Featured documents
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:
Most recent Practice notes
This Practice Note outlines green loans and the principal considerations when preparing a green loan agreement. It centres on the Green Loan Principles ( GLP) issued by the Loan Market Association ( LMA), the Asia Pacific Loan Market Association ( APLMA) and the Loan Syndications and Trading Association ( LSTA)... Clarifies the meaning of a green loan Introduces the GLP and the accompanying GLP guidance Sets out the four core components of a green loan under the GLP and summarises the related guidance Condenses GLP and GLP guidance on what qualifies as a green loan, on reviews, and on greenwashing risks Provides sources for precedent wording, including the Loan Market Association draft provisions, plus drafting pointers What is meant by a green loan? Under the GLP, green loans encompass any form of loan instrument and/or contingent facility (for example, bonding lines,...
Background to the Great Britain Classification, Labelling and Packaging Regulation Trade in substances and mixtures affects not only the market in Great Britain ( GB), but also commerce around the world. Before Regulation ( EC) 1272/2008 — the EU Classification, Labelling and Packaging Regulation ( EU CLP Regulation) — was adopted in 2009, common criteria for classification and labelling had already been devised within the United Nations ( UN), producing the Globally Harmonised System of Classification and Labelling of Chemicals ( GHS), intended to enable global trade while safeguarding human health and the environment. The EU CLP Regulation took effect on 20 January 2009 in the EU (which then included the UK), and Recital 6 expresses the objective of advancing worldwide harmonisation of classification and labelling by incorporating the internationally agreed GHS criteria. Under the EU CLP Regulation,...
Individuals making requests under the Freedom of Information Act 2000 ( FIA 2000) ought to be able to complain to the public authority if their information request is refused, in full or in part, or if they are dissatisfied with how the authority has dealt with it. While the FIA 2000 does not legally oblige authorities to operate an internal review process, the Freedom of Information Code of Practice (the Code) advises, as best practice, that every authority should adopt one. The Code is not enforceable in law, but it sets out guidance to help public authorities meet their duties under the FIA 2000. The Information Commissioner’s Office ( ICO) promotes adherence to the Code and can intervene or issue recommendations where standards are poor, even if the conduct does not amount to a breach of the FIA 2000. The Code requires that any...
This Practice Note addresses the duty of care for extractive waste in England and Wales only. For guidance on the duty of care relating to controlled waste, see Practice Note: Waste duty of care—controlled waste. Under section 34(6) of the Environmental Protection Act 1990 ( EPA 1990), it is a criminal offence to breach that duty by failing to take all steps that are reasonable in the circumstances. Scope of the extractive waste duty of care EPA 1990, s 34(1A) provides that any person responsible for managing extractive waste must, so far as is reasonable in the circumstances and applicable to them, take measures to: prevent any other person contravening EPA 1990, s 33 in respect of the unauthorised or harmful deposit, treatment or disposal of waste prevent any other person breaching the requirement to hold an environmental permit under the...
Waste from extractive operations (‘mining waste’) Mining waste encompasses materials that must be removed to gain access to mineral resources (but are not actually processed), for example topsoil, overburden and waste rock, as well as tailings—the material left over after the process of extracting the valuable content from an ore. Some fractions are inert and unlikely to present a significant environmental threat; others, in particular those from the non‑ferrous metal mining industry, may contain hazardous substances, such as heavy metals. For more information see Practice Note: Waste types and controls—extractive waste/mining waste The regulation of mining waste in England and Wales is primarily through the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 (as variously amended), which is the main regulatory legislation governing the environmental permitting and compliance regime applying to a range of activities and...
Energy Savings Opportunity Scheme ( ESOS) ESOS is a programme for energy assessment and efficiency savings. It applies on a compulsory basis to entities that satisfy the eligibility criteria, namely large undertakings and their corporate groups. Its origin is the EU Energy Efficiency Directive 2012/27/ EU, art 8(4)–(6), which oblige EU Member States to ensure that enterprises which are not small and medium enterprises ( SMEs) undergo an energy audit at least once every four years. For further detail, see Practice Note: Energy Efficiency Directive 2012/27/ EU—snapshot [ Archived]. The obligations in art 8(4)—(6) of the Energy Efficiency Directive were implemented in the UK through the Energy Savings Opportunity Scheme Regulations 2014, SI 2014/1643 (the ESOS Regulations). Those Regulations were made on 24 June 2014 and came into force on 17 July 2014. With effect from 26 October 2015, modest amendments were...
