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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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ARCHIVED: This Practice Note is archived and is not being maintained. This Environment cases tracker highlights key decisions and appeal updates of interest to Environment lawyers from 1 January 2021. The tracker is organised into: the Upper Tribunal the High Court of England and Wales the Court of Appeal the UK Supreme Court the Judicial Committee of the Privy Council Judgments and appeal updates appear under the court where the most recent judgment was delivered. Cases are listed in reverse chronological order, with the newest first. High Court of England and Wales Case: R (on the application of Plan B Earth and others) v The Prime Minister [2021] EWHC 3469 ( Admin) Judgment date: 21 December 2021 Key facts/analysis: At a renewal hearing for permission to pursue a judicial review alleging the government failed to take...
Legislative framework Extractive and mining waste is chiefly governed in England and Wales via Schedule 20 to the Environmental Permitting ( England and Wales) Regulations 2016 ( EPR 2016), SI 2016/1154. EPR 2016 implemented the original requirements of the Mining Waste Directive ( MWD). It is the primary legislation for the environmental permitting and compliance regime applying across a range of activities and industries. EPR 2016 consolidated and revoked the Environmental Permitting ( England and Wales) Regulations 2010 ( EPR 2010), SI 2010/675. What is ‘extractive waste’? Material from extractive operations represents one of the largest waste streams in England and Wales. It includes substances removed to access mineral resources—without being processed—such as topsoil, overburden and waste rock, together with tailings (the material remaining after extracting valuable constituents from an ore). Although some of these wastes are inert and unlikely to pose a...
Environment Act 2021 Key date Royal Assent: 9 November 2021 Subject Environmental principles, governance, regulation, air pollution, waste and plastics, biodiversity, water and resource planning Context The Environment Act 2021 ( EA 2021) obtained Royal Assent on 9 November 2021. A number of substantive measures started on 9 January 2022, with further provisions commencing, and continuing to commence, via secondary legislation made by the Secretary of State, the Welsh Ministers, the Scottish Ministers or, where relevant, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland: The Environment Act 2021 ( Commencement No 1) Regulations 2021, SI 2021/1274, initiated specified provisions of EA 2021, Part 1, from 17 November 2021 The Environment Act 2021 ( Commencement No 2 and Saving Provision) Regulations 2022, SI 2022/48, activated further provisions under EA 2021, Parts 1 and 3–7, with effect from 24 January 2022, 1 April 2022, 1 May 2022 and 30...
Key primary resources on closure of the Fi T Government consultation dated 19 July 2018 on the outlook for new small scale renewables after Fi T closure, with a follow-up on 8 January 2019: The Future for Small- Scale Low- Carbon Generation: a call for evidence ( Future Support Consultation) Government consultation (19 July 2018) and decision (18 December 2018) confirming Fi T closure: The Feed- In Tariffs scheme—closure to new applications after 31 March 2019, and administrative measures ( Fi T Closure Consultation) The Feed-in Tariffs ( Closure, etc) Order 2018, made 17 December 2018 and effective from 1 February 2019: SI 2018/1380 ( Fi T Closure Order) Ofgem FAQ covering the end of the Fi T: FAQ: FIT scheme closure ( Ofgem Fi T Closure FAQs) Ofgem guidance on winding down the Fi T: Feed-in Tariffs: Essential guide to closure of the scheme ( Ofgem Fi T...
What hedgerows are protected? Some hedgerows are controlled by the Hedgerows Regulations 1997 ( HR 1997), SI 1997/1160, made under the Environment Act 1995. Two tiers of protection apply, outlined below: a hedgerow meeting criteria on length and position in HR 1997, reg 3 cannot be removed unless the relevant local planning authority ( LPA) has been given written notice of the intended works the LPA may only stop removal if the hedgerow is also classed as an important hedgerow for the purposes of HR 1997, reg 4 In England, the Management of Hedgerows ( England) Regulations 2024 ( MH( E) R 2024), SI 2024/680 further require: a two metre buffer from the centre of an important hedgerow to be created and maintained, within which land cannot be cultivated and fertilisers cannot be applied no cutting or trimming of an...
Introduction to flood risk The UK carries a legacy of building in places vulnerable to flooding from rivers, surface run-off and groundwater. Ongoing expansion into rural and low-lying districts has resulted in around six million homes and properties being at risk of inundation today. This stems in particular from exposure to riverine, coastal and surface-water sources and supports a policy focus on risk-led spatial planning. Assessing flood risk is essential as property, legal and financial markets grow more sensitive to flood exposure and the rising costs of flood damage over time. Because flood risk management is now central to all new schemes and to property conveyancing, a variety of products and assessments are widely available in the market place offering differing scope and depth—see Practice Notes: Flood insurance and Flooding—flood searches. History of planning policy on flood risk Planning Policy Guidance 25:...
