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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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Practical issues for commercial landlords and tenants— EPCs This Practice Note explores key practical issues for commercial landlords and tenants when dealing with energy performance certificates ( EPCs). It sits within a series of Practice Notes on EPCs and minimum energy efficiency requirements ( MEES). An EPC assigns a property an energy efficiency rating from A (most efficient) to G (least efficient), using a complex assessment that considers factors such as the building’s age and type, its construction, insulation and heating systems. For more about what an EPC is and when one is needed, see Practice Note: Energy performance certificates ( EPCs)—what are they and when are they required? The principal regulations governing EPCs are the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regs 2012) and the Building Regulations 2010, SI 2010/2214 ( Building Regs 2010), which...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note sets out a synopsis of the exemptions under the Freedom of Information Act 2000 ( FIA 2000) and examines the exemptions invoked by public authorities in the first decade of the regime. It reviews the most effective exemptions (from the public authority’s standpoint), judged by decisions upheld or partly upheld by the Information Commissioners Office ( ICO). The note also offers a statistical overview of trends in complaints referred to the ICO. This Practice Note is not maintained and is provided for background information only. Method of analysis Under the FIA 2000, a requester may seek any information held by a public authority. Part II of the FIA 2000 sets out a range of specific exemptions from the general right of access to information. These exemptions exist chiefly to protect...
Purchasers, sellers, landlords and tenants alike should be mindful of the common law principle of ‘caveat emptor’—‘let the buyer beware’—under which a seller has no obligation to volunteer material facts to a prospective purchaser. For further guidance, see Practice Notes: Property—enquiries before contract and Misrepresentation, misstatement and non-disclosure in property matters. Do note, however, that where a seller wishes to invoke the ‘sold with information’ exclusion under the contaminated land regime in Part IIA of the Environmental Protection Act 1990 ( EPA 1990), relevant information must be supplied... Numerous environmental concerns can expose parties in property transactions to liability, so a proportionate level of environmental due diligence is advisable whenever property is transferred. This Practice Note considers how environmental consultants support clients during property deals and identifies environmental matters most likely to carry material financial or legal consequences, which should therefore be...
What is district heating ( DH)? District heating—often called heat networks—supplies hot water or steam via a distribution of pipes to multiple homes, workplaces, or mixed‑use buildings for space heating and domestic hot water. Compared with generating heat within each dwelling through gas boilers or electric systems, this shared approach can deliver greater efficiency, reduced costs, improved security of supply, and lower carbon intensity. For further details on the changing contractual and regulatory frameworks for DH in England and Wales, see the Practice Notes on the evolving contractual regime and the evolving regulatory regime for district heating networks. Description of DH system A typical DH arrangement comprises four core elements: energy centre / heat source heat network heat interface unit heat user The energy centre is where heat is produced. Sources may include surplus heat from power generation or industrial activity, or dedicated plant such as combined heat and power units and...
ARCHIVED This Practice Note is archived and is no longer maintained. The UK freedom of information framework is governed by these principal instruments: Freedom of Information Act 2000 ( FIA 2000) Freedom of Information and Data Protection ( Appropriate Limit and Fees) Regulations 2004, SI 2004/3244 The Information Commissioner’s Office ( ICO) oversees the use of, and access to, information. It publishes guidance to support public authorities in applying FIA 2000. That guidance defines the scope of FIA 2000, sets out the duties imposed on public authorities, and clarifies the rights of members of the public when making information requests. The Freedom of Information Code of Practice provides direction to authorities on meeting their responsibilities under FIA 2000. Although the code is not itself binding, failing to adhere to it is likely to give rise to a related breach under FIA...
The Freedom of Information Act 2000 ( FIA 2000) grants a general public right to access information held by public authorities, requiring each authority to confirm if the requested material is held and, where it is, to supply that information. This access right is not unrestricted, and FIA 2000 contains several exemptions reflecting circumstances where disclosure could harm the proper functioning of the public sector. Legal professional privilege Legal professional privilege is a legal rule safeguarding communications connected to securing legal advice. There are two forms of legal professional privilege—legal advice privilege and litigation privilege. Legal advice privilege covers communications between a client and their lawyer that form part of the process of providing legal advice. This privilege applies regardless of any actual or contemplated court proceedings. By contrast, litigation privilege only arises when litigation is a reality or reasonably in prospect, and it extends beyond...
What is the impact of Brexit on the UK nuclear sector? As of 31 January 2020 (exit day), the UK ceased to be an EU Member State. From that date, a transition/implementation phase applied, during which the EU continued, for many purposes, to treat the UK as if it remained a Member State. Leaving the EU also entailed withdrawal from the Euratom Community. The transition ended at 11 pm ( GMT) on 31 December 2020—known in UK law as ‘ IP completion day’. At that point, key transitional measures expired and notable shifts started to apply across the UK’s legal framework. The UK’s exit from the EU likewise meant departure from Euratom. Any changes pertinent to this content are outlined below. Following IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) introduced a new category of domestic...