ARCHIVED: This Practice Note has been archived and is not maintained. This tracker compiles and summarises significant new and forthcoming legislation and consultations in England and Wales linked to water and the marine sector. The tracker is divided into the following sections: Legislation—showing key forthcoming legislation of interest to environment lawyers in England and Wales entering into force from 1 January 2024 Consultations—presenting the current status and latest developments of consultations open from 1 January 2024, or launched at an earlier date but still open as at 1 January 2024, conducted by government departments, regulators and other bodies in relation to environmental law in England and Wales, and consultations conducted by government departments, regulators and other bodies in relation to environmental law in England and Wales which closed from 1 January 2024 To track EU developments in this area, see: EU...
This handbook empowers organisations to embed key climate factors within the commercial logic of deals and agreements, supporting them in achieving climate objectives and......
This Practice Note sets out which bodies enforce the contaminated land regime in England and Wales under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) Who is the enforcing authority? Under the Environmental Protection Act 1990 ( EPA 1990), Pt IIA, the enforcing authority for contaminated land is: for a special site, the Environment Agency ( EA) in England and Natural Resource Wales ( NRW) in Wales for contaminated land that is not a special site, the local authority ( LA) for the area in which the land lies or is affected Enforcing authorities must act in line with statutory guidance issued by the Secretary of State/ Welsh Ministers. LAs must also have regard to any site-specific guidance issued by the EA/ NRW......
Pre-contract searches These enquiries are ordinarily undertaken by the buyer’s solicitor, though the seller’s solicitors may handle them if they are providing a certificate of title. Typical searches include: local searches index map searches drainage and water searches highways searches environmental desktop searches For further details, see Practice Note: Pre-contract searches. Environmental desktop searches The Law Society’s Practice Notes on contaminated land and flood risk advise that environmental and flooding matters should be evaluated in every property transaction. See Practice Notes: Law Society practice note on contaminated land Flooding— Law Society practice note on flood risk The Law Society’s guidance on the impact of climate change on solicitors provides direction for organisations on conducting business in line with the transition to net zero. Part B explains how climate change physical risks and climate legal risks may affect client advice, outlines issues at the...
Types of marine licence notices The Marine and Coastal Access Act 2009 ( MCAA 2009) allows notices to be served by the relevant licensing authority or by an enforcement authority to secure compliance with rules concerning marine licences or licensable marine activities. Under MCAA 2009, s 108, regulations must be made by the appropriate licensing authority to ensure any person to whom a notice is given has a right to appeal against that notice......
This Practice Note outlines the legal and regulatory landscape for assessing whether an arrangement amounts to a contract of insurance, and the potential ramifications of undertaking activities connected to such contracts without the requisite regulatory permissions. For more detail, refer to Practice Note: Identifying contracts of insurance in English law—an introduction, and the decision tree in Identifying a contract of insurance—flowchart. The legislative and regulatory background There is no precise or exhaustive statutory definition of a ‘contract of insurance’ in English insurance law. Under the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001 ( RAO), SI 2001/544, a ‘contract of insurance’ means ‘any contract of insurance which is a contract of long-term insurance or a contract of general insurance’. Determining whether an agreement is a contract of insurance is significant because such contracts are likely to fall within the meaning of a...
HMRC has power to require security from a registered person if it considers that there is a risk that a business will not fully meet its obligations to pay: Insurance Premium Tax Landfill Tax Aggregates Levy Climate Change Levy Once a Notice of Requirement to provide security is issued, continuing to trade constitutes a criminal offence. Specific offences are: Insurance Premium Tax — entering into taxable insurance agreements (as defined by section 73(1) of the Finance Act 1994) without providing security Landfill Tax — undertaking taxable activities (as defined by section 69(1) of the Finance Act 1996) without providing security Aggregates Levy — being responsible for the commercial exploitation of aggregates within the UK (as defined by section 17 of the Finance Act 2001) without providing security Climate Change Levy — being liable to account for the levy on a...
This Practice Note considers the law and policy surrounding flooding in Scotland: offering a synopsis of legislation, policy, and the Flood Risk Management ( Scotland) Act 2009 ( FRM( S) A 2009) setting out how flood risk is managed and the responsibilities of various statutory bodies signposting guidance for developers on instances where flood impacts must be evaluated as part of due diligence exploring potential strategies to reduce flooding, alongside wider mitigation examining controlled activity licences Flooding can inflict severe harm on people and enterprises. The Scottish government has recognised the growing dangers and consequences of flooding across Scotland due to climate change, and has produced national policy and devolved law to address the effects of heightened flood risk in Scotland. These policies and legislation embrace catchment-scale, precautionary methods for managing flood risk and emphasise the need for flood management to regulate new development that could be...
