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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 considers good faith in commercial agreements It explores the meaning of good faith and the degree to which it features in commercial arrangements, whether as an express commitment or as a term implied by law, including in the sphere of relational contracts. It also addresses agreements to negotiate in good faith, how other jurisdictions approach a duty of good faith, the operation of Braganza-type duties within commercial contracts, and offers drafting pointers for clauses dealing with good faith provisions. The orthodox position taken by the English courts has been to refrain from implying a general duty of good faith into commercial agreements, stating that, if parties intend to create such an obligation, it must be articulated expressly ( Mid Essex Hospital Services). Nonetheless, the courts may in some situations recognise an implied duty of good faith, either by applying the...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020) CIGA 2020 emerged as part of the government’s measures addressing the economic shock of the coronavirus ( COVID-19) crisis. Alongside other changes, it added fresh provisions to the Insolvency Act 1986 ( IA 1986), aimed at keeping supplies flowing to companies facing financial distress and finding it hard to pay their supplier, and at curbing the exercise of certain contractual rights in agreements for the sale and supply of goods when insolvency occurs. CIGA 2020 carries notable consequences for the construction sector. The rules most likely to affect participants in construction contracts are the limits on a supplier’s ability to terminate, or to do ‘any other thing’, where the customer has become insolvent, under IA 1986, s 233B (brought in by CIGA 2020, s 14). Within a construction setting, the customer for these CIGA 2020 rules will be...
Many of the standard conditions precedent ( CPs) associated with a conventional syndicated loan facility will likewise be highly relevant to a real estate finance transaction. For further information on those CPs, please refer to Practice Note: Conditions precedent. In a real estate development finance arrangement, the borrower obtains funding not only to acquire the property but also to carry out the development itself. As a result, a large number of CPs used in real estate finance investment facility agreements will also govern development facilities, with additional CPs required to address the development aspects of the transaction. This Practice Note considers the real estate finance specific CPs that typically arise and apply in a real estate development finance transaction. For details on CPs in real estate finance investment facilities, see Practice Note: Real estate...
This Practice Note examines how defects are addressed under the FIDIC Red, Yellow and Silver Books (pre‑2017 editions). For defects in the 2017 suite, see Practice Note: FIDIC Contracts 2017—defects. For wider commentary on defects, see Practice Note: Defects claims in construction. What is a defect under FIDIC contracts? As with many standard form contracts, FIDIC does not define ‘defect’. In practice, a ‘defect’ is generally understood to mean that part of the Works or materials fails to comply with the Contract requirements (see Practice Note: Defects claims in construction — What is a defect?). Under clause 4.1, the Contractor must design, execute and complete the Works in accordance with the Contract, and must remedy any defects in the Works. Clause 11 requires the Contractor to ensure the Works are in the condition required by the Contract by expiry of the relevant Defects...
The Building Act 1984 ( BA 1984) BA 1984 authorises the Secretary of State or Welsh Ministers to create building regulations for multiple aims, among them safeguarding the health and safety of people in or around buildings. It creates criminal liability for contraventions of those regulations. It further allows practical guidance on the requirements of the building regulations to be set out in Approved Documents. The Building Regulations 2010, SI 2010/2214 ( Building Regulations), are issued under BA 1984 as its enabling statute......
The Building Safety Act 2022 ( BSA 2022) The Building Safety Act 2022 ( BSA 2022) introduced sweeping reforms to the legal framework for building safety. For an overview of the changes made by BSA 2022 and its principal features, see Practice Note: Building Safety Act 2022—key provisions and issues. Parts 3 and 4 of BSA 2022 set the foundations for a fresh regulatory system for ‘higher-risk buildings’ ( HRBs). By amending the Building Act 1984 ( BA 1984), Part 3 enabled a more stringent building control regime to govern the design and construction of works to HRBs. The detailed requirements of this regime were contained in a suite of secondary legislation laid in August 2023, which came into force on 1 October 2023. Part 4 places extensive obligations on those accountable for occupied HRBs, particularly in relation to risk management and...
