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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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This Practice Note sets out the statutory entitlement allowing a member of the public to insist that the highway authority puts a highway back into repair again. It explains the process laid down by section 56 of the Highways Act 1980 ( Hi A 1980), via the magistrates’ court, for deciding whether a highway is out of repair. It does not address establishing that a way is a highway, nor that the highway authority bears responsibility for its upkeep, where that is in dispute. It also extends to drains, structures, public footpaths and bridges. Duty of the highway authority A highway is a route over which any member of the public enjoys a right to pass and repass, free from obstruction, throughout every season of the year. Under Hi A 1980, s 41, the highway authority is obliged to maintain the highway. The...
This Practice Note sets out, in table form, the key distinctions between secure, introductory and flexible tenancies in England, addressing the tenancy’s term and status, the nature of the landlord, and the right to buy. From 1 December 2022, tenancies and licences of dwellings in Wales are regulated by the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016), subject to certain exceptions. The terms of both existing and new tenancies must be reviewed against RH( W) A 2016 to decide whether they are occupation contracts for the purposes of that Act and, if so, which category of occupation contract applies. Any tenancy or licence that is an occupation contract must comply with the Act’s comprehensive regime, which includes, among other requirements, providing a written statement setting out the contract terms. For further information, see Practice Notes: Renting Homes ( Wales) Act 2016—a summary of the key...
What is a CVA? A company voluntary arrangement ( CVA) is an agreement between a company and its creditors, overseen by an insolvency practitioner. That practitioner is initially the ‘nominee’, becoming the ‘supervisor’ once the arrangement takes effect. A CVA is typically put forward by the company’s directors, although an administrator or liquidator can also make the proposal. Its objective is to compromise the company’s debts or to set out a scheme for managing its affairs. The principal legislative sources are sections 1–7B of the Insolvency Act 1986 ( IA 1986) and Part 2 of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. For further reading on CVAs, the steps to implement them and their effect, see the following Practice Notes: Company voluntary arrangements—an introductory guide In what circumstances can a CVA be proposed and by whom? The CVA...
This Practice Note forms part of a suite addressing local authority ( LA) companies. It explains the obligations owed by the directors of an LA company both to the company and to the LA, and flags where those twin roles may clash. For further detail on LA companies, see Practice Note: Local authority companies. Directors’ duties under CA 2006 Chapter 2 of Part 10 of the Companies Act 2006 ( CA 2006) places into statute a number of long-established common law and equitable duties of directors. In brief, the seven general duties under CA 2006 are: to act within their powers to promote the success of the company to exercise independent judgement to exercise reasonable care, skill and diligence to avoid conflicts of interest not to accept benefits from third parties to declare an interest in a...
What is the policy and legislative background to the support for community energy projects? Legal and policy backing for community energy schemes is comparatively new; although early pledges prompted some movement, progress then remained modest for several years. A concise overview follows. The Community Energy Strategy arose from a 2010 Liberal Democrat manifesto promise to ‘encourage community-owned renewable energy schemes where local people benefit from the power produced’. That pledge appeared, unchanged, in The Coalition: programme for government. In 2014 the then coalition administration, through the former Department of Energy and Climate Change ( DECC), issued the UK’s first Community Energy Strategy. DECC then released an update in March 2015. Like the original, the update emphasised enabling localities to make their own advances towards a more decentralised energy system with active community involvement. Further information on the Strategy update is set out in the...
The Commonhold and Leasehold Reform Act 2002 ( CLRA 2002) permits developers of new residential schemes to provide a freehold option to prospective flat purchasers. This Practice Note examines the pros and cons of owning a freehold unit within a commonhold, as contrasted with a leasehold interest. Background Before 27 September 2004, when Pt 1 of CLRA 2002 commenced, leasehold tenure was the only realistic structure a developer could offer to would-be flat buyers. The burden of a positive covenant (for example, to pay service charge, insurance rent, and the like) can run with a leasehold estate only, not a freehold. Although this flaw could be overcome on a freehold disposal of a flat by imposing an estate rentcharge under the Rentcharges Act 1977 ( Rc A 1977), the practical position is that many mortgage lenders will not advance funds on the security of a...
