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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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Why is registration required? The Waste ( England & Wales) Regulations 2011, SI 2011/988, stipulate that no person may act as a carrier, broker or dealer of controlled waste unless registered with the Environment Agency in England, or with Natural Resource Wales in Wales. Registration is a legal obligation, and failing to register when required constitutes an offence. Registering carriers, brokers and dealers helps organisations to meet their duty of care obligation to ensure controlled waste is transported and disposed of legally and safely. This duty applies broadly to any person who produces, imports, carries, keeps, treats or disposes of controlled waste, or who, as a broker, has control of such waste. Breach of the duty of care is an offence, with a penalty of an unlimited fine if convicted on indictment. It also helps the Environment Agency clamp down on...
New starters share purchase transactions collection ( EHS issues)—contract stage During the initial or due diligence stage, the share purchase agreement ( SPA) is ordinarily produced and then completed within that same stage itself, in practice. The purchaser’s solicitors usually draft the initial working version of the SPA and then send it to the seller’s solicitors for a mark-up. Negotiations can continue all the way through to the date on which the SPA is ultimately signed. The seller’s solicitors will prepare the......
Types of land contamination liabilities There are several liability types linked to contaminated land, summarised as follows: Regulatory action: planning regime; contaminated land regime; environmental damage regulations; water pollution legislation; environmental permitting regime Third party liabilities: private nuisance claims for off-site migration; public nuisance claims; personal injury claims; claims relating to negligent advice; misrepresentation; insurance disputes Contractual liabilities: indemnities in sale contracts; indemnities in corporate and sale and purchase agreements; remediation agreements Other liabilities: landlord and tenant obligations; clean-up, investigation and monitoring costs; loss of property value; delay or aborted transactions; accounting provisions; negative publicity Planning regime In most cases, contamination is addressed voluntarily when land is developed or redeveloped via the planning system. The National Planning Policy Framework sets the planning policy for managing contamination risks. Question Who is liable? Answer The developer is responsible for making sure a development is safe and that the site is...
Determining liability Enforcing authorities are to apply the five-step approach set out in statutory guidance when determining liability under the Environmental Protection Act 1990, section 78F ( EPA 1990). Not every stage will be applicable in every matter; in many cases only some steps will need to be considered. See Practice Note: Contaminated land—process for determining liability. At step four, the authority decides whether any members of a liability group ought to be excluded from liability. Questions of exclusion can surface where a site’s history is intricate. For instance, successive occupiers or varying industries might each have added to contamination, and fairness may warrant excluding some of them from responsibility. Crucially, where a liability group has a single appropriate person, that individual cannot be excluded. Likewise, if there are two or more appropriate persons, the entire set cannot be excluded, so at least one must remain...
When can costs be recovered by an enforcing authority? Subject to sections 78J(7) and 78K(6) of the Environmental Protection Act 1990 ( EPA 1990), an enforcing authority may reclaim its reasonable expenses from the appropriate person(s) after carrying out remediation using its powers under EPA 1990, s 78N(3)(a), (c), (e) and (f), where any of the following apply: there is an imminent risk of serious harm, or serious pollution of controlled waters a person fails to meet any requirement set out in a remediation notice having considered hardship, it decides not to pursue recovery of some or all costs (for example, it may still recover where entitled to a proportion of those costs) no appropriate person, in relation to a particular matter, is found after reasonable inquiry (for example, it may later recover if an appropriate person is...
What is contaminated land? ‘ Contaminated land’ is a precise legal expression set out in Part IIA of the Environmental Protection Act 1990 ( EPA 1990). The contaminated land regime places strict, retrospective liability. It obliges local authorities ( LAs) to find contaminated land within their districts and to apportion responsibility for land contaminated historically. By contrast, ‘land contamination’ is a broad label for any land that might be affected by pollutants, though not necessarily to thresholds that trigger contaminated land liability. When deciding whether land is contaminated, LAs must follow statutory guidance from Defra or the Welsh Government. Updated statutory guidance took effect in April 2012. The default assumption when assessing land with potential contamination is that it is not ‘contaminated land’ unless there is a reason to conclude otherwise at that point in time as such......
