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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 note provides links to template schedules of amendments for various JCT 2016 standard form construction contracts. For a comprehensive selection of materials on the JCT 2016 contracts, refer to JCT contracts 2016—overview. For links to pdf reference copies of the JCT 2016 contracts, consult Practice Note: JCT contracts 2016—reference copies......
STOP PRESS As at 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) have commenced. Procurements initiated on or after this date must be conducted under PA 2023, while those started pursuant to the earlier legislation (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 procured and managed in accordance with that regime. See Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute 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, see Practice Note: Assimilated law. There are a number of aspects to...
STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect. Procurements launched on or after this date must comply with PA 2023, while those started under the previous framework—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 overseen under that legislation. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU‑derived domestic legislation and therefore form 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, see Practice Note: Assimilated law. This Practice Note is a resource for practitioners on the current position of public procurement reform. For...
Stop Press : On 24 February 2025, the core provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are in the process of reviewing and refreshing our material accordingly. Note that procurements launched on or after 24 February must proceed under PA 2023, whereas those initiated under the earlier regime must continue to be run and managed in line with that legislation: Public Contracts Regulations 2015 ( PCR 2015) Utilities Contracts Regulations 2016 Concession Regulations 2016 Defence and Security Public Contracts Regulations 2011 For background, see Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. Brexit impact—public procurement The UK public procurement framework originates from EU procurement law and is therefore affected by the UK’s departure from the EU. For general updates on the process and preparations for Brexit, see Practice Note: Brexit timeline. For further reading on Brexit’s effect on public...
Choosing a structure Unless a single entity promotes a scheme (with or without mortgage finance), many projects proceed by way of a collaborative joint venture arrangement (often known as a ‘ JV’). This remains the prevailing approach across numerous property schemes today. This Practice Note sets out the corporate and contractual JV models most frequently used to regulate collaborations between landowners, developers, funder and investors in property development. For additional guidance on choosing an appropriate structure in any particular situation, see Practice Notes: Setting up a joint venture—choice of structure and Property Joint Ventures—choosing the right structure. JV company A JV company is a separate legal person, distinct from its shareholders and directors, who—provided there is proper management and solvency—enjoy limited liability. Shareholder agreements govern the collaborative relationships between the participating shareholders. As a private document, the shareholders’ agreement is not accessible to...
This page offers rapid access to a range of checklists and materials that practitioners handling construction aspects of real estate/development matters will consider very helpful. Starting a development project Starting a development project—checklist Structure of a development project—diagram Precedent: Letter to developer client at the start of development project Checklist: Tracking schedule of construction documents (acting for employer) Which procurement route should be used? Practice Note: Choosing the right procurement method—construction projects Design & Build Practice Note: Design and build procurement Is design and build the appropriate procurement route?—flowchart Design and build—diagram Traditional Practice Note: Traditional procurement of construction contracts Is traditional procurement the appropriate procurement route?—flowchart Traditional procurement—diagram ......
When a bank or another source of finance resolves to fund a construction or development scheme, it will typically appoint a project monitor—often called a monitoring surveyor—to keep the project under review on its behalf. Because a lender’s own staff are unlikely to possess both the time and the requisite expertise to perform this function, the monitor acts, in practical terms, as the lender’s ‘eyes and ears’. In most cases, project monitors are either project managers or quantity surveyors, as these two professions carry sound knowledge of the contractual framework as well as the construction process itself. The lender should involve the monitor from an early point in the design and procurement stages, with that involvement then continuing throughout the build, right through to practical completion and beyond. This Practice Note describes the principal duties and roles undertaken by the project...
This Practice Note explores project mediation, explaining what it involves, its advantages, and the situations in which it is suitable. What is project mediation? It is highly likely that, during a construction project, a disagreement will surface, or at least the possibility of one will loom. Project mediation (also known as contracted mediation) offers a way to control such disputes, and the risk of them, by pinpointing and resolving issues before they crystallise into full-blown conflicts, particularly around payment and delay. Parties may look to conventional mediation as an alternative to adjudication, arbitration or litigation, all of which can be expensive and/or time-consuming. Yet mediation is frequently only pursued once a concern has already developed into a dispute, ie when time and money are already being lost and the project is being jeopardised. By then, ill-feeling tends to exist between the parties, they are...
