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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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ARCHIVED This Practice Note has been archived and is no longer updated. The Construction horizon scanner highlights forthcoming developments relevant to construction lawyers. When a development takes place, it is transferred to the archive for that year. This page holds items from 2016 (from March onwards). For a round-up of 2016’s main developments, see Construction end of year recap—2016. For a full catalogue of cases handed down in 2016, see Construction case tracker—2016 [ Archived]. Legislation Planning: Provisions of the Housing and Planning Act 2016 relating to the Secretary of State’s intervention in local and neighbourhood plan-making (ss 143–147) commenced on 1 October 2016. These measures recast the Secretary of State’s intervention powers in local plan-making to ensure every local planning authority has an adopted plan, which is crucial to increasing housing supply as local plans drive housing delivery. See News Analysis: Housing and...
ARCHIVED: This Practice Note is archived and no longer maintained. The Construction case tracker lists key 2017 judgments relevant to construction lawyers, arranged in reverse chronological order. See also: Construction case tracker Construction case tracker—2020 [ Archived] Construction case tracker—2019 [ Archived] Construction case tracker—2018 [ Archived] Construction case tracker—2016 [ Archived] Construction case tracker—2015 [ Archived] Public procurement cases are listed in the UK public procurement case tracker and the EU public procurement case tracker. December 2017 Ziggurat ( Claremont Place) LLP v HCC International Insurance Company plc [2017] EWHC 3286 ( TCC) — 20 December 2017 Bonds/insolvency: In Part 8 proceedings, the TCC issued declarations on the defendant surety’s liability to the claimant employer under a performance bond based on the ABI Model Form. The court concluded that, owing to a bespoke amendment, the...
FORTHCOMING CHANGES : At Budget 2025, the government confirmed it will legislate via Finance Bill 2026 (also known as the Finance ( No 2) Bill 2024–26) to introduce fresh powers for HMRC to counter fraud by businesses operating within the CIS. Mirroring VAT provisions that limit input tax recovery where a supplier knew, or ought to have known, that a supply was connected to the fraudulent evasion of VAT, the new CIS rules will: allow the immediate removal of a business’s gross payment status make the business responsible for any lost tax permit a penalty of 30% of the lost tax to be charged to the business, its directors, and other connected persons where it can be shown that the business knew, or should have known, that it entered into a transaction linked to the fraudulent evasion of...
FORTHCOMING CHANGES : At Budget 2025, the government confirmed it will legislate via Finance Bill 2026 (also referred to as Finance ( No 2) Bill 2024–26) to introduce fresh powers for HMRC to combat fraud by businesses operating within the CIS. Reflecting VAT rules that curtail input tax recovery where the supplier knew, or should have known, that a supply was linked to the fraudulent evasion of VAT, the new CIS provisions will: permit the immediate removal of a business’s gross payment status make the business accountable for tax that has been lost authorise a penalty of 30% of the lost tax to be levied on the business, its directors, and other connected persons, where it can be demonstrated that the business knew or ought to have known it had entered into a transaction connected with the fraudulent evasion of tax In...
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z ICC May denote the Infrastructure Conditions of Contract (see below) or the International Chamber of Commerce (see below). ICE Refer to Institution of Civil Engineers below. ICT contract In PFI/ PPP schemes with a substantial Information Communications Technology ( ICT) element (for example, a school), a distinct ICT contract is put in place between Project Co and an ICT contractor to provide ICT services and/or infrastructure. See Practice Note: Key documents in a PFI/ PF2 project. IFC Refer to Issued for construction below. Implied term A provision read into a contract in addition to those expressly agreed by the parties. Implied terms fall broadly into three types: implied by statute, by common law or by...
This Practice Note explores several key issues affecting construction contracts as a consequence of the coronavirus ( COVID-19) pandemic, and how these matters can be managed in both existing agreements already executed and agreements under negotiation. The pandemic, and the ensuing lockdown, restrictions and requirements for social distancing, also raise practical considerations that must be addressed, including those relating to the execution of documents. Existing contracts Contracts entered into before the pandemic began may suffer disadvantages when compared with contracts concluded after its onset. In most cases, these earlier agreements are unlikely to include specific clauses dealing with what should occur when a pandemic disrupts the carrying out of the works (and the impact of coronavirus would have been very difficult to anticipate). Parties who entered into contracts before coronavirus therefore have to rely on what, if anything, the current terms provide, or how they can be...
