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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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Practice Note This Practice Note is intended to guide the identification of the applicable law before the courts of England and Wales in relation to events that cause damage, where those events took place on or after 1 January 2021. Where a dispute raises a conflict of laws between different parts of the UK, or between the UK and Gibraltar, UK Rome II applies if the harmful event occurred on or after 11 January 2009. For occurrences falling outside these dates, the UK courts will apply a different applicable law regime, determined by the date of the event. For an overview of the various regimes and how they interrelate, see Practice Note: Applicable law regimes. This Practice Note refers to UK Rome II, Regulation ( EC) 864/2007. UK Rome II reproduces the full text and recitals of Regulation ( EC) 864/2007 (as...
The Decommissioning Relief Deed ( DRD) constitutes a contractual arrangement between the UK government and a ' Qualifying Company' involved in oil and gas exploration and production on the UK Continental Shelf ( UKCS), or associated with such a company. It is designed to give clear assurance about the tax relief a Qualifying Company will secure when offshore oil and gas decommissioning is carried out and, in defined circumstances, can also trigger a payment from the UK government to that company. The DRD is issued in a prescribed form by the UK government and cannot be altered in any respect. Its terms are set by that publication, and the deed is not negotiable. For more information on decommissioning in the oil and gas sector, see the following Practice Notes: ...
This Practice Note examines the English Court’s approach to take-or-pay clauses and offers a detailed analysis of the rule on penalties as it applies to such provisions. For an introduction to take-or-pay clauses in the energy sector and the regulatory and competition law concerns commonly faced, see Practice Note: An introduction to EU law and competition law issues for take-or-pay clauses in energy contracts. For further guidance on drafting take-or-pay clauses and the typical features encountered, see Practice Note: Drafting take-or-pay clauses in energy contracts. English courts’ attitude to take-or-pay clauses English Courts have generally acknowledged and enforced take-or-pay provisions in commercial contracts. In Port of Tilbury ( London) Ltd v Stora Enso Transport & Distribution Ltd, the defendant had an ongoing requirement to import, handle, store and distribute its paper in England. It entered into a long-term agreement with the claimant, the Port of...
This Practice Note It sets out what a smart legal contract (often called a smart contract) is, both as a technological tool and as a binding legal device, and summarises the Law Commission’s guidance to the UK government, which found that the existing UK legal framework can enable and underpin the use of smart legal contracts. It outlines the legal concepts relevant to contract formation, form, formalities and interpretation under UK law, and contrasts their conventional application with how, according to the Law Commission, they might apply to the principal categories of smart legal contract. The Practice Note covers: • What is a smart legal contract? • Distributed ledger technology ( DLT) • Enforceability under UK law • The formation of smart legal contracts • Agreement (including offer and acceptance) • Consideration • Certainty and completeness • Intention to create legal relations •...
What is the Renewables Obligation scheme? The renewables obligation ( RO) was designed to stimulate investment in renewable generation. It came into force in Great Britain in 2002, and in Northern Ireland in 2005. Under the scheme, electricity suppliers serving customers had to procure an ever-rising share of their wholesale power from renewable sources. Subject to certain exceptions, RO accreditation ended on 31 March 2015 for new solar PV and onshore wind projects, and from 1 April 2017 for all other new types of electricity generation. For more on this, see: Closure of the RO to new generation and grace periods below. The Secretary of State ( So S) for Energy, Security and Net Zero, who leads the Department for Energy Security and Net Zero ( DESNZ), determines the obligation in line with the Renewables Obligation Order 2015 ( RO Order 2015) SI...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
What are knock-for-knock indemnities? A knock-for-knock clause sets out a mutual arrangement under which contracting parties divide responsibility for specified losses—typically injury or death of personnel and damage to property—backed by mutual indemnities. In place of the usual fault-based rules that would apply at law, the approach adopts the notion that loss remains with the party on whom it falls. This risk allocation device is widely utilised in the offshore oil and gas sector to create certainty and to avoid recourse against other participants. Its use is increasingly seen across other complex offshore energy projects, such as offshore wind projects. What are the key features of a knock-for-knock clause? As a general rule, these clauses preserve the position that any harm to personnel or damage to property suffered by a party’s defined ‘group’ must be borne by that party, regardless of fault. The relevant ‘group’ can be...
