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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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The Regulations The Regulations took effect on 6 April 2015. They aim to embed health and safety as a core, everyday factor in the planning and oversight of construction schemes, and to clarify the responsibilities of all parties. Their policy aims are to preserve or enhance worker protection, streamline regulatory practice, curb unnecessary bureaucracy and align with better regulation principles (they gave effect to the EU Temporary or Mobile Construction Sites Directive (the ' TMCS')). The Regulations should be considered alongside detailed guidance from the Health and Safety Executive ( HSE Guidance on the ). It provides practical context and illustrative clarification. That guidance, whilst not legally binding, adds substance to the bare framework of the Regulations for everyday application in practice. They apply to all 'construction work' (as defined in regulation 2). To meet the TMCS, which placed obligations on domestic clients,...
This Practice Note outlines the role of the B& PCs, which determine specialist business matters and other international dispute resolution and business cases in England and Wales. Procedural guidance applicable in the B& PCs is contained in CPR 57A and CPR PD 57AA. It explains which courts sit within the B& PCs, the steps for starting proceedings in a B& PC—including electronic issue—and how to frame the claim title. It also addresses moving cases to or from a B& PC. This Practice Note should be read alongside Practice Note: Dispute Resolution—judicial practice notes and guidance, which links to further guidance issued by the judiciary from time to time and which is relevant to the B& PCs... What are the ? The B& PCs hear specialist business and other international dispute resolution and business cases in England and Wales, whether domestic or...
ARCHIVED : This Practice Note is archived and is not being updated. Public Private Partnership ( PPP) structures are widely used by governments to draw on private investment, expertise and risk in procuring infrastructure, with the prospect of delivering a project more efficiently and at lower cost. Among the most prevalent PPP approaches for procuring infrastructure projects is Build Operate Transfer ( BOT). The particulars of a BOT arrangement vary according to the type and features of the project......
Advantages of BIM BIM is expected to cut capital expenditure as well as the whole‑life cost of buildings. Co‑ordination and buildability issues can be resolved during design, preventing delays and extra cost if discovered during construction. The virtual model allows swift, low‑cost exploration of the effects of proposed design changes. It generates 3D imagery, making the finished asset simpler to visualise. The model can be simulated and analysed to reveal insights into anticipated running costs. Design information—such as specifications and other technical data—is embedded within the model, keeping it easy to access. ......
Scope of planning judicial review Within the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Part 54, a claim for judicial review is described as a claim to assess the lawfulness of an enactment, or any decision, act, or omission made in connection with the exercise of a public function. Decisions, actions, or failures to act pertaining to the performance of a public function are, as a matter of principle, subject to judicial review......
Administration Administration is a process intended to give a company time to breathe, aiming either at rescue or restructuring, or at securing a better result for all creditors than liquidation wherever possible. The core statutory framework for administration sits in Section 8 and Schedule B1 of the Insolvency Act 1986 ( IA 1986), together with the Insolvency ( England and Wales) Rules 2016, IR 2016, SI 2016/1024 rr 3.1–3.70, which apply in tandem. An administrator, an insolvency practitioner appointed under IA 1986, takes control of the company’s business and assets to pursue one of the three statutory purposes of administration set out in IA 1986......
The Construction law case tracker This tracker compiles notable judgments from 2021, 2022 and 2023 that are pertinent to construction lawyers, presented in reverse chronological order. For earlier periods, see the Construction law case tracker archives for 2020, 2019, 2018, 2017, 2016 and 2015. Public procurement matters are covered in the UK public procurement case tracker and the EU public procurement case tracker. Key forthcoming appeals feature in the Construction horizon scanner ( Appeal cases). Judgment date Case Topic News Analysis/further reading Summary 19 December 2024 — 381 Southwark Park Road RTM Company Limited v Click St Andrews Limited [2024] EWHC 3569 ( TCC) — Building safety — News Analysis: The first building liability order and information orders granted under the Building Safety Act 2022 (381 Southwark Park Road v Click) The Technology and Construction Court ( TCC) issued the first (and, so far, only) judgment...
Work in or adjacent to other buildings An insurance contract may respond to loss or damage to property arising from an insured peril, for example buildings insurance or contractor’s all risk insurance. The peril might be an act of God, or stem from negligence. Insurance can also protect against liabilities owed at law, for instance injury, death or property damage caused by negligence. The insured occurrence must give rise to legal liability, ie a tort. Public liability policies do not extend to accidental damage unless negligence is involved. Such policies also typically exclude contractual liabilities that would not have existed but for the contract. To place insurance over a building, the proposer must hold an insurable interest in it. Usually that interest is ownership, or, for a mortgagee, a financial stake in the property. For further detail, see Practice Note: General...