Risk Risk is a defining characteristic of many project finance transactions. For further detail on risk within a project finance transaction, see Practice Note: Introduction to project finance. When determining whether to provide funding, project finance lenders will identify, catalogue and analyse every risk connected to the project. They will look for evidence that risks are: shared between the various project participants (rather than being left solely with the borrower); and/or mitigated as far as practicable, for example through additional credit support or insurance If the project’s risks cannot be minimised to the lenders’ satisfaction, this is commonly reflected in the margin applied to the loan. For more on margin, see Practice Note: Introductory guide to interest in loan agreements— Components of a floating interest rate—margin. In some circumstances, the nature of the risks may lead lenders to conclude that they cannot lend at all. It is...
This Practice Note introduces project finance It covers: the idea of project finance, including the character of typical projects, the principal participants and the kinds of funding applied the standard documentation framework in a project finance transaction the main risks in a project finance transaction and how those risks are commonly allocated the usual security package in a project finance transaction Concept of project finance Project finance is not a recent development. In the 1980s it was widely used, chiefly by commercial banks, to fund the build-out of major infrastructure in North America and Europe. In the 1990s, these techniques spread further, taking hold in the Middle East, Latin America and throughout Asia. A standard project finance deal provides funding to: build and/or operate a new asset or facility acquire and/or refinance an existing asset or facility exploit a...
Project finance is a versatile approach to funding. For broader background on project finance, see Practice Note: Introduction to project finance. It can be deployed to fund almost any asset so long as the asset delivers a predictable income stream, because in a standard project finance arrangement, lenders place significant reliance on the revenues the project generates to repay the debt. This Practice Note outlines some of the more common applications of project financing, with a brief summary of a few notable issues that arise with each project type. Differences between project finance and asset finance Both project finance and asset finance involve funding assets, but the nature of the assets typically differs and the structures used are not the same: in asset finance, the asset in question is usually equipment such as aircraft, ships or rolling stock (rather than facilities such as...
What standard forms are available? While take-up in the private sector is still modest, the government advocates the use of project bank accounts on public sector construction schemes. See Practice Note: Introduction to project bank accounts. In light of this, JCT, NEC and PPC2000 have each released standard form documentation. This Practice Note examines their respective approaches and the stand-out characteristics of these documents/clauses. JCT JCT first launched its Project Bank Account Documentation in 2010. It was reissued within the JCT 2011, 2016 and 2024 suites, with no material textual alterations. The 2011 edition contained a consultation exercise report; in the 2016 and 2024 editions this was superseded by guidance notes. A Scottish edition was brought out by the SBCC in February 2023. These publications reflect continuity of content across the successive suites and editions over time. The 2024 materials are intended to...
What are project bank accounts? Project bank accounts are ring-fenced banking vehicles created for construction projects, intended to make payments straight to the contractor, sub-contractors, core team members and the wider supply chain (which can include consultants) on dates expressly agreed in the contract. Participants further down the construction chain do not need to wait for the contractor, or anyone higher up the contractual chain, to pass on their money—payment is executed by the bank directly to them, simultaneously and without intermediate handling, at the very moment the contractor is paid. These arrangements provide the supply chain with assurance that payments will be made promptly and without delay, and that sums properly due will be protected should the main contractor enter insolvency. In practice, project bank accounts are more commonly adopted, in many cases, on higher-value schemes across the...
This Practice Note considers the different legal bases for bringing a professional negligence claim This Practice Note examines the alternative legal foundations for pursuing a professional negligence claim, namely establishing that the professional owed the claimant a duty. At certain times, whether such a duty arises is intertwined with the nature of the loss claimed, which in turn defines the scope of the duty and related matters; for authoritative direction on these points, see: Professional negligence claim—scope of duty, causation and remoteness—checklist and related content. For guidance on starting a professional negligence claim, consult the following Practice Notes set out below: Starting a professional negligence claim—a practical guide Pleading professional negligence claims—worked hypothetical examples and related precedents For the required standard of care in professional negligence matters, refer to these key Practice Notes: Standard of care in professional negligence claims Standard of...
