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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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Administration Administration is a process intended to give a company time to breathe, aiming either at rescue or restructuring, or at securing a better result for all creditors than liquidation wherever possible. The core statutory framework for administration sits in Section 8 and Schedule B1 of the Insolvency Act 1986 ( IA 1986), together with the Insolvency ( England and Wales) Rules 2016, IR 2016, SI 2016/1024 rr 3.1–3.70, which apply in tandem. An administrator, an insolvency practitioner appointed under IA 1986, takes control of the company’s business and assets to pursue one of the three statutory purposes of administration set out in IA 1986......
Purpose An environmental impact assessment ( EIA) evaluates a project’s likely significant environmental effects. It ensures the environmental implications of a development proposal are given appropriate weight, alongside economic and social considerations, when planning applications are determined, and creates opportunities to lessen those impacts. It also allows the public and other consultees to participate in the decision-making procedures. Legislation and guidance In relation to town and country planning, EIA is governed by: The Town and Country Planning ( Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) in England; and The Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017, SI 2017/567 (the Welsh EIA Regulations) in Wales Together, the ‘ EIA Regulations’. The EIA Regulations transpose into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of certain public and private...
Clean-up liabilities are legal and financial duties to rectify pollution or contamination arising under: statute, eg a pollution incident causing environmental damage civil disputes, eg damages for common law nuisance or negligence contract, eg an environmental indemnity Events that trigger clean-up liabilities can also lead to prosecution, liability for directors and officers, and reputational harm. Practitioners should address clean-up liabilities when: conducting environmental due diligence in corporate, property or financial transactions advising on company reporting and environmental accounting managing the transfer of environmental liabilities, such as contaminated land, between entities responding to pollution incidents Broad scope of clean-up liabilities Clean-up liabilities are not confined to remediation obligations for contaminated land under the Environmental Protection Act 1990, ss 78A–78YC ( Part IIA) ( EPA 1990) (the contaminated land regime). Their reach is broader, spanning environmental indemnities through to...
Similarities between Freedom of Information Act and Environmental Information Regulations At their core, the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391, share a common purpose: enabling access to information kept by public authorities. For further detail, see Practice Notes: Environmental Information Regulations 2004—what is environmental information? and Introduction to freedom of information. More specific similarities include: time limits—under each framework, where the information is held and no exemption applies, public authorities must respond within 20 working days duty to advise and assist—both FIA 2000 and EIR 2004 set expectations for handling requests, requiring authorities to offer a reasonable level of advice and assistance to requestors and potential requestors appeals—identical appeal routes are available For more information, see Practice Notes: Environmental Information Regulations...
Statutory nuisance leading to abatement notice A local authority is required to periodically examine its district for statutory nuisances, and when a resident submits a complaint, it must take all reasonably practicable steps to investigate it. A statutory nuisance may arise where any of the following are, or are likely to be, prejudicial to health or a nuisance: the condition or physical state of premises smoke, fumes or gas released from premises, a vehicle, machinery or equipment in a street dust, steam or odours originating from business, industrial or trade premises refuse, or any accumulation or deposited material noise arising from any premises, vehicle, machinery or equipment in the street For further detail on the above, see Practice Note: Statutory nuisance. A statutory nuisance can also be abated, limited or prevented by a nuisance order made by the...
Directors’ duties—fundamentals For the first time, the key duties of directors formulated by the courts were expressly set out in statutory form in sections 171–177 of the Companies Act 2006 ( CA 2006), thereby consolidating existing judge‑made principles. A full account of these statutory obligations—referred to as the general duties—can be found in Practice Note: Directors’ duties—fundamentals. The first four general duties are set out below: a duty to act in line with the company’s constitution and to use conferred powers solely for their proper purposes as intended by that constitution a duty to act, in good faith, in the manner the director believes is most likely to promote the company’s success for the benefit of all members collectively, while, in doing so, having regard to various factors a duty to exercise independent judgment a duty to exercise...
Introduction Environmental permitting is one of the principal regulatory regimes in the UK. Its purpose is to control pollution and emissions from industrial and other operations. It is a core element of UK business regulation, placing controls on activities that could pollute the environment or harm human health. Permits set conditions for the construction, operation and decommissioning of a regulated facility, and prescribe how regulated activities are undertaken. This Practice Note summarises enforcement procedures, offences and civil sanctions under the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154, which provide a single, unified permitting regime for facilities and activities. For detail on other key aspects of EPR 2016, see Practice Notes: Environmental Permitting Regulations 2016—permit determinations and appeals; and Environmental Permitting Regulations 2016—permits, applications and exemptions. EPR 2016 consolidated and revoked the Environmental Permitting ( England and Wales)...
