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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note outlines how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented ( NDPR) property. It explores the interface between the MEES Regs 2015, SI 2015/962 and the Landlord and Tenant Act 1954 ( LTA 1954), considers challenges for landlords and tenants when subletting NDPR premises that are substandard, examines points arising for a landlord with a consent exemption on assignment, highlights due diligence considerations, and flags issues in real estate finance transactions where the asset is substandard (that is, holds an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’). It forms part of our Practical Notes series on minimum energy efficiency standards ( MEES). Under MEES Regs 2015, SI 2015/962, reg 27, a landlord must not let...
This Practice Note examines the implications for landlords and tenants of non-domestic private rented ( NDPR) property arising from the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962. It reviews matters to consider in relation to minimum energy efficiency standards ( MEES) under existing leases, and evaluates how MEES shapes new commercial lease negotiations on service charge, tenant alterations, statutory compliance, yielding up, rent review, the landlord’s right of entry, and controls on a tenant’s ability to carry out works affecting a property’s energy performance certificate ( EPC) rating. It forms part of our series of Practice Notes on MEES. Under MEES Regs 2015, reg 27, a landlord must not let, or continue to let, substandard NDPR premises (those with an EPC rating of ‘ F’ or ‘ G’) unless: ‘relevant energy...
ARCHIVED: This Practice Note is archived and is no longer maintained... Marrakesh Accords Location: Marrakesh, Morocco Date: 29 October–9 November 2001 Subject: Climate change The Marrakesh Accords set out the detailed procedures for putting the Kyoto Protocol into practice, introduced new financing and planning tools for adaptation, and created a framework to support technology transfer. These outcomes arose from the 7th Conference of the Parties to the United Nations Framework Convention on Climate Change ( COP 7)... For more information on: the Kyoto Protocol, see Practice Note: Kyoto Protocol—snapshot the United Nations Framework Convention on Climate Change ( UNFCCC), see Practice Note: United Nations Framework Convention on Climate Change 1992—snapshot The Ministerial Declaration The Ministerial Declaration ( Decision 1/ CP.7) recorded that the Marrakesh Accords would “pave the way for the timely entry into force of the Kyoto...
International Convention for the Prevention of Pollution from Ships 1973 as modified by the 1978 and 1997 Protocols ( MARPOL) Parties As at December 2017: MARPOL or its Annexes I and II—155 parties; Annex III—147 parties; Annex IV—141 parties; Annex V—152 parties; Annex VI—89 parties. Refer to the International Maritime Organisation ( IMO) status of conventions for further detail. Adopted 2 November 1973 Entry into force Annex I—2 October 1983 Annex II—6 April 1987 (major revision entered into force 1 January 2007) Annex III—1 July 1992 (major revision entered into force 1 January 2010) Annex IV—27 September 2003 Annex V—31 December 1988 Annex VI—19 May 2005 Full text MARPOL and the ‘ How to do it guide’ can be purchased from the IMO in print or via an online subscription (‘ Marpol on the Web’). Subject Marine pollution, marine...
in England and Wales Nature conservation in England and Wales is underpinned by a blend of international, European and national instruments, which comprise: Convention on Biological Diversity 1992 ( CBD) Convention for the Protection of the Marine Environment of the North- East Atlantic 1992 ( OSPAR Convention) Convention on International Trade in Endangered Species of Wild Fauna and Flora ( CITES) United Nations Convention on the Law of the Sea 1982 ( UNCLOS) Habitats Directive 92/43/ EEC ( Habitats Directive) and Birds Directive 2009/147/ EC ( Birds Directive), see Habitats and Birds Directives below Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (the Habitats Regulations 2017) Conservation of Offshore Marine Habitats and Species Regulations 2017, SI 2017/1013 (the Offshore Regulations 2017) Wildlife and Countryside Act 1981 ( WCA 1981) Species specific...
Marine Protected Areas Marine Protected Areas ( MPAs) are sea zones created to safeguard habitats, species and the natural processes vital for resilient, well‑functioning marine ecosystems. Their role is to protect and help recover rare, threatened and noteworthy habitats and species from harm arising from human activity. In England, MPAs are designated for specific habitats or species (often called ‘features’) and carry conservation objectives that set out the outcomes each site is intended to achieve. Much UK policy and legislation on plastics and plastic pollution is likewise aimed at protecting the marine environment. For more information, see Practice Note: Waste types and controls—plastics. There are roughly 180 MPAs in English waters, covering about 50% of inshore and 37% of offshore waters. The Joint Nature Conservation Committee ( JNCC), the statutory adviser to the UK Government and devolved...
