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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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What are site waste management plans? Site Waste Management Plans ( SWMPs) were created to bring stronger rigour and openness to tracking waste movements across numerous schemes in the property and construction industry. First adopted as a best practice tool, they later gained effect via the Site Waste Management Plans Regulations 2008 ( SWMP Regulations), SI 2008/314; these were then repealed in 2013 under the Government’s ‘ Red Tape Challenge’, returning SWMPs to a non-statutory status. Despite this, many organisations still operate some form of SWMP, viewing it as an industry norm for the efficient identification, classification and control of wastes (and materials) higher up the waste hierarchy and prior to site works commencing (so that benefits can be realised from design etc to eliminate or plan to re-use wastes). As such, they remain widely referenced as an industry standard for...
A developer of a housing estate or another facility will normally need to install sewers and drains to manage both domestic sewage and surface water effectively. Sections 21 and 22 of the Building Act 1984 empower a local authority to insist that drains are connected to sewers in certain circumstances clearly defined. Construction specifications Where a sewerage undertaker judges that a proposed sewer could be required as part of its wider sewerage network, it may, where appropriate, insist that the developer—excluding a railway, canal, dock or harbour undertaker carrying out works on its own land—constructs it to the undertaker’s own specification. Any such stipulation must not conflict with, or go beyond, the standards prescribed under s. 106B of the Water Industry Act 1991 ( WIA 1991). Please note that in Wales, the relevant parts of s 106B, inserted by section 42 of the Flood and Water...
The Freedom of Information Act 2000 ( FIA 2000) places a duty on public authorities to establish and maintain an approved publication scheme, outlining what information they commit to make available. Once adopted, the authority must routinely release material in line with that scheme. The Information Commissioner has issued a single approved scheme that every public authority must adopt exactly as provided. It identifies the classes of information the authority proposes to publish, how that information will be made available, and whether it is free or chargeable. The Information Commissioner’s Office ( ICO) expects organisations to keep their schemes current to meet legal obligations under FIA 2000, and it monitors compliance with the development and maintenance of publication schemes. The model publication scheme Under FIA 2000, s 19(1), every public authority is required to: adopt and maintain a publication scheme concerning the...
STOP PRESS: On 1 August 2023, the Cabinet Office unveiled three new collections of standard contract documents, comprising updated templates and accompanying guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract. Further direction on adopting these standards is provided in a supplementary Procurement Policy Note ( PPN). PPN 08/23: Using Standard Contracts applies to central government departments, executive agencies and non-departmental public bodies, all of which have been urged to implement the standard contract forms ‘as soon as practicable’. Other public sector organisations are also encouraged to follow the approach set out in PPN 08/23, recommending the use of the standard contracts for all relevant procurements, rather than using bespoke contracts, unless there is an existing government framework or an industry standard contract already in place (for example, for construction projects). Where appropriate, adopting the standard contracts aligns with...
Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) The Regulatory Enforcement and Sanctions Act 2008 ( RESA 2008) authorised regulators to handle offences using civil sanctions rather than prosecution. In 2010, the Environment Agency ( EA) and Natural England ( NE) were granted powers covering a range of environmental offences. In 2015, the reach of civil sanctions expanded when the EA was enabled to accept enforcement undertakings for environmental permitting offences. The Environmental Civil Sanctions ( England) Order 2010, SI 2010/1157 applies in England, and the Environmental Civil Sanctions ( Wales) Order 2010, SI 2010/1821 applies in Wales. Schedule 5 of both instruments sets out which sanctions are available for each offence......
Japanese knotweed locations Japanese knotweed occurs across most of the nation. It thrives even in poor-quality or polluted substrates, colonising fringe patches of wasteland in cities and running beside railway corridors. As the bulk of the plant sits underground, it requires only a tiny patch of exposed soil to send up new shoots. Its ability to exploit neglected margins makes it prevalent in built-up districts. See Practice Note: Japanese knotweed—management. The legal framework While there is no statutory duty to eradicate Japanese knotweed or notify regulators, its spread can give rise to civil and criminal exposure and can negatively influence the value, saleability and insurability of land. Civil liability A neighbour may pursue a common law action against a landlord or tenant where Japanese knotweed interferes with their enjoyment or harms their land. See Practice Note: Private nuisance—general principles. The advance of Japanese knotweed into adjoining land can also...
Consequences of non-compliance If any requirement in a remediation notice remains unmet, the enforcing authority will need to decide whether to: prosecute commence civil proceedings carry out the remediation work itself Prosecution for non-compliance Offence Failing, without reasonable excuse, to comply with any requirement in a remediation notice is an offence. A person may therefore be prosecuted even where there has only been partial compliance with the notice. Whether someone has a reasonable excuse for non-compliance is a question of fact to be determined by the specific circumstances of the case......
