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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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Originally prepared in collaboration with Navraj Singh Ghaleigh, Senior Lecturer in Climate Law, University of Edinburgh. ARCHIVED: This Practice Note is archived and not being maintained. Brexit At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation phase following the UK’s withdrawal from the EU came to an end. That moment, known in UK law as ‘ IP completion day’, saw key transitional measures lapse and significant changes start to apply across the UK’s legal framework. At the close of the implementation period, the UK left the EU Emissions Trading System ( EU ETS). The UK established its own UK emissions trading scheme ( UK ETS), with obligations for UK ETS participants commencing on 1 January 2021, the start of the UK ETS’s first trading period. However, under the terms of the Withdrawal Agreement, the UK remained within the EU ETS during the...
This Practice Note reviews the EU environmental, social and governance ( ESG) — also termed sustainability — integration measures, which revised delegated acts under the Alternative Investment Fund Managers Directive 2011/61/ EU ( AIFMD), the Undertakings for Collective Investment in Transferable Securities ( UCITS) Directive 2009/65/ EC and the recast Markets in Financial Instruments Directive 2014/65/ EU ( Mi FID II), and considers their industry impact. It also briefly highlights the UK’s departure in respect of these measures. What were the ESG integration measures? In August 2021, a package of measures (the Delegated Acts) appeared in the Official Journal of the EU; see Application of the ESG measures below, and they affected UCITS management companies, alternative investment fund managers ( AIFMs) and Mi FID investment firms (together, managers). For practical guidance on managers, refer to Practice Notes: Undertakings for Collective Investment in...
Context—what’s next for the European Green Deal? In December 2019, the Commission unveiled its ‘ European Green Deal’, framed as a roadmap to make the EU’s economy sustainable by turning climate and environmental challenges into opportunities across every policy field, and ensuring the transition is fair and inclusive for all. The Green Deal set out an ambitious suite of ‘deeply transformative’ legislative and policy actions in the following areas: climate action — notably, it underpinned legally binding targets to cut carbon emissions by 55% by 2030 and reach net zero by 2050 (see Practice Note: EU Climate Regulation—snapshot) biodiversity restoration water, air and soil pollution energy industry built environment transport agriculture For details on progress towards the Deal’s objectives, see Practice Note: The European Green Deal—tracker. From 2019 to 2024 there was substantial movement on new laws and policies under the European Green Deal banner, yet as the 2024 European election...
Carbon trading agreements While the contractual framework for trading carbon resembles that for other products, it also has several distinctive aspects. This note outlines those characteristics, concentrating on issues arising in compulsory regimes, chiefly the European Union’s Emissions Trading System ( EU ETS). After Brexit, the UK created a separate, self-contained UK Emissions Trading Scheme ( UK ETS). For further detail, refer to the section below on Brexit, the EU ETS, and the UK ETS. For context on the operation and rationale of cap and trade schemes, see Practice Notes: Carbon markets—international emissions trading schemes and Carbon markets—price of Carbon. Carbon trading—who and how? The range of actors permitted to join an emissions trading scheme, the market participants, is a key driver of market liquidity. Certain regimes, for instance the South Korean Emissions Trading Scheme ( ETS), confine trading to regulated entities or...
The Energy Savings Opportunity Scheme ( ESOS) ESOS is a programme for energy assessment and savings, required for organisations that satisfy the qualification criteria. It stems from the EU Energy Efficiency Directive 2012/27/ EU, art 8(4)–(6), which obliges EU Member States to ensure that enterprises other than small and medium-sized enterprises ( SMEs) undergo an energy audit at least once every four years. These art 8(4)–(6) obligations were transposed in the UK by the Energy Savings Opportunity Scheme Regulations 2014, SI 2014/1643 (the ESOS Regulations). The Energy Act 2023 provided powers to update ESOS after Brexit, and the Energy Savings Opportunity Scheme ( Amendment) Regulations 2023, SI 2023/1182 introduced changes ahead of the Phase 3 compliance deadline. Qualifying organisations must complete an assessment and audit covering their total energy use. In most instances, a ‘lead assessor’—a member of a...
The Energy Savings Opportunity Scheme ( ESOS) ESOS is a statutory programme for energy assessments and savings, mandatory for organisations that meet the eligibility criteria. It originates from the EU Energy Efficiency Directive 2012/27/ EU, art 8(4)–(6), which requires Member States to ensure that enterprises other than small and medium-sized enterprises ( SMEs) undergo an energy audit at least once every four years. For further information, see Practice Note: Energy Efficiency Directive 2012/27/ EU—snapshot [ Archived]. The UK implemented art 8(4)–(6) via the Energy Savings Opportunity Scheme Regulations 2014 ( SI 2014/1643). Post- Brexit, the Energy Act 2023 provided powers to update ESOS, and the Energy Savings Opportunity Scheme ( Amendment) Regulations 2023 ( SI 2023/1182) introduced revisions ahead of the Phase 3 compliance deadline. Qualifying organisations must carry out an assessment and audit of their total energy consumption. In most...
