Legal Practice Notes

This Practice Note considers the legal and practical issues when entering into a subcontract or authorising subcontracting: What is subcontracting? When may subcontracting be allowed? The legal consequences of subcontracting Subcontractor’s liability for the contractor’s consequential loss Subcontractor’s liability to the customer What is subcontracting? While contractual rights and benefits are, unless expressly restricted, generally capable of assignment, contractual duties or burdens are not. Nonetheless, in some cases those obligations can be performed vicariously through subcontracting. Subcontracting is the delegation by the main contractor of part or all of its obligations under its contract with the customer to a third party (the subcontractor) for the subcontractor to perform. Where such vicarious performance is permitted, the contractor’s liability under the main contract does not pass to the subcontractor. The contractor remains answerable to the customer for any non-performance by the subcontractor, even if the customer has agreed to the...

Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on...

This Practice Note explores the doctrine of mistake in contract law. It surveys common, mutual and unilateral mistake, errors as to identity, and mistake regarding the signed document (non est factum). It also considers the effect of each type on the contract and how mistakes can be addressed by rectification or by construction. For guidance on dealing with errors in the execution of documents, see Practice Note: Deeds— Failure to comply with formalities and other defects and our Execution collection, in particular, The Basics— Q& As— Mistakes in executing documents. For further help where parties choose to fix a mistake by agreeing an amendment to the operative parts of a contract, see Practice Note: Contract variation. What is a mistake? A mistake is a wrong belief held by one or both parties at the point of contract formation. A mistake may relate to the: subject matter or the...

What is judicial review? Judicial review is the means by which the courts exercise a supervisory jurisdiction over the performance of public functions by public bodies. This supervisory jurisdiction should not be mistaken for, or treated as, a right of appeal. CPR 54.1 states that a 'claim for judicial review' means a claim to assess the lawfulness of: an enactment a decision, action, or failure to act in relation to the exercise of a public function. Proceedings usually take place in the Administrative Court, which forms part of the King's Bench Division of the High Court. Judicial review proceedings are governed by a number of Civil Procedure Rules, Practice Directions and a pre-action protocol. Further detailed and practical guidance is provided in the Administrative Court Judicial Review Guide. The guide is intended to assist parties pursuing judicial review claims in the...

What is a power purchase agreement? A power purchase agreement ( PPA) is a contract between an electricity producer (generator) and the buyer of that electricity (offtaker) that sets out the commercial terms governing the sale and purchase of power from a generation project. For our comprehensive suite of resources and precedents on power purchase, see: Power purchase agreements and routes to market—overview. A PPA offers a route to market for electricity produced by the generator and, for renewable generating stations, any green benefits the generator receives for producing electricity from renewable sources, which may be sold on to electricity suppliers. It is the agreement under which a significant share (if not all) of a project’s revenues are earned and, as a result, the PPA supports the economics of most power projects. Most PPAs include provisions addressing the following matters: ...

IP rights only carry real weight when they generate revenue for the company. Even where they are already in use, a structured exploitation programme can unlock extra value. This Practice Note provides hands-on guidance for businesses on making the most of their IP rights. It explains how to run an IP audit and build a coherent exploitation strategy. It also outlines the principal routes to exploitation, including assignment, licensing, taking security over IP, and using alternative ownership models. In addition, it highlights the essential provisions to include in assignments, licences and security instruments, and offers pointers on monitoring and enforcing IP so that its worth is preserved... What are the key IP rights? A business will typically hold several types of IP, some registered and others unregistered or arising automatically. The main IP rights a business is likely to own include: Trade marks...

This Practice Note centres on a ‘single landowner’ model, either where a fresh lease is granted for a stand-alone scheme, or where an existing lease remains and the battery storage plant is added alongside on land already leased by the developer. A number of land rights considerations must be addressed at the outset of project decision-making; these will matter both to promoters of potential battery locations and to those exploring new opportunities on operational sites. The principal points are outlined below. For a summary of the main construction aspects in battery storage schemes, see Practice Note: Energy storage—construction issues. For detail on regulatory hurdles and prospects for energy storage, see also textbook: Energy Storage: Legal and Regulatory Challenges and Opportunities. What property rights are typically sought for a battery storage...

Key issues in operation and maintenance ( O& M) contracts for renewable energy projects Overview Operation and maintenance ( O& M) of renewable energy projects is an essential element in delivering a project that succeeds. While capital expenditure often represents the majority of spend, O& M still meaningfully shapes the levelised cost of electricity, a cornerstone of project economics. A robust O& M approach can sharpen competitiveness and strengthen the investment case for renewable energy projects. The nature of O& M services differs across technologies; for instance, photovoltaic ( PV) solar involves a scope, risk profile and practical considerations that are distinct from offshore wind. Contractual terms also vary by jurisdiction and according to the maturity and depth of the relevant services market. As more renewable assets reach operation and scale up, the O& M sector grows in size and...

What is a dispute resolution clause? Many commercial contracts include a dispute resolution clause, sometimes labelled an ‘ ADR clause’. Alternative dispute resolution ( ADR) refers to resolving a disagreement without commencing court proceedings. The Commercial Court and the Circuit Commercial Court use the expression negotiated dispute resolution ( NDR) for processes that settle disputes outside the courts, but for ease, this Practice Note adopts the term ADR. The aim of inserting a dispute resolution clause is to give the parties a clear framework for handling any dispute that may emerge under their agreement. Such a clause sets out how conflicts between the contracting parties will be dealt with and will frequently oblige them to engage in a specified ADR method or methods before pursuing litigation or arbitration. For the various ADR options, see Practice Note: Which form of ADR? For general...

