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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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UK energy projects commonly follow three principal procurement routes: engineering, procurement and construction ( EPC) contract procurement split EPC contract procurement multi-party contract procurement This Practice Note summarises each route and explores selected advantages, disadvantages and practical points to bear in mind. It is intended as a straightforward guide; seek professional legal advice before deciding on a procurement pathway for your specific scheme. EPC contract procurement The EPC route is the predominant procurement model for UK energy, as well as other large-scale, complex infrastructure developments. Under an EPC arrangement, a single contractor undertakes end-to-end delivery of the project, including design, engineering, procurement of materials, construction, and the testing of mechanical elements. For additional guidance on EPC arrangements, refer to the following Practice Notes: Introduction to EPC contracts; EPC contracts—handover, testing and commissioning; and EPC contracts—limits of liability. The diagram below depicts the core contractual structure for a project procured via the EPC...
What is Energy from Waste ( Ef W)? Energy from waste ( Ef W) turns waste materials into a usable form of energy from a sustainable energy source. Outputs can include electricity, heat, gas and transport fuels (e.g. diesel). A variety of approaches are used, with incineration being the most familiar. Using waste as a fuel can deliver notable environmental gains: it offers a safe, cost‑effective route for disposing of waste and can help reduce carbon dioxide emissions. For further details on Ef W, see Practice Notes: Biomass and waste to energy projects—overview, Waste to energy—technologies, Regulation of energy from waste and Energy from waste—consents. What is environmental permitting? The Environmental Permitting ( England and Wales) Regulations 2016, SI 2016/1154, as amended, ( EPR Regs 2016) require operators to obtain permits for certain facilities and to register others as exempt. They...
This Practice Note explores the aims and guiding principles of radioactive substances regulation in England and Wales, including justification, safeguarding wildlife, best available techniques ( BAT), and key environmental permitting requirements for radioactive substance activities. What are the key principles and purpose of radioactive substances regulation? In December 2021, the Environment Agency ( EA) released guidance outlining its objectives and principles for radioactive substances regulation. The central objective is to protect people and the environment from the harmful impacts of ionising radiation, both now and in the future, while also protecting and enhancing the environment as a whole. The EA pursues this by applying the relevant legislation, government policy, and international standards. justification — a permit for any practice involving radioactive substances will only be issued where it is justified; decisions on remediating radioactively contaminated land, or in emergencies, should result in more good than harm ...
ARCHIVED: This Practice Note is archived and is not being maintained. This Energy consultation tracker outlines the current position and latest progress of key consultations run by government departments, regulators and other organisations on energy law and policy in England and Wales between 1 January and 31 December 2019. Any consultations still open on 1 January 2020 appear in the Energy consultations tracker 2020 [ Archived]. For earlier trackers, see: Energy consultations tracker 2018 [ Archived] Energy consultations tracker 2017 [ Archived] Energy consultations tracker 2016 [ Archived] For a schedule of expected future dates for major policy/regulatory announcements in the Great Britain ( GB) energy market, see: Great Britain energy market—policy and policy implementation tracker. Closed consultations Consultations are listed by their closing date in chronological order. The most recently closed consultation appears first in the table, which means that, in...
ARCHIVED: This Practice Note has been archived and is not maintained Updated each month, this Energy consultations tracker outlines the current position and latest developments for significant consultations run by government departments, regulators, and other bodies relating to energy law and policy in England and Wales from 1 January 2022. The tracker is organised into the following jurisdiction and sections: England and Wales open consultations closed consultations For details of prior consultation trackers, see: Energy consultations tracker 2021 [ Archived] Energy consultations tracker 2020 [ Archived] Energy consultations tracker 2019 [ Archived] Energy consultations tracker 2018 [ Archived] Energy consultations tracker 2017 [ Archived] Energy consultations tracker 2016 [ Archived] For our schedule showing the anticipated future dates of major...
Energy consultations tracker tool This tracker outlines the current position and latest updates on key consultations led by government departments, regulators and other bodies relating to energy law and policy in England and Wales, from 1 January 2024... Jurisdictions and sections England and Wales open consultations closed consultations Previous consultation trackers Energy consultations tracker 2023 [ Archived] Energy consultations tracker 2022 [ Archived] Energy consultations tracker 2021 [ Archived] Energy consultations tracker 2020 [ Archived] Energy consultations tracker 2019 [ Archived] Energy consultations tracker 2018 [ Archived] Energy consultations tracker 2017 [ Archived] Energy consultations tracker 2016 [ Archived] For our tracker setting out the anticipated future dates of major...
ESOS is an energy assessment and energy savings scheme. It is compulsory for organisations that satisfy the qualification thresholds, namely large undertakings and their corporate groups. The scheme stems from the Energy Efficiency Directive 2012/27/ EU, art 8(4)–(6), which obliges EU Member States to ensure enterprises that are not small and medium-sized enterprises ( SMEs) undergo an energy audit at least every four years. For further details, see Practice Note: Energy Efficiency Directive 2012/27/ EU—snapshot [ Archived]. The obligations in art 8(4)–(6) were given effect in the UK through the Energy Savings Opportunity Scheme Regulations 2014, SI 2014/1643 (the ESOS Regulations). The ESOS Regulations were made on 24 June 2014 and took effect on 17 July 2014. The Energy Act 2023 has provided powers to introduce necessary amendments to ESOS post- Brexit, and the Energy Savings Opportunity Scheme ( Amendment)...