Scope of Practice Note This Practice Note sets out, in table format, notable case law and decisions from England and Wales that bear upon the ESG (environmental, social and governance) landscape. As outlined in Practice Note: How to understand ESG civil litigation risk, ESG-related actions may concern what an organisation: does, or neglects to do, to meet its ESG obligations states it is doing to fulfil those ESG obligations In both instances, the obligations may arise from statute, regulation, or be voluntarily adopted. Consequently, key decisions regarded as pertinent to ESG to date include matters relating to: climate change (duties, breaches, environmental harm) greenwashing (misleading claims about environmental credentials or deceptive practices) alleged forced and abusive labour conditions corporate governance failings, i.e. breaches of legislative and regulatory requirements, such as under the Financial Services and Markets Act 2000 ( FSMA 2000) or the...
These course materials comprise Power Point slide templates with accompanying notes to support trainers presenting the law around ESG. Topics include the three ESG pillars and their practical use, ESG ratings, guidance on creating and implementing ESG strategies, corporate social responsibility, the key legislation and guidance, plus reporting and disclosure duties. The materials are customisable. Click the link below to download the Power Point presentation. Contents What is ESG? Key legislation/guidelines Global frameworks and standards ESG ratings Stakeholder investment and financial longevity Applying the three ESG pillars in practice The role of legal professionals Practical tips for creating and implementing an ESG strategy Summary This deck offers an introduction to the law relating to ESG. Purpose of slides/seminar The slides are for a general......
ARCHIVED: This Practice note has been archived and is not maintained. Environmental, social and governance ( ESG) matters have climbed to the forefront of corporate priorities in recent years, with society, the press, customers, employees and investors increasingly judging companies and boards against measurable and comparable ESG factors. In line with this intensified attention, businesses are encountering a widening set of legislative and regulatory obligations concerning how they report ESG matters. As ESG reporting has matured, a wide range of voluntary frameworks and standards has appeared to guide and influence how organisations measure, evaluate and disclose ESG information to investors and other stakeholders. This Practice Note reviews the principal ESG reporting frameworks alongside initiatives aiming to build a single global framework for companies to report on ESG matters. It opens by examining the disclosure recommendations of the Task Force on...
FORTHCOMING CHANGE : On 3 December 2025, Torsten Bell set out proposals to produce guidance on fiduciary duties, clarifying how broader considerations can be incorporated within existing obligations, including system-wide risks like climate change and the enduring effects of investments on members’ outcomes. The guidance will also explain how trustees may reflect members’ views, and will restate the requirement to weigh all financially material factors, while remaining aligned with acting in members’ best interests. Efforts to give this guidance statutory force via the Pension Schemes Act 2026 did not succeed, but the government confirmed it remains committed to developing it. For more detail, see the DWP Parliamentary response of 19 January 2026 and the House of Lords Hansard debate of 26 March 2026. Meaning of ‘ ESG’ and ‘stewardship’ ESG The expression ‘...
CSR and ESG Businesses and legal advisers use terms such as ‘responsible/sustainable business’, ‘corporate responsibility’ ( CR), ‘corporate social responsibility’ ( CSR), and ‘environmental, social, governance’ ( ESG) in a range of settings. Broadly, they signal organisations acting responsibly in their routine operations. More companies now recognise that simply complying with national, state and local rules may not sufficiently guard against legal, regulatory or reputational risk, and that failing to meet escalating expectations can have financial consequences. CSR is centred on accountability, though its effects have historically been difficult to assess. This is shifting within ESG, where outcomes are increasingly quantifiable. For more on the terminology and the move from CSR to ESG, refer to Practice Note: Sustainable business and environmental, social, governance ( ESG)—introduction for companies and advisers. Corporate governance Corporate governance is the framework through which companies are led and...
EPs ( EPs) provide a framework for identifying, evaluating and controlling environmental and social risks within project financings. Launched in 2003 by the International Finance Corporation ( IFC), backed by ten financial institutions, they have evolved into the financial sector’s baseline for due diligence and oversight, guiding responsible risk decisions. Institutions adopt the EPs to confirm that financed projects are delivered in a socially responsible way and embody robust environmental management; after adoption, they commit to offer financial services to project financings only where the EPs’ criteria are satisfied. The EPs have directed the project finance market’s focus towards social and community standards and accountability, encompassing stringent requirements for indigenous peoples, labour protections, and engagement with locally affected communities. They have also encouraged alignment around shared environmental and social norms and helped catalyse the creation of additional responsible environmental and social management practices across the...
