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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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At the due diligence phase, where no certificate of title is supplied by the seller, the purchaser will carry out pre-contract investigations and enquiries, and evaluate whether targeted environmental diligence is required, for example ground investigations, asbestos assessments or consultations with regulators. Key tasks for environmental lawyers during the phase The seller’s solicitors will: ......
In most cases, the seller’s solicitors draw up the sale contract, and it can sometimes be issued as early as the heads of terms stage. The seller’s and buyer’s legal teams then settle the contract provisions, taking account of what the searches and enquiries reveal. Timing How long this phase takes is governed by a range of factors, such as any deadlines set in the heads of terms, the transaction’s size and complexity, and the extent of the buyer’s due diligence: if the buyer is waiting......
The Health and Safety Executive ( HSE) reports that electricity and unsafe electrical work still often cause serious injury and death to workers and non-workers in the UK. Main hazards are: contact with live parts causing shock and burns injury from exposure to electrical arcing burns where static discharge ignites workplace flammables fires and explosions from poor installations and faulty equipment Electrical safety is a key part of health and safety management. See Practice Notes: How to manage health and safety in the workplace and Health and safety in the workplace—regulatory requirements. Key workplace electrical safety laws Relevant regulations include: The Electricity at Work Regulations 1989, SI 1989/635 The Supply of Machinery ( Safety) Regulations 2008, SI 2008/1597 Electrical Equipment ( Safety) Regulations 2016, SI 2016/1101. See Practice Note: Electrical equipment safety Management of Health and Safety at Work Regulations 1999, SI 1999/3242 The Plugs and Sockets etc ( Safety) Regulations 1994, SI...
This Practice Note considers how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented property, and sets out the enforcement and compliance powers of the local weights and measures authority. It also outlines the level of financial and publication penalties, the issuing of compliance notices, and a landlord’s rights to seek review and appeal. It forms part of our series of Practice Notes on MEES... MEES Regs 2015, SI 2015/962, reg 27 states that a landlord must not let a substandard non-domestic private rented ( NDPR) property—one with an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’—unless: ‘relevant energy efficiency improvements’ are carried out ( MEES Regs 2015, SI 2015/962, reg 29), or one of the...
Brexit impact At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s exit from the EU concluded. At this moment—termed ‘ IP completion day’ in UK law—transitional measures ceased and notable shifts started to apply across the UK’s legal framework. Any updates pertinent to this content will appear below. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) introduced a distinct form of domestic UK law—retained EU Law ( REUL)—comprising EU-derived rights and legislation kept in force in the UK after Brexit. On 29 June 2023, the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) received Royal Assent. It alters how REUL is handled by: revoking substantial amounts of REUL from 31 December 2023 re‑labelling REUL as ‘assimilated law’ from 1 January 2024 ...
Reviewing technical reports If a technical environmental report has been obtained by the buyer during the due diligence process (or supplied by the seller in the data room), it requires interpretation, followed by clear, practical advice to the client on potential liability exposure and recommended measures to mitigate the associated risks. Key issues for lawyers to assess are: Does the report set out clear evidence of environment, health and safety ( EHS) non-compliance, capex needs or potential liabilities? Should an independent environmental consultant be engaged to review and challenge the conclusions of the environmental report? Would a conference call or meeting between the respective environmental consultants (with clients and lawyers present) help to resolve issues of concern? Are any further investigations or enquiries required, and if so, what are the timing and cost...
The asset purchase agreement ( APA) The asset purchase agreement ( APA) is generally prepared during the preliminary or due diligence stage and completed within that same stage. The buyer’s solicitors typically produce the initial draft of the APA and send it to the seller’s solicitors for mark-up. Negotiations will often carry on until the APA is executed and signed finally......
New starters share purchase transactions collection ( EHS issues)—warranties Acting for a seller The precedent for Environment, Health and Safety ( EHS) warranties in a share purchase agreement—seller’s version—provides a pared-back set of EHS assurances intended for use when representing a seller. Definitions are intentionally broad, and no warranties are offered for contaminated land. The warranties are limited to these core topics: environmental permits observance of EHS law claims and litigation Practitioner tip Other warranties in the SPA can also bear on EHS matters, in particular: general warranties on compliance, licences and litigation property warranties (asbestos in buildings, neighbour disputes, land condition and flooding) employee warranties relating to health & safety claims......