Environmental insurance provides a practical means to manage environmental risks, relevant to day‑to‑day operations as well as numerous transactions and development schemes. For more on environmental insurance in general, please see the following Practice Notes: Environmental insurance—when is it needed? Environmental insurance—extent of coverage Environmental insurance—types Environmental insurance—advantages and disadvantages Pollution legal liability insurance In a transactional setting, the pollution legal liability ( PLL) insurance product is frequently relied upon to address unknown liabilities that remain with a deal—for instance, where pollution is suspected but not identified. This offers the advantage of delivering financial confidence to......
This Practice Note sets out the present landscape for biodiversity offsetting together with mandatory and voluntary nature markets. It covers what biodiversity offsetting entails, the defining features of nature markets, drivers for participants, market rules, the ‘stacking’ of multiple nature benefits, and the anticipated future direction of biodiversity offsets and nature markets. Overview What is biodiversity offsetting? Biodiversity offsetting is the means by which organisations carry out or finance environmentally restorative initiatives to balance out the harm they cause, whether directly or indirectly, to biodiversity through their operations and across their value chains. Biodiversity offsetting under planning laws Safeguarding, improving and ‘offsetting’ biodiversity effects has been entwined with the English planning system since before 2006, when the former Planning Policy Statement 9 (now incorporated into the National Planning Policy Framework) encouraged planning authorities to explore ways of maintaining, restoring or adding to networks of natural habitats and other...
The Health and Safety at Work etc Act 1974 ( HSWA 1974) sets out broad duties to protect the health and safety of employees and others affected by work. Not complying with these duties is a criminal offence, prosecutable in either the magistrates’ court or the Crown Court. For details of the duties under HSWA 1974, ss 2–7, see the following Practice Notes: Failure to carry out health and safety duties under HSWA 1974—offences Safety and the risk to safety under the Health and Safety at Work Act 1974 Employees' duties to take reasonable care for health and safety at work Directors’ duties for health and safety Health and safety law and the self-employed This Practice Note highlights those HSWA 1974 offences that can only be tried in the magistrates’ courts. Summary only health and safety...
R& I spotlight on environmental law What are the main laws and regulations governing this area? There are three principal sources of environmental law that an insolvency practitioner ( IP) should understand and which may give rise to personal liability for the IP. These are: contaminated land legislation (the Contaminated Land Regime) other regulatory regimes (expanded below) third party civil claims Contaminated Land Regime Local authorities have obligations under Part IIA of the Environmental Protection Act 1990 ( EPA 1990) to: inspect their areas for contamination identify land as contaminated require clean-up where appropriate Where contaminated land is determined, the initial duty to remediate falls on Class A persons. These include: the original or later polluter— Class A ‘causers’ anyone who knowingly allows contamination— Class A ‘knowing permitters’ (ie a person aware of...
Alternative routes for occupational disease compensation Understandably, claimant practitioners will first direct their efforts towards a common law action in the civil courts for occupational disease. There are, however, occasions when that conventional route is unavailable to the client. This may stem from how the illness was contracted and, frequently, the absence of an identifiable tortfeasor (or at least one with insurance). In such cases, a range of statutory and administrative compensation schemes may offer an alternative avenue of redress. For civil claims for mesothelioma sufferers, see Practice Note: Mesothelioma claims—procedure. For each scheme identified, this Practice Note sets out the particular circumstances in which turning to the scheme may be appropriate... The Pneumoconiosis etc ( Workers’ Compensation) Act 1979 ( P( WC) A...
Background to the contaminated land regime (the regime) The framework for contaminated land appears in Part 2A of the Environmental Protection Act 1990 ( EPA 1990). This statutory scheme addresses the remediation of land contamination that presents an unacceptable risk to human health or the environment. Local authorities are required to determine contaminated land through a risk‑based methodology. The competent enforcing authority—ordinarily the local authority, though in specified circumstances the Environment Agency ( EA) or Natural Resources Wales ( NRW)—must locate those responsible for the pollution and compel them to investigate, evaluate and remediate the land to a state appropriate for its existing use......
Works to trees Generally, operations to trees do not amount to development for the purposes of section 55 of the Town and Country Planning Act 1990 ( TCPA 1990), so planning permission is not normally needed (see Practice Note: Operational development). Nevertheless, TCPA 1990, s 197 places a duty on the local planning authority ( LPA) to: secure, where appropriate, that when granting planning permission for any development, adequate arrangements are made, via conditions, for the safeguarding or planting of trees; and make such tree preservation orders ( TPOs) as the LPA considers necessary in connection with granting that permission Accordingly, any tree works must accord with relevant planning conditions and, where trees are subject to a TPO, certain operations are prohibited without the LPA’s consent (see below: Protecting trees through tree preservation orders). In addition, TCPA 1990, s 211 (and...
