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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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The basic definition The scope of sustainable development continues to be widely debated. The most familiar articulation emerged in 1987, when the United Nations Commission on Environment and Development ( UNCED) issued Our Common Future, better known as the Brundtland Report. It portrays sustainable development as progress that fulfils current needs without jeopardising the capacity of future generations to fulfil theirs. Embedded within this are two central ideas: the notion of needs, particularly the basic needs of the world’s poor, which should command overriding priority the recognition of limits set by technology and social organisation on the environment’s capacity to satisfy present and future needs Most interpretations of sustainable development draw on elements of this Brundtland formulation; at the very least, it serves as the point of departure for the majority of definitions. Discussion also references adoption and evolution of the...
Defining sustainable development The scope and meaning of sustainable development remain hotly contested. Many descriptions draw upon variations of the renowned Brundtland definition and the three pillars model, often referred to as the triple bottom line of sustainability. Yet, in the absence of a uniform methodology, it is hard to determine how to deliver sustainable development, or to know exactly when, if at all, it has been realised. For detailed definitions of sustainable development, consult these Practice Notes: Sustainable development—definition and application at international level Sustainable development—definition and application at European Union ( EU) level Sustainable development—definition and application at UK level Sustainability indicators Sustainability indicators offer a means to gauge—or at least to approximate—progress towards the policy objective of sustainable development. Origin After the Earth Summit in Rio de Janeiro, Brazil, in 1992, states were encouraged to establish their own sets of...
This Practice Note sets out information on sustainability-linked loans ( SLLs) and the key points to address when drafting and negotiating a sustainability-linked loan agreement. It centres on the Sustainability- Linked Loan Principles ( SLLPs) issued by the Loan Market Association ( LMA), the Asia Pacific Loan Market Association ( APLMA) and the Loan Syndications and Trading Association ( LSTA), as periodically updated. For an introductory overview of sustainable finance for transactional banking and finance lawyers, see Practice Note: Introductory guide to sustainable finance for banking and finance lawyers—this outlines the core concepts and challenges in sustainable finance and summarises the regulatory landscape at a high level. See Types of ESG finance—overview for materials on other ESG financing, including green loans and bonds, social loans and sustainability-linked derivatives... What is meant by a...
This Practice Note reviews current and forthcoming rules shaping TMT and examines leading organisations influencing sector benchmarks. It identifies the organisations most influential on evolving industry norms and compliance expectations. It then considers technology’s environmental effects and sets out actions and openings the TMT industries will probably need to adopt to progress towards a sustainable future. The discussion frames both risks and opportunities for TMT as it charts a path towards sustainability. It outlines the part played by the telecoms and media sectors in assessing their environmental footprint and how they might promote sustainable practices. It also reflects on how these sectors can promote greener practices across operations. It concludes by signposting ways companies can tackle sustainability across internal policies and practices, supply chains and the use of technology. For sustainable business guidance, see: ESG and...
On 1 June 2023, the European Commission ( Commission) unveiled its revised Horizontal Guidelines (the Guidelines). As foreshadowed in last year’s consultation draft of the horizontal regime, the Guidelines set out rules that apply to sustainability arrangements concluded between competitors. Although environmental agreements appeared in the 2001 horizontal guidelines, they were taken out of the 2010 edition. Their (re)appearance within the Commission’s antitrust framework therefore marks a significant clarification of the relationship between sustainability and EU competition law. On 10 January 2023, the Commission likewise issued draft guidelines on a novel exclusion removing sustainability agreements in the food and agriculture sphere from the scope of Article 101(1) TFEU. This alignment is consistent with the Commission’s ambitious plan against climate change, packaged within a number of initiatives under the European Green Deal. Rather than mapping out a route for the Commission to back...
We have assembled a suite that serves as a thorough, interactive tool to assist solicitors who are contributing to the creation of robust supply chains within an organisation. The suite contains guidance concerning key supply chain risk management considerations,......
