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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 partnership with Freya Foster of Henderson Chambers Background The Environment Act 2021 ( EA 2021) obtained Royal Assent in November 2021 (see the Practice Note: Environment Act 2021—snapshot). It was brought forward to meet, in particular, section 16 of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), which required, among other matters, legislation to create an independent body delivering post- Brexit oversight, compliance, and enforcement of environmental law (see the Practice Note: Environment Act 2021—developments [ Archived] for a summary of EA 2021’s legislative history). The Office for Environmental Protection EA 2021, s 22 established the Office for Environmental Protection ( OEP), tasked with scrutinising, advising on, and enforcing environmental law as it applies to organisations and individuals exercising public law functions, e.g. central departments, ministers, regulators, and local authorities. Its remit also extends to certain private entities, such as water...
What is Energy from Waste ( Ef W)? Energy from waste ( Ef W) turns waste materials into a usable form of energy from a sustainable energy source. Outputs can include electricity, heat, gas and transport fuels (e.g. diesel). A variety of approaches are used, with incineration being the most familiar. Using waste as a fuel can deliver notable environmental gains: it offers a safe, cost‑effective route for disposing of waste and can help reduce carbon dioxide emissions. For further details on Ef W, see Practice Notes: Biomass and waste to energy projects—overview, Waste to energy—technologies, Regulation of energy from waste and Energy from waste—consents. What is environmental permitting? The Environmental Permitting ( England and Wales) Regulations 2016, SI 2016/1154, as amended, ( EPR Regs 2016) require operators to obtain permits for certain facilities and to register others as exempt. They...
Introduction Environmental permitting is among the principal environmental regulatory frameworks in the UK. Its purpose is to oversee and limit pollution and emissions into the environment arising from industrial and other operations across the UK. It forms a central strand of UK business regulation, created to manage and oversee activities that could pollute the environment or pose risks to human health. Permits place a suite of conditions on the design and build, running and, in due course, closure of a regulated installation, as well as stipulating how regulated activities are undertaken. The main regulators are the Environment Agency ( EA) in England, Natural Resources Body for Wales ( NRW), the Scottish Environment Protection Agency ( SEPA) and the Northern Ireland Environment Agency ( NIEA). Local authorities likewise regulate the less polluting processes and sites. The lead government...
History of environmental permitting From 6 April 2008, these regulatory frameworks have been absorbed into the current environmental permitting system: the Integrated Pollution Prevention and Control Directive 2008/1/ EC and the Industrial Emissions Directive 2010/75/ EC waste management licensing the Mining Waste Directive 2006/21/ EC permitting elements of the Batteries Directive 2006/66/ EC water discharge consents and flood defence consents formerly handled under the Water Resources Act 1991 the groundwater permitting regime previously covered by the Groundwater ( England and Wales) Regulations 2009, SI 2009/2902 control of radioactive substances, previously under the Radioactive Substances Act 1993 solvent emissions, previously governed by various directives including the Integrated Pollution Prevention and Control Directive 2008/1/ EC, the Waste Incineration Directive 2000/76/ EC, and the Solvent Emissions Directive 1999/13/ EC The Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 took effect on 1 January 2017. EPR 2016, SI 2016/1154...
This Practice Note explores the aims and guiding principles of radioactive substances regulation in England and Wales, including justification, safeguarding wildlife, best available techniques ( BAT), and key environmental permitting requirements for radioactive substance activities. What are the key principles and purpose of radioactive substances regulation? In December 2021, the Environment Agency ( EA) released guidance outlining its objectives and principles for radioactive substances regulation. The central objective is to protect people and the environment from the harmful impacts of ionising radiation, both now and in the future, while also protecting and enhancing the environment as a whole. The EA pursues this by applying the relevant legislation, government policy, and international standards. justification — a permit for any practice involving radioactive substances will only be issued where it is justified; decisions on remediating radioactively contaminated land, or in emergencies, should result in more good than harm ...
Relevant Legislation The Environmental Permitting ( England and Wales) Regulations 2016 ( SI 2016/1154) establish the permitting and compliance framework for England and Wales across a range of sectors. Activities involving solvent emissions are addressed in Schedule 14. The 2016 Regulations consolidate and revoke the Environmental Permitting ( England and Wales) Regulations 2010 ( SI 2010/675) and implement the necessary provisions of the Industrial Emissions Directive 2010/75/ EU. Under Schedule 14, regulatory functions must be carried out to secure compliance with specified IED articles. After Brexit, any references to the IED are to be read in accordance with Schedule 1A, paragraph 6 of the 2016 Regulations. For further information on the IED, see the EU Practice Note: Industrial and Livestock Rearing Emissions Directive 2010/75/ EU. Requirement for an environmental permit Permits are required for identified operations that may pose a risk to the...