This Practice Note summarises: what commissioning means in the context of local authority duties to secure health and social care the legal obligations relating to commissioning integrated and joint commissioning, and the potential for challenges to commissioning decisions What is commissioning? The expression ‘commissioning’ has not been defined in legislation or case law and has no precise technical meaning. It is used by local authorities and NHS bodies as a catch‑all for the process of making arrangements with third parties: to provide services, facilities or resources to exercise specified functions on the authority’s or NHS body’s behalf This covers: identifying and selecting a third‑party provider agreeing how such services are to be delivered and measured It will frequently involve a competitive tendering or procurement exercise. Consequently, local authorities do not have a legal duty to commission particular services, or to commission at all. However, it most often arises where authorities have a duty to...
Repair and improvements Tenants are ordinarily not required to fund a landlord’s upgrades or enhancements to the property, as distinct from repairing it. The term of a tenant’s lease influences what it is reasonable for the tenant to contribute, even where service charge clauses are cast in broad terms. However, a covenant to provide services is wider and potentially more burdensome than a covenant to repair, and may permit a landlord to recover expenditure on works that extend beyond mere repair. In those circumstances, the recoverable service charge is the cost of delivering the service, and the repair versus improvement distinction is unlikely to matter. See News Analysis: Covenant to provide services goes beyond covenant to repair ( Southwark London Borough v Baharier). Where a lease obliges the landlord to consult tenants before embarking on major works, sums spent without that...
A landlord of commercial premises may carry express or implied obligations to supply services for the benefit of the tenant or tenants. Express covenants A promise to deliver a service creates a broader and potentially more burdensome obligation than a mere covenant to repair, and may, consistent with the tenant’s liability to pay the service charge, allow a landlord to recover the expense of works that go beyond repair. In such situations, it is the cost of delivering the service that makes up the service charge, and the line between repair and improvement is unlikely to matter: see News Analysis: Covenant to provide services goes beyond covenant to repair ( Southwark London Borough v Baharier). If a landlord does not act in a timely manner, it may ultimately be unable to recover the entire cost of repairs......
If a certificate is required to determine the service charge, Urban Splash Work Ltd v Ridgway and another [2018] UKUT 32 ( LC) confirms there is no overarching rule that providing certified accounts is, or is not, a condition precedent to liability for service charges (rather than simply part of the payment ‘machinery’)—the outcome depends on the exact lease wording and there is no generally applicable principle. Landlords should take care not to draft around circumstances personal to them, which could render the certification procedure unworkable once the reversion is assigned. In that event they would need to sue to recover the service charge because there would be no contractual route to obtain it (and, depending on the drafting and the circumstances, recovery might not be possible at all). There must be an express clause creating a duty to pay on account, as such an...
The use of the inherent jurisdiction of the High Court to authorise the deprivation of liberty of children and young people has been growing in recent years. This trend covers looked-after children where the character of the care arrangements amounts to a deprivation of liberty, and scenarios in which a secure accommodation placement is required but no places are available, so deprivation of liberty must occur in a different placement. Article 5(1) of the European Convention on Human Rights ( ECHR) states that nobody shall be deprived of liberty except: in specified categories (for example, ‘persons of unsound mind’), and following a procedure prescribed by law See Practice Note: The deprivation of liberty safeguards— Deprivation of liberty......
Practice Note This Practice Note explains when a child can be joined as a party to public law proceedings, outlines the process for appointing a children's guardian and a solicitor, and describes the guardian's functions, including possible conflicts of interest. It further clarifies the circumstances in which the court may diverge from a guardian's advice, and when a solicitor may represent a child without a guardian, even where the child is unable to provide instructions. It also addresses procedural detail and potential conflict of interest scenarios too......
This Practice Note addresses the most frequently raised queries concerning the legislative framework that underpins care and supervision orders. It presents an overview of the grounds for, and the effects of, both care and supervision orders, sets out who is entitled to apply for them, and draws attention to the principal differences between the two outcomes. It should be read alongside the procedural guide to public law proceedings relating to children contained in our Public children— Public law Outline 2014. Care orders What is a care order and what is its purpose? A care order is an order made by the family court which permits a designated local authority to share parental responsibility for a child with any other holders of parental responsibility (noting that where parental responsibility exists solely by virtue of a child arrangements order, the making of a care order will...
This Practice Note outlines what is required when a care or supervision order in public law children cases concludes, whether through termination, discharge, variation, or substitution. It further explains the rules on extending such orders, setting out the relevant provisions governing any continuation. Care orders—general A care order lapses on the child’s 18th birthday or if otherwise brought to an end in another lawful manner. Where a child arrangements order specifies with whom the child is to live, any care order, including an interim care order ( ICO), is terminated. An adoption order wholly extinguishes a care order in its entirety. A placement order pauses a care order and does not extinguish it; if the placement order is revoked, the care order resumes. A placement order discharges any contact order made under section 34 of the Children Act 1989 ( Ch A 1989); hence, any...
