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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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Initially prepared in partnership with Alistair Mills of Landmark Chambers and subsequently updated by Freya Foster of Henderson Chambers. The 'sufficient interest' test While judicial review concentrates on whether a public body's decision, action, or failure to act is lawful, rather than, say, settling a quarrel between parties, an applicant (the claimant) must still demonstrate a sufficient interest (also called 'standing' or locus standii) in the impugned decision, act, or omission by the public body. That question concerns the court's jurisdiction, as opposed to any agreement by the parties attempting to bestow jurisdiction by consent; see, for example, paragraph 29 of R ( Good Law Project) v Prime Minister. In practice, the court takes a generous view of standing, and it is rare for proceedings to fail solely on this ground. However, it does not follow that every member of the public may complain about any and all...
Issue Details Convention on Third Party Liability in the Field of Nuclear Energy ( Paris Convention) Parties: 16 parties Revisions: 1963 Convention Supplementary to the Paris Convention ( Brussels Supplementary Convention — entered into force on 4 December 1974) 1964 Protocol — entered into force on 1 April 1968 1982 Protocol — entered into force on 7 October 1988 2004 Protocol — 1 January 2022 Location: Paris Adopted: 29 July 1960 Came into force: 1 April 1968 Subject: Nuclear liability What is the international liability regime for nuclear damage? Civil liability for nuclear harm is defined by four principal instruments: the 1960 Paris Convention on Third Party Liability in the Field of...
Introduction to subsidence Subsidence arises when the soil below a building cannot adequately bear its load effectively. It frequently follows loss of moisture and shrinkage in the ground, commonly after extended dry periods. Other forms of ground movement include ‘settlement’ (the normal compression of soil under a property), ‘heave’ (upward lift beneath a structure, often linked to flooding, escaping water or nearby trees near a property) and ‘landslip’ (sideways displacement due to erosion, frequently affecting coastal homes and properties). A range of triggers can set off subsidence and related ground instability issues. These include, among others: human disturbance (e.g. mines, mine shafts, old and disused wells, soakaways, former ice-houses, past storage or refuse pits) altered drainage regimes and patterns intense rainfall and heavy rain removal of groundwater and abstraction impacts of climate change (e.g. rain, drought, erratic...
What is a Site of Special Scientific Interest? Sites in England and Wales that are recognised for their special interest, by reason of their flora, fauna, geological or physiological features, are given statutory protection under the Wildlife and Countryside Act 1981 ( WCA 1981). Natural England or Natural Resources Wales are responsible for designating these areas under WCA 1981, s 28. SSSIs can include a range of places, such as: Wetlands Rivers Meadows Beaches Peat bogs Owners of SSSIs are restricted in what they may undertake to and on the land and must manage it so as not to cause any damage to it. Public bodies are also under a duty to take reasonable steps to further the conservation and enhancement of the special features of SSSIs. Legislation and guidance Legislation The provisions relevant to the designation and management of SSSIs are found in WCA 1981, ss 28–28S, 32 and...
Overview A harbour authority is an autonomous, self-regulating organisation tasked with the safe stewardship and efficient operation of a harbour. Although substantial general law applies to ports and harbours, in most instances the particular powers, functions and obligations of a harbour authority are established by multiple local Acts and Orders, some of which date back centuries and continue to have effect, in full or in part, and remain in force today, whether wholly or in part......
Introduction Planning applications must be decided in line with the development plan, unless other material factors point otherwise. From a date still to be set, in England, applications will be determined by reference to the development plan together with any national development management policies, taken as a whole, unless material considerations strongly point to a different outcome. See Practice Notes: Determining planning applications—priority of the development plan and Determining planning applications—material considerations. Environmental matters can amount to material considerations when deciding applications, and they also inform the making of development plans. In England, the Environment Agency ( EA) may participate as a statutory consultee on specified forms of development, offering information and guidance where local planning authority ( LPA) decisions support the EA’s functions. The EA advises on proposed development in England and on matters within its remit, including: flooding waste land...
Parent company liability Being a parent does not, by itself, make a company answerable for a subsidiary’s acts or omissions. Each subsidiary bears its own corporate obligations, and any move to lift the corporate veil must be set out clearly and unambiguously in statute. That said, a parent may incur liability where its knowledge and capacity to step in are sufficient to impose a duty of care towards those harmed by the subsidiary’s conduct. In particular, if the parent holds ‘superior knowledge’ of the nature and control of specific risks, and knows of a ‘systemic failure’ within the subsidiary, a court may recognise such a duty. This is more likely where the subsidiary: has been dissolved has limited financial strength, and/or lacks insurance cover for the relevant category of damage or injury Those conditions may exist where the parent company: has assumed direct...