Under the Companies Act 2006 ( CA 2006), company directors owe their company a set of general duties, which include the obligation to further the company’s overall success. For an introduction to the general duties, please see the Practice Note: Directors' duties—fundamentals......
Directors are the agents of a company who manage its day-to-day business and owe a number of duties to it The Companies Act 2006 ( CA 2006) for the first time put into statute a range of common law and equitable duties that had evolved through court decisions over hundreds of years, and it also altered company law in specific respects. Sections 171 to 177 CA 2006 set out the statutory general duties owed by a director to their company: act in line with the company’s constitution and exercise powers only for the purposes for which they were given act, in good faith, in the way the director believes would most likely promote the company’s success for the benefit of its members as a whole, while having regard to various matters (the duty to promote the success of the...
Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 ( CMCHA 2007) introduces the distinct offence of corporate manslaughter. The CMCHA 2007 applies across the UK and, at the same time, brings in the offence of corporate homicide for Scotland. This Practice Note addresses corporate manslaughter, not corporate homicide, because certain CMCHA 2007 provisions treat the two offences with slight differences. See Practice Note: Involuntary manslaughter. Corporate, not individual, liability The CMCHA 2007 targets organisational accountability and does not extend to directors or other individuals occupying senior positions within a company. It creates no personal liability under the CMCHA 2007. Further, CMCHA 2007, s 18 expressly provides that a person cannot be guilty of aiding, abetting, counselling or procuring the commission of corporate manslaughter, nor can a person be guilty of encouraging or assisting an offence of corporate...
What is the nature of the liability? The Environmental Protection Act 1990, Part IIA ( EPA 1990) sets out a liability‑focused framework designed to address the United Kingdom’s legacy of contaminated land. Under Part IIA, causing contamination is not, in itself, a criminal offence. By contrast, failing to comply with a remediation notice served by the enforcing authority is an offence. Retrospective liability An ‘appropriate person’ can be required to meet the costs of cleaning up contaminated land where the contamination occurred before 1 April 2000, even if the conduct was lawful at the time. This retrospective element enables the enforcing authority to require remediation at historically polluted sites that would otherwise be unlikely to be remediated. ‘ New’ contamination is ordinarily addressed under other regimes, such as the environmental permitting or environmental liability regimes. Strict liability For the ‘causation’ limb of the liability test, the regime is...
Private nuisance Relevance of private nuisance in modern law Despite the highly intricate framework of environmental regulation, private nuisance (together with other torts like negligence and trespass) occupies a significant role in contemporary environmental law. That is hardly unexpected in a common law system where judges hold a pivotal constitutional function. Moreover, certain environmental problems sit beyond formal regulatory schemes and are not wholly captured by them. For example, the statutory nuisance scheme in Part 3 of the Environmental Protection Act 1990 ( EPA 1990) extends only to the nuisances enumerated in EPA 1990, s 79(1), and no further; yet, where the environmental harm has ceased or been abated, a legitimate claim for damages for historic nuisance may remain, which the statutory environmental protection mechanisms do not provide or permit. The tort of private nuisance also retains weight because recent statutes, following earlier patterns of...
Definition of Waste ' Waste' is described in the Waste Framework Directive, Directive 2008/98/ EC ( WFD), as any material or item that the holder discards, plans to discard, or must discard. For further details, see Practice Note: Meaning of waste—what is waste? Waste Framework Directive 2008/98/ EC (as amended in 2018) ( WFD). The Waste ( England and Wales) Regulations 2011, SI 2011/988, gave domestic effect to the WFD’s requirements in England and Wales under domestic law......
Background— EU law in the UK Pre-exit day The European Communities Act 1972 ( ECA 1972) was enacted to implement the United Kingdom’s obligations, as a Member State, under the relevant EU treaties and to ensure adherence to EU law. Under ECA 1972, s 2(1), certain EU rights and obligations intended to have direct effect applied in the UK without the need for additional domestic legislation. This encompassed rights under the EU Treaties and EU regulations setting out detailed legal rules. Other forms of EU law took effect via UK regulations made under ECA 1972, s 2(2), or, in some circumstances, through separate Acts of Parliament. This pathway covered EU directives, which stipulate overarching aims or frameworks while leaving each Member State to make its own provision to secure the required legal outcome. In its operation within Member States, EU law is...