This Practice Note sets out many different categories of permits, licences, exemptions, notifications, registrations and consents that may often be needed in relation to environmental matters in England and Wales. environmental permitting water abstraction and impounding licences trade effluent consents reservoir registration waste carrier registration CRC energy efficiency scheme registration greenhouse gas permits wildlife licences marine licences hazardous substances consents Environmental permitting Summary Historically, separate regulatory authorities managed pollutant releases to air, land and water, often without a full picture of the cumulative environmental impacts that a single installation could impose on the wider environment. A system of partially integrated pollution control ( IPC) was first introduced in England and Wales in 1990, and in 1996 moved under the control of the EA and local...
The Sentencing Council has released offence-specific sentencing guidance for use in magistrates’ courts and the Crown Courts in England and Wales concerning, specifically, unauthorised or harmful depositing, treatment or disposal of waste, and also illegal discharges to air, water and land, directly contrary to section 33 of the Environmental Protection Act 1990 ( EPA 1990) and the Environmental Permitting ( England and Wales) Regulations......
‘ Caveat emptor’, or ‘let the buyer beware’, is a common law doctrine under which a seller has no obligation to disclose material facts to a prospective purchaser, and this extends to insolvency disposals. However, if a seller wishes to rely on the ‘sold with information’ exclusion under the contaminated land regime in Part IIA Environmental Protection Act 1990 ( EPA 1990), information must be provided. See Practice Notes: Property—enquiries before contract, Pre‑contract searches and Types of environmental investigations. Responsibilities Compliance with environmental law lies with the company, whether solvent or insolvent. That said, it is essential to determine the accountability of the insolvency practitioner and any lender if a company enters insolvency, as the office‑holder may incur liability. Insolvency practitioners should understand a company’s environmental obligations before taking an appointment, and lenders should be aware of any potential liabilities. In addition to...
Environmental insurance provides a practical route to managing environmental risks that stem from work undertaken by contractors and consultants. For general guidance on environmental insurance, refer to the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Scope of activity For the purposes of this note, contractors and consultants are parties engaged to deliver work on a client’s behalf. Contractors typically carry out the works, while consultants may undertake design or investigative tasks. Although these activities are relevant to contaminated land consultants and contractors, the potential scope is much wider, including: architects who may produce a design for fuel storage a foundation and earthworks contractor who may disturb soils, and internal fix contractors who may handle chemicals (even glue) in confined...
ARCHIVED: This Practice Note is archived and not maintained This Environment consultations tracker sets out the status and latest updates on consultations run by government departments, regulators and other organisations concerning environmental law in England and Wales across 1 January–31 December 2021. Any consultations that remained open on 1 January 2022 are available in: Environment consultations tracker 2022. This Environment consultations tracker tool presents the status and most recent developments for consultations open from 1 January 2021, undertaken by government departments, regulators and other bodies on environmental law in England and Wales. The tracker is organised into two sections: open consultations and closed consultations. For details of consultations carried out by EU institutions (for example, the European Commission), see: Environment EU tracker 2021 [ Archived]. Closed consultations Entries are arranged chronologically by the date they closed. The consultation that closed most recently appears first in the table, which...
ARCHIVED: This Practice Note outlines revisions to the Civil Procedure Rules ( CPR) introduced by the Civil Procedure ( Amendment) Rules 2013, SI 2013/262, concerning environmental judicial review under the Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters (the Aarhus Convention). These amendments, commonly referred to as the Jackson Reforms, took effect on 1 April 2013. It sets out the updated approach to costs, the accompanying practice directions, and the new Pre- Action Protocol for Judicial Review ( JR). New rules on costs and new practice directions The Civil Procedure ( Amendment) Rules 2013, SI 2013/262, commenced on 1 April 2013. They introduced wide-ranging procedural changes, including new provisions for protective costs orders ( PCOs) in Aarhus-related environmental judicial review claims, see News Analysis: The Aarhus Convention after Jackson. Further measures address interim...
Landlords must ensure the land and buildings are handed back in an acceptable condition at the conclusion of the tenancy period...