There are clear distinctions between the common law approach to passing title in moveable property in Scotland—particularly in relation to off-site goods and materials—and the position under English law. These divergences regularly create uncertainty, notably in construction, where parties often attempt to secure ownership of goods, plant and materials before they are built into the works, or even before they arrive on site. This Practice Note outlines some of the limitations affecting the transfer of moveable property on Scottish construction projects, and indicates how parties might reduce those exposures. Although written chiefly from the standpoint of the employer–contractor relationship, the guidance is equally relevant, for instance, to contractors and sub-contractors (for further materials on sub-contracting generally, see: Sub-contracts in construction—overview). Common law—transfer of ownership in moveable property Contrasting with the framework in England, parties to Scots law construction contracts cannot pass title merely by paying for the...
The key Construction resources on Lexis+® are referenced throughout the Construction materials, offering practical commentary, legislation, rules and guidance for construction lawyers in private practice or in-house. Access to the listed titles requires the appropriate Lexis+® subscription(s) Commentaries Emden’s Construction Law by Crown Office Chambers An in‑depth narrative covering all principal areas of construction law: formation and parties; scope of obligations; termination, compensation and related issues; duties owed to and liabilities affecting third parties; and dispute resolution, alongside analysis of the major construction contracts. For construction lawyers advising on contracts and disputes Manual of Construction Agreements ( Cockram) Part A delivers comprehensive commentary on the law and practice of construction contracts, with emphasis on leading standard form agreements, authored by Richard Cockram, a leading...
This Practice Note This Practice Note highlights practical considerations for advisers preparing fire safety defect claims. It builds on, and should be read alongside, Practice Note: Fire safety defect claims for construction lawyers, which addresses the legal questions that arise in such matters. The guidance is aimed chiefly at representatives of claimants in fire safety defect disputes, particularly where numerous leaseholders or owners bring claims against those responsible for the design and construction of the works—be that the original developer, a consultant, or another supplier (together referred to as the construction parties or the construction team). It serves as a checklist of lines of enquiry that parties may wish to pursue, to refine their statements of case and assemble the evidential foundation for their allegations. Doing so may reduce early procedural ‘skirmishes’ in litigation that can follow...
This Practice Note outlines the principal differences between Scots law and the law of England from the viewpoint of an English lawyer practising in Construction law. Any questions of terminology are not considered in this Practice Note. Assignment/ Assignation In England, assignment takes two recognised forms: legal assignment and equitable assignment. Under Scots law, the notion of equitable assignment does not exist. The transfer of incorporeal property, including rights arising under a contract, is termed assignation and operates in two stages. First, the parties conclude an agreement to transfer the property, which creates a personal right to demand performance of that transfer. A personal right is enforceable against another person to secure the carrying out of an obligation, here the obligation to transfer the property. Secondly, there is conveyance—the actual passing of legal title—producing a real right in the property once notice has been given to the...
Introduction This Practice Note sets out the principal documents usually required at financial completion of an onshore wind farm or large scale ground mounted photovoltaic (pv) solar project in Great Britain ( GB), together with concise explanations of each. It is prepared on the basis of a primary transaction in which a special purpose vehicle ( SPV)—commonly termed ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and finances the project, and at close the following are executed or provided: project documents (energy and operations, property, planning, and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries Nevertheless, this documents list can also serve as a reference in a secondary market onshore wind farm or solar transaction, since many documents needing review and/or amendment will be identical. For a...
Introduction This Practice Note outlines the principal documents commonly required at financial close for a merchant waste to energy project, together with a brief summary of each. It is prepared on the basis of a primary deal where a special purpose vehicle ( SPV)—typically known as ‘ Project Co’ and referred to as Project Co in this Practice Note—owns and funds the project, and where the following are executed or provided at financial close: project documents (energy and operations, property, planning, environmental and construction) project finance documents shareholder finance documents associated due diligence reports, legal opinion and other ancillaries That said, this list can equally serve as a reference point for a secondary market merchant waste to energy transaction, since many documents requiring review and/or amendment will be the same. For a companion template of this completion documents list, without document...
This Practice Note examines how pivotal expert testimony and credibility are at trial, and therefore the weight the court may ascribe to expert material. It reviews why a court might prefer one expert’s opinion to another’s, when the court will choose between expert evidence and its own evaluation, what follows if an expert is neither called nor cross-examined, including the weight of unchallenged evidence, and offers practical guidance for giving expert evidence. Expert witnesses, and those instructing them, should have regard to: relevant CPR rules and Practice Directions the Guidance for the instruction of experts in civil claims (the Guidance). On 1 December 2014, the Guidance replaced the ‘ Protocol for the Instruction of Experts to give Evidence in Civil Claims’ formerly annexed to CPR PD 35 Practice Direction Pre- Action Conduct and Protocols, para 7 court-specific guidance found in court...