This Practice Note explores how climate change and the drive by the UK and other governments globally to reach net zero affect the construction sector and the way construction contracts are drafted. This influences the construction industry and the drafting of construction contracts. Climate change risks and ramifications for construction contracts It is widely recognised that climate change brings multiple threats across many industries, with a higher chance of severe and erratic weather, such as floods, drought and intense heat, which in turn would push hundreds of millions into poverty, diminish biodiversity and lead to species extinctions. In response, governments worldwide are acting to deliver ‘net zero’, meaning a condition where greenhouse gas ( GHG) emissions are counterbalanced by GHG removal, delivering an overall net zero emission over appropriate timescales. See also Practice Note: Sustainable...
For a fuller analysis of the regulation, consenting and incentivisation of the net zero energy transition under the laws of England and Wales, see also: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook offers comprehensive treatment of the topics addressed in this Practice Note, with in‑depth discussion of the same issues. What is the background to the Cf D regime? Contracts for Difference sit at the heart of the government’s Electricity Market Reform ( EMR) programme, introduced in 2013. EMR was devised by the UK government to encourage investment in secure capacity and affordable, low‑carbon electricity generation. The principal mechanisms enacted through the EMR reforms include: the Contracts for Difference ( Cf D) regime, the focus of this Practice Note, structured as a contract that grants owners of new build low‑carbon generation projects a long‑term, stable revenue stream in...
What is an environmental policy? An environmental policy is a formal written declaration that sets out an organisation’s mission for handling the environmental risks and effects arising from its activities. states the organisation’s environmental goals and targets and may underpin an environmental management system ( EMS), where relevant should be signed off and actively championed by top management and understood by all employees enables management to convey its environmental goals and targets to staff and other stakeholders, including shareholders, customers and suppliers ought to be embedded within overall business strategy Why should lawyers be aware of environmental policies? There is no statutory duty in the UK for companies to maintain an environmental (or sustainability) policy. Nevertheless, under the Companies Act 2006 and related corporate reporting rules, certain companies must report and disclose their environmental impacts (including...
Environmental permits and insolvency Certain business activities that affect the environment will typically require an environmental permit from the Environment Agency ( EA) or the local authority. The environmental permitting framework has replaced and rationalised the need to secure a range of consents under previous systems, including waste management licensing, discharge consents, and pollution prevention and control permits. For instance, any business handling controlled waste (that is, household, commercial or industrial waste) must hold an environmental permit, formerly known as a waste management licence. The environmental permitting regime took effect on 6 April 2008, and waste management licences in existence before 5 April 2008 automatically converted to environmental permits from that date. Undertaking specified operations without the requisite permit, or running a permitted activity in breach of its conditions, constitutes a criminal offence. Where an insolvency practitioner is appointed over a business that holds an...
What is BREEAM? The Building Research Establishment’s Environmental Assessment Methodology ( BREEAM) provides a framework for assessing and certifying the environmental performance of a building’s design, construction and operation. Certified buildings are given a BREEAM score and rating, allowing the environmental impacts of their design and construction to be measured and benchmarked against other certified buildings. BREEAM is owned, maintained and managed by BRE Global Ltd. BRE Global Ltd issues licences to independent, trained and qualified BREEAM Assessors who carry out assessments. Completed BREEAM assessments are then submitted to BRE for independent review and certification. Drivers of BREEAM While BREEAM is a voluntary standard, there are several drivers for undertaking a BREEAM assessment, including: Local development frameworks, via planning authorities, specify BREEAM ratings to be achieved to demonstrate the sustainability of developments. For example, in Wales, all new non-residential developments (over 250m 2) promoted or...
What is a ROCTMA? In the UK, Renewables Obligation Certificates ( ROCs) are traded bilaterally, and there is no mandatory template for such transactions. Nevertheless, the ROC Trading Master Agreement ( ROCTMA) has become the recognised standard form for documenting bilateral ROC sale and purchase arrangements, and is widely used by renewable electricity generators, electricity suppliers and ROC traders. A copy of the ROCTMA, published in March 2005 by the Futures and Options Association (now known as the FIA, which originally stood for Futures Industry Association), is available to the public on the FIA website under Renewables Obligation Certificate Trading Master Agreement. Although the Renewables Obligation has closed to new projects, ROCs will continue to be issued until a fixed price certificate ( FPC) scheme is introduced, which is anticipated to launch on 1 April 2027 (see government consultation: Transition from the Renewables...