Practice Note This Practice Note examines how the English courts approach the meaning and effect of a jurisdiction agreement (also referred to as a choice of court agreement) under English common law. It sets out the elements required for a valid jurisdiction agreement and the courts’ general method for construing these provisions. Matters addressed include whether a dispute falls within the clause’s ambit and how the jurisdiction promise interacts with the wider contract, covering separability and the position where the contract is alleged to be void or voidable. The Note also considers the courts’ approach to jurisdiction agreements contained in related contracts, as well as how conflicting jurisdiction provisions are handled. In addition, it reviews the use of jurisdiction clauses in an underlying contract for the purposes of settlement disputes, and the effect of an English law clause where no...
The joint operating agreement ( JOA) contains several core commercial terms. Scope Broadly, the JOA’s scope is to set out the parties’ respective rights and obligations in relation to operations and activities carried out under the JOA, including joint exploration, appraisal, development, production and the disposal of petroleum products from, and the decommissioning of, the area of joint operations. The scope is established by identifying the activities that comprise the joint operations and, in parallel, by listing activities expressly excluded from that definition as ‘excluded activities’. Joint operations can be understood as the activities necessary to exercise the rights and fulfil the obligations that flow from the concession. Alternatively, the JOA may employ a more technical description of joint operations, aligned to the distinct operational elements of a typical petroleum project, namely exploration, appraisal, pre-development, development, production, disposal and...
What is the Retail Energy Code ( REC)? The Retail Energy Code ( REC) sets the framework for the retail elements of the gas and electricity markets in Great Britain ( GB). It supports Ofgem’s Switching Programme and brings together, aligns and streamlines a range of retail obligations that were previously spread across different codes. For more on GB energy industry codes, see Practice Note: Industry Bodies and Codes— Great Britain electricity and gas market. The Switching Programme seeks to enhance customers’ experience of changing gas or electricity supplier, especially by enabling rapid switching. This accelerated switching model is delivered through the Central Switching Service ( CSS), which became operational in July 2022 and is run by the CSS Provider under the REC. Under its smart metering communications licences, the Data Communications Company ( DCC) must procure and provide the CSS and is,...
This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...
This Practice Note This Practice Note offers practical guidance on correctly and properly executing simple contracts and deeds for Law of Property Act receivers ( LPA receivers) or fixed charge receivers. Appointing an LPA/fixed charge receiver is a remedy available to the chargee (ie the holder of security over property) and is the remedy of a chargee. LPA/fixed charge receivership is not an insolvency process and does not necessarily, of itself, mean the chargor (ie the person who granted the security) is insolvent. An LPA/fixed charge receiver must be a natural person (ie a company cannot be a receiver) but need not be an insolvency practitioner or hold any other particular qualification. Unlike a liquidator, administrator or trustee in bankruptcy, an LPA/fixed charge receiver does not take control of the company as a whole (and, for an individual, does not control the...
This Practice Note sets out practical steps for arranging the execution of a document by an individual who has an impairment or disability, or where the individual and their adviser do not share the same language. For overarching guidance on executing contracts and deeds, see the following Practice Notes: Deeds Executing documents—deeds and simple contracts We have also created a comprehensive, interactive collection to help users recognise and navigate key concepts and frequent issues in document execution. Each stage includes practical guidance, precedent clauses and Q& As tailored to that phase. For further details, see: Execution collection. Inability to read or comprehend documents in writing An impairment may prevent a signatory from reading a document themselves, for instance where they are partially sighted or blind. It may equally be that the signatory does not read or speak the language used in the...
This Practice Note sets out practical guidance on the correct execution of simple contracts and deeds by limited liability partnerships ( LLPs). See also Precedents: Execution clause—limited liability partnership—contract and Execution clause—limited liability partnership—deed. For commentary on establishing an LLP, see Practice Note: Forming a limited liability partnership. We have created a collection that serves as a comprehensive, interactive tool to help users pinpoint and navigate the concepts and common issues that arise when executing documents. Each stage or phase supplies practical guidance, precedent clauses and Q& As relevant to that part. For further details, see: Execution collection. The law Before 1 October 2009, the execution formalities applicable to LLPs were contained in the Companies Act 1985. From 1 October 2009, LLPs have been governed by the Companies Act 2006 ( CA 2006) by virtue of, and as modified by, the Limited Liability...