Due diligence in contaminated land transactions Lambson Fine Chemicals Ltd v Merlion Capital Housing Ltd underlines the need for robust technical and legal due diligence on brownfield schemes. Former chemical site in the spotlight The 40‑acre Castleford site had hosted chemical production since the 1860s. In the late 1940s, Laporte owned it and manufactured sulphuric acid. Lambson Fine Chemicals then operated there for three decades, and in 2004 sold to Merlion Capital Housing for £12.25m for planned commercial and housing development. Lambson took a one‑year leaseback to demolish the plant, while Merlion retained £500,000 to meet clean‑up costs arising from those works. Most of that sum was returned to Lambson, leaving £150,000 unpaid. Dispute over clean up costs After completion, Merlion identified 14,000 tonnes of soil at the site’s centre containing “ Blue Billy”, a waste by‑product with high cyanide...
What is contaminated land risk assessment? Risk refers to the combined effect of: the probability that harm, or pollution of water, will arise because of pollutants present within, on, or beneath the land; and the extent and seriousness of any such harm or pollution, if it were to happen. Accordingly, risk assessment is the process of anticipating what could occur, judging how severe it might be, and using that insight to guide decisions effectively......
What remediation can be required? The enforcing authority may only undertake, or require an appropriate person to undertake, remediation under Pt IIA of the Environmental Protection Act 1990 ( EPA 1990) where it judges such action to be ‘reasonable’, taking into account overall: the likely financial cost involved, and the seriousness of the harm or the pollution of controlled waters In settling what remediation is to be carried out, the expected standard, and whether the measures are reasonable, the authority must have regard to the statutory guidance at all stages in its decision-making process. Someone may volunteer to implement remediation through a scheme that differs from that which would otherwise be specified in a remediation notice, if they choose. When assessing whether a proposed alternative is suitable, the authority should consider if it would deliver at least the same standard of...
The remediation sector has shifted rapidly under a range of drivers. The UK Government’s push for sustainable development, pre‑ Brexit European legislation, and a growing recognition of the need to safeguard groundwater have all influenced practice. As a result, remedial strategies are now more intricate, creating heightened technical and legal challenges for stakeholders. Approaches to remediation and risk Less ‘dig and dump’ projects and more sustainable remedial solutions From a technical and legal standpoint, remediation in the 1980s and 1990s was comparatively straightforward. Contaminated soil was commonly dug out and dispatched to low‑cost landfill, while groundwater was treated only where an abstraction was affected. The client’s obligations typically ceased once the waste entered the landfill. Legal exposure was largely confined to any residual contamination at the excavation margins and to the standard of imported materials used to reinstate the void. Reduced dependence on landfill has...
In 2020, the Law Society published a revised practice note on contaminated land. That Law Society note superseded the 2016 iteration of the practice note. Earlier, the version issued on 18 December 2014 had taken the place of the Society’s former green card warning on contaminated land. What does the practice note cover? The note outlines the Law Society’s view of sound practice in relation to contaminated land for solicitors involved in property transactions and related matters. It advises that practitioners should always assess whether contamination arises in every conveyancing matter, and flags that contamination can be a significant concern in certain transactions. For legal purposes, land is only treated as ‘contaminated land’ under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) where it presents an unacceptable level of risk and has been formally determined as such by the local...
What is the duty to inspect? Local authorities ( LAs) are required to examine their localities for the purpose of: identifying any contaminated land under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) deciding whether it should be designated as a special site; for further details see Practice Note: Special sites of contaminated land When determining contaminated land, LAs must comply with the statutory guidance. What land must be inspected? LAs must assess land situated within their own area. An LA has no obligation to inspect land beyond its boundaries......
Managing contaminated land liabilities is an important consideration in construction projects Liabilities for land contamination commonly emerge within the planning framework and the contaminated land regime contained in Part IIA of the Environmental Protection Act 1990 ( EPA 1990). Remediation via the planning route: across England and Wales, most contamination matters are addressed through the planning system. To make sure a site is fit for its proposed use, and to avoid unacceptable pollution risk, the effects of contamination on a scheme should be examined through planning so far as they are not dealt with by other regimes, including the EPA 1990, Pt IIA, the Building Regulations and environmental permits (see: Environmental permits and exemptions—overview). Before permission is issued, the developer together with an environmental consultant ought to evaluate the potential contamination risks. Applicants are advised to liaise early with the local planning...
