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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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Legislation and guidance Hazardous substances consents ( HSCs) are overseen by the Planning ( Hazardous Substances) Act 1990 ( P( HS) A 1990), the Planning ( Hazardous Substances) Regulations 2015 ( PHSR 2015), SI 2015/627, and the Planning ( Hazardous Substances) ( Wales) Regulations 2015 ( PHSWR 2015), SI 2015/1597. Nuclear installations and radioactive substances are subject to a separate suite of statutory controls. In England, the government has published Planning Practice Guidance ( PPG) on hazardous substances, which explains how relevant planning controls apply to the storage of hazardous substances in England and how to handle development proposals around hazardous establishments in England. The Health and Safety Executive ( HSE) has also produced further guidance on hazardous substance consents, including HSE’s role as a statutory consultee on relevant applications for HSC. Purpose of hazardous substance consents Owners and operators wishing to hold stocks of...
Practice Note This Practice Note offers a concise outline of the planning framework for hydraulic fracturing, commonly referred to as fracking, in England. Although the approach is broadly comparable in both Scotland and, in particular, Wales, notable distinctions exist following recent constitutional reforms within the UK. Moreover, the devolved governments have introduced an effective policy prohibition on fracking in their territories. This Practice Note does not attempt to examine those divergences herein. Through a Written Ministerial Statement ( WMS) in November 2019, the government formally stated that, having considered scientific evidence, it would presume against granting any additional hydraulic fracturing consents. Activity has not been permitted to advance in England in light of scientific analysis released by the Oil and Gas Authority ( OGA) on 2 November 2019 thereafter. In April 2022, as part of the British energy security strategy 2022, the...
Introduction The EU‑ UK Trade and Cooperation Agreement ( TCA) is the accord between the European Union ( EU) and the UK that took effect on 1 May 2021 after Brexit. It sets out preferential arrangements across core areas of EU‑ UK relations, covering trade in goods and services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, social security coordination, law enforcement and judicial cooperation in criminal matters, thematic cooperation, and participation in EU programmes. These arrangements are supported by commitments to a level playing field and the protection of fundamental rights. The EU entered into the TCA under Article 218 of the Treaty on the Functioning of the European Union. In the UK, the European Union ( Future Relationship) Act 2020 ( EU( FR) A 2020) established a framework enabling the TCA to be implemented by...
Determining liability Enforcement bodies are to use the statutory guidance’s five-step method for deciding liability under section 78F of the Environmental Protection Act 1990 ( EPA 1990). Not every stage will be applicable in every matter. Refer to Practice Note: Contaminated land—process for determining liability. At step three, the authority must apportion responsibility for shared actions among liability groups. This step is not relevant where there is: a single significant contaminant linkage ( SCL), as that group must meet the entire cost of any remediation; an orphan linkage, because the authority may undertake the remediation itself at its own expense; a single-linkage action, as that liability group is liable for all remediation costs. ‘ Attribution’ is engaged where a single remediation measure is a ‘shared action’ tied to two or more SCLs......
Introduction Planning decisions and actions by local planning authorities ( LPAs), the Secretary of State and other public bodies can be contested in the courts where the decision was unlawful. Most planning decisions are capable of challenge by a High Court application for judicial review (see Practice Note: Planning judicial review). However, certain statutory schemes governing particular decisions or acts expressly preclude court challenges, including judicial review, save through a statutory application. Put simply, the legislation states that a decision or action may only be questioned under a specified statutory route. Such proceedings are termed statutory reviews or statutory challenges. This Practice Note concentrates on the arrangements for applications for statutory planning review (usually called ‘applications’ rather than ‘claims’, though the labels are used interchangeably), which, in the planning context,...
Actions against regulators/authorities Beyond judicial review of decisions, claimants may pursue civil proceedings where loss or damage is caused by breaches of duty and negligence by public bodies; the Corby litigation is a case in point, ending with an out-of-court settlement in April 2010. Corby dispute arose from remediation of a former steelworks, a site used for steel production for six decades and for disposal of steelmaking wastes long predating waste regulation. The local authority, Corby DC, holding enterprise zone status and benefiting from derelict land grant and EU regional development funding, acquired the 270ha site from British Steel in stages, reclaiming it in several phases over fifteen years......
Heads of terms Acquiring a private company typically starts with settling the principal commercial points, including price, the deal structure, due diligence logistics, exclusivity obligations and the timetable agreed. Those commercial points are usually negotiated directly between the clients, or sometimes in conjunction with their accountants or other professional advisers, and captured in the detailed heads of terms, also referred to as a letter of intent or memorandum of understanding. See the Practice Note: Heads of terms—share and asset purchases. If environmental matters are known or suspected, the heads of terms might provide for: disclosure of any existing environmental report(s) to the purchaser a requirement for a reliance agreement or collateral warranty so the purchaser receives the benefit of the environmental report(s) a procedure enabling the purchaser to undertake a phase 1 environmental audit or phase 2 ground...