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Named sub-contractor A sub-contractor designated by the employer within the specification or the employer’s requirements. The contractor assumes responsibility for the named sub-contractor’s procurement and design risks (as opposed to the position regarding nominated sub-contractors). See Practice Note: Sub-contracting in construction projects ( Types of sub-contractors). NEC3/ NEC4 The NEC contracts foster a collaborative ethos and are apt for procuring a broad range of works. The NEC3 suite was first released in 2005, and a later edition followed in 2013......
FORTHCOMING CHANGES : At Budget 2025, the government stated it will legislate through Finance Bill 2026 (also referred to as Finance ( No 2) Bill 2024–26) to introduce powers for HMRC to combat fraud by businesses operating within the CIS. Reflecting VAT provisions that restrict input tax recovery where a supplier knew, or ought to have known, that a supply was linked to fraudulent VAT evasion, the new CIS rules will include the following: enable the immediate removal of a business’s gross payment status make a business responsible for tax that has been lost permit a penalty of 30% of the lost tax to be levied on the business, its directors, and other connected persons where it can be shown that the business knew, or should have known, that it entered into a transaction connected with the fraudulent evasion of...
FORTHCOMING CHANGES : At Budget 2025, the government confirmed that it will legislate in Finance Bill 2026 (also known as Finance ( No 2) Bill 2024–26) to introduce new HMRC powers to combat fraud perpetrated by businesses operating within the CIS. Mirroring VAT rules that restrict input tax recovery where a supplier knew, or should have known, that a supply was connected to the fraudulent evasion of VAT, the forthcoming CIS provisions will: provide for the immediate cancellation of a business’s gross payment status make a business liable for tax that has been lost, and permit a penalty of 30% of the lost tax to be imposed on the business, its directors and other connected persons, where it can be demonstrated that the business knew or ought to have known that it had entered into a transaction linked to the...
The Bribery Act 2010 ( BA 2010) Enacted to secure the UK’s adherence to the Organisation for Economic Co-operation and Development’s ( OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act 2010 ( BA 2010) delivers an effective framework to address corruption across public and private spheres, updating the UK’s anti-corruption regime and supplanting Prevention of Corruption Act 1906 and Prevention of Corruption Act 1916. BA 2010 carries significant consequences for any company incorporated in, or trading from, the UK. Its global reach covers bribery undertaken by a business, or by third parties acting for it, regardless of where in the world the conduct occurs......
BIM (building information modelling) protocol There is no single, mandatory BIM protocol required on all UK projects using BIM—parties involved in construction projects where BIM is to be adopted are free to choose the protocol they wish to use; it is not imposed and remains a matter for agreement on a project‑by‑project basis. The parties may opt for one of the published forms already available, agree a bespoke protocol tailored to the scheme, or choose to proceed with no standalone protocol at all, instead setting out every BIM obligation within the contract conditions and associated technical documents. As the use of BIM has expanded, various protocols have been created by organisations seeking to promote efficiency, consistency and recognised good practice within such documents. None of these has yet become an ‘industry standard’, though that appears to be edging...
Introduction Breakthroughs in energy storage, coupled with falling technology costs, are reshaping the global power market, putting storage firmly in the industry spotlight. This note centres on UK battery storage schemes, especially the market-specific construction considerations that arise, and are debated, when preparing and negotiating construction contracts for such schemes from a developer and funder viewpoint. For a broader primer on energy storage projects, see Practice Notes: Scaling up energy storage: revenue opportunities in Great Britain and Energy storage technologies in the UK. For planning matters linked to energy storage, consult Practice Note: The planning regime for energy storage in England and Wales. For regulatory and licensing topics affecting energy storage, refer to Practice Note: Energy storage—the evolving regulatory regime and renewable subsidy position. For further detail on regulatory hurdles and prospects for storage projects, see also the textbook: Energy Storage: Legal and Regulatory Challenges and...
Traditional procurement in construction This Practice Note outlines the fundamentals of the traditional procurement approach in construction. It explains why this route is adopted and identifies key matters to weigh up when choosing to proceed in this way. When an employer decides to launch a construction project, the first step is ordinarily to appoint an architect to undertake a feasibility review and to produce a simple initial design. If the architect advises that the employer’s plans can be delivered within the set budget, the employer will then appoint the architect and, typically, a range of other consultants (engineers, for example), to develop project designs and to provide related guidance. In the early phase of a construction scheme, the employer, usually with input from its professional team, will need to determine how the construction should be procured. There are several procurement routes and forms of...
