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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 the treatment of defects under the JCT Contracts 2024, with emphasis on the Standard Building Contract with Quantities and the Design and Build Contract. It considers what amounts to a defect under the JCT forms, who bears responsibility during construction and through the Rectification Period, how defects are rectified, consequences of failing to do so, and latent defects. It also addresses duties during the works, the Rectification Period, and handling latent issues appropriately. For broader commentary on defects, see Practice Note: Defects claims in construction. What is a defect under the JCT contracts? As is common with standard form agreements, most JCT forms do not provide a precise definition of ‘defect’. In general, a ‘defect’ is taken to mean work or materials that fail to comply with the contractual requirements. The Scottish Court of Session, in Autolink...
Background— EU law in the UK Pre-exit day The European Communities Act 1972 ( ECA 1972) was enacted to implement the United Kingdom’s obligations, as a Member State, under the relevant EU treaties and to ensure adherence to EU law. Under ECA 1972, s 2(1), certain EU rights and obligations intended to have direct effect applied in the UK without the need for additional domestic legislation. This encompassed rights under the EU Treaties and EU regulations setting out detailed legal rules. Other forms of EU law took effect via UK regulations made under ECA 1972, s 2(2), or, in some circumstances, through separate Acts of Parliament. This pathway covered EU directives, which stipulate overarching aims or frameworks while leaving each Member State to make its own provision to secure the required legal outcome. In its operation within Member States, EU law is...
This Practice Note explores key matters for construction solicitors on schemes featuring demolition, from planning and Building Act 1984 ( BA 1984) obligations, party wall considerations, health and safety (including how the CDM Regulations apply) to handling demolition waste. It further reviews the contractual forms used to procure a demolition contractor, the process for their appointment, and the surveys or studies commonly carried out ahead of commencement. What does demolition involve? Demolition does not always equate to total clearance of a building or structure—it may span from ‘soft strip’ works during refurbishment (for example, taking out internal partitions or stripping M& E systems) to complete demolition of the entire asset, including removing and grubbing out foundations. It might serve as the opening phase of a wider build to free the site for new development, form an element of modifications to an existing property, or be the...
This Practice Note reviews the Conditions of Contract for Construction 1999 (widely known as the FIDIC Red Book 1999) alongside the Conditions of Contract for Construction MDB Harmonised Edition 2010 (the FIDIC Pink Book 2010), highlighting principal distinctions between these two forms. It places the forms in context for practitioners to support consistent interpretation and informed selection. A revised Red Book edition appeared in December 2017. For further detail, see Practice Note: FIDIC contracts 2017—what’s changed? [ Archived]. The FIDIC Red Book 1999 Among FIDIC agreements, the Red Book is one of the most frequently applied. It suits building or engineering projects where the Contractor delivers works to the Employer’s design. For expanded commentary on the Red Book 1999, consult Practice Note: FIDIC—introduction to the Red Book 1999. The FIDIC Pink Book 2010 The Pink Book is applied on construction schemes financed by...
This Practice Note sets out to compare and contrast the principal features of the FIDIC 1999 suite and the NEC4 suite. Its focus is the NEC4 Engineering and Construction Contract ( ECC) and the FIDIC Red Book 1999 ( Red Book), used where the Contractor delivers works to the Employer’s design. For commentary on the 2017 Red Book, see Practice Note: FIDIC 2017 and NEC4 contracts compared. Overall philosophy FIDIC The FIDIC suite is widely regarded as the foremost international standard form for construction procurement, most frequently characterised as ‘written by engineers, for engineers’. It is also widely associated with a carefully balanced approach to risk, allocating exposures to the party best positioned to carry them (the EPC/ Turnkey option, commonly called the Silver Book, is something of an exception). True to its engineering heritage, the Engineer has a central role under, in practice, a number of FIDIC...
This Practice Note considers how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented property, and sets out the enforcement and compliance powers of the local weights and measures authority. It also outlines the level of financial and publication penalties, the issuing of compliance notices, and a landlord’s rights to seek review and appeal. It forms part of our series of Practice Notes on MEES... MEES Regs 2015, SI 2015/962, reg 27 states that a landlord must not let a substandard non-domestic private rented ( NDPR) property—one with an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’—unless: ‘relevant energy efficiency improvements’ are carried out ( MEES Regs 2015, SI 2015/962, reg 29), or one of the...
Prepared in collaboration with 4 Pump Court. ARCHIVED: This Practice Note is archived and not maintained. It sets out context and an overview of the revisions to the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) triggered by the commencement of the Local Democracy, Economic Development and Construction Act 2009 ( LDEDCA 2009). It also addresses related amendments to the Scheme for Construction Contracts. These legislative changes take effect from 1 October 2011 (from 1 November 2011 in Scotland) and are not retrospective. For a tabular comparison of measures introduced, see Practice Note: Comparison of both adjudication and payment provisions under HGCRA 1996 and as amended by the LDEDCA 2009. The relevant links in this Practice Note direct to the amended versions of the HGCRA 1996 and the Scheme for Construction Contracts. For the unamended texts, see Part II of the HGCRA as...
