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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 explores the meaning and nature of the prevention principle and its bearing on delay claims in construction projects. It also addresses the principle’s application to notification provisions and to concurrent delay. The meaning and nature of the prevention principle In brief, under English law the prevention principle means a contracting party must not impede fulfilment of a condition or the occurrence of another contingency. It is closely linked to the idea that no party may profit from its own wrong—ie it cannot rely on its own breach or act of prevention to claim a contractual right. In the construction context, Jackson J (as he then was) in Multiplex v Honeywell provided a helpful touchstone: a promisee cannot insist on performance of an obligation it has prevented the promisor from performing. The Court of Appeal in North Midland v Cyden also offered guidance on the...
Termination of a construction contract A construction contract can be brought to an end—discharged, terminated or determined—in several ways. Chief routes include: performance mutual agreement or release misrepresentation or fraud (see Practice Note: Misrepresentation—rescission as a remedy) frustration (see Practice Note: Discharge by frustration) at common law for a repudiatory breach of contract (repudiation) exercising a contractual right to terminate, for example: for breach of contract at will on insolvency This Practice Note considers ending a construction contract at common law for repudiatory breach, and termination under an express contractual power either for breach or on an at-will basis. For guidance on ending for insolvency, see Practice Note: Termination on insolvency in...
This Practice Note This Practice Note examines the ways in which a consultant’s appointment may come to an end, considers the stance taken by standard forms, and includes sample termination clauses. It should be read together with Practice Note: Termination of a construction contract, which offers broader guidance on termination in the construction setting... How might an appointment be terminated? by performance—ie once the employer and consultant have fully discharged their contractual duties through a mutual agreement whereby each party releases the other from further obligations following a misrepresentation or fraud (see Practice Note: Misrepresentation—rescission as a remedy) by frustration (see Practice Note: Discharge by frustration) at common law for a repudiatory breach of contract (see Practice Note: Repudiation of contract) under an express contractual term (which may permit termination on specified events and/or give the employer a right to...
If a party to a construction contract enters insolvency, the consequences are governed by the Insolvency Act 1986 ( IA 1986). Nonetheless, the contract itself may expressly set out what should occur if a party, most commonly the contractor, becomes insolvent. With the introduction of the Corporate Insolvency and Governance Act 2020 ( CIGA 2020), suppliers are barred from using contractual termination rights that arise because of insolvency, by virtue of section 233B of the IA 1986. CIGA 2020 is a notable reform of UK insolvency law and may influence supply chains across the construction sector. These statutory provisions operate alongside any express terms within the agreement that address insolvency events for either party, in particular where the contractor is concerned. The IA 1986 The IA 1986 addresses both the bankruptcy of individuals and the winding up of companies. Where an individual...
This Practice Note explains how a PFI or PF2 project can be terminated. It outlines the ways termination may occur, and examines the aftermath, the risks tied to bringing a project to an end, and the practicalities that parties should factor in. In the 2018 Budget (delivered on 29 October 2018), the government announced it would stop using PF2 for new projects (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). Nevertheless, existing PFI and PF2 arrangements will carry on and, given the usual duration of these schemes, are expected to do so for many years. Both public and private sector participants have traditionally viewed ending a PFI as a ‘nuclear’ course, laden with risk and potential cost exposure. Yet pressure on public sector finances is considerable, and some authorities may regard terminating expensive PFI contracts as a credible option. Although...
Costs management Note: The 152nd Practice Direction ( PD) update took effect on 1 December 2022; see 151st and 152nd Practice Direction updates—changes in force 16 November 2022 and 1 December 2022, LNB News 21/11/2022 54. This PD update formally renumbered CPR PD 3E (costs management) as CPR PD 3D to reflect the cross‑referencing amendments introduced by the Civil Procedure ( Amendment No 2) Rules 2022, SI 2022/783, and the 149th PD update. From 1 December 2022, the costs management PD is therefore CPR PD 3D. The Technology and Construction Guide still cites CPR PD 3E, but it should be read as CPR PD 3D until it is updated. This Practice Note examines costs management within the Technology and Construction Court ( TCC). Although many CPR provisions apply, it is also necessary to consider the Technology and Construction Court Guide, which may impose...
