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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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When is an indemnity needed? In a share purchase, the buyer assumes all environmental liabilities tied to the target and its subsidiaries. If due diligence uncovers contaminated land exposure or specific environment, health and safety ( EHS) non-compliance, the buyer may seek an environmental indemnity in the share purchase agreement ( SPA) or a separate environmental deed. The seller might also look for an indemnity from the buyer where, for example, directors or managers linked to the target remain with the seller. See the following Precedents: Environmental indemnity for a share purchase agreement Asbestos indemnity for when seller is in breach Checklist for environmental indemnity Once the principle of an environmental indemnity is agreed, lawyers and their clients should settle the indemnity’s scope before drafting starts. Indemnities are tailored to the individual transaction. The points below highlight the key issues to...
Environmental incidents can erupt suddenly and bring serious consequences. In such circumstances, keeping a clear focus on how to handle the situation can be challenging. Managing an environmental incident does not mean being unco-operative with an investigating authority; in most instances, open and transparent collaboration will almost always be the wisest course. Nevertheless, prudent preparation for a potential incident requires clear policies so that, when one occurs, the right resources are directed to minimising environmental harm, maintaining controlled and effective communication with the regulator, and carrying out appropriate evidence gathering and subsequent analysis. For details of regulators’ powers to investigate environmental crime, see the following Practice Notes: Environment Agency—powers to investigate environmental crime Environment Agency ( EA)—powers of entry Natural Resources Wales—powers to investigate environmental crime Natural England—powers to investigate environmental crime Local...
Who enforces environmental laws in England and Wales and what remits do they have? The principal regulators and enforcement authorities in England and Wales are: the Environment Agency ( EA) Natural Resources Wales ( NRW) Natural England ( NE) local authorities In Scotland, the Scottish Environment Protection Agency ( SEPA) is the counterpart environmental body; for details of SEPA’s powers to monitor and enforce environmental laws, see Practice Note: Scottish Environment Protection Agency—powers to investigate environmental crimes. Environment Agency In England, the EA is the lead enforcement authority. It oversees a broad remit, covering pollution control, waste regulation, water resources management, flood and coastal risk management, fisheries, conservation and navigation. It also manages flood risk from main rivers, reservoirs, estuaries and the sea, and protects wildlife and habitats. Lead local flood authorities ( LLFAs) are responsible for flood risk from surface water, groundwater and ordinary...
Purpose of environmental searches and investigations Environmental investigations are undertaken for a range of reasons. The price, depth and scope of any study will shift according to its objective. In general, outputs from desk-based reviews through to intrusive works are intended to deliver qualitative and/or quantitative risk evaluations, considering potential effects on human health, buildings and services, ecological receptors, or controlled waters. Searches and investigations also enable parties to land transactions to proceed fully informed about legal liabilities that may arise from historic or current uses of the land. The breadth of an investigation is shaped by the deal terms, the client’s risk appetite, the budget, and the site’s characteristics and environmental context. Typically, an investigation is commissioned: to clarify liabilities under a range of regimes and laws, including: the...
During due diligence, the tenant’s solicitors review if the premises meet legal requirements and fit the intended use, covering any planned assignment or underletting. The tenant solicitors’ searches, together with the landlord’s responses to Commercial Property Standard Enquiries ( CPSE) and any follow-up queries, ought to probe potential significant risks linked to environmental, safety and energy matters......
Technical due diligence If known or suspected non-compliance or land contamination arises, the purchaser, or preferably its solicitors, may appoint an environmental consultancy to perform a phase 1 environmental, health and safety ( EHS) compliance review, or more invasive phase 2 investigations, to appraise the potential liability and overall financial risk......
Environmental liabilities often emerge in property transactions. See Practice Notes: Environmental issues in property transactions—acting for a seller and Environmental issues in property transactions—acting for a buyer. This Practice Note highlights the principal environmental points practitioners should check during lease due diligence, including: land contamination liabilities asbestos in buildings Energy Performance Certificates ( EPCs) and Minimum energy efficiency standards ( MEES) Land contamination liabilities Contaminated land may trigger a range of liabilities; the headline types are outlined below. Regulatory action: planning obligations and development conditions; contaminated land regime, Part IIA of the Environmental Protection Act 1990 ( EPA 1990); Environmental Damage Regulations— EDR ( England) SI 2015/810 and EDR ( Wales) SI 2009/995; anti-pollution works notices under sections 161–161D of the Water Resources Act 1991 ( WRA 1991); environmental permit obligations, EPR 2016, SI 2016/1154. Third-party...