This Practice Note considers the right to advance additional submissions in an adjudication after the Response (often described as Reply > Rejoinder > Surrejoinder, and so on) the nature, format and practical drafting points for those submissions For guidance on other adjudication documents, see Practice Notes: The Notice of Adjudication Adjudication—the Referral Notice Adjudication—the Response Entitlement to make further submissions after the Response There is no inherent entitlement to serve material beyond the Response, and an adjudicator does not offend natural justice by declining to allow it ( Barry M Cosmetics v Merit Holdings; AMEC Group v Thames Water). See also News Analysis: Natural justice does not require an adjudicator to permit a Rejoinder ( Barry M Cosmetics v Merit). Nor is it necessarily contrary to natural justice for an adjudicator to impose a timetable that leaves no room for a...
Note: This Practice Note provides focused guidance for proceedings in the Technology and Construction Court ( TCC) under CPR 60, CPR PD 60 and the TCC Guide. Because these sit alongside the wider CPR framework, it should be read together with general materials on preparing for and attending trial, including Trial—overview, which itself links to detailed guidance on specific aspects of trial preparation and attendance. Shorter and flexible trials schemes— TCC claims issued on or after 1 October 2015 may fall within, or be appropriate for, one or both schemes under CPR PD 57AB: the shorter trials scheme and the flexible trials scheme. For further details, see the Practice Notes Business and Property Courts—shorter trials scheme and Business and Property Courts—flexible trials scheme. Electronic working—guidance on electronic working in the TCC is available in Practice Note:...
Parties to a ‘construction contract’ are entitled to refer any crystallised dispute to adjudication at any time. For further detail, see the following Practice Notes: Practice Notes The right to adjudicate Adjudication—is there a ‘dispute’? What is a construction contract under the HGCRA 1996? Where the right to adjudicate is available, the next step is to assess whether adjudication is a workable method of resolving the matter. There is a statutory 28‑day timetable for adjudication, which may render it unsuitable for very large or highly complex claims. This constraint can be alleviated if the parties agree to extend the period within which the decision must be issued, or if the referring party splits the case into more than one adjudication. Even so, if the claim cannot be fairly determined within the restricted timeframe, adjudication may not be the...
This Practice Note looks at preventing enforcement of an adjudication decision by obtaining a stay of execution. Where a stay is made, the court will still enter summary judgment to enforce the adjudicator’s decision, yet it will also suspend the enforcement of that judgment—effectively placing the obligation to pay on temporary hold. This Practice Note examines why a stay might be ordered, the principal considerations the court will take into account when deciding whether to grant one, the scope for partial stays, and whether an arguable case that the adjudication decision was incorrect is required. For guidance on other routes to resist enforcement (for example, using set off or seeking a declaration), see the Adjudication enforcement and challenges subtopic for further direction. Which circumstances could reasonably warrant ordering a stay of execution in practice? A stay of execution of summary judgment proceedings enforcing an...
Prepared in collaboration with 4 Pump Court, this Practice Note explores the scope of an adjudicator’s powers and responsibilities when conducting an adjudication, with a particular focus on those arising under the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) and the Scheme for Construction Contracts. Any references to paragraph numbers in the Scheme for Construction Contracts are to paragraphs within Part I of the Scheme. Introduction An adjudicator’s remit is usually set by the rules under which they are appointed, which are commonly contained in, or incorporated into, the relevant contract. Although adjudication frameworks can differ, these variations are generally matters of emphasis rather than fundamental departure. It is nevertheless vital to review the specific rules to: (a) determine the scope of the adjudicator’s powers and obligations; and (b) confirm compliance with the HGCRA 1996 (where this applies to the...
ARCHIVED This Practice Note traces the background to the second edition of the Pre- Action Protocol for Construction and Engineering Disputes (the Protocol), which took effect on 9 November 2016, replacing the first edition that had been in place since October 2000 (with revisions from April 2007). It sets out, in time order, the principal recommendations by Lord Justice Jackson for amending the Protocol in his 2009 final costs report, the observations and actions of the Civil Justice Council working party and the Civil Procedure Rule Costs Sub- Committee, and, lastly, the Acuigen Report arising from an industry survey on the first edition of the Protocol (and the wider process) STOP PRESS An amended Technology and Construction Court Guide was published on 13 October 2022. For further detail, see News Analysis: Technology and Construction Court Guide—updated October 2022. Content and links to the...
This Practice Note examines how dispute adjudication boards ( DABs) operate and are applied in the 1999 FIDIC Red, Yellow and Silver Books, together, in particular, with the 2008 Gold Book and the 2010 Pink Book publication. Across these forms, as standard procedure, disagreements are referred to a DAB (termed a ' Disputes Board' in the Pink Book), whose determinations are binding on the parties involved. Where a party contests a DAB decision, the matter may move to amicable settlement between the parties and, if unresolved, to arbitration, so long as the contractual deadlines are observed. For detail on the layered dispute resolution route in these agreements, see Practice Note: FIDIC contracts (pre-2017 editions)—dispute resolution. In December 2017, FIDIC issued updated editions of the Red, Yellow and Silver Books. In those texts, the DAB is renamed the Dispute Avoidance/...
