprise obligations such as carrying out the duties and making payments due under the contract. In practice, the incoming party takes over performance in place of the outgoing party. See Practice Notes:...
Termination The NEC contracts set out detailed termination provisions, identifying when parties may terminate and the resulting effects and procedures, though they are less far-reaching than those included in JCT contracts. Under NEC, it is the Contractor’s obligation to Provide the Works that is ended, not the contract, and this deliberate distinction ensures, as intended by the drafting, that post-termination provisions continue to operate. Even once that obligation ends, in some circumstances specified by the contract the Contractor must reimburse the Client for additional costs of completing the works. This Practice Note addresses clauses in the NEC3 and NEC4 Engineering and Construction Contract, with comparable terms across other NEC contracts, and should be read with Practice Note: Termination of a construction contract to provide context. For termination guidance under the NEC Professional Service Contract and the NEC Supply Contract, see the respective Practice Notes: NEC...
This Practice Note explores key points where the NEC3 and NEC4 standard-form construction contracts diverge from the JCT 2016 and 2024 suites. It also identifies provisions missing from the NEC forms that appear in the JCT counterparts. Unless stated otherwise, this Practice Note concentrates on the NEC3/ NEC4 Engineering and Construction Contract ( ECC) and the JCT Standard Building Contract With Quantities ( SBC) 2016/2024. Accordingly, the commentary is confined to core forms unless a departure is expressly noted, ensuring a like-for-like discussion between the ECC and the SBC across the 2016 and 2024 editions. Differences in approach NEC NEC contracts are primarily oriented to the engineering sector yet are designed to be adaptable and appropriate for both engineering and building works. The principal NEC form, the ECC, is intended for traditional, design and build, or management procurement routes (and the NEC4 suite now includes a...
Principles of natural justice If an adjudicator infringes the rules of natural justice during adjudication, a serious breach can render the decision a nullity. The principle has three familiar elements: no person should adjudicate their own cause a party must be told the allegations it faces and allowed a fair chance to respond a party is entitled to have its case determined by an impartial and unbiased tribunal In reality, disputes about the first of these are rare in construction adjudication. Should there be any indication that an adjudicator must rule on the propriety of their own behaviour, resignation would ordinarily follow. For guidance on an adjudicator’s resignation, see Practice Note: Resignation by the adjudicator. The courts have repeatedly outlined what amounts to a breach of natural justice, with leading Court of Appeal authorities including Carillion Construction v Devonport Royal Dockyard and Amec v...
This Practice Note examines the role of material breach within construction projects, reviews how contracts may define the expression, and pinpoints leading case law on its meaning where no contractual definition is supplied. It also outlines the judicial approach to the phrase when agreements are silent on its scope... Relevance of material breach on construction projects The term ‘material breach’ appears across a range of contractual forms. In construction contracts, such provisions most commonly relate to termination and/or suspension—ie the agreement may specify that: the contractor and/or the employer can terminate, and/or the contractor may suspend works if the other party is in ‘material breach’. Regarding termination, there is often a grace period during which the party in material breach is given the chance to remedy the default before termination proceeds. It is also common to encounter material breach clauses in PFI/ PF2...
This Practice Note sets out the concept of liquidated and ascertained damages ( LADs/ LDs) and their role within building contracts. It explains how these provisions function and why they are used. Distinguishes liquidated from general (unliquidated) damages; Reviews enforceability and common challenges, including penalty arguments; Addresses setting the LADs figure, caps, and the dangers of stating “nil” or “ N/ A”; Refers to case summaries in a related case law Practice Note. What are liquidated damages? Where parties to a construction contract agree LADs, they pre-determine a fixed sum payable if a specified breach occurs. These provisions are also known as liquidated and ascertained damages, with the acronyms “ LDs” and “ LADs” used interchangeably. When liability for LADs arises, the amount is usually payable by the contractor to the employer, or the employer may deduct it from sums...
Limitation Act 1980 and Latent Damage Act 1986 The Limitation Act 1980 ( LA 1980), as amended by the Latent Damage Act 1986 ( LDA 1986), sets the time limits for starting different categories of legal action. If proceedings are issued after the relevant period has run, a defendant can contend that the claimant’s remedy is time-barred. For the construction sector, the most pertinent deadlines concern contractual and tortious (negligence) claims, though the LA 1980 also fixes periods for personal injury, defective products and defamation. There are, moreover, particular limitation rules for claims under specific statutes, including the Defective Premises Act 1972, the Building Act 1984 and the Building Safety Act 2022. Limitation is often critical for disputes about defective work, as the cause of action may arise long before any issue is visible. For example, faulty foundations installed by a...