Buyers and sellers weigh numerous factors when conducting thorough due diligence during a commercial transaction for the purchase or disposal of a business together with its operational sites and plant. Environmental considerations ought to form a key part of any diligence process for the enterprise. ' Caveat emptor'—'let the buyer beware'—is a well-established common law doctrine under which the seller has no legal obligation to reveal material facts to a potential purchaser, so the purchaser must make their own enquiries. Environmental regulations can drive substantial capital spending, and such risks may materially change a company’s overall risk profile. Compliance shortcomings may seriously damage reputation, while enforcement could threaten the long term viability or profitability of the business. Commissioning an environmental consultant Provide your environmental consultant with full and relevant context for the proposed deal when commissioning due diligence, so an appropriate and...
The environmental damage regime ( EDR) obliges operators of activities that cause serious environmental incidents to both prevent harm and put it right. It rests on the polluter-pays principle and implements the requirements of the EU Environmental Liability Directive. For more information, see: Environmental damage regulations—overview. Who is liable? Liability for environmental damage sits with the operator of the activity. Operator: any natural or legal person, whether private or public, who runs or controls an activity. This also covers the holder of a permit and anyone who registers or notifies an activity. Activity: any economic undertaking, public or private, whether or not for profit. Purely domestic or recreational activities are excluded. The enforcing authority may proceed against more than one operator. Where more than one person could be the operator, the authority must decide whom to enforce against. When...
The environmental damage regime ( EDR) The environmental damage regime ( EDR) governs harm to the environment within England and Wales. Operators carrying out activities that cause serious incidents must avert and repair such harm. Liability follows the polluter-pays principle. Refer to Practice Notes as follows: Environmental damage—potential liabilities and Environmental damage regulations—overview......
Liability for environmental harm arises under the environmental damage regime ( EDR), derived from the Environmental Liability Directive 2004/35/ EC. See Practice Note: EU Environmental Liability Directive—snapshot. In England and Wales, the EDR is given effect by the Environmental Damage ( Prevention and Remediation) ( England) Regulations 2015 ( EDR England), SI 2015/810, and the Environmental Damage ( Prevention and Remediation) ( Wales) Regulations 2009 ( EDR Wales), SI 2009/995. Under the EDR, operators whose activities cause serious environmental incidents must both prevent and remediate the damage. For further detail on the EDR, see the following Practice Notes: Environmental damage regulations—overview Environmental damage—when does the environmental damage regime apply? Environmental damage—what does it cover? Environmental damage—potential liabilities Environmental damage—operators’ obligations, enforcement, offences and appeals Environmental damage— Summary of enforcement options Where harm has occurred and there are...
Environmental damage regime Directive 2004/35/ EC of the European Parliament and of the Council of 21 April 2004 on environmental liability created a European framework for preventing and remedying environmental harm. In England and Wales, the Environmental Damage Regime ( EDR) is set out in the Environmental Damage ( Prevention and Remediation) ( England) Regulations 2015 ( EDR England), SI 2015/810, and the Environmental Damage ( Prevention and Remediation) ( Wales) Regulations 2009 ( EDR Wales), SI 2009/995. EDR focuses on averting imminent threats of environmental damage and addressing actual damage caused by certain activities, and also applies to any other activity involving protected species, special habitats or a site of special scientific interest ( SSSI) where the operator intended to cause environmental damage or was negligent. ‘ Environmental damage’ is harm to: a protected species or natural habitat that significantly adversely affects achieving or...
Reviewed by Professor Richard Macrory. The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) allowed regulators to address offences through six novel civil sanctions rather than prosecution. In 2010, the Environment Agency ( EA) and Natural England ( NE) received powers covering various environmental offences. By 2015, the regime was first widened, granting the EA authority to accept enforcement undertakings for environmental permitting offences. The Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157 applies in England, while the Environmental Civil Sanctions ( Wales) Order 2010, SI 2010/1821 applies in Wales. Schedule 5 in both instruments sets out which sanctions attach to each offence. The EA commenced exercising these powers on 4 January 2011. NE started to use its powers from 3 January 2012. Since 1 April 2013, Natural Resources Wales ( NRW) has overseen the enforcement of...