Trend towards environmental, social governance or sustainability reporting The phrases sustainable business, corporate responsibility ( CR), corporate social responsibility ( CSR) and environmental, social, governance ( ESG) are used across business and legal settings. Broadly, they describe organisations embedding responsible conduct into everyday operations. CSR has traditionally focused on accountability, yet its outcomes were difficult to quantify. That is shifting under the ESG lens, where impacts are increasingly measurable—and therefore simpler to disclose—with CSR often viewed as a forerunner to ESG. Growing numbers of companies recognise that mere legal compliance may no longer suffice to guard against legal, regulatory or reputational exposure; aligning with voluntary standards and reporting frameworks can help mitigate these risks. The drive for transparency and accountability through corporate governance and sustainability disclosures has reignited attention on the ‘triple bottom...
Issue Details Convention on Early Notification of a Nuclear Accident Parties: 136 (including 4 non- State parties) Location: Vienna Adopted: 26 September 1986 Came into force: 27 October 1986 Subject: Requirement for prompt notification of nuclear accident What is the background to the 1986 Vienna Convention? The Convention on Early Notification of a Nuclear Accident creates a system to alert other States about nuclear events with potential transboundary releases of radiological safety significance. Triggered by the USSR’s failure to share information promptly after Chernobyl, it compels States to provide the accident’s timing, location, details of radioactive releases, and other data vital for assessing the situation. Notices must be sent to potentially affected States directly or via the International Atomic Energy Agency ( IAEA), and to the IAEA itself. Reporting is obligatory for nuclear accidents linked to the facilities and...
Duties and powers Harbour authorities A harbour authority is an independent, autonomous, self-governing body with responsibility for the safe management and efficient running of a harbour. In most circumstances, harbours are administered and run by statutory harbour authorities ( SHAs), empowered and governed by local legislation that is generally tailored to the specific requirements of the harbour in question. Different legislation sets out various, differing definitions. Under section 313(1) of the Merchant Shipping Act 1995 ( MSA 1995), a ‘harbour authority’, in relation to a harbour, covers all persons entrusted with the function of constructing, improving, managing, regulating, maintaining or lighting a harbour: the person who is the statutory harbour authority for the harbour; or if there is no statutory harbour authority for the harbour, the person (if any) who is the proprietor of the harbour, or who is entrusted with the function of...
The National Security and Investment Act 2021 ( NSI Act) The National Security and Investment Act 2021 ( NSI Act) took full effect on 4 January 2022. It empowers the UK government to scrutinise and intervene in a broad range of acquisitions involving certain business entities and assets, described as ‘qualifying entities’ and ‘qualifying assets’, across 17 defined sensitive areas, with the overarching aim of preventing deals that could threaten the UK’s national security. Acquisitions of qualifying entities carry mandatory notification obligations and must be cleared by the government before completion. In addition, the government may ‘call in’ any transaction concerning a qualifying entity or qualifying asset for an in-depth assessment where a national security concern is identified, irrespective of whether a mandatory filing applies. Following review, the government can impose conditions on a deal, or unwind or block it...
The Modern Slavery Act 2015 ( MSA 2015) The Modern Slavery Act 2015 ( MSA 2015) gained Royal Assent on 26 March 2015. Under Section 54, certain firms are required to prepare and make public a statement addressing modern slavery and human trafficking, for each and every financial year of the organisation. The government has issued guidance (the Guidance), which was updated on 27 March 2025. The 2025 revision marks the first wholesale replacement of the Guidance since its initial issue in October 2015, displacing earlier incremental updates. The Guidance states plainly that organisations ought to release their statement as soon as is reasonably practicable after the close of their financial year, and preferably no later than six months after the organisation’s year end. Accordingly, a company with a 31 March year end should, in effect, have its statement available by 30...
ARCHIVED: This Practice Note has been archived and is no longer maintained. Introduction to the Energy White Paper On 14 December 2020, the Department for Business, Energy and Industrial Strategy ( BEIS) released the long-anticipated Energy White Paper. It builds on policy pledges in the Prime Minister’s ten-point plan for a Green Industrial Revolution (the ‘ten-point plan’) and the National Infrastructure Strategy, both issued in November 2020, and sets out how the UK plans to reach net zero by 2050. BEIS suggests the measures within could cut emissions across power, industry and buildings by up to 230 Mt CO2e to 2032 and sustain up to 220,000 jobs each year by 2030. For further details on the ten-point plan and the National Infrastructure Strategy, see: LNB News 18/11/2020 25 and News Analysis: The National Infrastructure...
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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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