This Practice Note reviews the dispute resolution route set out in the 2017 FIDIC Red, Yellow and Silver Books. As with the 1999 editions and the Gold and Pink Books, they adopt a ‘multi-tiered’ mechanism: first a referral to the Dispute Avoidance/ Adjudication Board ( DAAB), then, if needed, amicable settlement, and finally arbitration. The dispute provisions sit in clause 21. For guidance on the earlier suite, see Practice Note: FIDIC contracts (pre‑2017 editions)—dispute resolution. When does a ‘ Dispute’ arise? Where a ‘ Dispute’ arises, either party may trigger the contractual process by sending it to the DAAB. ‘ Dispute’ is defined at clause 1 and is broad, but parties must ensure the correct steps have been followed before approaching the DAAB. By way of example, where the matter concerns entitlement or relief other than payment, an extension of time, or an...
Contractor’s obligations—commencement, progress and completion in the 2017 editions of the FIDIC contracts This Practice Note examines the Contractor’s duties on starting, advancing and finishing the Works under the 2017 FIDIC forms ( Red, Yellow and Silver Books). For a look at the corresponding time-related obligations in the 1999 editions of the Red, Yellow and Silver Books and in the Pink and Gold Books, see Practice Note: FIDIC contracts (pre-2017 editions)—time, and for a comparison of FIDIC time provisions with the JCT and NEC contracts, see Practice Note: Comparison between JCT, NEC and FIDIC time and money events. Completing the Works within the agreed timescale is a primary concern on any construction project. In relation to time, the Contractor has two separate obligations: to complete the Works (and any Section, if applicable) within the Time for Completion under clause 8.2; and to proceed with the Works with due...
It is essential that parties adhere to the proper process when advancing claims under FIDIC standard contracts. Failure to do so can have serious repercussions, potentially resulting in the claim being time-barred or the claimant’s entitlement being curtailed or reduced. This Practice Note reviews the steps for claims pursued by either Contractor or Employer under the 2017 FIDIC Red, Yellow and Silver Books, with particular attention to the granular procedure prescribed in clause 20.2. See also Flowcharts: Claims under the FIDIC Red and Yellow Books 2017 (clause 20.2), and Claims under the FIDIC Silver Book 2017 (clause 20.2). In the 2017 forms, Employer claims are handled identically to Contractor claims—whereas, in the 1999 editions, Employer claims were governed by their own, comparatively less stringent, framework under a distinct procedural regime then. For commentary on claims under the 1999 Red, Yellow and Silver Books, as well as the Pink and Gold...
ARCHIVED: This Practice Note is archived and no longer updated. It outlines the principal amendments introduced in the 2017 second editions of the FIDIC Red, Yellow and Silver Books, contrasted with the 1999 ‘first editions’ of those forms. FIDIC unveiled the second editions at its annual users’ conference in December 2017. It plans to issue its own guidance on the contracts in due course, as it did after releasing the 1999 editions. For coverage of the 2017 event, see News Analysis: FIDIC Red, Yellow and Silver Books 2017: conference report. Errata to the second editions were later released in December 2018 (see News Analysis: Errata to FIDIC 2017 contracts published). Unless stated otherwise, clause references are to the 2017 Red, Yellow and Silver Books. Aims of the update The primary purpose of the revision was to enhance clarity and certainty, ensuring each party...
Price is a pivotal consideration in any construction contract. The FIDIC forms of contract adopt two distinct ways of setting the price. The Red and Pink Books operate as remeasurement contracts, whereas the Yellow, Silver and Gold Books proceed on a lump sum fixed price basis. This Practice Note explores how the Contract Price in the 2017 editions of the FIDIC contracts ( Red, Yellow and Silver Books) is derived, and the mechanisms by which it can be adjusted. For an overview of price in the 1999 editions of the Red, Yellow and Silver Books, and in the Pink and Gold Books, see Practice Note: FIDIC contracts (pre-2017 editions)—price. Remeasurement In remeasurement contracts, an initial appraisal of the value of the works is obtained by measuring the quantity of each work item (set out in a document called a bill of...
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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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