Why is environmental insurance relevant? Environmental insurance exists to protect the insured against pollution and environmental harm. Although a standard Public Liability ( PL) policy offers limited protection, it typically applies only to ‘sudden and accidental’ incidents. The challenge is that: pollution can occur continuously, often gradually and even intentionally (for example, discharging pollution into a drain); and as decided in the Bartoline case, PL wordings confined to ‘damages’ do not include liabilities for remediation costs required by statutory remediation notices. Therefore, major pollution exposures are not covered by usual insurance arrangements, but can be addressed through specialist environmental policies. For guidance on when environmental insurance is appropriate and its pros and cons, see the Practice Notes: Environmental insurance—when is it needed? and Environmental insurance—advantages and disadvantages. Types of environmental insurance The three core categories of environmental cover focus on: property ...
When is environmental insurance appropriate? Environmental insurance may warrant consideration in the following situations: an environmental assessment identifies significant and serious concerns regarding contamination environmental indemnity negotiations have reached a stalemate there are ongoing concerns about the covenant strength of the indemnifying party insurance is required by funders, tenants, or to improve the saleability of a high‑risk site See Practice Note: Environmental insurance—when is it needed? What type of policy? The usual form of cover in share purchase transactions is a ten‑year fixed‑site policy, often referred to as an Environmental Impairment Liability ( EIL) policy or a Premises Pollution Liability ( PPL) policy. It can provide protection for the insured parties against regulatory action or third party......
When is environmental insurance appropriate? Consider environmental insurance in the following scenarios: an environmental assessment flags major issues with contaminated land or polluted water talks over environmental indemnities in the sale contract reach a stalemate there are doubts about the covenant strength of the party giving the indemnity, and/or funders or tenants require cover, or it is needed to support the site’s saleability See Practice Note: Environmental insurance—when is it needed? What type of policy? Public liability ( PL) policies provide little or no protection for liabilities linked to land contamination or water pollution. PL cover is confined to ‘sudden and accidental’ incidents and does not extend to: on-site contamination authorised discharges gradual pollution eg arising from......
When is environmental insurance appropriate? Environmental insurance may need to be weighed up carefully in the following scenarios: an environmental report flags significant concerns about contamination environmental indemnity negotiations have reached an apparent impasse there are ongoing concerns over the covenant strength of the indemnifying party insurance is required by funders, tenants or to support the saleability of a high risk site See Practice Note: Environmental insurance—when is it needed? What type of policy? The usual insurance in asset purchase transactions is a ten‑year fixed site policy, often referred to as an Environmental Impairment Liability ( EIL) Policy or Premises Pollution Lability ( PPL) Policy......
Grasping what counts as environmental information is central to environmental regulation, as it dictates whether an information request is handled under the Freedom of Information Act 2000 ( FOI 2000) or the Environmental Information Regulations 2004, SI 2004/3391 ( EIR 2004). Where the material sought fits the definition of environmental information, the request must be dealt with under the EIR 2004. This Practice Note explores the statutory meaning of environmental information and draws on published guidance and case law to illustrate when material has been deemed environmental, including disputed categories such as: financial viability assessments road tolling information information regarding a public authority's decision to dispose of land The Information Commissioner’s Office has issued a Guide to the EIR for staff in public authorities or those with day-to-day responsibility for environmental...
The Environmental Information Regulations 2004, SI 2004/3391, as amended ( EIR 2004), can expose businesses to the release of confidential commercial material. At the same time, EIR 2004 can be a route to obtaining commercially valuable data. The greatest exposure typically arises in two situations: (1) when a private company is treated as a public authority; or (2) when a private company deals with a public authority. This Practice Note sets out ways for businesses to reduce the risk of unwanted disclosure, and explains how they can use EIR 2004 to their advantage. For more on EIR 2004, see Practice Notes: Environmental Information Regulations 2004—what is environmental information? Environmental Information Regulations 2004—request for environmental information Environmental Information Regulations 2004—responding to a request Environmental Information Regulations 2004—clarifying requests Environmental Information Regulations...
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note compiles and distils significant archived judgments and case law outcomes concerning the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391. For up-to-date case law developments on access to environmental information and freedom of information, consult: Freedom of information case tracker. The tables under each section below showcase notable key decisions from the following bodies: Court of Appeal Upper Tribunal ( UT) First Tier Tribunal ( Information Rights) ( FTT) Information Commissioner’s Office ( ICO) For convenience, the tracker is organised into sections aligned to the principal relevant provisions and topics specifically addressed under the EIR 2004, including: definition of environmental information definition of a public authority form and format of information charging for making environmental information available information not held by the public authority manifestly unreasonable requests material in the course of completion, unfinished documents and incomplete...
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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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