ARCHIVED: This Practice Note is archived and no longer updated. NOTE: the court has confirmed that the protocol for TCC E applications is no longer in operation. In this Practice Note, references to: TCC mean the Technology and Construction Court CLCC mean the Central London County Court CLCC TCC mean the TCC at the CLCC e-application mean electronic applications (ie applications by email) Protocol mean the Protocol for TCC E-applications list Note: this Practice Note applies only to claims progressing in the TCC CLCC. For general guidance on electronic working and electronic filing procedures, and for specific guidance on the Rolls Building e Working pilot scheme under CPR PD 51O, see Practice Notes: Electronic communication and filing of documents by email— CPR PD 5B and Electronic working and CE- File—when and where is CE- File applicable?...
This Practice Note This Practice Note examines how case management is conducted in the Technology and Construction Court ( TCC), by reference to the provisions of CPR 60, CPR PD 60, and the Technology and Construction Court Guide. As these materials supplement the general provisions found elsewhere in the CPR, it should be read together with wider guidance on case management, in particular: the court’s array of case management powers under CPR 3, and case management more generally—see Practice Note: Case management of civil claims under the CPR, and Case management—checklist multi-track case management—see Practice Notes: Multi-track—case management, and Multi-track—case management conference ( CMC) the significance and importance of complying with rules, practice directions and court orders, together with practical pointers to assist—see Practice Note: Case...
This Practice Note sets out guidance on witness statements and factual evidence for use at trial in the Technology and Construction Court ( TCC) under CPR 60, CPR PD 60 and the Technology and Construction Court Guide (the ‘ TCC Guide’), paragraphs 12.1–12.4. Specifically, it deals with preparing statements for TCC trials and advises on employing witness summaries for hesitant or unavailable witnesses, handling situations where a witness’s command of English is limited, and cross‑referencing documents within statements and supplemental statements. It further covers filing and service of witness statements in TCC claims, the giving of evidence at a TCC trial, and the possible consequences of failing to comply with the applicable provisions. Lastly, it provides practical pointers on witness evidence for TCC trials. This Practice Note concerns witness statements and factual evidence for trial. For guidance on: witness statements in support,...
This Practice Note sets out guidance for preparing for a case management conference ( CMC) in the Technology and Construction Court ( TCC), covering when the CMC will be held, what documents should be assembled in advance, attending the CMC itself, and the steps that follow the hearing. Authoritative direction on these points in the TCC appears in CPR 60, CPR PD 60 and the Technology and Construction Court Guide. Because those provisions supplement the general CPR, this Practice Note should be read alongside broader multi-track CMC materials, including Practice Note: Multi-track—case management conference ( CMC) and Multi-track—case management—checklist. It should also be considered with Practice Note: TCC—case management, which addresses general case management matters in the TCC. TCC claims are treated as allocated to the multi-track, and CPR 26 does not apply to TCC proceedings ( CPR 60.6(1) and Technology and...
ARCHIVED: This Practice Note is archived and no longer maintained. How does Brexit impact supply of goods? Brexit influences the supply of goods wherever movements cross between the UK and the EU, as fresh trading frameworks between the UK and EU have applied since 1 January 2021. Parties should review goods supply contracts, in particular where they touch on intellectual property, data protection and competition law issues. Sector-specific factors and chosen routes to market will also require attention. For manufacturers, updates to product safety and conformity arrangements will be critical. A gradual divergence in product liability is likewise expected over time. Contracts for the supply of goods The rules governing business-to-business supply contracts stem from UK law; therefore, agreements for purely domestic supplies (that is, goods traded between two UK-based entities) are, in the main, unaffected by Brexit. From IP completion day, the UK is treated as a third...
Practice Note This Practice Note aims to guide sub-contractors in identifying early warning signs of contractor insolvency and the practical, proactive steps a sub-contractor may take to safeguard itself in advance. If the main contractor has already become insolvent, consult Checklist: Sub-contractor steps to take if contractor becomes insolvent—checklist accordingly, promptly thereafter......
This Practice Note explores the treatment of sub-contracting across the 1999 FIDIC Red, Yellow and Silver Books, together with the Gold Book 2008 and the Pink Book 2010. It also summarises the principal aspects of two FIDIC standard form sub-contracts: Conditions of Subcontract for Construction 2011, intended for the Red Book 1999 and, with certain amendments, the Pink Book 2010 (the Red Book sub-contract) Conditions of Subcontract for Plant and Design- Build 2019, intended for the Yellow Book 1999 (the Yellow Book sub-contract) Despite its 2019 publication, the Yellow Book sub-contract is designed for the 1999 Yellow Book main contract—not the 2017 edition. For guidance on sub-contracting under the 2017 editions of the Red, Yellow and Silver Books, refer to Practice Note: FIDIC contracts...