Background to the energy supply company special administration regime The government established a special administration regime ( SAR) for energy suppliers in the Energy Act 2011 ( En A 2011), adopting and adapting certain provisions from the Energy Act 2004 ( EA 2004). Brought in as part of a broader package in En A 2011, the SAR aims to strengthen energy security and ensure gas and electricity continue to be delivered as cost effectively as possible where a major supplier becomes insolvent and no purchaser can be secured. To govern the procedure, the government also introduced the Energy Supply Company Administration Rules 2013 ( ESCAR 2013), SI 2013/1046, which set the technical framework for energy supply company administrations ( ESCA). ESCAR 2013, SI 2013/1046 reflects the Insolvency ( England and Wales) Rules 1986, SI 1986/1925, diverging only to the extent needed to reflect ESCA’s...
Types of Liquefied natural gas ( LNG) is often handled as a portfolio commodity, whereby a participant may break up several long-term sales agreements into short-term transactions to optimise transport costs and balance supply obligations with market conditions. The LNG sector also maintains its own spot-trading market, in which cargoes are bought and sold through competitive tenders and brokered trades. Alternatively, swap arrangements—under which two buyers or two sellers agree to swap cargoes—are becoming a more common trading model in the LNG industry. The common types include: short-term sales agreements—one to five-year bilateral agreements, often with little flexibility of terms master agreements—a popular arrangement under which seller and buyer sign an agreement that sets out the general terms under which they will buy and sell LNG, without committing the parties to an obligation to actually buy or sell specific quantities......
Practice Note This Practice Note offers practical direction on how companies should execute documents after 6 April 2008 (being the date on which the pertinent provisions of the Companies Act 2006 ( CA 2006) took effect). It addresses the execution of deeds by companies, and the execution of simple contracts by and on behalf of companies. If advising on documents signed before 6 April 2008 (for instance, in a dispute), practitioners should consider the relevant provisions of the Companies Act 1985. Throughout, it is assumed the executing company is a private company subject to CA 2006 and that the document is in writing. For execution points relevant to other legal entities, see: Execution—overview. We have assembled a collection that serves as a comprehensive, interactive resource to help users identify and work through the concepts and common issues that arise when executing...
This Practice Note offers hands-on guidance on correctly executing simple contracts and deeds for general partnerships. For details on execution by limited liability partnerships, see Practice Note: Execution formalities—limited liability partnerships. For execution by limited partnerships, see Practice Note: Execution formalities—limited partnerships. We have assembled a comprehensive, interactive Execution collection to help users pinpoint and address the key concepts and recurring issues in document execution. Each stage features practical guidance, precedent clauses and Q& As tailored to that step. For more, see: Execution collection... Quick view The summary below outlines the core execution formalities for partnerships and indicates where the relevant precedent execution clauses are located. For fuller guidance, go to the document type via the links in the first column... Simple contracts Can be made: On behalf of the partnership. Executed by: The...
This Practice Note sets out practical guidance on how overseas companies execute documents, with particular emphasis on executions occurring on or after 1 October 2009 under the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. For the purposes of this note, it is assumed the contract is in writing. We have created an Execution collection—an extensive, interactive resource—to help users recognise and navigate the concepts and common issues arising on execution. Each stage or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For further information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies ( Execution of Documents and Registration of Charges) Regulations 2009 ( OC( EDRC) R 2009), SI 2009/1917. These regulations apply, with...
Parties often wish to stipulate that the entirety of their contractual relationship is governed by the written agreement they have signed. This is known as an ‘entire agreement clause’. This Practice Note examines why such clauses are used and the principal issues relevant to their operation, including the interplay between entire agreement clauses and implied terms, misrepresentation, fraud and exclusion clauses, non-reliance statements, and broader matters of evidential estoppel and contractual estoppel. For further guidance on construing the scope of parties’ contractual obligations, see Practice Notes: The parol evidence rule in interpreting contracts Contract interpretation—admissibility of surrounding documents and related content What is an entire agreement clause? At its simplest, an entire agreement clause provides that the whole of the parties’ contractual dealings is governed exclusively by the terms contained in their written contract. Consequently, when interpreting the contract, the court is...
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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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