Policy context The first National Planning Policy Framework (2012 NPPF) was issued on 27 March 2012 and came into force at once. It streamlined more than 1,000 pages of planning policy statements, guidance and circulars into a single text. Central to the 2012 NPPF was a presumption in favour of sustainable development. A refreshed NPPF followed in July 2018, with modest amendments in February 2019. Further updates arrived on 20 July 2021, September 2023 and December 2023 (the 2023 NPPF). The 2018, 2019, 2021 and 2023 iterations kept the presumption in favour of sustainable development, albeit with a shift in emphasis and practical application, as explored in this Practice Note. In July 2024, the government consulted on reforms to the NPPF, including proposals affecting the presumption in favour of sustainable development, considered further below (see ‘ Proposed changes to presumption insofar as it affects...
Heads of terms The transaction typically starts with agreement of the key commercial points, setting out who the parties are, the purchase price, and any particular requirements relating to occupational leases, surveys, planning matters or necessary works. These commercial points are commonly negotiated directly by the clients, or with support from their accountants or other professional advisers. Where environmental issues are known or suspected, the heads of terms may cover: disclosure to the buyer of any existing environmental report(s) a requirement for a reliance letter so the buyer can obtain the benefit of the environmental report(s) a process for the seller, the buyer or both to undertake environmental surveys allocation of environmental responsibilities (e.g. if the property ......
Heads of terms A business purchase (the target business) typically starts with settling the key commercial points—price, structure of the deal, due diligence steps, exclusivity provisions and timetable. These points are commonly negotiated by the parties themselves, or alongside their accountants and other professional advisers, and then set out in heads of terms, sometimes called a ‘letter of intent’ or ‘memorandum of understanding’. See Practice Note: Heads of terms—share and asset purchases. Where environmental risks are known or suspected, the heads of terms might cover: providing the buyer with any existing environmental report(s) a requirement for a reliance agreement or collateral warranty, giving the buyer the benefit of those report(s) a process allowing the buyer to undertake a phase 1 environmental audit or phase 2 ground investigations headline terms for an environmental indemnity or environmental...
The questions and issues below should be front of mind for an environmental lawyer managing an environmental incident and any prospective investigation. This Practice Note should be read together with Practice Note: Conducting an investigation into environmental crime. Initial considerations Does the organisation’s environmental policy or permit prescribe the steps to follow when an incident occurs? Is there a designated incident response team to assemble, and have they been notified? Is there a clear chain of command for obtaining instructions on how to handle the incident response? Does the Board, or an appropriately constituted Board sub-committee, oversee the environmental officer’s work and any investigation report? Are they the ‘client’ for legal advice purposes? To preserve legal privilege, ensure third party professionals, including environmental consultants and lawyers, receive instructions from the ‘client’ group. Anyone not strictly within the client should secure the...
Environmental rectification work post completion Where an environmental report, an asbestos survey, or the seller’s disclosures flag non-compliance or capital spending obligations, the sale agreement may contain provisions requiring the seller or the buyer to undertake further enquiries and remedial measures after completion. After completion, actions may comprise: commissioning a fresh asbestos survey to update the asbestos register or to evaluate the need for asbestos remediation removal or encapsulation of asbestos-containing materials upgrades to septic tanks or drainage infrastructure decommissioning or extraction of underground storage tanks fire safety upgrades, and intrusive ground investigations, gas sampling, groundwater monitoring, or remediation activities See Precedents: Asbestos indemnity and Environmental rectification work clause. Transfer of environmental permits Under the Environmental Permitting ( England and Waste) Regulations 2016 ( EPR 2016), SI 2016/1154, certain activities — including waste operations, manufacturing sites, mining waste, radioactive substances, and discharges to surface water or groundwater — may require an...