Numerous public registers containing environmental information are required by statute to be created and maintained. These sources hold valuable detail about a business or its assets and provide a practical way to obtain environmental data. They can be used to, for example: check the likelihood of a site flooding without holding a commercial stake in that site view a property’s energy performance information see the conditions of water or waste discharge permits, even when those permits are privately held get details of approved producers or exporters of WEEE access information on producer compliance schemes locate data on packaging types and quantities handled, and waste recovery records Energy performance certificates The Energy Performance of Buildings ( England and Wales) Regulations 2012 (the EPC Regulations), SI 2012/3118, require the Secretary of State to maintain one or more registers...
Key legislation Environmental impact assessment ( EIA) safeguards the environment by obliging the planning decision‑maker, including a local planning authority ( LPA), when determining whether to grant planning permission for a project likely to have significant environmental effects, to take those likely significant effects into account in the decision‑making process within town and country planning matters as part of that decision‑making process. In the context of town and country planning, EIA is regulated by: the Town and Country Planning ( Environmental Impact Assessment) Regulations 2017 ( English EIA Regulations), SI 2017/571 in England; and the Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017 ( Welsh EIA Regulations), SI 2017/567 in Wales together, the ‘ EIA Regulations’. The EIA Regulations implement into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of...
What is ESG? ESG captures three connected pillars: environmental, social, and governance. As they often intersect, they can be hard to untangle. In short, they include: Environmental — assessing how an organisation’s activities affect the environment, for example emissions, pollution, water usage, impacts on nature, and waste arising from operations Social — reviewing potential human rights risks throughout supply chains, such as human trafficking and modern slavery Governance — considering how a company governs itself, including its code of conduct, recruitment practices, and board of directors Governance spans a wider scope than the other two, making it trickier to quantify. Even so, it is fundamental; without strong governance and organisation, neither environmental nor social factors can be properly addressed. For further details on elements to ESG, see below diagram. These pillars are fast becoming core...
UK implementation of EU Habitats Directive EU Council Directive 92/43/ EEC ( OJ L 206, 22.7.1992) concerning the conservation of natural habitats and of wild fauna and flora (the EU Habitats Directive), as it continues to operate within the EU, is predominantly transposed in England and the UK offshore area by: Part I of the Wildlife and Countryside Act 1981 the Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (the Habitats Regulations), which apply in England and Wales and their seas up to 12 nautical miles from the coast the Offshore Marine Habitats and Species Regulations 2017, SI 2017/1013 (the Offshore Regulations), which apply in UK waters beyond 12 nautical miles from the coast and/or the Offshore Petroleum Activities ( Conservation of Habitats) Regulations 2001, SI 2001/1754 In this Practice Note, these instruments are collectively termed ‘habitats...
ARCHIVED: This Practice Note has been archived and is not maintained Originally prepared in partnership with Navraj Singh Ghaleigh, Senior Lecturer in Climate Law, University of Edinburgh. The EU Emissions Trading System ( EU ETS) is the largest emissions trading scheme globally by volume. It functions as a cap-and-trade arrangement: an overall cap is set on the aggregate greenhouse gas emissions from all sectors participating in the scheme, and that cap is translated into allowances that can be traded. For more information, see Practice Notes: Emissions trading—overview EU ETS Directive 2003/87/ EC—snapshot EU Emissions trading system—outline EU ETS Phase III UK implementation—legal framework, key obligations and administration [ Archived] EU ETS Phase III UK implementation—regulated activities, operators, and installations [ Archived] EU ETS Phase III UK...
ARCHIVED: This Practice Note has been archived and is not maintained. Originally developed in collaboration with Navraj Singh Ghaleigh, Senior Lecturer in Climate Law, University of Edinburgh. The EU Emissions Trading System ( EU ETS) is the world’s largest trading system by volume. Its core operation, legal framework, allocation rules, scope and coverage are addressed in the following Practice Notes: Emissions trading—overview EU ETS Directive 2003/87/ EC—snapshot EU Emissions trading system—outline EU ETS Phase III UK implementation—legal framework, key obligations and administration [ Archived] EU ETS Phase III UK implementation—regulated activities, operators, and installations [ Archived] EU ETS Phase III UK implementation—allocation of allowances and auctioning [ Archived] When is a greenhouse gas permit required under Phase III EU ETS? [ Archived] Phase IV of the EU ETS runs from 2021 to 2030. It applies a cap on total emissions that decreases annually by 2.2%; it doubles the number of...
Popular documents
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 ]...
Discover more from LexisNexis