This Practice Note reviews the Commercial Property Standard Enquiries ( CPSEs) and the Solicitor’s Completion Requirements ( SCRs), and sets them in context. It covers: direct links to the CPSEs and the SCRs themselves a concise overview of how and when CPSEs are used in a transaction links to template replies to CPSE 1 to CPSE 7, and a draft covering letter to the seller enclosing those replies guidance on the principal issues arising under CPSE 1, with links to related materials It also signposts related content. For guidance on the standard residential pre-contract enquiries, see Practice Note: Residential property—enquiries before contract. Background to the CPSEs and SCRs The CPSEs and the SCRs are a set of documents produced by members of the Property Support Lawyers Group and endorsed by the British Property Federation. The CPSEs provide enquiries before contract for common transactions, alongside the SCRs. They are the...
This Practice Note This Practice Note sets out an overview and concise summary of prosecutions for health and safety breaches pursued by the Health and Safety Executive ( HSE), the Office of Rail and Road ( ORR) or local authorities that culminated in penalties exceeding £1m. The tracker is designed to help practitioners keep sight of when substantial sentences for health and safety infringements are handed down for contraventions of the Health and Safety at Work etc Act 1974 ( HSWA 1974) and subordinate health and safety regulations. It also supports practitioners in grasping how, in England and Wales, the relevant offence‑specific sentencing guidelines are being applied in practice for health and safety, corporate manslaughter, and food safety and hygiene offences. Entries are ordered by the date of sentence, namely: 2025 2024 2023 2022 2021 2020 2019 2018 ...
This Practice Note examines the principal legislation in England and Wales for controlling and preventing water pollution, along with the related offences. Environmental Permitting Regulations 2016—pollution offence and environmental permits The Environmental Permitting ( England and Wales) Regulations ( EPR 2010), SI 2010/675 repealed the main water pollution offence in section 85 of the Water Resources Act 1991 ( WRA 1991) and revoked the Groundwater ( England and Wales) Regulations 2009, SI 2009/2902. Those offences are now contained in the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154, which repealed and replaced EPR 2010 from 1 January 2017. Under EPR 2016, SI 2016/1154, reg 38, it is an offence to: operate a regulated facility cause or knowingly permit the discharge of any poisonous, noxious or polluting matter, waste matter, trade effluent or sewage effluent to surface water (water...
Regulator power to carry out anti-pollution works Section 161 of the Water Resources Act 1991 ( WRA 1991) empowers the Environment Agency ( EA) and Natural Resources Wales ( NRW), as the relevant regulators, to undertake anti-pollution works and operations to investigate, prevent, remedy and mitigate water pollution. This authority applies where it appears to the EA or NRW that any poisonous, noxious or polluting substance, or any solid waste, is: likely to enter any controlled waters (surface water or groundwater) likely to be present in any controlled waters likely to have been present in any controlled waters Actions may include: preventing the polluting material from entering the water removing or disposing of the material remedying or mitigating the pollution so far as reasonably practicable, restoring the water and any flora or fauna to their condition prior to the...
What is the aggregates levy? HMRC administers an environmental tax, the aggregates levy, on the commercial exploitation of aggregates across the UK. When does the levy apply? The levy becomes chargeable when both conditions below are satisfied: there is a taxable aggregate, and that aggregate is commercially exploited within the UK There are pending amendments to Finance Act 2001, s 16(2) to substitute ‘the United Kingdom’ with ‘ England, Wales or Northern Ireland’ under Scotland Act 2016, s 18(3). The Act received Royal Assent on 23 March 2016, but the commencement date has not yet been appointed, and it is expected to change in line with the introduction of Scottish Aggregates Tax from 1 April 2026. Meaning of taxable aggregate Aggregate Aggregates means: rock gravel sand It also includes substances incorporated within, or naturally occurring alongside, those materials, such as spoil, waste, off-cuts and other...
Defining sustainable development—the background In the UK, mechanisms concerned with sustainable development generally draw on, and are steered by, variants of the Brundtland definition. They also frequently cite the three interlinked ‘pillars’, often described as the ‘triple bottom line’. The Brundtland definition and the ‘three pillars’ concept The Brundtland Report ( Our Common Future) frames sustainable development as progress that fulfils current needs without diminishing the ability of future generations to meet theirs. It embraces two principal ideas: needs—particularly the fundamental needs of the world’s poor, which warrant overriding priority; and limits—those set by the prevailing state of technology and social organisation on the environment’s capacity to satisfy present and future needs. The UN General Assembly endorsed this definition in Resolution 42/187, and the 2005 UN World Summit Outcome refers to the ‘interdependent and mutually reinforcing pillars’ of sustainable...
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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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