This Practice Note outlines several principal aspects of UK energy retail market reform from 2017 onwards, offering concise context and background. What is the retail energy market? The UK retail energy market serves as the primary point of contact between users of energy and the wider energy system. It encompasses the provision of electricity by licensed suppliers to final customers—both domestic (for example, households) and non-domestic (for example, businesses). It is separate from the electricity wholesale market, which concerns the sale and purchase of power between generators and suppliers. For further detail on the wholesale framework, see Practice Note: The Great Britain electricity market—an introduction. Why is retail market reform needed? Since 2017, the Gas and Electricity Markets Authority, operating through the Office of Gas and Electricity Markets ( Ofgem—see Practice Note: Ofgem), together with the UK government (initially via the Department for Business, Energy and...
This Practice Note examines when the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996) is engaged on UK energy projects and highlights practical issues that can arise. It should be read together with Practice Note: What is a construction contract under the HGCRA 1996? The HGCRA 1996 applies to all construction contracts, as defined in the Act, across the following jurisdictions: England Wales Scotland When drafting a contract, parties should assess whether the on-site works fall within the scope of the HGCRA 1996 and, if so, ensure the terms are compliant. This discussion frequently surfaces on energy schemes where some or all elements of the works may sit within the statutory exclusions... Does the HGCRA 1996 apply to energy projects? For the HGCRA 1996 to apply, the agreement must meet the definition of a ‘construction contract’ in section 104—being a...
Background An energy asset’s output, together with the project’s capacity to achieve the contracted power generation and income, will generally ultimately set the level of investment that a funder is prepared to commit. For employers and funders alike, it is essential that the construction contract embeds suitable testing, take-over and defects processes, so that the project yields optimum power and revenue, and any shortcomings affecting those outcomes are detected and addressed at the earliest possible stage of the delivery period. This Practice Note examines why testing protocols and defect remedies within the FIDIC Silver Book, and other widely adopted energy sector contracts, matter, and highlights the practical issues that must be weighed when structuring and executing energy projects successfully. For fuller overviews of the FIDIC Silver Book, refer to Practice Notes: FIDIC...
From 1 January 2024, this Energy legislation tracker highlights key forthcoming legislation for Energy lawyers. Entries are listed in reverse chronological order. Wales-only measures ( Wales Statutory Instruments— Wales SI) are flagged on the tracker. For earlier trackers, see: Energy legislation tracker 2023 [ Archived] Energy legislation tracker 2022 Energy legislation tracker 2021 [ Archived] Energy legislation tracker 2020 [ Archived] Energy legislation tracker 2019 [ Archived] Energy legislation tracker 2018 [ Archived] Energy legislation tracker 2017 [ Archived] Energy legislation tracker 2016 [ Archived] England and Wales Renewables Obligation ( Amendment) ( Energy Intensive Industries) Order 2024, SI 2024/ Draft — Date TBA. Draft Order amending the Renewables Obligation Order 2015, SI 2015/1947, to allow the Secretary of State to revise the renewables obligation level announced on 27 September 2023 for...
This Energy consultations tracker sets out the latest status and updates on key consultations led by government departments, regulators and other organisations concerning energy law and policy in England and Wales, from 1 January 2025. The tracker is organised into the following jurisdictions and sections: England and Wales open consultations closed consultations For information on earlier consultation trackers, see: Energy consultations tracker 2024 Energy consultations tracker 2023 [ Archived] Energy consultations tracker 2022 [ Archived] Energy consultations tracker 2021 [ Archived] Energy consultations tracker 2020 [ Archived] Energy consultations tracker 2019 [ Archived] Energy consultations tracker 2018 [ Archived] Energy consultations tracker 2017 [ Archived] Energy consultations tracker 2016 [...
Energy from waste Energy from waste describes usable power created by treating or processing waste materials through a range of technologies. Recyclables should be extracted first, with energy then recovered from the remaining refuse before treatment. Incineration — in which the remaining waste is combusted and the captured energy used as electricity or heat. Pyrolysis and gasification — heat the feed with minimal or no oxygen to yield a gas either for power generation, or subsequently as a feedstock to make methane, chemicals, biofuels or hydrogen. Anaerobic digestion — microorganisms break down waste into methane-rich biogas that can be burned to produce electricity and heat, or upgraded to bio-methane. Best for wet organic or food wastes. A further output is biofertiliser. Landfill gas — by capturing the landfill gas produced at landfill sites as waste...