Establishment of the Marine Management Organisation The Marine Management Organisation ( MMO) came into being on 1 April 2010 through the Marine and Coastal Access Act 2009 ( MCAA 2009). It regulates activities at sea around England, and matters concerning vessels registered to ports in England, anywhere in the world. Further duties and powers followed in the Fisheries Act 2020. The MMO is an executive non-departmental public body. Working at arm’s length from government, it is accountable to the Secretary of State ( So S) for the Department for Environment, Food & Rural Affairs ( Defra) and is part of the Defra Group. The MMO also has cross departmental responsibilities and, for these, is answerable to the So S for each relevant department. Where statute permits, government may request the MMO to undertake additional functions or new work, either on a permanent or...
Legislative context Under the Marine and Coastal Access Act 2009 ( MCAA 2009), the marine licensing regime brought in an independent route of appeal, allowing applicants to challenge licensing determinations taken pursuant to MCAA 2009, s 71. Section 73 of MCAA 2009 requires that supplementary regulations be made so that anyone seeking a marine licence can contest a licensing decision issued by the relevant licensing authority. That obligation was fulfilled by the Marine Licensing ( Licence Application Appeals) Regulations 2011, SI 2011/934 (the Licence Application Appeals Regulations), which prescribe the procedure for appeals against licence application outcomes. These regulations therefore set out how such appeals are to be brought and determined. The Licence Application Appeals Regulations, SI 2011/934, are intended to promote openness in licensing decisions and to make the decision-maker answerable for the conclusions it reaches. From 6 April 2011, those applying for a...
Marine licensing requirements for construction activities A marine licence is needed to build, alter or upgrade any works within the UK marine licensing area where they are situated: in or over the sea bed on or under the sea bed As well as projects where some or all construction occurs on the foreshore or elsewhere in the inshore region, developments positioned beside marine waters may still include elements that are fixed in, or even extend over, the marine area. Examples include placing scaffolding, or bridges across tidal rivers such as the River Thames, which remains tidal inland as far as Teddington Lock. These parts of the works are captured by the marine licensing regime in Part 4 of the Marine and Coastal Access Act 2009 ( MCAA 2009). For general information on applying for a marine licence, see Practice Note: Marine...
Part 5 of the Marine and Coastal Access Act 2009 ( MCAA 2009) Confers a power, across most UK waters, to designate marine conservation zones ( MCZs) and in practice, displaces the former power under the Wildlife and Countryside Act 1981 to establish Marine Nature Reserves. This note specifically concentrates on MCZs in England and Wales. For broader guidance on MCAA 2009, see Practice Note: Marine planning under Marine and Coastal Access Act 2009. MCZs also set up protected marine sites and sit alongside other designations within the marine protected areas network, including Special Areas of Conservation, Special Protected Areas and Marine Protected Areas. For further detail on the marine protected areas network, see Practice Note: Marine protected areas. For information on changes introduced by the Fisheries Act 2020, see Practice Note: Fisheries Act 2020–snapshot— Increased research and...
At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s departure from the EU concluded. From this point—labelled ‘ IP completion day’ in UK legislation—principal transitional provisions ended and major changes began to operate across the UK legal regime. For guidance on CE and UKCA marking, the revisions made by the Waste ( Miscellaneous Amendments) ( EU Exit) ( No 2) Regulations 2019, SI 2019/188 and the Hazardous Substances and Packaging ( Legislative Functions and Amendment) ( EU Exit) Regulations 2020, SI 2020/1647, and on post- Brexit divergences, see Practice Note: GB Restriction of hazardous substances ( GB Ro HS)—scope— Brexit. Ro HS Regulations 2012 The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012, SI 2012/3032 ( Ro HS Regulations 2012) implement Directive 2011/65/ EU on restricting the use of certain...