What is fracking? Shale gas extraction, or hydraulic fracturing (fracking), is the method by which water and chemical additives are forced into shale rock at very high pressure to free the natural gas held within the rock. Vertical well bores are drilled thousands of feet into the earth, passing through sedimentary layers, the water table and shale formations to access the gas. The well is then turned to run horizontally, and a cement casing is fitted, providing a channel for the large volumes of water, fracking fluid, chemicals and sand needed to split the rock and shale. Sometimes, before fluids are injected, small explosives are used to open the bedrock. The resulting cracks enable the gas to be extracted from the formations. Shale gas consists mainly of methane, a natural gas used to generate electricity and for domestic heating and cooking. Fracking is...
For fuller analysis of the regulation, consenting and incentivisation of the net zero transition under the laws of England and Wales, see Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook explores, in depth, many of the themes addressed in this Practice Note... This Practice Note outlines the principal aspects of the supplier obligation, a mandatory charge on Great Britain’s licensed electricity suppliers used to finance the Contracts for Difference ( Cf D) low carbon subsidy mechanism... It also explains the reliefs available for electricity provided to electricity intensive industries ( EIIs) and for power sourced from renewable generators in other EU Member States, described as ‘ Green Excluded Electricity’... What is the background to the Cf D regime and Electricity Market Reform? The Electricity Market Reform ( EMR) programme was developed by government between 2010 and 2015 to reshape the GB...
This Practice Note concentrates on health and safety considerations during the due diligence stage of a corporate transaction, as regulatory health and safety duties can carry significant capital expenditure consequences. It should be read alongside the Precedent: Health and safety due diligence questionnaire. Asbestos materials Industrial and manufacturing premises (and at times plant) often contain asbestos. Businesses that control such buildings and plant are legally obliged to manage asbestos. Management—and especially removal—can be extremely costly. See Practice Note: Control of asbestos—duty to manage. A buyer should seek evidence of asbestos surveys for any buildings that pre-date 2000, together with records confirming that higher risk materials have been identified and are being managed appropriately (eg removed or encapsulated). This can include copies of the asbestos register, the asbestos management system, and consignment notes for the disposal of asbestos waste. A well-managed business will have these...
The Fluorinated Greenhouse Gases Regulations 2015 ( F-gas Regulations 2015), SI 2015/310 Superseding and revoking the Fluorinated Greenhouse Gases Regulations 2009, SI 2009/261, the Fluorinated Greenhouse Gases Regulations 2015, SI 2015/310, give effect to Regulation ( EU) No 517/2014 on fluorinated greenhouse gases, which replaced and repealed the original instrument, Regulation ( EC) No 842/2006. Within Great Britain, assimilated Regulation ( EU) No 517/2014 (the GB F-gas Regulation) now applies as assimilated law. Across the EU, Regulation ( EU) 2024/573 repeals and replaces Regulation ( EU) No 517/2014 and took effect on 11 March 2024. Assimilated law is the term used for retained EU law ( REUL) that remains in force after the close of 2023. Re-badging REUL (and related concepts) as assimilated law indicates a change in its status and handling in UK law, such that it is generally...
Responsibility for flood management and drainage in England and Wales has evolved through a tangled past. In 1927, a Royal Commission on land drainage observed that arterial drainage was overseen by a bewildering patchwork of authorities created by five centuries of piecemeal law, with liabilities governed by no consistent scheme and often out of date or unclear. That inheritance persists, though reforms over the last 25 years have helped to rationalise the regime. Historically, individual landowners held primary duties, and some still apply; see Practice Note: Flood management and drainage—landowner rights and responsibilities. Today, public bodies play leading roles in protecting communities from flooding. Key legislation The responsibilities of public bodies for flood management and drainage in England and Wales are outlined in separate Practice Notes: Flooding— UK policy and legislative framework Land Drainage Act...
Introduction The Control of Asbestos Regulations 2012, SI 2012/632 ( CAR 2012), were made under section 15 of the Health and Safety at Work etc Act 1974 ( HSWA 1974). They sit within the broader suite of health and safety regulations and other statutory instruments—for example, the Management of Health and Safety at Work Regulations 1999, SI 1999/3242. These regulations place obligations on HSWA 1974 duty holders. Although the HSWA 1974 does not define “duty holders”, the term captures a range of individuals and organisations—often employers—as well as those managing projects and activities. Under CAR 2012, reg 4(1), the dutyholder is: any person with duties for the maintenance or repair of non-domestic premises under a lease or management agreement, including a landlord or a tenant, or where no such lease or agreement exists, the freeholder or any person exercising control over that part of the...