Environmental, social, and governance ( ESG) is taking the world by storm. ESG can look like a modern fad, yet scrutiny of non-financial risks and opportunities—and board oversight of them—has long pre-dated the coining of ‘ ESG’ in 2005. What has shifted is that ESG supplies distinct lenses for organisations to judge whether, and how far, they must demonstrate greater creativity around risk and strategy. This how-to guide sets out the actions companies should follow when establishing an ESG board committee. As the ESG landscape broadens daily, fresh queries emerge about how boards ought to organise oversight of the environmental and social matters encompassed within their own ESG definition. The concise answer mirrors classic corporate governance: there is no universal template. For some, the best course is to clarify and sharpen the remit of existing board structures; for others, it lies in forming a new board...
Originally produced in partnership with Laura Bolado Stockholm Convention on Persistent Organic Pollutants ( POPs) of 22 May 2001 Entry into Force: 17 May 2004 General entry into force date: please note each Party has a specific date based on its own ratification (see art 26) Transposition Deadline: n/a Amendments: some (see specific sections) Subject: persistent organic pollutants; international agreement Purpose of the Convention Grounded in the precautionary principle, this global treaty, adopted in Sweden in May 2001, seeks to protect human health and the environment from persistent organic pollutants ( POPs). These substances persist in the environment for lengthy periods, disperse over large distances, accumulate in the fatty tissue of humans and wildlife, and can adversely affect human health or the environment. Accordingly, the Convention’s core aim is to safeguard human health and the environment. As no single...
Background The United Nations Conference on the Human Environment (the Stockholm Conference) stands as a landmark in the shaping of modern environmental law. Held in Stockholm, Sweden, from 5–16 June 1972, it gathered delegates from 113 nations together with over 400 intergovernmental and non-governmental organisations. As the first intergovernmental forum devoted to environmental matters, it acknowledged that protecting the environment is a fundamental concern affecting both human well-being and global economic progress. Instead of imposing precise obligations, it set out broad environmental policy aims and objectives. By recognising the need to renew the bond between humanity and nature, the conference prompted the creation of a range of environmental institutions within the United Nations ( UN). Notably, it also paved the way for significant national and international environmental instruments, including: 1982 United Nations Convention on the Law of the Sea 1985 Vienna Convention for the...
What is a special site? A special site is contaminated land falling within Pt IIA of the Environmental Protection Act 1990 ( EPA 1990) that is: formally designated by a local authority ( LA), or by the Secretary of State/ Welsh Ministers; and whose designation has not been brought to an end by the Environment Agency ( EA) or Natural Resources Wales ( NRW) These sites involve risks or issues that the EA in England, or NRW in Wales, are best placed to address. Once a site is designated, the EA/ NRW replaces the LA as the enforcing authority for that land, and the details of the designation must be entered into the contaminated land register......
What is solar thermal? Solar thermal describes collectors that capture the sun’s energy to produce hot water. Collectors are most commonly fitted to roofs, but they can also be placed on the ground, mounted on walls, or integrated within building components, i.e. shading devices, canopies, and similar elements. The heat produced is primarily used for domestic hot water and can also contribute to heating or provide warm air for buildings. It may additionally heat or pre-heat water for industrial processes, supply warm water for swimming pools, and drive a particular type of chiller for air conditioning. In the UK, given the available solar radiation (with a maximum of about 1 k W/m2) and its seasonal variation, solar systems cannot meet a building’s entire hot water demand at a viable cost. Consequently, storage buffers or supplementary heating systems are often needed. Solar thermal systems are...
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...
The Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 bring together and replace the Environmental Permitting ( England and Wales) Regulations 2010 ( EPR 2010), SI 2010/675. EPR 2016 is the principal legislation setting the framework for environmental permitting and compliance across multiple sectors. Small waste incineration plants ( SWIP) are included under EPR 2016, SI 2016/1154, Sch 13. Requirement for an environmental permit Permits are required for specified operations that may pose a risk to the environment or human health. Unless specifically excluded, small waste incineration and co-incineration activities must hold an environmental permit. Under EPR 2016, SI 2016/1154 it is an offence to: operate a regulated facility, or knowingly cause or allow the operation of a regulated facility, without an environmental permit; or cause or knowingly permit a water discharge activity or a...
