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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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Artificial intelligence ( AI) is now everywhere and, like many sweeping technological shifts, is often misunderstood and divisive. Yet its core capabilities are highly useful for routine tasks, data analysis, and number‑crunching—activities central to many aspects of continuous improvement ( CI). This Practice Note covers: what is AI? the need to exercise caution when using AI beginning with the basics using AI for data analysis/number‑crunching how AI can help when presenting a CI business case For more on adopting technology, including AI, in the in‑house legal team, see: Legal tech for in‑house teams—overview. What is AI? AI centres on creating systems that perform tasks usually dependent on human intelligence, such as learning, reasoning, problem‑solving, perception, and understanding language. By emulating human cognitive functions, these systems can carry out complex work autonomously. For fuller background, see: Artificial...
Undocumented migrants claiming to be children While this Practice Note is not confined to unaccompanied asylum-seeking ( UAS) children, they are the cohort a practitioner will most commonly encounter routinely in practice. Other situations that a practitioner may meet include the following: where a child is deserted yet makes no asylum claim at all; or where the age of a dependent child of an asylum seeker is in question Reaching an incorrect conclusion about a young person’s age is a serious matter with significant consequences......
This Practice Note outlines the legal framework regulating adult social care in Wales, with a focus on where it differs from the English arrangements. The principal legislation, regulations and guidance considered are: Social Services and Well-being ( Wales) Act 2014 ( SSW( W) A 2014) Care and Support ( Assessment) ( Wales) Regulations 2015, SI 2015/1305 Social Services Complaints Procedure ( Wales) Regulations 2014, SI 2014/1794 SSW( W) A 2014, Code of Practice Headline differences between adult social care in England and Wales Commencing on 6 April 2016, the SSW( W) A 2014 introduced wide-ranging reforms to local authority ( LA) responsibilities in Wales. Many aspects are comparable to measures adopted in England under the Care Act 2014 ( CA 2014). The CA 2014 does not apply in Wales. For guidance on LA duties in England, see Practice Note: Local...
Arms length management organisations ( ALMOs) This Practice Note sets out the role of ALMOs in the sphere of local authority social housing provision. Although they can look like registered providers ( RPs), they are in fact wholly owned by their respective local housing authorities ( LHAs), created to manage services on the authority’s behalf. The Note considers a range of issues, including: Tenant involvement in the organisational structure Transfers of staff to ALMOs under the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 The preservation of all tenants’ statutory rights, as the landlord function remains with the local authority How ALMOs relate to tenant management organisations ( TMOs) The constitutional make-up of ALMOs An ALMO is a not-for-profit company delivering housing services for an LHA. Commonly, an LHA establishes an ALMO to manage and improve all or part of its stock, while...
Defences There are several substantive defences to a defamation action and, since the Defamation Act 2013 ( DA 2013), most are now statutory. Multiple defences can be advanced together in answer to a claim. Truth Defamatory statements are presumed to be untrue, and the onus of proving their truth rests with the defendant. Showing that the substance of the defamatory statement is true is a complete defence. The defence formerly known as justification was given statutory effect by DA 2013, s 2; the common law defence was abolished and section 5 of the Defamation Act 1952 repealed. Pleading and procedural matters in defamation proceedings are governed by CPR PD 53B, which contains particular requirements for truth defences. CPR PD 53B replaced CPR PD 53 with effect from 1 October 2019 (see News Analyses: 109th practice direction update— July to October 2019 and New rules for media and...
When weighing up whether, and in what way, to pursue a claim for judicial review, your opening task is to assess if that procedure is the suitable mechanism for resolving the issues presented by the matter before you. For additional help, see Practice Note: Judicial review—what it is and when it can be used. Time limits If judicial review is the route chosen, the next step will typically be to confirm there is still time to commence proceedings. Under CPR 54.5, claims for judicial review (apart from the three exceptions referred to below) must be issued promptly and, in any event, within three months of the date on which the grounds first arose. Promptness is an overriding requirement, and you should not assume a claim is in time merely because it is brought within three months. Accordingly, once the basis for the challenge has...