Time to complete the works This Practice Note reviews the position under the 1999 editions of the Red, Yellow and Silver Books, alongside the Gold Book 2008 and the Pink Book 2010. For the 2017 editions of the Red, Yellow and Silver Books, see Practice Note: FIDIC contracts 2017—time; and also for a comparison of FIDIC time provisions (noting these cite the 2017 versions) with the JCT and NEC contracts, see Practice Note: Comparison between JCT, NEC and FIDIC time and money events. For this Practice Note, the phrase covers the works under the Red and Pink Books, the design and works under the Yellow and Silver Books, and the design-build phase under the Gold Book, and timing remains, in particular, a central concern on any construction project......
This Practice Note This Practice Note reviews the Contractor’s duties concerning time under the NEC Engineering and Construction Contract ( ECC). It addresses the commencement of the works, any expectation to proceed regularly and diligently, the Contractor’s programme, events that justify extra time (termed Compensation Events) under the contract, acceleration, and the requirement to achieve Completion by the Completion Date, including exposure to liquidated damages for delay. It cites clauses in the NEC4 ECC, and comparable provisions are found within the NEC3 and other NEC contracts as well. The Contractor’s principal time obligations (set out in clauses 20.1, 30.1 and 30.3) are to, which include the following: Deliver the Works in line with, and in accordance with, the Scope carry out the works so that, in effect, Completion occurs on or before the Completion Date where Key Dates apply, perform the works so the stated...
What does time of the essence mean? Where time is said to be ‘of the essence’, the specified deadline for carrying out a contractual obligation is a condition of the agreement. Non-compliance can therefore entitle the innocent party to bring the contract to an end and seek damages. In construction contracts, clauses making time of the essence are uncommon. Late completion is usually addressed by liquidated damages rather than termination. If time is not of the essence and there are no other, or only inadequate, time provisions, the only duty is to perform within a reasonable period. In that situation, time is regarded as being ‘at large’ (see Practice Note: Time at large in construction contracts). How does time become of the essence? Whether a time stipulation for performing an obligation is ‘of the essence’ depends primarily on construing the contract. Time will not be treated as of the...
For many tenants, slippage in the completion of the landlord’s works is a far bigger issue than strict compliance with the specification, or the timely delivery of collateral warranties or contract assignments. Ordinarily, the tenant’s overriding aim is to gain possession and start trading at the earliest opportunity. Accordingly, the completion date for the developer/landlord’s works is pivotal, though the target completion date will typically be open to extensions under the agreement for lease. This Practice Note explores how that target can be pushed back and what follows if the landlord fails to finish on time, including the prospect of liquidated damages. It also considers whether the tenant might be granted early access to the premises to undertake its own fit-out works. Extensions of time Under a standard agreement for lease, the tenant is generally obliged to enter into the lease once practical...
This Practice Note explores the notion of 'time at large' in the context of completing works under a construction contract, setting out what the term signifies, how it can arise, and the consequences of time becoming at large (including what amounts to a 'reasonable time' for completion)... What does 'time at large' mean? Ordinarily, construction contracts require the contractor to finish the works by a stated completion date (or within a defined timeframe). If that deadline is not met, and the contract does not permit an extension to cover the relevant cause(s) of delay, the contractor will typically be liable to pay liquidated damages (known as LADs or LDs) to the employer. Where, however, the provisions dealing with time for completion are absent or deficient, so that the employer cannot insist on completion by a particular contractual date, time is said to be 'at large'. When time is at...
This Practice Note offers guidance on tiered dispute resolution clauses (also known as multi-step, escalation, ADR-first and stepped procedure clauses) in construction contracts, and examines the legal and practical issues they raise, including what happens when parties disregard them. It also provides practical tips for drafting or amending these clauses so they operate effectively for the parties and the projects they support. What are tiered dispute resolution clauses? Tiered dispute resolution clauses are commonplace in construction contracts. They require contracting parties to move through a series of alternative dispute resolution ( ADR) stages before any unresolved dispute is referred to a final forum, typically litigation or arbitration. These stages can be mandatory, preventing the parties from advancing to the next or final step in the process until the preceding stage has been completed. Why use a tiered dispute resolution...
Purpose of the TP( RAI) A 2010 The Third Parties ( Rights Against Insurers) Act 2010 ( TP( RAI) A 2010) revoked and superseded the Third Parties ( Rights Against Insurers) Act 1930 ( TP( RAI) A 1930). The aim of the 1930 Act was to make sure that, where an insured person had incurred an insured liability to a third party and later became insolvent, the insurance proceeds were paid to that third party rather than forming part of the insolvent estate to be divided amongst all creditors of the insured. In much the same vein as the earlier regime, TP( RAI) A 2010 assigns to the third party certain of the insolvent insured’s rights under the policy and permits the third party to issue proceedings straight against the insurer. The principal development under TP( RAI) A 2010 is that a third party may now sue the...
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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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