ARCHIVED : This Practice Note has been archived and is not maintained From 31 January 2020 (exit day), the UK ceased to be an EU Member State and its relationship with the EU is governed by the Withdrawal Agreement, which took effect on 1 February 2020. Under the Withdrawal Agreement, on exit day the UK entered an implementation period, during which it continues to be regarded as a Member State for many purposes, including trade. As a third country, the UK can no longer take part in the EU’s political institutions, agencies, offices, bodies and governance structures (save to the limited extent agreed), but the UK must continue to comply with EU law and remain subject to the continuing jurisdiction of the Court of Justice of the European Union in line with the transitional arrangements in the Withdrawal...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
Following the close of the Brexit transition period ( IP completion day) on 31 December 2020, the UK stopped participating in the EU’s Emissions Trading System ( ETS). The EU ETS is designed to reduce the overall volume of specified greenhouse gases ( GHG) released by factories, power stations and other covered installations, by operating an allowance market within a cap-and-trade framework. For further information on the EU ETS and carbon trading, see the following Practice Notes: EU Emissions Trading System ( ETS) Phase IV— Directive 2003/87/ EC EU Emissions trading system—outline EU Emissions Trading System ( ETS) for aviation EU Emissions Trading System ( ETS) for maritime transport EU Emissions Trading System ( ETS II) for buildings, road transport, and additional sectors Carbon markets—basic principles and future developments Carbon...
Plastic waste—the problem Across the globe, awareness of the issues linked to plastic and plastic waste is growing, especially in the marine environment, alongside a clearer grasp of how plastics break down and leach into nature. Plastic waste seldom decomposes; it can remain for centuries in landfill, or become litter in the natural world, which then contaminates soils, rivers and oceans, and harms the wildlife that lives there. There is also mounting evidence that microplastics (plastic particles smaller than 5 millimetres) negatively affect the health of humans and animals. In March 2024, the House of Commons published a research briefing on plastic waste. Within it, the climate and resources charity WRAP notes that about two-thirds of all plastic packaging originates from consumer goods, with plastic bottles the largest single source. An estimated 73% of plastic bottles produced in 2020/21 were collected from households for...
First drafted in collaboration with Alistair Mills of Landmark Chambers and later revised by Freya Foster of Henderson Chambers. The different routes of challenge Most environmental safeguards and regulatory functions are carried out by public authorities, including the Environment Agency, Natural England, Defra, the Secretary of State for Transport, and local authorities. Ensuring those institutions are accountable, and scrutinising their decisions, actions and failures to act, is consequently fundamental to environmental law. Although there is a range of courts and tribunals in which to seek review and appeal decisions—for instance, the General Regulatory Chamber dealing with certain environmental appeals, the Information Tribunal addressing matters concerning environmental information, and the High Court considering appeals by case stated—two particularly significant pathways are judicial review and statutory review. In England and Wales, both routes require issuing proceedings as claims in the...
What is an intrusive site investigation? An intrusive (phase 2) site investigation involves geotechnical and geo-environmental specialists collecting detailed and reliable information on a site’s physical and chemical ground conditions. These findings are then applied to: the design of earthworks and foundations, and determining whether contamination is present The UK follows a risk-based framework for the identification, assessment and management of contaminated land, based on the idea of a contaminant linkage (once called a pollutant linkage), ie contaminant-pathway-receptor. For further information, see Practice Note: Contaminated land—risk assessment. Site characterisation is generally carried out in a clear staged manner: screening phase: an initial investigation consisting of a desk study phase 1: a site walkover and qualitative risk assessment phase 2: intrusive site investigations involving the analysis of soil, groundwater and/or gas samples and a quantitative risk assessment For further information on desktop studies and phase 1 assessments, see Practice Note:...
What is a phase 1 audit? A Phase 1 environmental audit is an impartial appraisal by external environmental consultants of an organisation’s adherence to environmental legislation and its management systems. The purpose is to methodically and precisely examine site activities and the local environmental context to identify breaches and the likelihood of contaminated land liabilities. By flagging environmental risks, their potential impact can be gauged and suitable remediation actions proposed. When will a phase 1 audit be instructed? The need for, and extent of, any audit will vary according to several considerations, such as: the terms governing a transaction current and historic operations site characteristics and environmental sensitivity the client’s risk appetite and available budget In most cases, a Phase 1 audit is commissioned because of: potential environmental liabilities highlighted by an initial desktop review (see:...
What are PFAS? Perfluoroalkyl and polyfluoroalkyl substances are man‑made chemicals found across industry and everyday items. Key uses span: aerospace and defence automotive and aviation food contact materials and processing textiles, leather and apparel for waterproofing and stain resistance construction materials metal plating and metal products household products, such as non-stick cookware ski wax electronics and semi-conductors cosmetics firefighting foams medical devices PFAS consist of carbon and fluorine; this exceptionally strong bond prevents environmental breakdown. Scientists have yet to determine a half-life for PFAS, earning them the label ‘forever chemicals’. What are the risks posed by PFAS? PFAS may enter the environment at nearly every point in a product’s lifecycle. They can migrate from packaging or products into prepared food, be washed off by rainwater, or be shed during normal use. PFAS are also directly sprayed into the environment......
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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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