Background The long-anticipated Procurement Act 2023 ( PA 2023) took effect on 24 February 2025, superseding the UK’s procurement framework as it had operated over the last ten years. Driving this change was the declared ambition of successive post‑ Brexit administrations to streamline and bring together the prior regime, a system heavily shaped by EU directives and judicial decisions and interpreted through case law. In pursuit of that goal, the legislation seeks to carry through several measures first trailed in the December 2020 Green Paper, ‘ Transforming public procurement’, together with the government’s ensuing response. True to the intention of overhauling the former rules, the PA 2023 also recalibrates, albeit modestly, the emphasis placed on its core objectives and adjusts the focus of the regime......
Note: This Practice Note provides targeted guidance on proceedings in the Technology and Construction Court ( TCC) under CPR 60, CPR PD 60 and the TCC Guide. As these sit alongside the general CPR, it should be read with broader guidance on getting ready for and attending trial, including Trial—overview, which in turn links to detailed materials on particular 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 apt for, one or both schemes under CPR PD 57AB: the shorter trials scheme and the flexible trials scheme. For further details, see Practice Notes: Business and Property Courts—shorter trials scheme and Business and Property Courts—flexible trials scheme Electronic working—for guidance on electronic working in the TCC, see Practice Note: TCC—starting a claim— High Court or County...
ARCHIVED : This Practice Note has been archived and is not maintained . This archived Practice Note reviews the principal actual and potential legal and practical ramifications of the UK’s exit from the EU ( Brexit) for arbitration law and practice in England and Wales, using England and English as shorthand. It also addresses how the EU‑ UK Trade and Cooperation Agreement ( TCA) relates to arbitration conducted in England. In brief, and explored further below, the legal and practical effects of Brexit on arbitration in England are, or are anticipated to be, limited, with little, if any, negative impact on practitioners or on London’s standing as a leading seat of international arbitration globally. That said, the short-, medium- and long-term consequences for the arbitration market in London and across England cannot be wholly disentangled from the broader outcomes of the UK’s...
International construction projects Cross-border construction schemes are inherently intricate, frequently spanning many years and drawing in numerous participants from diverse, highly specialised disciplines. Disputes are rife, and expert witnesses are routinely engaged in the ensuing arbitration proceedings. A 2018 London Court of International Arbitration ( LCIA) review recorded around 300 new arbitrations each year, with experts involved in most—if not all—cases and occupying a central position in the process, playing an integral role throughout. Within construction arbitrations, specialists are most often instructed to provide opinions on: time-related claims technical issues quantum matters Expert evidence may equally be required on legal questions where the tribunal or the parties’ lawyers lack the requisite expertise, for example on questions of foreign law. Multiple experts are frequently appointed, each addressing a defined field of evidence and offering discrete opinions, and their analyses can be a significant factor in the tribunal’s overall...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 secured Royal Assent on 27 October 2025. For guidance on the Act’s implications for residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note reviews the minimum energy efficiency standards ( MEES) for domestic private rented properties ( DPRs) set out in the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962. It concentrates on the obligations of landlords of DPRs to permit tenants’ energy efficiency improvements. It forms part of our series of Practice Notes on MEES. For an overview of the background to MEES, see Practice Note: Minimum energy efficiency standards ( MEES) in the private rented sector—snapshot. MEES Regs 2015, SI 2015/962, made under the Energy Act 2011 ( En A 2011), set out two principal...
Introduction to risk under the FIDIC Red, Yellow and Silver Books The bigger and more intricate a construction scheme becomes, the higher the risks borne by both sides and the greater the chance that delivery slips on cost, schedule or the required quality or performance thresholds. FIDIC contracts are widely viewed as balanced, equitable standard forms for building works and aim to allocate in advance the risks that arise on such undertakings. The guiding principle of these forms is that each risk should sit with the party best able to control or manage it. Concerns were raised about certain risk concepts and definitions in the 1999 editions, which FIDIC attempted to remedy in the 2017 updates; nevertheless, the overall shift in risk sharing was not particularly marked. FIDIC’s general position endures: the party most suitably placed to handle a given risk should bear it. The chosen FIDIC book...
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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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