All waste sites, including energy-from-waste ( Ef W) and waste-to-energy ( Wt E) incinerators, are overseen to prevent or reduce risks to health or the environment. A comprehensive framework of regulations sets out how and where Ef W plants may operate in the UK. Who is responsible for regulating Ef W? Local authorities manage most small incinerators processing under one tonne of waste per hour. In England, the Environment Agency ( EA) regulates all plants burning hazardous waste, and other incinerators treating non-hazardous waste at rates above one tonne per hour. The EA also regulates Ef W facilities combusting municipal waste to keep emissions as low as possible, protecting the environment and human health. In Scotland and Wales, these roles are performed by the Scottish Environment Protection Agency ( SEPA) and Natural Resources Wales ( NRW), which are outside the scope of this Practice Note. For...
Brexit impact From 31 January 2020 (exit day), the UK left the EU as a Member State but moved into an implementation phase, during which the EU continued to treat the UK as if it were still a Member State for many purposes. At 11 pm ( GMT) on 31 December 2020, that Brexit transition/implementation period, established after the UK’s departure from the EU, came to a close. At this moment—known in UK legislation as ‘ IP completion day’—core transitional measures ended and changes started to apply across the UK’s legal framework. From that date, changes began to take effect across the UK’s legal regime. Any alterations pertinent to this content are outlined below. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) established a new category of domestic UK law—retained EU law (...
Energy projects involve a blend of perceived and actual risks that affect cash flow, availability, performance and profit, and they shape investment choices. These risks arise from environmental, technological, financial, political and commercial factors, depending on the nature of the energy project. To secure a viable, bankable energy project, it is vital to identify, confront and mitigate such risks as far as possible. This Practice Note examines the perceived and real risks confronting energy projects, the allocation of design responsibility under the FIDIC Silver Book 1999 and 2017 editions (an engineering, procurement and construction ( EPC) contract widely used on energy projects), and practical approaches to reducing risk on an energy project. For a fuller introduction to the Silver Book, see Practice Notes: FIDIC contracts—introduction to the Silver Book 1999 and FIDIC...
Disagreements in the energy arena can be highly intricate. Owing to project locations, the parties’ nationalities, and the choice of forum or governing law, many matters are inherently international and raise cross-border considerations. A single dispute may spring from multiple contracts and involve more than two participants. Often, governments or state-owned bodies are involved, adding another layer of difficulty. Given the breadth of this field, this Practice Note concentrates on practical considerations when commencing a claim and does not delve into specific substantive issues for any particular case. For an overview of the key points to consider, see: Starting a claim in an energy dispute—checklist. Energy disputes—examples and hypothetical scenario The types of disagreements that fall within the scope of energy disputes are extensive. Typical illustrations include: a dispute between parties to a joint operating agreement for an oil and gas field...
This Practice Note sets out an overview of how derivatives are applied within the energy markets and considers divergence between EU and UK regulation of energy derivatives. What are energy derivatives? Energy derivatives track the price of an underlying energy commodity, including oil, gas or electricity. They can be traded over the counter ( OTC) or on an exchange (exchange traded derivatives or ETDs). Market participants include: brokers financial institutions investment funds speculators direct energy users Common types of energy derivatives Forwards/futures A forward in the energy sector is an OTC derivative providing for the future delivery of an energy product, with the price fixed on the date the agreement is concluded. A futures contract is broadly comparable but is traded on an exchange rather than negotiated privately with a market counterparty. For further detail on these instruments, see Practice Note: Types of...
Energy Company Obligation ( ECO) replaces Carbon Emissions Reduction Target ( CERT) and Community Energy Saving Programme ( CESP) The Energy Company Obligation ( ECO) began in January 2013, replacing the Carbon Emissions Reduction Target ( CERT) which ran from 1 April 2008 to 31 December 2012, and the Community Energy Saving Programme ( CESP) which operated from 1 October 2009 to 31 December 2012. CERT, which superseded the Energy Efficiency Commitment, required selected gas and electricity suppliers to meet targets for cutting carbon emissions in domestic properties. CESP sought to lower carbon emissions by obliging gas and electricity suppliers and electricity generators to deliver energy‑saving measures to domestic consumers in designated low income areas of Britain. What is the ECO? ECO works alongside the domestic Green Deal to provide support and funding for energy efficiency improvements in existing properties. It focuses on installing energy...
What is the ECO? The Energy Company Obligation ( ECO) is an energy efficiency initiative that obliges major energy suppliers to install efficiency measures across existing domestic premises. It provides support and funding totalling around £1bn each year (at 2022 prices). The scheme concentrates on facilitating the installation of energy-saving measures in low income households and neighbourhoods, as well as in properties that are more difficult to upgrade. ECO succeeded earlier domestic schemes aimed at cutting carbon and improving energy efficiency—the Carbon Emissions Reduction Target and the Community Energy Saving Programme. The ECO pursues four policy aims: to extend delivery of energy efficiency measures to a wider range of households facing rising energy bills the reduction of fuel poverty and progress towards fuel poverty targets to help meet carbon reduction targets within the domestic sector to lower the cost of achieving the UK’s net zero target by...
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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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