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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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The need for environmental insurance Bringing brownfield or previously developed plots back into use can boost a client’s property value. Yet the client could encounter the following liabilities: undetected contamination present on the site unrecognised continuing effects on third parties outside the site boundary worsening of existing pollution on-site (for example through contractors’ piling works), and the creation of new contamination at the location While some clients might choose to bear these risks, others—and stakeholders such as funders, prospective tenants and neighbours—may insist on the purchase of insurance. For further detail on environmental insurance in general, please refer to Practice Notes: Environmental insurance—when is......
Environmental insurance has become a routine instrument for managing environmental risk, used by operational businesses and across numerous transactions and development projects. Further guidance on environmental insurance generally can be found in the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Some of the principal advantages and disadvantages of environmental insurance are set out below: Advantages Competitive pressure in the market has lowered premium levels Gives reassurance where the strength of an indemnity covenant is in doubt Can serve several stakeholders (seller, purchaser, tenants, funder) and assist in closing transactions Cover can be arranged for defined scenarios (eg concerns about a contractor disturbing legacy contamination) Tackles worries and uncertainties around unknown contamination (eg the environmental report or remediation may have missed significant areas) Offers protection for...
ARCHIVED: This Practice Note has been archived and is not maintained. At 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period that followed the UK’s withdrawal from the EU came to a close. From that moment (referred to in UK law as ‘ IP completion day’), core transitional measures ended and significant changes began to apply across the UK’s legal framework. The UK’s participation in the EU Emissions Trading System ( EU ETS) ceased at the end of the implementation period. The UK has established its own UK emissions trading scheme ( UK ETS) and obligations for UK ETS participants commenced on 1 January 2021, marking the start of the UK ETS’s first trading period. Under the Withdrawal Agreement, the UK remained within the EU ETS during the transition, and operators therefore had to comply with obligations for the 2020 scheme year, which...
Key legislation, licences and guidance Source Details Legislation The Feed-in Tariff ( Fi T) scheme is principally founded on the Feed-in Tariffs Order 2012 ( Fi T 2012), SI 2012/2782, which has been updated by: Feed-in Tariffs and Contracts for Difference ( Amendment) ( EU Exit) Regulations 2018, SI 2018/1092 Feed-in Tariffs ( Closure, etc) Order 2018, SI 2018/1380 Feed-in Tariffs ( Amendment) ( Coronavirus) Order 2020, SI 2020/375 Feed-in Tariffs ( Amendment) ( Coronavirus) ( No 2) Order 2020, SI 2020/957 Feed-in Tariffs ( Amendment) Order 2023, SI 2023/127 Fi T 2012 was made under the Energy Act 2008 ( En A 2008). Licence provisions Beyond the legislation, the operation of the Fi T scheme is set out in the Standard Conditions of Electricity Supply Licences ( SLCs), Conditions 33 and 34. Guidance Ofgem publishes the core guidance for the Fi T scheme, notably: Feed-in...
Introduction to flood risk Flooding and coastal erosion inflict serious harm and upheaval on infrastructure, homes, public health, wellbeing, land, and wildlife habitats. With climate change driving sea level rise and heavier, more intense rainfall, the population exposed to these hazards is steadily increasing. Flood risk is shaped not only by a changing climate but also by alterations in land use, such as building on flood plains, shifts in farming practices, loss of forests, and artificial drainage. For further detail on climate change and how it influences flooding, refer to News Analysis: Government publishes long-term plan to tackle the risks of flooding and coastal erosion. In March 2020, through its policy paper, Planning for the Future, the government pledged to review rules for development in flood-prone areas to better safeguard future schemes against flooding......
Introduction to flood searches Flooding has become a leading environmental hazard in the UK, with wide-ranging consequences for homeowners, lenders, surveyors, developers and other businesses. Rising flood risk is a consequence of climate change. For further insight into climate change and its influence on flooding, see News Analysis: A new era of climate change reality—a rising tide. As extreme weather events increase, urban environments are more exposed because floodwater cannot infiltrate hardstanding paving and be retained within underlying soils. Consequently, places susceptible to flooding can no longer be assumed to be only those close to rivers and streams. Tools and data to evaluate climate risk are now more readily available. Flood searches are a critical component of due diligence, identifying flood risk at a site-specific scale and advising on the best ways to mitigate and adapt to such risks. When are flood searches...
Director disqualification orders A disqualification order is imposed to safeguard the public from individuals who, through dishonesty, naivety or incompetence, misuse their role and status as a director. In England and Wales, the criminal courts may impose a director disqualification order under the Company Directors Disqualification Act 1986 ( CDDA 1986) where: an offender has been convicted of an indictable offence, tried either on indictment or summarily, in connection with the promotion, formation, management, liquidation or striking off of a company; or an offender has been convicted of an offence involving a failure to file documents with, or give notice to, the registrar of companies and has also been the subject of three default orders or convictions in the preceding five years. Practitioners should therefore refer to the Sentencing Council’s offence specific guidelines, which set out when a director...