This Practice Note reviews the FIDIC Conditions of Contract for EPC/ Turnkey Projects 1999, often referred to as the FIDIC Silver Book 1999. FIDIC issued a new Silver Book in December 2017, with amendments in 2022—see Practice Note: FIDIC contracts—introduction to the FIDIC Silver Book 2017, reprinted in 2022 with amendments, for guidance on that edition. For the 1999 suite, also see: Practice Note: FIDIC contracts—introduction to the Red Book 1999 Practice Note: FIDIC contracts—introduction to the Yellow Book 1999 Practice Note: FIDIC contracts (pre-2017 editions)— Yellow and Silver Books compared For what type of project is the contract suitable? The FIDIC Silver Book 1999 is advised for delivering a process or power plant on a turnkey basis, and may likewise be adopted where one party assumes full responsibility for the design and delivery of a privately financed...
FIDIC Red Book 2017—reprinted 2022 with amendments In December 2017, FIDIC released second editions of the Red, Yellow and Silver Books. Three years on, in December 2022, FIDIC issued reprints. The FIDIC Red Book 2022 reprint is formally titled ‘ The Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer Second Edition 2017, reprinted 2022 with amendments’. It carries the same ISBN. The changes comprise: the errata published in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published) the additional errata issued in June 2019, and further errata and fresh amendments made in November 2022 (stated to take effect from 1 January 2023), which FIDIC describe as ‘improvements & clarifications in response to industry feedback + to support the increased use of 2017 contracts’ There is no requirement to adopt the 2022 FIDIC...
This Practice Note reviews the Conditions of Contract for Plant and Design Build 1999 (widely known as the FIDIC Yellow Book 1999) and the Conditions of Contract for EPC/ Turnkey Projects 1999 (the FIDIC Silver Book 1999). Both are intended for scenarios where the Contractor, rather than the Employer, undertakes the design of the Works, but there are important differences, which are outlined in this Practice Note and considered at a high level. For deeper analysis of each form, see Practice Notes: FIDIC contracts—introduction to the Yellow Book 1999 and FIDIC contracts—introduction to the Silver Book 1999 for background and context. New editions of the Yellow and Silver Books were issued in December 2017. For more information, refer to Practice Note: FIDIC contracts 2017—what’s changed? [ Archived]. These materials provide helpful orientation too. What types of projects are the contracts suitable...
Facilitating the performance of a duty by public officials Facilitation payments, sometimes termed ‘grease’ or ‘facilitating’ payments, are typically modest sums made to public officials or third parties in order to secure the carrying out of their functions, either more swiftly or even to ensure it occurs at all. This may extend to the giving of ‘gifts’, such as cigarettes or alcohol. In certain jurisdictions, these payments are routine and lawful (eg permitted in some situations under the US Foreign Corrupt Practices Act 1977 ( FCPA 1977); see Practice Note: The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table). Are facilitation payments illegal under BA 2010? Such payments amount to the offering, promising or providing of a financial advantage and therefore constitute bribery, as the Bribery Act 2010 ( BA 2010) provides no...
Purpose An environmental impact assessment ( EIA) evaluates a project’s likely significant environmental effects. It ensures the environmental implications of a development proposal are given appropriate weight, alongside economic and social considerations, when planning applications are determined, and creates opportunities to lessen those impacts. It also allows the public and other consultees to participate in the decision-making procedures. Legislation and guidance In relation to town and country planning, EIA is governed by: The Town and Country Planning ( Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) in England; and The Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017, SI 2017/567 (the Welsh EIA Regulations) in Wales Together, the ‘ EIA Regulations’. The EIA Regulations transpose into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of certain public and private...
Clean-up liabilities are legal and financial duties to rectify pollution or contamination arising under: statute, eg a pollution incident causing environmental damage civil disputes, eg damages for common law nuisance or negligence contract, eg an environmental indemnity Events that trigger clean-up liabilities can also lead to prosecution, liability for directors and officers, and reputational harm. Practitioners should address clean-up liabilities when: conducting environmental due diligence in corporate, property or financial transactions advising on company reporting and environmental accounting managing the transfer of environmental liabilities, such as contaminated land, between entities responding to pollution incidents Broad scope of clean-up liabilities Clean-up liabilities are not confined to remediation obligations for contaminated land under the Environmental Protection Act 1990, ss 78A–78YC ( Part IIA) ( EPA 1990) (the contaminated land regime). Their reach is broader, spanning environmental indemnities through to...