What is significant harm? Significant harm forms one of the two limbs in the definition of contaminated land under the Environmental Protection Act 1990, Part IIA ( EPA 1990). Land is contaminated where it appears to the relevant local authority ( LA) that its condition, because of substances present in, on or under it, is such that: significant harm is occurring, or there is a significant possibility of significant harm ( SPOSH), or significant pollution of controlled waters is occurring, or there is a significant possibility of significant pollution of controlled waters For further information, see Practice Note: Contaminated land—definition of contaminated land. ‘ Harm’ is defined as: harm to the health of living organisms, or other interference with the ecological systems of which they form part, and in the case of humans, includes harm to property ‘ Significant harm’ is not defined in the EPA 1990, Part IIA. Whether harm is to be...
What is significant harm? Significant harm forms one of the two elements of the definition of ‘contaminated land’ in Part IIA of the Environmental Protection Act 1990 ( EPA 1990). Land is regarded as contaminated where, to the relevant local authority ( LA), its condition—due to substances within, on or beneath it—appears such that: significant harm is occurring, or there is a significant possibility of significant harm ( SPOSH) being caused; or significant pollution of controlled waters is being caused, or there is a significant possibility of significant pollution of controlled waters being caused For further information, see Practice Note: Contaminated land—definition of contaminated land. ‘ Harm’ is taken to mean: harm to the health of living organisms; or other interference with the ecological systems of which they are a part; and in the case of humans, harm to...
This Practice Note sets out principal environmental and health and safety ( EHS) points to address in a share purchase. The questions can operate as a checklist for a seller’s solicitors preparing the data room, or for a buyer’s lawyers assessing whether the EHS materials are adequate for the business. See Practice Notes: Environmental due diligence—share purchase and Environmental issues when selling a company or business. Contaminated land In a share purchase, the buyer assumes responsibility for land contamination or water pollution caused or knowingly permitted by the target, present at or migrating from current or former properties; spills by the target on third-party land (for example, tanker incidents); and contamination or pollution at current properties as a Class B owner or occupier. The buyer should evaluate potential liabilities and remediation costs, which may require a phase 1 environmental audit or a phase 2 ground...
Most of the completion and post-completion tasks in a share purchase transaction are routinely carried out by corporate lawyers and typically include: holding the relevant completion meeting filing notices at Companies House stamping the stock transfer form preparing the transaction bible of all signed documents making any adjustments to the purchase price The buyer gains beneficial ownership of the target company’s shares once all completion formalities have been completed or expressly waived. Transfer of the legal title to the target company’s shares......
Technical due diligence Where non-compliance is known or land contamination suspected, the buyer, or ideally its lawyers, may engage an environmental consultancy to carry out a phase 1 environmental, health and safety ( EHS) compliance audit, or undertake intrusive phase 2 testing, to gauge liability and financial risks. Types of environmental audits Typical prices (exc VAT) and timescales: Desktop searches: historic uses, landfills, environmental permits, pollution incidents, ground stability, flooding. Contaminated land risk screening report £180; combined contaminated land and flooding search £270–£320; 1–3 days. Basic phase 1 audit: desktop search, site walkover, management interview, regulator replies; £1,000–£2,000; 5–10 days. Detailed phase 1 environmental, EHS audit: as phase 1 plus report reviews, operational controls and systems, key health and safety compliance issues, capex investment assessment; £2,500–£4,000; 5–10 days. Asbestos survey: Management Asbestos Survey, Demolition or Refurbishment Survey, asbestos register; £2,000–£5,000; 5–10 days. Phase 2 report: intrusive testing of soil, water and gas; price...
The purpose of environmental due diligence Environmental due diligence seeks to: Evaluate the risk of contaminated land liabilities at properties the target currently owns or occupies, as well as those it has previously held or used Identify any material non-compliance issues, or threatened proceedings or claims, associated with the target Highlight significant capital expenditure needed to comply with the target’s environmental permits, and with current or anticipated environmental legislation Provide recommendations to mitigate these risks through contractual protections, price negotiations, further investigations, or environmental insurance Contaminated land is often one of the most substantial liability concerns in corporate transactions and is particularly significant in a share acquisition. In a share purchase, a buyer may inherit liabilities where the target has “caused” or “knowingly permitted” contamination at sites it currently owns or occupies, or those it formerly held. The target can also face clean-up liabilities as an innocent “owner” or...
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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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