This Practice Note sets out the matters a claimant must establish in an asbestos action. It further reviews pleural plaques claims, limitation questions including section 14 of the Limitation Act 1980 ( LA 1980), the Pre- Action Protocol for Disease and Illness Claims, and the special procedural rules for mesothelioma claims. Elements of the claim A claimant who has developed disease through exposure to asbestos must prove the following in order to pursue their claim. A duty of care and/or a statutory duty owed by the individual or company responsible for the asbestos exposure. That duty requires the taking of reasonable care to prevent a person being subjected to a foreseeable risk of asbestos-related harm. In Asmussen v Filtrona, the claim was rejected because, on the then prevailing standards and the general state of knowledge about the dangers of asbestos, it could not be said that...
What are AONBs/ National Landscapes? Areas of outstanding natural beauty ( AONBs), termed National Landscapes, are stretches of countryside across England and Wales, lying outside national parks in England and Wales, designated because of their exceptional landscape importance. The core objective of AONB/ National Landscape status is 'to conserve and enhance the natural beauty of the landscape'. to provide for the quiet enjoyment of the countryside to take account of the interests of people who live and work within them On 22 November 2023, every designated AONB in England and Wales adopted the name ‘ National Landscapes’. This change is mirrored in the National Planning Policy Framework ( NPPF), though in statute they continue to be called AONBs. Responsible authorities include Natural England, Natural Resources Wales, the Department of the Environment, Food and Rural Affairs ( Defra), the Welsh Ministers, and local planning...
Across the UK, hazardous wastes are governed by distinct regimes for England, Wales, Scotland and Northern Ireland. In England and Wales, the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894 (the ‘ Hazardous Waste Regulations’) prescribe the regime. The Environment Act 2021 ( EA 2021) created powers to make further regulations to strengthen the hazardous waste regime in England and Wales. The 2005 Regulations were made to give effect to the Hazardous Waste Directive 91/689/ EEC and contain provisions on tracking and movement controls. Subject to reg 9, a waste is “hazardous waste” if it is: listed as a hazardous waste in the List of Wastes a specific batch of waste determined (under regulation 8) to be hazardous waste The “ List of Wastes” in this context means the list established by Commission Decision 2000/532/ EC, which replaced Decision 94/3/ EC...
Historically, the UK government backed fracking. However, after a run of successive seismic events at the country’s only active fracking site, operated by Cuadrilla in Lancashire, a scientific assessment by the North Sea Transition Authority ( NSTA) (formerly known as the Oil and Gas Authority) concluded that the probability of fracking‑related seismic activity could not be predicted with confidence. On the strength of that assessment, the government shifted its stance and, on 4 November 2019, issued a written statement which, on the basis of the then current scientific evidence, confirmed a presumption against granting any further hydraulic fracturing consents. This amounted to an effective, de facto moratorium, to be kept in place until compelling new evidence is brought forward addressing concerns about the prediction and management of induced seismicity. At the same time, it confirmed that it would not take forward the...
ARCHIVED: This tracker has been archived and is not maintained. The Feed-in Tariff ( Fi T) launched in April 2010 as the government’s principal policy to boost small-scale, low-carbon electricity generation across Great Britain ( GB). It is underpinned by the Feed-in Tariffs Order 2012, SI 2012/2782 (as amended), alongside modifications to Conditions 33 and 34 of the standard conditions of electricity supply licences, i.e. the Standard Licence Conditions. The Fi T is open to all—ranging from households to local authorities, landlords and businesses. Off-grid generators, provided they meet the eligibility criteria and confirm they will use all the power they produce, may access partial Fi T payments; as no electricity is exported, they qualify only for the generation tariff. Those who qualify for the Fi T: receive payments from certain licensed electricity suppliers (a Fi T licensee) for each kilowatt hour (p/k Wh)...
Land Drainage Act 1991 In force 1 December 1991; transposition deadline N/ A. Amendments Environment ( Wales) Act 2016 Deregulation Act 2015 Water Act 2014 Transfer of Tribunal Functions Order 2013, SI 2013/1036 Natural Resources Body for Wales ( Functions) Order 2013, SI 2013/755 Local Government Byelaws ( Wales) Act 2012 Flood and Water Management Act 2010 Transfer of Tribunal Functions ( Lands Tribunal and Miscellaneous Amendments) Order 2009, SI 2009/1307 Tribunals, Courts and Enforcement Act 2007 Local Government and Public Involvement in Health Act 2007 Natural Environment and Rural Communities Act 2006 Constitutional Reform Act 2005 Communications Act 2003 Water Act 2003 Enterprise Act 2002 ( Disqualification from Office: General) Order 2006, SI 2006/1722 Transfer of Functions ( Transport, Local Government and the Regions) Order 2002, SI...
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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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