Environmental, social and governance ( ESG) factors are now central to managing environmental risk, with mounting expectations on companies to evaluate their environmental and social performance. Sustainability underpins the Environment Agency’s ( EA) land contamination risk management ( LCRM) guidance, which requires climate change to be addressed within risk assessments. In recent years, organisations such as The Society of Brownfield Risk Assessment ( So BRA) and CL: AIRE have issued supporting guidance and schemes that reinforce the EA’s sustainability objective. For more on ESG, see Practice Note: ESG—new starter guide. What is environmental risk? The EA’s LCRM guidance, published in October 2020 and replacing the 2019/2020 versions, sets out how to assess and manage risks arising from land contamination. Environmental risk is one of several ESG matters relevant to organisations and stakeholders, alongside risk areas such as health and safety and data security...
A growing focus on climate change and cutting carbon emissions, within a company’s environmental, social and governance ( ESG) strategy, is increasingly shaping corporate transactions......
Maintenance Every sewerage undertaker is under a duty to ensure its sewers and lateral drains are cleaned and kept in good order so that its area is, and continues to be, effectively drained. Section 79 of the Environment Act 2021, which will commence on a day appointed by regulations of the Secretary of State, places an obligation on undertakers to prepare, publish and maintain a drainage and sewerage management plan. Such a plan sets out how the undertaker will manage and develop its drainage and sewerage systems so that it is, and remains, able to meet its duties under Part IV of the Water Industry Act 1991 ( WIA 1991). Pending commencement, the Secretary of State has required undertakers to produce non-statutory plans in early 2023 as a planning tool for Ofwat’s 2024 Price Review covering 2025–30. Companies have been asked to assess present...
Across the UK, waste originates from many streams, including the public sector, commercial enterprises, industry, agriculture, mining, forestry, fishing and households. Local authorities ( LAs) have statutory responsibilities to arrange the collection and disposal of household waste within their boundaries. To fulfil this, they provide householders with services such as kerbside collections, bulky item pick-ups, ‘bring banks’—unmanned points with containers for recyclables—and household waste recycling centres ( HWRCs). LAs are also required, when asked, to arrange the collection of commercial waste from premises in their areas and to keep highways and roads free from litter and refuse. Across the UK, devolved administrations determine waste management strategy and policy, meaning each nation sets its own targets and approaches for monitoring progress. Duty to collect waste Subject to certain exceptions, waste collection authorities ( WCAs) in England and Wales are required to arrange the...
When do local authorities investigate environmental offences? Environmental offences encompass a wide array of unlawful activities that impact our surroundings. Local authorities usually take the lead on investigating, enforcing and prosecuting the less serious breaches. In England and Wales, duties can overlap between local authorities, the Environment Agency ( EA), Natural England ( NE) and Natural Resources Wales ( NRW). In Scotland, investigations into environmental crime are carried out by the Scottish Environment Protection Agency ( SEPA). For guidance, see: Practice Note: Environmental prosecution and enforcement policy Practice Notes: Environment Agency—powers to investigate environmental crime; and Environment Agency ( EA)—powers of entry Practice Note: Natural England—powers to investigate environmental crime Practice Note: Natural Resources Wales—powers to investigate environmental crime Practice Note: Scottish Environment Protection Agency—powers to investigate environmental crimes Where a statute does not expressly assign...
We have created a collection that brings together the wide-ranging ESG and sustainability matters for business in a hub, enabling practitioners to navigate this complex landscape. With this material, practitioners will be able......
Heads of terms The process starts with settling key commercial terms, covering identities of the parties, length of the lease, rent, and any particular clauses on use, assignment, underletting, service charge, or works to be carried out. Such terms are typically agreed directly by clients, or with their accountants or other professional advisers......
Environmental issues to consider As environmental liabilities can stall or derail transactions, the parties should decide at the heads of terms stage whether any environmental matters ought to be raised, such as: whether the landlord will supply environmental reports (desktop, phase 1s, phase 2s), asbestos surveys, or fire risk assessments? who is the asbestos dutyholder, and whether the asbestos register needs updating, an asbestos management plan prepared, or asbestos remedial works undertaken? whether the landlord’s EPC indicates a need for energy efficiency improvements? whether the tenant intends to carry out a phase 1 environmental audit or a phase 2 baseline audit? whether the tenant requires any environmental permits? the agreed approach to contaminated land liabilities—will the landlord take responsibility for existing contamination, and should the tenant be liable for new contamination or for mobilising existing...
This handbook helps organisations to more effectively grasp, quantify, and cut contract-related emissions, particularly from agreements with significant emissions. These sustainability provisions were developed 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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