Among the primary issues for any developer procuring works in the UK is selecting the contractor. The chosen procurement route will in turn ultimately dictate precisely how much risk and responsibility the contractor assumes. Yet, whatever the procurement approach, a common pattern in the UK construction sector is that the contractor typically sub-contracts out discrete parts (sometimes the entirety) of the duties it has accepted. The developer, as employer, and the contractor then enter a detailed, formal building contract (the main contract) that captures their agreed risk allocation. That contract also specifies, with clarity, the exact scope of works and design the employer expects the contractor to perform and stand behind, in exchange for the contract sum. Unless the contractor is engaged for bespoke expertise or attributes (situations in which sub-contracting would be strictly barred), it is usual practice for the...
Rising worldwide need for public infrastructure—from roads and schools to energy schemes—has sparked fresh, inventive approaches to arranging the procurement and financing of such facilities. There are countless ways to structure a project. The chosen model turns on factors such as: who the employer is (e.g. public authority, private company, or consortium) the character of the scheme (e.g. its complexity, whether it concerns state‑owned assets) whether only facility design and construction are being purchased whether facility operation and maintenance are also being procured which party raises the funding or supplies investment for the project (e.g. a public body or a private consortium) who owns the facility during construction, operation, and at the end of any operating term who is entitled to the facility’s output or revenues Some infrastructure schemes are let entirely by the private sector (for...
ARCHIVED: This Practice Note is archived and is not maintained How does Brexit impact standard terms and conditions? Brexit’s key effects on standard terms and conditions arise from practical adjustments to be addressed when drafting and assessing the suitability of standard form terms for the purchase and supply of goods and/or services, covering both business to business and business-to-consumer contracts. Review of suitability Standard form terms and conditions should be checked to ensure they remain appropriate for use after IP completion day, both for the commercial arrangements they govern and the contract wording itself. Consider whether any standard terms and conditions require amendment or tailoring. This may include clauses on territorial scope, pricing, tax, intellectual property, data protection, applicable law, jurisdiction and dispute resolution. See Practice Notes: Brexit—contract risk management [ Archived] Brexit—drafting commercial clauses [ Archived] ...
ARCHIVED: This Practice Note is archived and not maintained. What is Soft Landings? Soft Landings began as a concept introduced by the architect Mark Way, prompted by practical challenges he observed after buildings were handed over to their users. He then developed the approach further through a project at Cambridge University, and in 2004 produced initial documentation presented as scope of service papers. As the push towards more sustainable buildings increased, the Building Services Research and Information Association ( BSRIA) became involved and brought together an industry task group. That group went on to publish the Soft Landings Framework in June 2009 to enhance briefing, design, handover, and in‑use building performance ( BSRIA BG 4/2009). The framework is available to download from the BSRIA website......
What is the 100 day arbitration procedure? Published in 2004 by the Society of Construction Arbitrators, the 100 Day Arbitration Procedure is a framework parties may adopt by agreement. It sets out how the reference will be managed, including deadlines within which procedural steps must be completed. The Society introduced it in response to concerns that certain adjudications had become prohibitively costly, especially given that an adjudicator’s decision is only binding on an interim basis unless and until it is finally determined by litigation, arbitration or agreement (see Practice Note: Adjudication decision). The 100 day procedure is intended to enable disputes to be resolved relatively swiftly with a binding outcome, yet still afford the parties adequate time to present their cases and, where appropriate, to have a full hearing. Without such a scheme, arbitration proceedings typically last significantly longer. That said, the 100 day...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have taken effect. Any procurement launched on or after that date must proceed under PA 2023, while procedures commenced under the earlier regimes—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and administered in line with those rules. See Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. PCR 2015 as assimilated law PCR 2015 constitute EU-derived domestic legislation and are therefore assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, consult Practice Note: Assimilated law. The Public Services ( Social Value) Act 2012 ( PS( SV) A 2012), also known as the...
For comprehensive commentary on the regulation, consenting and incentivisation of the net zero energy transition under the laws of England and Wales, see also: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook offers an in-depth treatment of matters addressed in this Practice Note. Introduction to the Smart Export Guarantee This Practice Note sets out a detailed account of the ‘ Smart Export Guarantee’, a regulated scheme giving owners of small-scale, low-carbon installations in Great Britain a guaranteed contract to sell surplus electricity they produce. It considers, among other points, power purchase terms under the Smart Export Guarantee, the part played by electricity suppliers within the mechanism, and the categories of technology that can participate. The Smart Export Guarantee took effect on 1 January 2020. The proposal first emerged during consultations that announced the confirmed closure (for new...
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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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