This Practice Note examines the intersection of the environmental damage regime ( EDR) with: the environmental permitting regime ( EPR) pursuant to the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154 the contaminated land regime under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) the unlawful deposit of waste regime under the EPA 1990, s 59 the anti-pollution works regime under the Water Resources Act 1991 ( WRA 1991) the National Planning Policy Framework and Planning Policy Wales Type of damage covered under different legislation Environmental Damage Regulations Under the Environmental Damage ( Prevention and Remediation) ( England) Regulations 2015, SI 2015/810, and the Environmental Damage ( Prevention and Remediation) ( Wales) Regulations 2009, SI 2009/995 ( EDR), environmental damage is defined as harm to: a protected species or natural habitat where there is a significant adverse effect on attaining or...
Scope of Practice Note The Hazardous Waste ( England and Wales) ( Amendment) Regulations 2016, SI 2016/336, repealed Part 5 of the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894, thereby scrapping the obligation on any premises in England that generated or had hazardous waste taken away to register with the Environment Agency. This change did not alter in any way the duty on Welsh premises to register with Natural Resources Wales ( NRW), and accordingly this Practice Note focuses on the Welsh registration rules applicable in Wales. Compliance in Wales In Wales, the Hazardous Waste ( Wales) Regulations 2005 establish the statutory framework for controlling and tracking hazardous waste movements. Where hazardous waste is produced on, or removed from, any non‑exempt premises, those premises in question must be duly notified to NRW as required. On notification, site particulars are entered on an...
Scope of Practice Note The Hazardous Waste ( England and Wales) ( Amendment) Regulations 2016, SI 2016/336, repealed Part 5 of the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894. This change abolished the obligation for any premises in England that generated hazardous waste, or arranged for its removal, to register with the Environment Agency. The duty for Welsh premises to register with Natural Resources Wales ( NRW) was not altered by that revocation; accordingly, this Practice Note still focuses on the Welsh registration regime. The List of Wastes ( England) Regulations 2005, SI 2005/895, were revoked by the Hazardous Waste ( Miscellaneous Amendments) Regulations 2015, SI 2015/1360, from 1 July 2015, which also amended, in England, the Hazardous Waste ( England and Wales) Regulations 2005, SI 2005/894. The List of Wastes ( Wales) Regulations 2005 were repealed by the Hazardous Waste (...
ARCHIVED: This archived Practice Note summarised the earlier ‘flood defence consent’ framework for main rivers under the Water Resources Act 1991 ( WRA 1991) and the ordinary watercourse consent regime under the Land Drainage Act 1991 ( LDA 1991). After consultation, the Environmental Permitting ( England and Wales) ( Amendment) ( No. 2) Regulations 2016, SI 2016/475 broadened the Environmental Permitting regime so that, from 6 April 2016, flood risk activities are regulated as a facility, replacing the flood defence consent system. Transitional and saving provisions remain in place for existing consents, applications already submitted, existing notices and arbitration matters. For more on flood risk activities, see Practice Note: Environmental permitting—flood risk activities. For wider material on environmental permitting, including the Environmental Permitting ( England and Wales) Regulations 2016, SI 2016/1154, effective from 1 January 2017, see: Environmental permits and...
Background to the scheme The Association of British Insurers ( ABI) and government operated an accord, the Statement of Principles ( So P), in effect from 2000. Through the So P, the insurance market pledged to make flood cover for homes and small enterprises available widely as part of standard household and small business insurance policies where flood risk was not considered material (typically interpreted as no worse than a 1 in 75 year annual chance of flooding). The So P also placed an obligation on insurers to consistently keep offering flood cover to existing domestic policyholders and small business customers at significant risk (more than a 1 in 75 year annual probability of flooding). The continuation of such cover relied on the Environment Agency having publicly announced plans to bring the local flood risk down to below a 1 in 75 annual...
ARCHIVED: This Practice Note is archived and is not being maintained. At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s exit from the EU ended. At that point in time—referred to in UK law as ‘ IP completion day’—key transitional arrangements drew to a close and significant changes started to take effect across the UK’s legal regime. What are the New Approach directives? The New Approach emerged in the mid‑1980s. A 1985 Council resolution set out core principles for the New Approach to simplify product approvals and to enable free movement of goods within the single EU market. Earlier directives were packed with technical detail, which frequently became an obstacle to trade, as the Commission could not complete such technical instruments as quickly as Member States were adopting their own standards and...
Reform to the waste carrier, broker and dealer system The 2018 Independent Review into Serious and Organised Crime in the Waste Sector revealed that waste is increasingly handled by multiple, often unclear, intermediaries. It advised overhauling registration and duty of care obligations for carriers, brokers and dealers, including for hazardous waste. In its Resources and Waste Strategy, the government outlined how it would address waste crime, aiming to strengthen the transport, management and description of waste by reforming current regulations, and to stop illegal practices being masked by waste exemptions through changes to the existing regime. Through the Environment Act 2021, the government proposed a comprehensive upgrade to waste record keeping, introducing a digital waste tracking system and replacing registration with a permit-based system, to improve background checks and bring in a technical competency requirement. In 2022, the government launched a...
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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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