A fact-finding hearing is the first of two parts of a ‘split hearing’. A fact‑finding hearing forms the opening stage of a split hearing comprising two distinct parts. At this initial phase, the court determines the facts on matters it has itself pinpointed, as recorded in the order listing the fact‑finding hearing that has been set down. This Practice Note addresses the public law context. As Mac Donald J observed in Royal Borough of Kensington and Chelsea v NM, the choice whether to convene a fact‑finding hearing is among the most significant case management decisions in proceedings under Part IV of the Children Act, and it is not necessarily a simple one. On 22 April 2014, the Public Law Outline ( PLO) governing care, supervision and other proceedings under Part IV of the Children Act 1989 came into force under the Family...
Secure tenancy This Practice Note outlines the tests in section 79 of the Housing Act 1985 ( HA 1985) that must be satisfied for a tenancy to be secure, and then examines each test in detail. It considers whether the accommodation constitutes a dwelling, whether the dwelling is the tenant’s principal home, the landlord requirement, the tenant requirement, and the Schedule 1 HA 1985 exceptions where a tenancy or a licence cannot be secure. It also explains how a secure tenancy can be varied and highlights the additional rights available to secure tenants. Secure tenancies are the tenancy form most commonly provided by local authorities ( LAs). The definition of a secure tenancy, and the rights afforded to secure tenants, are derived from Part 4 of the Housing Act 1985 ( HA 1985)......
This Practice Note explains who qualifies for public funding in care proceedings, what that funding covers, including expert witness fees and translation charges, and what items require prior authority before they are covered. It also outlines how to seek prior authority and offers guidance on what requests are likely to be approved. Public funding for parties is administered by the Legal Aid Agency ( LAA), an executive agency of the Ministry of Justice. Public funding means the relevant party’s solicitor applies to the LAA for a legal aid certificate and, if issued, may carry out work for the publicly funded client, with the solicitor’s costs and disbursements repaid by the LAA at the end of the case. Who is eligible for public funding in care...
Interpreting the social care framework in Part 1 This Practice Note explains the framework governing local authority responsibilities for arranging and funding social care in England as established by the Care Act 2014 ( CA 2014). It addresses the overarching duties that significantly shape local authorities’ wider obligations regarding the commissioning of health and social care services. CA 2014, Pt 1 delineates the scheme of local authority duties for the organisation and financing of social care. It sets out a series of general duties that materially influence local authorities’ broader obligations concerning the commissioning of health and social care provision. Those overarching duties markedly affect authorities’ overall obligations for commissioning health and social care. This Practice Note concentrates on the principal requirements of CA 2014, Pt 1. For the purposes of this Practice Note, ‘local authority’ denotes a county council in England, a district council for an area in...
The majority of projects rest on an intricate network of contractual ties among every participant in the scheme (eg the project company, equity backers, contractors, sub-contractors, off-takers and suppliers). Collectively, these papers are generally known as the 'project documents' in practice (see: Project documents—issues for lenders—overview). In numerous schemes, the operation and maintenance contract ( O& M Contract ) often ranks among the key project documents. What is an operation and maintenance contract? In a standard project finance deal, the project company is typically a special purpose vehicle ( SPV ) established solely for the aims of the project (see Practice Note: Project finance—key project parties). Where the project company is an SPV, it typically lacks the capability to run or look after the project in-house, and therefore enters into an O& M Contract with a suitably skilled contractor (the O& M...
Concurrent lease In the setting of residential block arrangements, a concurrent lease is a lease of the reversion granted by a developer, typically to a management company, after it has already granted the separate flat leases to the respective purchasers of those flats. It is, in effect, an intermediate lease that stands between the developer (as freeholder, or as holder of a superior leasehold interest) and the flat tenants. For additional guidance, see Practice Note: Concurrent leases. This type of lease is sometimes also described as an ‘overriding lease’. That usage, however, risks confusion with the lease available to a former tenant or guarantor under section 19 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). For that reason, it is preferable to use the term ‘concurrent lease’ in this residential flats context......
Conditions for making a bankruptcy order When the court considers a bankruptcy petition and whether to make an order, it must be satisfied that the conditions in section 271(1) of the Insolvency Act 1986 ( IA 1986) are fulfilled. The essentials are: an unsecured debt forming the basis of the petition is owed to the creditor; and the debtor has no reasonable prospect of paying that debt. In Day v Refulgent (an appeal from the making of a bankruptcy order), it was decided that the fact a creditor has obtained a freezing order against the debtor does not render the debt secured, and therefore does not prevent that creditor from seeking a bankruptcy order. For further reading on Day v Refulgent, see News Analysis: Seeking adjournments at bankruptcy hearings......
Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
Purpose A notices clause is frequently inserted into a contract to provide both sides with certainty and transparency around formal communications and the sending and receipt of notices between the parties to the agreement, including how they are given and received. Where no such clause appears, default statutory rules may step in (see Statutory provisions below). In the Court of Appeal in Khan v D’ Aubigny, Nugee LJ observed that a notice can be a document that imparts information as well as one that invokes or exercises a right. It is also commonly taken to mean a written notice bearing a degree of formality, though no fixed wording or prescribed format is demanded. Observing the requirements of a notices clause will often be critical across a variety of contractual contexts. By way of illustration, it typically matters when prolonging (or stopping the...
The requirements for reporting and accounting by charities The obligations are detailed in sections 130–176 of the Charities Act 2011 ( CA 2011) ( Part 8: Charity Accounts, Reports and Returns), alongside the Charities ( Accounts and Reports) Regulations 2008, SI 2008/629, and are supplemented by the relevant Statement of Recommended Practice— Accounting and Reporting by Charities ( SORP). For reporting periods (financial years) starting on or after 1 January 2019, the updated second edition of the SORP ( FRS 102), issued in October 2019, is in force. See also the Charity Commission’s guidance: the essentials November 2016 ( CC15d). The obligations vary depending on the size and nature of the charity. To identify which requirements apply, check: whether the charity is also a company its income for the current financial year the value of its assets whether it must be registered with the Charity Commission for England and Wales (the...
NOTE: This Practice Note is retained for historical reference only. It reviews charging orders under the regime operating before 6 April 2016, covering what charging orders are, when seeking one may be appropriate, and the jurisdiction concerned. If you intend to pursue a charging order on or after 6 April 2016, consult Practice Note: Charging orders—what are they and when to use them— CPR 73 and related content. For guidance on the process for obtaining a charging order (both interim and final), see Practice Note: Pre-6 April 2016— Obtaining interim charging orders and final charging orders—the procedure. This Practice Note cites the following legislation: Charging Orders Act 1979 as COA 1979 Tribunals, Courts and Enforcement Act 2007 as TCEA 2007 Partnership Act 1890 as PA 1890 Charging orders—the changes in force as from 6 April 2016 From 6 April 2016, the procedure for applying for interim and final...
Stop Press On 24 February 2025, the principal provisions of the Public Procurement Act 2023 ( PA 2023) take effect. We are in the process of reviewing and updating our materials. Please note that procurements launched on or after 24 February must be conducted under PA 2023, while those initiated under the previous regime—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be tendered and administered in line with that legislation. For information, see Practice Note: Key Implications of the Procurement Act 2023 for Construction Lawyers. Brexit impact—public procurement The UK public procurement framework originates in EU procurement law and is therefore affected by the UK’s withdrawal from the EU. For general updates on the process and preparations for Brexit, see Practice Note: Brexit timeline. For further...
This Practice Note reviews case law on the highway authority’s obligation to maintain highways at the public expense during periods of adverse weather. Those decisions reveal a clear distinction between permanent dangers arising from want of repair and transient hazards attributable to the elements, and confirm that, in practice, an authority is required only to act reasonably and is not expected to achieve daily miracles over the winter months. The duty on every highway authority to maintain any highway maintainable at the public expense becomes more onerous when severe conditions prevail in winter. Ice, snow and flooding all increase the risks on the highway network and each makes the maintenance authority’s task considerably more difficult. The following cases demonstrate the need to balance obligations owed to the public with the sensible use of limited...
Determining a person’s ability to marry, cohabit, consent to sexual relations, and agree to contraception involves matters that are highly sensitive and intensely personal, engaging individuals’ Article 8 rights to a personal and family life. This Practice Note first sets out the overall legal framework for capacity assessment under the Mental Capacity Act 2005 ( MCA 2005), and then considers the tailored tests developed by the courts for each issue, reflecting the careful balance between protecting vulnerable people and promoting self-determination. With a view to enabling vulnerable adults with learning disabilities and other cognitive difficulties to enjoy the advantages of married life and/or a sexual relationship, the applicable capacity tests have intentionally been pitched at a low threshold and are widely thought to require a lesser level of capacity than, for example, the standard for making a...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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