What are conservation covenants? In essence, conservation covenants are voluntary, private undertakings between a landholder and a responsible organisation or body, for example a conservation charity or a public authority. Their purpose is to safeguard the natural environment and heritage assets for the benefit of the public at large. They stipulate duties tied to the land itself and bind present and future owners, offering the prospect of enduring conservation outcomes and benefits. A common illustration is a farmer committing to manage a woodland and permit public access, with oversight by a local woodland charity or similar body. They are viewed as complementing statutory or policy-led designations—such as Sites of Special Scientific Interest or National Parks—by enabling the private protection of land with conservation merit that sits outside the public designation regime. Part 7 of the Environment Act 2021 ( EA 2021) addresses...
In the Crown Court, when the prosecutor applies (or, where the court considers it appropriate, of its own motion), the court is obliged to also consider whether to impose a confiscation order on a convicted defendant. Such an order compels payment of a sum reflecting the benefit obtained from criminal conduct, limited to the assets available to satisfy it. The regime governing confiscation may intersect with, but remains distinct from, civil forfeiture proceedings under section 303Z14 of the Proceeds of Crime Act 2002 ( POCA 2002), which operate under different statutory criteria and provisions. For guidance on confiscation orders under the POCA 2002, see Practice Note: Confiscation under the Proceeds of Crime Act 2002. In addition, following conviction in the magistrates’ court for any offence, including summary only matters, if the prosecutor so requires, the court must commit the case to the Crown Court to...
Issue Details The Comprehensive Nuclear- Test- Ban Treaty ( CTBT) Parties: 178 (187 signatories) Adopted: 10 September 1996 Opened for signature: 24 September 1996 Entry into force: Not yet in force — requires ratification by all Annex 2 States Subject: Prohibition of all nuclear explosions What is the status of the Treaty? The Treaty will not take effect until every Annex 2 State has ratified it. These countries participated in CTBT negotiations from 1994–96 and had nuclear power or research reactors at that time. Annex 2 States: Algeria, Argentina, Australia, Austria, Bangladesh, Belgium, Brazil, Bulgaria, Canada, Chile, China, Colombia, Democratic People's Republic of Korea, Egypt, Finland, France, Germany, Hungary, India, Indonesia, Iran ( Islamic Republic of), Israel, Italy, Japan, Mexico, Netherlands, Norway, Pakistan, Peru, Poland, Romania, Republic of Korea, Russian Federation, Slovakia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom of Great...
The majority of the completion and post-completion tasks will be undertaken by the property lawyers: submitting the Stamp Duty Land Tax returns drafting the land registry applications forwarding the title deeds to the lender as security (where applicable) adhering to pre-completion undertakings......
Tenant covenants and the service charge framework dictate whether the occupier must fund works connected to the land, buildings and fixtures, including: energy efficiency upgrades asbestos surveys and remedial measures improvements arising from fire risk assessments upkeep of above-ground and underground storage tanks ( USTs) maintenance of drainage networks site investigations, land remediation and monitoring duties For guidance on negotiating these clauses, see: Lease transactions toolkit (environmental issues)—negotiation tactics acting for the landlord and tenant. For more on service charges, consult Practice Note: A review of the RICS Professional Standard on Service Charges in Commercial Property (2nd edition). Timing The timetable and tasks for the lawyers will be shaped by factors such as the property issues revealed by the Commercial Property Standard Enquiries ( CPSE) replies and due diligence, the clients’ negotiating position, and whether environmental audits are needed. Asbestos management surveys or phase 1 environmental audits typically take five to ten days....
Who takes responsibility for contaminated land liabilities? Where legacy land contamination is a concern, or the tenant’s operations involve polluting activities, the parties will need to address in the lease who assumes responsibility. That decision concerns any potential contaminated land liabilities. Standard clauses in leases If a lease is silent on environmental matters, several non-environmental provisions may still have implications for environmental liability. The points below flag common lease clauses to watch for. Extent of the demise: Confirm whether the term ‘premises’ captures land (including surface water and groundwater), above-ground storage tanks, underground storage tanks and pipes. Covenant to comply with statutory obligations: Where either the landlord or the tenant receives a statutory notice, or a regulator requires works (for example, the landlord is threatened with a remediation notice or works notice), the landlord may rely on this covenant to pass the costs...
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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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