Contractors must strictly observe the prescribed steps when pursuing claims for additional expense and/or extensions of time under FIDIC forms. Failure to comply carries serious consequences, likely preventing a successful recovery and exposing the contractor to liquidated damages if completion slips. This Practice Note examines the notification process for contractors’ claims in the 1999 Red, Yellow and Silver Books, together with the Pink ( MDB) Book 2010 and the Gold Book 2008. For guidance on employers’ claims under those editions, see Practice Note: FIDIC contracts (pre-2017 editions)— Employer claims. The approach in the 2017 Red, Yellow and Silver Books differs—for instance, Contractor and Employer claims follow a single regime. For further detail, see Practice Note: FIDIC contracts 2017— Contractor and Employer claims. Contractors' claims The mechanism for contractors’ claims appears in clause 20.1. Rights to claim arising from distinct events are dispersed across the...
This Practice Note reviews the role of the Engineer under the FIDIC Red and Yellow Books 1999, and the Pink Book 2010. The FIDIC Silver Book 1999 and the FIDIC Gold Book 2008 provide for an ‘ Employer’s Representative’ rather than an Engineer and therefore fall outside this Practice Note. Although, in the FIDIC Gold Book 2008, the Employer’s Representative broadly aligns with the Engineer’s function, the position under the FIDIC Silver Book 1999 is significantly different. For guidance on the Engineer’s role under the FIDIC Red and Yellow Books 2017, see Practice Note: FIDIC contracts 2017—the role of the Engineer. Who is the Engineer? The Engineer is “the person appointed by the Employer to act as Engineer for the purposes of the Contract and named in the Appendix to Tender, or another person appointed by the Employer from time to time and notified to the...
ARCHIVED: This Practice Note has been archived and is not maintained The Construction case tracker compiles significant judgments from 2015 (from 1 June 2015 onwards) regarded as pertinent to construction practitioners, with entries arranged in reverse chronological sequence, considered relevant to construction lawyers, with cases listed in reverse chronological order. See also: Construction law case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2019 [ Archived] Construction case tracker—2018 [ Archived] Construction case tracker—2017 [ Archived] Construction case tracker—2016 [ Archived] Public procurement decisions appear in the: UK public procurement case tracker and the EU public procurement case tracker. December 2015 Case | Judgment date | Summary Fulton Shipping Inc of Panama v Globalia Business Travel SAU (formerly Travelplan SAU) of Spain [2015] EWCA Civ 1299 — 21 December 2015 Repudiation/damages: The Court of Appeal allowed an appeal concerning the assessment of damages following the ship charterers’ repudiatory breach. The court determined that where a...
Structure This Practice Note proceeds on the basis that the funder supplies finance only to the JV (ie a cash loan to be repaid with interest). If, however, the funder wishes to join the JV as a participant, see Practice Note: Property development joint ventures—acting for an investor, which considers a funder’s position when investing. Likewise, where the funder is to forward fund the scheme (often called a ‘forward funding’ or ‘forward sale’), it would typically purchase the property itself and grant the developer a licence to undertake the works. In substance, that is an investment by the funder, with returns realised through lettings or other disposals of the finished scheme. Strictly, it is not a joint venture and may instead be documented contractually via a forward funding agreement or forward sale contract. For more detail, see Precedents: Forward funding agreement and Forward funding...
The need for legislation in the construction industry Across the 1980s and into the early 1990s, the construction sector was beset by inefficiency, disputes and widespread insolvency, notably among contractors and sub‑contractors. In 1994, Sir Michael Latham was asked to produce a report on the difficulties facing the industry. In that study, titled ‘ Constructing the Team’, Latham pinpointed two themes at the heart of the sector’s problems: disputes payment Latham concluded the industry required a dedicated method of resolving disagreements that was easy to access, rapid and low‑cost, to curb the prevailing disputes culture. He also considered that safeguarding cash flow throughout every tier of the industry would cut contractor and sub‑contractor insolvency and support stable employment. The HGCRA 1996 The legislative answer to Latham’s findings appeared in Part II of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996), passed in 1996 and...
The UK rail network is the planet’s oldest, with over 1.7 billion people using trains for travel and more than 17 billion tonne kilometres of freight conveyed each year. Since British Rail was privatised in the 1990s, rail infrastructure has evolved into a complex model marrying public ownership with private delivery. Network Rail owns and runs the mainline, overseen by the Office of Rail and Road ( ORR) and steered by strategic policy from the Department for Transport ( Df T). In May 2021, the Government set out the Williams- Shapps Plan for Rail as the blueprint for far-reaching reform of Britain’s railway. A new organisation, the Great British Railways Transition Team, was formed to put interim arrangements in place and to pave the way for Great British Railways ( GBR), envisaged as the railway’s ‘single...
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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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