Contracts for Difference ( Cf D) scheme The purpose of the Contracts for Difference ( Cf D) scheme is to deliver long‑term price stability and revenue assurance for low carbon generation projects, and to unlock investment at reduced capital costs, thereby lowering the burden on consumers of financing the scheme. The Cf D is a principal mechanism brought forward by the UK government under Electricity Market Reform ( EMR) (see Practice Note: Electricity Market Reform ( EMR)), as part of that reform package. The other flagship EMR instrument is the Capacity Market; for further details, see Practice Note: Capacity Market—key features. After EMR, the lead UK government programme charged with reshaping the Great Britain ( GB) national electricity market is the ‘ Review of Electricity Market Arrangements’ ( REMA). For added context on REMA, including how it interacts with the Cf D...
Sentencing The Sentencing Council has issued offence‑specific sentencing guidelines (the Guidelines) for application in magistrates’ courts and Crown Courts in England and Wales covering unauthorised or harmful waste deposit, treatment or disposal, and unlawful releases to air, water and land, contrary to section 33 of the Environmental Protection Act 1990 ( EPA 1990) and regulations 12 and 38(1)–(3) of the Environmental Permitting ( England and Wales) Regulations 2016, SI 2016/1154 ( EPR 2016). They also note the now‑revoked Environmental Permitting ( England and Wales) Regulations 2010 ( EPR 2010), SI 2010/675, which were superseded by EPR 2016. The Guidelines have effect from 1 July 2014, irrespective of the date of the offence. They do not apply in Scotland or Northern Ireland, though sentencers in those jurisdictions may consult them when determining sentence. For guidance on the investigation, prosecution and sentencing of...
This Practice Note reviews the provisions for declining vexatious or repeated requests under section 14 of the Freedom of Information Act 2000 ( FIA 2000). Vexatious or repeated requests―scope of the exemption Section 14 sits within FIA 2000, Pt I, which prescribes in detail how requests made under the statute should be managed. Although it is not included among the right to know exemptions listed in FIA 2000, Pt II, in practice it operates to the same effect, as it allows a public authority to refuse a request for information in specified circumstances. section 14(1) effectively releases public authorities from the duty set out in FIA 2000, s 1(1), namely to confirm whether information is held and, if it is, to disclose it to the requester. This applies where the request is vexatious. FIA 2000 does not further define...
Highway drain For the purposes of section 100 of the Highways Act 1980, a ‘highway drain’ is taken to encompass a ditch, gutter, watercourse, soak-away, bridge, culvert, tunnel or pipe. Yet, to qualify as such, it must have been built to convey away surface water from a road, and that was the purpose for which it was constructed. A ‘highway drain’ is not a sewer because it is not employed for draining buildings or yards, though it may become one if its role comes to include draining those premises. When a dispute arises about the character of a pipe, the decisive question is: for what purpose was the pipe installed? The same approach applies where there is disagreement over whether a feature is a land drain or a highway drain, and the analysis is identical. The point is determined by asking whether, viewed against all the...
ARCHIVED: This Practice Note is archived and no longer maintained. It offers contextual guidance on the main types and doctrines of EU law and legislation, and considers how Brexit affects EU-derived law and legislation in the UK, as background reading. For more detail on this topic, see the Practice Notes: Brexit—key legislation explained and Retained EU law and assimilated law. For broader Brexit materials, see: Brexit collection. This Practice Note is not maintained. Effect of Brexit on EU law in the UK The UK ended its EU membership at 11 pm on 31 January 2020 (exit day). From that moment, directly applicable EU law no longer applied to the UK under the EU Treaties, and the UK was no longer bound by duties under those treaties, which oblige Member States to ensure their domestic legislation complies with obligations set out in EU laws. EU law itself, and its...
ARCHIVED : This Practice Note has been archived is not maintained. This archived Practice Note is not maintained. It brings together and distils notable historic decisions and case law outcomes connected to the Freedom of Information Act 2000 ( FIA 2000). For the most recent developments in case law, see the Freedom of information case tracker. Under each heading, the tables identify significant rulings from: Court of Appeal Upper Tribunal ( UT) First Tier Tribunal ( Information Rights) ( FTT) Information Commissioner’s Office ( ICO) For ease of use, the tracker is organised by the principal provisions and issues addressed under the FIA 2000, including: information held by a public authority requirements for a valid freedom of information request fees and cost of compliance time frame for compliance means of communicating information vexatious and repeated...