Effects of flooding on underlying assets Flood events raise a range of considerations for banking and finance deals. This Practice Note flags the following areas: individual risks planning policy availability of insurance borrower default It also outlines how a lender may reduce exposure to these risks. Individual risks Floodwater can inflict serious harm on people, property and businesses. It may influence whether someone chooses to purchase or lease a home, and it can impact the valuation of real estate. In ‘ Deep Water Horizon’, 2018, the Royal Institution of Chartered Surveyors ( RICS) considers the rising incidence of floods and how the surveying profession might respond and manage the issue. The price of residential or commercial premises can fall owing to flood risk, not only due to potential physical damage but also because of the expense of flood insurance. Flooding also bears upon liquidity, market perception and...
Flooding—issues in corporate (private M& A) transactions Introduction Flood-related considerations can emerge in private company merger and acquisition ( M& A) deals that involve acquiring land. It is prudent to determine at an early stage whether flooding is relevant and, if so, to appoint suitable environmental and hydrology experts to identify, evaluate, assess and quantify the attendant risks. Those risks should be expressly allocated and controlled in the deal documentation, ensuring the client clearly grasps both their scope and magnitude, together with the possible effect on valuation, liabilities and activities after completion. Potential risks for buyers Share and asset purchase Flood matters may affect whether the deal proceeds as a share purchase or an asset purchase. On a share purchase, the buyer inherits all liabilities (including environmental or regulatory) of the target company. Examples of liabilities that might arise include: Regulatory...
Background This Practice Note sets out the main legislation, organisations and legal principles to bear in mind when planning, maintaining and dismantling flood defences. It does not explore environmental permitting or planning permission in depth. For permitting detail, see Practice Notes: Environmental Permitting—flood risk activities and Flooding—flood risk and development. What is a flood defence? A flood defence is any asset or feature intended, built or kept to manage flood risk by controlling, hindering or diverting the passage of water. Examples include: embankments flood walls sluices culverts barriers flood storage reservoirs artificial channels Flood defences can be temporary or permanent and may sit within a broader suite of flood risk management infrastructure. Key flood defence law Key legislation relevant to flood defences includes: Coast Protection Act 1949 — grants coast protection authorities general powers to carry out coast...
History of flood defence consents The previous flood defence consent regime, in place until 6 April 2016—the commencement date of the Environmental Permitting ( England and Wales) ( Amendment) ( No. 2) Regulations 2016, SI 2016/475—governed activities on or close to a main watercourse or sea defence by reference to Part IV of the Water Resources Act 1991 ( WRA 1991), regional byelaws, and the Highways Act 1980 ( Hi A 1980). Consent was needed to ensure proposed works did not raise flood risk, impair flood defences, or adversely affect the environment, fisheries, or wildlife. A defence applied where works were carried out in an emergency, and there was also an exception to the need for flood defence consent where the works comprised a licensable marine activity and specified circumstances prevailed. The prior framework was widely regarded as unduly complicated and...
Released on 18 December 2017, this year’s Brexit round-up surveys the major developments of 2017 and signals what to expect in 2018. It offers updates and analysis on: the process and implications of triggering Article 50 TEU progress made in the first phase of Brexit talks the government’s domestic readiness and contingency planning, covering key legislative programmes, devolution questions and ongoing parliamentary scrutiny It also looks ahead to core priorities as both sides prepare to shift negotiations into a second phase in 2018, and provides updates on Lexis Nexis® content—highlighting last year’s developments and what is scheduled over the next 12 months. Reviewing 2017 EU withdrawal process What happened? The UK’s decision to leave the EU is without precedent, creating significant legal and constitutional challenges. With both the UK and the EU navigating uncharted territory, debate has persisted across multiple fronts, including the 2016 EU...
Brexit impact At 11pm ( GMT) on 31 December 2020, the Brexit transition/implementation period ended, following the UK’s withdrawal from the EU. At that point—termed in UK law ‘ IP completion day’—core transitional arrangements ceased and far‑reaching changes started to operate across the UK’s legal system. On IP completion day, the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) introduced a new category of domestic law—retained EU law ( REUL)—comprising EU‑derived rights and legislation preserved 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. REUL( RR) A 2023 reforms the treatment of REUL by: revoking substantial amounts of REUL from 31 December 2023 re‑labelling REUL as ‘assimilated law’ from 1 January 2024 creating new powers in relation to...
What are ozone-depleting substances? Ozone-depleting substances ( ODS) are synthetic chemicals that harm the stratospheric ozone layer, the shield that protects the earth from damaging ultraviolet radiation. They include chlorofluorocarbons ( CFCs), halons, hydrochlorofluorocarbons ( HCFCs), carbon tetrachloride and methyl bromide. ODS have been used in refrigeration equipment, air conditioning systems, fire extinguishers, aerosol propellants, solvents and as blowing agents in insulation foams. Background to the GB ODS Regulation The UK is a party to the 1985 Vienna Convention for the Protection of the Ozone Layer and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. The Vienna Convention is a framework treaty intended to: restrict activities likely to damage the ozone layer co-operation in collecting and sharing information on the effects of human activities on the ozone layer See Practice Note: Vienna Convention 1985 (protection of the ozone...
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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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