This Practice Note identifies several key and/or recent authorities addressing heads of loss frequently pursued in construction disputes, including defect claims, loss of profit, overheads and preliminaries, wasted management costs, the passing on of settled claims, and other instances. It is not a definitive compendium of all cases (and is centred on construction decisions rather than broad principles), yet it serves as a practical first port of call when assessing different claims. For guidance on factors that may need to be weighed when a party on a construction project is putting together the quantum of a claim, see Practice Note: Quantum in construction claims. That note draws out issues for routine contractual claims (for example, relating to loss and expense or suspension), as well as matters arising from breach of contract or negligence (ie a claim for damages). It considers the thresholds and tests for typical heads of loss, and...
Practice Note This Practice Note examines how the English courts approach the meaning and effect of a jurisdiction agreement (also referred to as a choice of court agreement) under English common law. It sets out the elements required for a valid jurisdiction agreement and the courts’ general method for construing these provisions. Matters addressed include whether a dispute falls within the clause’s ambit and how the jurisdiction promise interacts with the wider contract, covering separability and the position where the contract is alleged to be void or voidable. The Note also considers the courts’ approach to jurisdiction agreements contained in related contracts, as well as how conflicting jurisdiction provisions are handled. In addition, it reviews the use of jurisdiction clauses in an underlying contract for the purposes of settlement disputes, and the effect of an English law clause where no...
This Practice Note examines how JCT contracts address dispute resolution, with most forms providing for mediation, adjudication and either court proceedings or arbitration, and also signposting direct negotiations. It also reviews the effect of the adjudication clause and the JCT Rules for Adjudication, for use with the JCT Building Contract and the Consultancy Agreement for a home owner/occupier. The Note chiefly considers the position under the JCT Design and Build Contract 2011, 2016 and 2024 ( D& B) and the JCT Standard Building Contract 2011, 2016 and 2024 ( SBC), while noting that similar provisions appear in the majority of other JCT building contracts. Overview of the dispute clauses Within the D& B and SBC, the dispute provisions are located in section 9. The drafting is, in essence, consistent across the 2011, 2016 and 2024 suites (but see ‘ Direct...
Practice Note This Practice Note reviews design obligations within the JCT suite of contracts—chiefly the Design and Build Contract ( D& B) and the Standard Building Contract ( SBC) where a Contractor’s Designed Portion applies (commonly termed a CDP). It also touches on the Intermediate and Minor Works forms. Across the JCT suite, the Contractor may assume design responsibility to different extents. The Employer can adopt a design and build procurement approach by selecting the D& B form, under which the Contractor undertakes completion of the entire design. Alternatively, using a traditional route, the Contractor may still carry design responsibility for a defined part by choosing a traditional form, such as the SBC, incorporating the optional CDP. This Practice Note explains how design responsibility is apportioned in the D& B and SBC forms, and examines additional key...
This Practice Note explains the treatment of variations across the principal JCT contract forms, setting out how such changes are managed and addressed in practice. For broader commentary on variations, with references to pertinent case law for context, see Practice Note: What is a variation on a construction project? The focus here is the JCT Design and Build Contract ( DB) and the JCT Standard Building Contract ( SBC) ( With Quantities). It addresses the 2024 editions of these forms, currently in issue. Where clause numbering diverges between editions this is flagged; otherwise, clause references are identical in both, aiding clarity. See also News Analyses: JCT 2024 Standard Building Contracts and Sub- Contracts released, and The JCT Design and Build Contract 2024—what’s changed? For details on how NEC contracts handle variations, consult Practice Note: NEC...
JCT 2016 standard form contracts This resource provides quick links to PDF versions of the JCT 2016 standard form contracts. For a comprehensive range of materials on the JCT 2016 contracts, consult the subtopic: JCT contracts 2016. For schedules of amendments covering some of the JCT 2016 contracts listed below, see Practice Note: JCT contracts— Schedules of Amendments......
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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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