This Practice Note examines the impact of the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA) falling within the scope of the Freedom of Information Act 2000 ( FIA 2000). It complements broader notes on freedom of information and does not provide detailed guidance on making or answering FIA 2000 requests. In particular, it addresses the position of firms where the regulators might release material a firm regards as commercially sensitive or confidential. For additional reading, see Lexis+® UK IP and IT Practice Notes: Compliance with a freedom of information request Absolute exemptions to a freedom of information request Freedom of information request—flowchart The regulators and FIA 2000 For FIA 2000 purposes, the PRA and the FCA are classified as public authorities, so the public may submit requests to one or both regulators for disclosure of recorded...
What is biomass combined heat and power? A biomass combined heat and power ( CHP) system uses an engine to produce energy from biomass. In essence, CHP functions as a compact power plant that recovers heat, with very small distribution losses thanks to its closeness to the demand. As a result, it can deliver markedly higher generation efficiency, with inherent carbon reductions and cost savings. Total efficiencies of 80–90% are attainable, whereas conventional condensing power stations achieve around 40% in electricity output. Figure 1 shows a schematic of a biomass CHP system (source: WSP). Choosing biomass rather than natural gas—the fuel most commonly used in conventional CHP—elevates the output from simply sustainable to truly renewable energy. Key conditions for development When assessing the feasibility of biomass CHP, each technology option warrants careful review: Precisely specify systems to suit the ratio and scale of heat and power...
The Green Deal The Green Deal was a government initiative allowing households and firms to carry out energy efficiency upgrades to homes and business premises, financed via a ‘pay-as-you-save’ model. Approved providers secured low-cost funding for these works under the scheme, requiring no upfront outlay whatsoever. Rather than pay immediately at the outset, the expense of the efficiency measures was added to the property’s energy account and repaid over time in instalments by the bill payer, consistent with the Green Deal Golden Rule: that projected monetary savings from the measures would match or exceed the charges applied to the bill for that property. Responsibility for repayment stays with the property, so it passes to any new owner or occupier when the building is sold or let. The Energy Company Obligation ( ECO)—which superseded the Carbon Emissions Reduction Target and the Community Energy Saving...
Environmental insurance Environmental insurance is a means of transferring risk to indemnify the insured for losses that may arise from potential environmental liabilities. A variety of policies are available to address the different types of loss linked to such liabilities. For more on environmental insurance, see Practice Notes on: When it is needed Scope of cover Advantages and disadvantages Transactions Businesses Remediation and development projects Contractors and consultants Chemical sites Landfills Petrol stations Scope of environmental insurance Losses covered Environmental insurance solutions can be arranged to cover a broad range of losses stemming from an environmental liability. Typical insurable losses include: On-site and off-site remediation: investigation and remediation costs, reinstatement of damaged property or services, settlement payments, and related legal expenses where contamination is identified Third-party property damage: remediation and restoration costs arising from harm to...
Water abstraction and impounding—introduction Abstraction occurs when surface water or groundwater is taken from any source of supply. It covers the temporary or permanent removal of water from that source, as well as the transfer of water between sources. A source of supply comprises: inland waters—rivers, streams, springs, reservoirs, lakes, ponds and canals—other than 'discrete waters'; and groundwater, including water held in wells, boreholes and certain excavations, but not water stored in sewers, pipes, reservoirs, tanks or other underground works ' Discrete waters' means waters that do not discharge into other inland waters for the purposes of WRA 1991, s 221. Per section 25(8) of the Water Resources Act 1991 ( WRA 1991), 'impounding works' are any dams or other structures in inland waters by which water can be held back or diverted. This includes: dams weirs fish passes ...
Contaminated land ' Land contamination' broadly refers to any land that might be affected by pollutants. In contrast, 'contaminated land' is a precise legal term set out in the Environmental Protection Act 1990, Part IIA ( EPA 1990). See Practice Note: Contaminated land—definition of contaminated land. Where a local authority determines land is contaminated, it must issue a remediation notice to any person who caused, or knowingly allowed, the contaminant(s) to be in, on or under the site. If no such party can be traced, responsibility may pass to the blameless owner or occupier. The contaminated land regime is stringent and retrospective. It applies across the whole UK. It was established to: address the legacy of contaminated sites across the UK that would not be cleaned up without regulatory action foster market-based solutions by incentivising businesses to carry out voluntary...