Byelaws are local laws or statutory provisions that carry legal effect within the specific areas to which they relate. They typically require certain actions to be taken, or forbid particular conduct, in defined locations, and breaches attract a sanction or penalty. In England, local authorities make byelaws to ensure things are done, or not done, across part or all of their area. For such orders to be observed, they must be enforceable in law. Accordingly, a byelaw must be: within the local authority’s lawful powers made by the proper decision-maker adopted through a transparent process expressed in clear and definite terms Local authority powers The authority to create a byelaw is granted by statute, either in a specific form or more generally. Specific enactments permit regulation of particular activities, for example: public walks and pleasure grounds the...
ARCHIVED: This Practice Note is archived and no longer maintained. Social impact bonds are a type of public–private contracting launched by the Coalition Government that entered office in 2010. To encourage participation in the social impact bond market, the UK government created a series of funds, the latest being the £80m Life Chances Fund. This is now fully committed, with linked projects continuing until 2025. It is understood that further social impact bond projects are unlikely before then, and that the model is under review to decide whether future projects will proceed in their current guise, in an adapted form, or via a different approach. Pending greater clarity on the future of social impact bonds in the United Kingdom, this page has been placed in the Archive. What is a social impact bond? Social impact bonds ( SIBs) were brought forward as part of the Big...
ARCHIVED : This Practice Note is archived and no longer updated or maintained. It supplies background reading on pre-qualification questionnaires in public procurement before the advent of new statutory guidance and the revised standard form Selection Questionnaire ( SQ) for above-threshold public procurement exercises under the Public Contracts Regulations 2015, SI 2015/102. It sets out the law as it stood prior to 9 September 2016 and is not maintained; it is provided for background information only. For more information on the current regime, see Practice Note: Pre-qualification and selection questionnaires. How pre-qualification questionnaires are used In UK practice, the information required to assess bidders’ credentials for public contracts is conventionally collected by means of a pre-qualification questionnaire ( PQQ). In procedures governed by the EU public procurement rules (see Practice Note: Introduction to public contracts procurement), the information gathered through the PQQ is used to confirm...
ARCHIVED: This Practice Note is archived and is no longer maintained. This Practice Note examines the effects on dispute resolution arising from temporary measures brought in due to coronavirus ( COVID-19), and related procedures too. It should be read alongside Practice Note: Coronavirus ( COVID-19) implications for dispute resolution [ Archived], and considered in parallel. It is intended to help dispute resolution practitioners grasp the rapid developments to civil court processes and procedures during this period, and how those shifts and the pandemic could affect their practice and particular matters in practice and day-to-day work. It includes civil court-specific guidance issued in response to the coronavirus outbreak, all of which is readily available for quick and consistent access via the ‘jump-links’ in the expandable contents table on the left-hand side of this Practice Note. As most court and tribunal buildings have reopened in...
Introduction Ambient air quality is, at its core, the state of the air outside. The WHO indicates that, in 2019, outdoor air pollution across both urban and rural areas was linked to an estimated 4.2 million premature deaths worldwide. This mortality stems from exposure to fine particulate matter, associated with cardiovascular conditions, respiratory diseases and cancers. The House of Commons Research Briefing— Air quality: policies, proposals and concerns ( HC Library, March 2025)—reported that the government regards poor air quality as the largest environmental threat to public health in the UK. It also noted that, beyond human health, air pollution carries consequences for the natural environment and the economy. Given the transboundary character of air pollution, measures to control and enhance air quality in the UK have been shaped by international agreements and EU legislation, together with national and devolved laws. The briefing further...
This Practice Note considers who can be offered housing accommodation by local housing authorities ( LHAs) in England and Wales. It explains when an applicant is not entitled to social housing— in England, ineligibility arises solely from immigration status; in Wales, there is an additional ground based on unacceptable behaviour, which can exclude an applicant. The Note concentrates on eligibility for allocations by LHAs under Part VI of the Housing Act 1996 ( HA 1996). Every application must be looked at; however, only an eligible person can actually receive an allocation. See Practice Note: Allocation of housing. What does eligibility for allocation of housing mean? Eligibility is mainly determined by immigration status. In Wales, there is also a separate basis for ineligibility linked to unacceptable behaviour, discussed further below: Wales and unacceptable behaviour. The LHA is responsible for deciding whether an applicant is...
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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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