This Practice Note sets out how building energy performance is controlled via Energy Performance Certificates ( EPCs), the circumstances in which EPCs are required, and the obligations under the principal EPC legislation—the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regs 2012), and the Building Regulations 2010, SI 2010/2214 ( Building Regs 2010)—which give effect to the recast Energy Performance of Buildings Directive 2010/31/ EU (recast EPBD directive). It forms part of a suite of notes on EPCs and the minimum energy efficiency requirements ( MEES). What is an Energy Performance Certificate ( EPC)? Buildings account for nearly 40% of the UK's energy use and carbon output, so knowing how to curb and manage that consumption is vital for meeting carbon reduction goals and cutting a building's operating costs. EPCs are designed to drive better energy...
Practice Note This Practice Note outlines the ban on unlicensed or damaging depositing, treating or discarding of waste under section 33 of the Environmental Protection Act 1990 ( EPA 1990) for England and Wales alone. For guidance on how the offence operates in Scotland, refer to Practice Notes: Key environmental offences in Scotland, Scottish Environment Protection Agency—powers to investigate environmental crimes, and Sentencing environmental offences in Scotland. EPA 1990, s 33 is among the most frequently prosecuted environmental crimes, spanning incidents from minor fly-tipping to extensive waste disposal undertaken without a permit. It creates strict liability for the ‘deposit’ of controlled waste, yet demands knowledge where a person is ‘knowingly causing or knowingly permitting’ the deposit of controlled waste. The Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 likewise create offences for operating without an...
Reviewing technical reports If a buyer has secured a technical environmental report during due diligence (or the seller has placed one in the data room), it must be analysed and converted into clear, practical guidance for the client on potential liabilities, along with proposals to mitigate the risks. Key matters for lawyers to assess include: whether the report presents clear evidence of environment health and safety ( EHS) non-compliance, capex needs, or possible liabilities; whether an independent environmental consultant should be engaged to review and challenge the report’s conclusions; whether a conference call or meeting between the two environmental consultants (with clients and lawyers) would help resolve areas of concern; whether further investigations or enquiries are necessary and, if so, the associated timing and cost implications; which options are most practical to address the...
In the due diligence phase At this stage, the buyer’s solicitors and other advisers are able to scrutinise the target’s legal, technical and financial performance. The purpose of environmental due diligence is to: evaluate the risk of taking on contaminated land liabilities connected to properties or former properties identify any material non-compliance with environment, health and safety ( EHS) law, environmental permits, or capital expenditure duties that the buyer could become accountable for determine what protections are needed to reduce these risks as much as possible through further......
ARCHIVED: This Practice Note has been archived and is not maintained. This tracker tool outlines and condenses significant recent and forthcoming legislation and consultations in England and Wales connected to environmental taxes, reliefs and incentives. HM Treasury describes an environmental tax as one that satisfies these three principles: the tax is clearly tied to the government’s environmental aims the main purpose of the tax is to drive environmentally beneficial behaviour change, and the tax is designed with environmental goals in mind—for instance, the more polluting the conduct, the higher the charge imposed The environmental taxes currently in force in England and Wales include: landfill tax: a levy due on waste disposed of at authorised landfill facilities and on certain specified landfill activities climate change levy ( CCL): a compulsory charge on UK business energy consumption, applied at the point of supply, termed...
Context An environmental impact assessment ( EIA) evaluates the potentially significant environmental consequences of a scheme. Certain categories of development require an EIA before planning permission can be issued. Through this process, the public and the local planning authority ( LPA) can understand the importance of predicted impacts and how they might be reduced prior to any decision. See Practice Note: Environmental impact assessments—key points. The outcomes are captured in an environmental statement ( ES). Producing an ES helps developers integrate environmental considerations at the project design stage. Carrying out a thorough and comprehensive EIA may enhance the likelihood of obtaining planning permission... Legislation and guidance EIA for town and country planning matters is governed 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 issues to consider Because environmental liability concerns can slow or derail transactions, the parties should decide at the heads of terms stage whether any environmental points ought to be raised, including: Will the seller supply any environmental reports? Does the buyer need to arrange site investigations? Has the seller shared asbestos documents, for example a recent survey, an updated register and an asbestos management plan? Is there a requirement to transfer or obtain environmental permits? What is the agreed stance on contaminated land liabilities—if the property is sold ‘with information’, will the buyer assume responsibility only under the contaminated land regime, or for all liabilities and losses under environmental law? Is environmental insurance required? For a general overview of environmental issues in property transactions, see Practice Notes and Checklist: Environmental issues in property transactions—acting for a buyer Environmental issues in property...
What is environmental risk assessment? Environmental risk assessment ( ERA) is applied to many environmental concerns, including contaminated land, flood risks, asbestos, radon and subsidence. The specific study undertaken is selected once the hazard has been recognised and the assessment's aims and objectives are set. The scope and detail of an ERA differ according to the various environmental factors considered. Nonetheless, every assessment adheres to a core approach for quantifying risk. Calculation of risk Defra guidance on environmental risk assessment and management defines risk as the potential consequence(s) of a hazard together with the likelihood/probability of those outcomes......
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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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