Who makes the determination? Local authorities ( LAs) alone carry the duty to decide whether land constitutes contaminated land under Part IIA of the Environmental Protection Act 1990 ( EPA 1990). They may only pass this duty on in line with their statutory powers under section 101 of the Local Government Act 1972. When weighing up a potential determination, LAs can take into account information or guidance from the Environment Agency ( EA), Natural Resources Wales ( NRW), or another suitably qualified specialist. Even so, the final call rests with the LA. In practice, an officer acting under delegated authority, or a committee through a formal resolution, will usually make the determination. Whichever decision-maker is involved, they must ask the correct question: is the land contaminated land, or not? At that point, it is premature to consider the suitability of serving a...
Determining liability Enforcing authorities should adhere to the five-step procedure set out in the statutory guidance for deciding liability under section 78F of the Environmental Protection Act 1990 ( EPA 1990). Not every stage of that approach will be relevant in all matters. See Practice Note: Contaminated land—process for determining liability. At step five, the enforcing authority must divide liability between the remaining members of each liability group. If a liability group has only one remaining member, that person is responsible for the whole of the costs allocated to that group. If a liability group has two or more remaining members, the enforcing authority should apply the guidance on apportionment. Different considerations apply to Class A liability groups and Class B liability groups. Class A persons General principles When apportioning liability within a single Class A liability group, the enforcing authority must decide the...
Determining liability Enforcing authorities are expected to make use of the five-step process set out in the statutory guidance when determining liability under section 78F of the Environmental Protection Act 1990 ( EPA 1990). Not every stage of that process will be applicable in all cases. See Practice Note: Contaminated land—process for determining liability. Step two applies only where a site has more than one significant contaminant linkage ( SCL). At that point, the enforcing authority must identify which remediation actions correspond to each SCL present on the site. For details, see: Contaminated land—risk assessment— What is a contaminant linkage?......
Background to the contaminated land regime The contaminated land regime was introduced in 2000 to: address the legacy of polluted sites in the UK that would not be cleaned up without regulatory action encourage market-led solutions by motivating companies to undertake voluntary remediation ‘ Contaminated land’ has a precise legal meaning under Part IIA of the Environmental Protection Act 1990 ( EPA 1990). Not all land contamination falls within the scope of ‘contaminated land’. For further details, see Practice Note: Contaminated land—definition of contaminated land. Objectives in the statutory guidance The revised statutory guidance sets out aims that should be read and applied alongside the EPA 1990, Pt IIA......
What is a Fixed Monetary Penalty The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) conferred powers on regulators to address offences through civil sanctions rather than prosecution. Under Regulation 39, a regulator may, by notice, impose a fixed monetary penalty ( FMP) on a person for a relevant offence. A ‘fixed monetary penalty’ in RESA 2008 means a requirement to pay a regulator a penalty of a set, prescribed amount. RESA 2008 also sets out guidance on applying civil sanctions and obliges the regulator to prepare and publish guidance explaining how a relevant offence will be enforced. The Environmental Civil Sanctions ( England) Order 2010, read with the Environmental Civil Sanctions ( Miscellaneous Amendments) ( England) Regulations 2010, granted the Environment Agency and Natural England authority to apply civil sanctions for a variety of environmental offences in England. The regime was...
The Environmental Information Regulations 2004, SI 2004/3391 ( EIR 2004) EIR 2004 grants the public a right to obtain environmental information held by public authorities. While openness is the default position, that duty to disclose is limited by several exceptions, most of which appear in regulation 12 of EIR 2004. For an outline of what amounts to environmental information, see Practice Note: Environmental Information Regulations 2004—what is environmental information? For guidance on when a request may properly be refused, see the Information Commissioner’s Office resource ‘ When can we refuse a request for environmental information?’ and a Q& A examining whether, beyond the rulings in Fish v Legal and Attorney- General for the Prince of Wales v the IC, as well as the ICO’s own guidance, there is further authority on what constitutes ‘control’ within the definition of public authority in the...
Noise nuisance Noise makes up the majority of complaints received by local authorities and the Environment Agency ( EA) about environmental pollution. It is any unwelcome sound that happens unexpectedly, or is excessively loud or repetitive. Exposure within certain decibel ranges can be harmful to health, with low frequency noise capable of being as damaging as loud noise. Noise nuisance is typically handled by local authorities as an environmental health matter. The police become involved where the disturbance amounts to a breach of the peace, or is linked to threatening, violent or other anti-social behaviour. Police and local councils frequently work jointly to take action or obtain orders against residents whose anti-social behaviour—causing alarm, harassment and distress—affects others. See Practice Note: Anti-social behaviour—environmental breaches. Public nuisance Creating a public nuisance is both a tort and a criminal offence, formerly at common law and now under section 78 of 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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