This Practice Note considers harbour orders sought by harbour authorities in England and at reserved trust ports in Wales; it does not address the power of the Marine Management Organisation ( MMO) to make harbour orders of its own motion. What are harbour revision, closure and empowerment orders and harbour reorganisation schemes? Under the Harbours Act 1964 ( HA 1964), a harbour means any natural or constructed harbour, and any port, haven, estuary, tidal or other river, or inland waterway navigated by sea‑going ships, including a dock and a wharf. In most UK harbours, the duty to improve, maintain or manage the harbour rests with statutory harbour authorities ( SHAs). SHAs derive their powers and obligations for a harbour from local Acts of Parliament (for example, for Poole Harbour, the Poole Harbour Act 1914) or from harbour orders made under the HA 1964. Each SHA is...
Introduction The Habitats Regulations Assessment ( HRA) requires the evaluation of any ‘plans or projects’ that could have a ‘likely significant effect’ on a European site. Such proposals may proceed only when the competent authority is satisfied they will not result in an ‘adverse effect on the integrity of a European site’. Where adverse effects are found, or where their consequences remain uncertain, permission can be given solely if particular ‘derogations’ apply. See Practice Notes: Implementation of the EU Habitats Directive in England and Wales and Appropriate assessment/habitats regulations assessment. Screening Is the proposed activity a 'plan or project'? The HRA applies only where the proposal amounts to a ‘plan or project’. Although the legislation does not define these expressions, they are commonly afforded a very broad interpretation, encompassing a wide range of activities and circumstances. If the proposal is not a plan or project, there is no...
ARCHIVED: This Practice Note is archived and is not maintained. For alternative further reading, see Practice Note: Judicial review in Scotland—raising a claim. In Scotland, any application for judicial review must be made, in the prescribed form, to the Court of Session. The Courts Reform ( Scotland) Act 2014 ( CR( S) A 2014) ushered in an entirely new procedure for judicial review proceedings in Scotland. Sections 27A–27D of the Court of Session Act 1988 ( CSA 1988) introduced new time limits and a requirement to obtain the Court’s permission before applying. Chapter 58 of the Court of Session Rules was fully rewritten in 2015, reforming all applications to the court’s supervisory jurisdiction in Scotland, which must proceed by petition for judicial review. The key procedural stages and the corresponding Court of Session Rules are as follows: Petition — Rules...
This Practice Note focuses on the key points for public authorities to consider when complying with a freedom of information request. Under the Freedom of Information Act 2000 ( FIA 2000), a public authority is required to answer any valid request for information made by any individual, wherever in the world they are, as required by the Act. On receiving a valid request, the authority must confirm or deny in writing whether it holds the specified information and, if it does, provide it to the applicant, unless an exemption applies. When a request is received, an authority should: log the date on which the request was received assess whether the request satisfies validity requirements ascertain if information matching the stated description is held estimate the likely cost of compliance decide whether charging a fee is...
The Freedom of Information Act 2000 ( FIA 2000) The Freedom of Information Act 2000 ( FIA 2000) provides a right to access information held by public authorities. Under this right, any individual making a valid request to a public authority is entitled: to receive written confirmation from the authority as to whether it holds the information sought and, if so, to have that information communicated to them Consequently, public authorities are obliged to confirm or deny in writing whether they hold the requested material and, where they do, to provide it to the applicant. Who is caught by the regime The regime applies to ‘public authorities’, a term defined in FIA 2000 to include any body, any other person, or the holder of any office that is: listed in FIA 2000, Sch 1 designated as such by an order of the...
At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period drew to a close, following the UK’s departure from the EU. From that moment—termed ‘ IP completion day’ in UK legislation—core transitional measures ceased and substantial changes began to apply across the UK legal framework. For information on the transitional rules for CE and UKCA marking, the amendments made by the Waste ( Miscellaneous Amendments) ( EU Exit) ( No 2) Regulations 2019, SI 2019/188 and the Hazardous Substances and Packaging ( Legislative Functions and Amendment) ( EU Exit) Regulations 2020, SI 2020/1647, and areas of divergence after Brexit, see: GB Restriction of hazardous substances ( GB Ro HS)—scope— Brexit. Ro HS Regulations 2012 The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012, SI 2012/3032 ( Ro HS Regulations 2012) transpose Directive 2011/65/ EU on the...
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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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