Enforcement bodies Reviewed by Professor Richard Macrory From 4 January 2011, the Environment Agency ( EA) has exercised powers conferred by the Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157, and the Environmental Sanctions ( Wales) Order 2010, SI 2010/1821. Natural England ( NE) began applying these powers on 3 January 2012. In England, the EA and NE are the authorities charged with enforcing environmental civil sanctions. From 1 April 2013, Natural Resources Wales ( NRW) has taken on the role of enforcing environmental civil sanctions in Wales. Civil sanctions were created by the Regulatory Sanctions and Enforcement Act 2008 ( RESA 2008), which supplies the principal framework. Orders made under RESA 2008 concerning environmental civil sanctions commenced in England on 6 April 2010 and in Wales on 15 July 2010. Their purpose was to render the enforcement of...
This Practice Note outlines the powers available for addressing anti-social behaviour within an environmental setting, with particular focus on those introduced by the Anti-social Behaviour, Crime and Policing Act 2014 ( ABCPA 2014). Community Protection Notices What is a Community Protection Notice and what is its purpose? A Community Protection Notice ( CPN) is intended to prevent a person aged 16 or above, a business, or an organisation from engaging in conduct that gives rise to specific, continuing problems or nuisances which adversely affect the community’s quality of life......
The purpose of environmental due diligence Environmental due diligence aims to: assess the likelihood of inheriting contaminated land liabilities linked to properties being transferred to the purchaser establish whether environmental permits must be transferred to the buyer, or if fresh permits should be obtained identify material non-compliance with environmental law or permits, or capital expenditure obligations that may pass to the buyer offer recommendations to mitigate these risks through further investigations, price negotiation, contractual protections or environmental insurance For a broader discussion of due diligence, see Practice Note: Due diligence—share and asset purchases. The scope of environmental due diligence Environmental and health and safety ( EHS) matters are generally examined together because: issues like managing asbestos and exposure to chemicals are both health and safety concerns and environmental matters environmental managers frequently hold...
This Practice Note outlines the main controls on the use of environmental claims in advertising and covers these core areas: relevant legislation self-regulatory codes sanctions for non-compliance Environmental messaging in marketing is rising as consumers become more informed about the ecological effects of the goods and services they choose. Firms are leveraging this heightened awareness by showcasing their sustainability credentials. Examples include statements such as 'environmentally friendly' or presenting a product or service as 'green', 'clean', or 'carbon neutral'. Typical wording ranges from broad descriptors to specific carbon-related statements, reflecting attempts to signal positive environmental impact to prospective customers across their marketing materials. As these claims proliferate, the Advertising Standards Authority ( ASA), the body tasked with overseeing advertising in the UK, has seen a parallel uptick in complaints about environmental claims in...
An environmental audit might be carried out: as part of due diligence linked to the acquisition, divestiture or flotation of an organisation or its assets to check conformity with legislation and/or the organisation’s own environmental requirements as a component of an organisation’s environmental risk management as an initial step to inform an environmental management system Types of environmental audit An environmental audit can comprise: desktop study or appraisal (ie a review based on information relating to the site drawn from various sources, without the benefits or costs of a site visit) phase I assessment (a review of background information coupled with a site visit during which observations are made and discussions held with site management) phase II assessment (entailing further investigation at the site such as sampling and analysis or monitoring activity; this will typically involve an...
During the due diligence stage, the purchaser’s solicitors and other advisers have the chance to review the target business’s legal, technical and financial performance in depth......
Restriction notices Section 109A of the Environment Act 1995 ( EA 1995) authorises the Environment Agency ( EA) and Natural Resources Wales ( NRW), in England and Wales, to issue a notice that restricts access to premises and the importation of waste into those premises for up to 72 hours, by serving a restriction notice, where there is a risk of serious pollution to the environment or serious harm to human health arising from the treatment, keeping, deposit or disposal of waste, and where issuing the notice is necessary to prevent that risk from continuing. For information on the EA’s other powers to investigate criminal offences, see Practice Note: Environment Agency—powers to investigate environmental crime. For information on NRW’s other powers to investigate criminal offences, see Practice Note: Natural Resources Wales—powers to investigate environmental crime. Restriction notices are available only for use by the EA and NRW....
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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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