Overlapping insurance polices There are numerous and varied ways by which an assured can find themselves unexpectedly with overlapping insurance, whether by intention or by accident. Illustrations include circumstances where the assured relies on cover placed by another party, or, in corporate settings, where risk managers are unaware of legacy policies procured by their predecessors in post. Likewise, an assured might unknowingly arrange insurance for particular assets, not appreciating that those assets already fall within a wider, existing policy providing broader protection. Another possibility is that the assured simply wishes to lift the overall limit of protection or, indeed, to hedge against the chance of their insurers becoming insolvent. At common law there is no obligation to avoid double insurance. Assureds are free to place insurance on the same insurable interest as many times, and under as many contracts, as they choose ( Godin v...
Throughout any construction scheme, the client needs to remain at the heart of proceedings and decision-making. They lead the programme from inception to completion, usually handling budget allocation, timetable setting, and wielding significant sway over contractors and other parties involved, as well as coordinating inputs. These elements are essential to managing risk effectively both during delivery and thereafter, safeguarding outcomes, including post-completion phases. This pivotal part in risk control is formally acknowledged by the Construction ( Design and Management) Regulations 2015 (the ‘ Regulations’) and echoed in the Construction Industry Advisory Committee’s CONIAC Industry Guidance for Clients (the ‘ CONIAC Guidance’). The Regulations have force in Great Britain. In Northern Ireland, the Construction ( Design and Management) Regulations ( Northern Ireland) 2016 ( S. R. 2016 No. 146), made under the Health and Safety at Work ( Northern Ireland) Order 1978,...
What does FIDIC mean? What do they do? FIDIC stands for ‘ Fédération Internationale des Ingénieurs– Conseils’, most accurately translated from French as the International Federation of Consulting Engineers. FIDIC speaks for the consulting engineering sector both globally and within domestic markets. What are the FIDIC forms of contract? FIDIC’s contracts committee develops standard forms of contract for civil engineering projects that are used internationally. These forms set out the contractual relationship between the parties and distribute risks between the contractor and the employer. FIDIC states that its contracts allocate risks fairly to the party best able to manage and bear those risks. In December 2017, FIDIC released updated second editions of the Red, Yellow and Silver Books. These are considered below, alongside the other FIDIC contract forms. For guidance on the key updates in the 2017 versions, see Practice Note: FIDIC contracts...
This Practice Note closely examines how defects are addressed under the FIDIC Red, Yellow and Silver Books (2017 editions). For guidance on earlier forms and how they approached such issues, see Practice Note: FIDIC Contracts (pre–2017 editions)—defects. For a wider overview and context on defects, refer to Practice Note: Defects claims in construction. What is a defect under FIDIC contracts? As with many standard forms, FIDIC gives no express definition of ‘defect’. In general terms, a ‘defect’ arises where any part of the works or materials fails to comply with the contractual requirements (see Practice Note: Defects claims in construction — What is a defect? for further analysis). Clause 4.1 states that the Contractor must design, construct and complete the Works, and make good any defects, in accordance with the Contract (‘execute the Works’ is defined at clause 1.2(j)). Under clause 11, the...
Repudiation This Practice Note addresses repudiation and clarifies what constitutes a repudiatory breach of contract. It outlines how such a breach strikes at the heart of the agreement and the courses open to the innocent party following the other party’s repudiation, namely choosing to accept the repudiatory breach and treat the contract as terminated, or alternatively to affirm the agreement. The Practice Note also sets out the concept of anticipatory breach of contract and considers when that, too, may amount to a repudiatory breach. The right to terminate for a repudiatory breach arises at common law and is a technically demanding area, extensively illustrated by case law. A party contemplating termination for another party’s repudiatory breach is advised to proceed with care. Termination on this basis is not a risk‑free approach, and every matter must be assessed on its particular facts. Where a party...
What is professional indemnity insurance? Professional indemnity insurance is a type of liability cover. It offers an individual professional or a firm an indemnity and protection against claims or losses resulting from negligent acts, mistakes or omissions linked to the insured professional practice. This cover usually also includes the acts, errors and omissions of former employees. In certain sectors—such as solicitors, accountants, architects, chartered surveyors, financial advisers and some healthcare professionals—holding professional indemnity insurance is a legal requirement. Nonetheless, any person or business that supplies advice, designs or services in a professional capacity should carry this insurance. The cover is generally intended to respond to client claims for damages arising in the ordinary course of the insured's professional services. These are claims brought by a client in connection with the routine delivery of the insured party’s professional services. For detailed guidance on...
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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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