The tort of misuse of private information The tort of misuse of private information centres on protecting human autonomy and dignity—the ability to control how details of one’s private life are shared, and the claim to others’ esteem and respect ( Campbell v MGN). Commonly, as in Campbell, the only alleged ‘misuse’ is the unlawful publication, or threatened publication, of personal information to the world at large. The alleged wrongdoer is frequently a media organisation and/or an individual seeking disclosure through the media. A claim may nevertheless be brought where material is circulated more narrowly, if that would unjustifiably interfere with the claimant’s right to respect for private life under article 8 of Part I of Schedule I to the Human Rights Act 1998 ( HRA 1998), which gives effect to rights contained in the European Convention on Human Rights ( ECHR). The tort is not...

This Practice Note provides an introduction to the tort of malicious falsehood. Unlike a defamation claim, a malicious falsehood action does not require proof that the words complained of are defamatory. Instead, the claimant must show the following three elements: the defendant published an untrue statement about the claimant; the publication was malicious; and the statement caused actual pecuniary loss, or the case falls within section 3 of the Defamation Act 1952 ( DA 1952). The tort of malicious falsehood is governed by a mixture of statute and the common law. The relevant statutory provisions are contained in DA 1952, whereas the Defamation Act 2013 ( DA 2013) contains no provisions relevant to malicious falsehood. Malicious or injurious falsehood (sometimes, and confusingly, called 'trade libel') is not concerned with reputation. It is a separate tort from defamation, aimed at the...

The offence of possession of an offensive weapon in a public place Under section 1 of the Prevention of Crime Act 1953 ( PCA 1953), it is unlawful to carry an offensive weapon in a public setting without lawful authority or a reasonable excuse. The case may proceed in the magistrates’ court or the Crown Court. Where it appears that the magistrates’ sentencing powers are inadequate, they will refuse jurisdiction... Elements of the offence To secure a conviction under PCA 1953, s 1, the prosecution must establish that the defendant: has with them in a public place an offensive weapon without lawful authority or reasonable excuse Has with them The prosecution must show the defendant was in possession of the item. However, the phrase ‘has with them’ goes beyond simple possession or control. The courts have determined it means ‘knowingly has with them’,...

Although damages are the principal remedy for a contractual breach (see Practice Note: contractual damages—general principles and related content), there are times in contract disputes—particularly where the agreement has not, or not yet, been breached—when damages are unavailable or not the most fitting response. In those circumstances, the court has a discretionary power to grant equitable relief, which may include: specific performance of any outstanding contractual obligations declaratory relief, for example as to the construction of a particular contractual term injunctive relief (interim or final) compelling a party in breach/about to breach to act or to refrain from acting rectification of a contract or of a deed rescission of a contract or of a deed Where damages for breach are claimed they are ordinarily advanced and, if granted, assessed by reference to the accepted compensatory purpose of contractual damages, ie to place the innocent party in the position they would have...

This Practice Note on domestic enforcement sets out, in outline, the range of enforcement options available, which will vary according to the type of judgment obtained and the identity of the judgment debtor. The likelihood of success with any selected mode of enforcement depends heavily on the breadth and depth of your knowledge of the judgment debtor. Enquiries into the nature and location of assets held by the debtor should not wait until judgment is handed down, but should instead form part of diligent case management from first instructions and continue throughout the life of the claim. For guidance, see Practice Note: Successful enforcement—knowing your defendant. Successfully obtained judgment—what next? Unless they are experienced in litigation, a successful client will often assume that the other party will comply with the judgment or order made. However, unsuccessful parties do not always comply. It is...

Overview of enforcement time limits Section 171B of the Town and Country Planning Act 1990 sets the cut-off points after which enforcement for a breach of planning control cannot be taken, unless the breach was deliberately concealed. The relevant periods are: For operational development: four years from the date the works were substantially completed in Wales, and in England where completion occurred before 25 April 2024; ten years in England where substantial completion fell on or after 25 April 2024 (see Practice Note: Substantial completion and planning enforcement for further detail on the legal test for substantial completion) For breaches involving a change of use of any building to use as a single dwellinghouse: four years from the date of the breach in Wales and in England where the breach arose before 25 April 2024; and ten years in England where the breach took...

NPSs NPSs are statutory documents published in accordance with the Planning Act 2008 ( PA 2008). They set out the government’s policy for particular categories of nationally significant infrastructure projects ( NSIPs), notably explaining the national need for the type of infrastructure to which they relate. They are distinct from policy in the National Planning Policy Framework ( NPPF), which does not include NSIP‑specific policies. NPSs provide the framework within which the Secretary of State ( So S) makes its decisions on NSIP applications for development consent. Where an NPS has effect for development that is the subject of an application for an order granting development consent, the So S must determine the application in line with that NPS, unless one of the following applies: Doing so would be unlawful, for example because it would result in...

Grounds to challenge an individual voluntary arrangement You may apply to contest the approval of an individual voluntary arrangement ( IVA) on either or both of two bases: that the creditors’ resolution endorsing the IVA unfairly harms the interests of a creditor of the debtor that a material irregularity occurred at, or connected with, the creditors’ decision process The onus of proving any such ground lies with the challenger. Be aware that the new IVA Protocol covers all consumer IVAs proposed on or after 1 July 2025, reshaping the context in which these challenges will be assessed. This will influence how any application is viewed in practice......

Local authorities are still required to secure planning permission before they develop land. The grant of planning permission by a local authority to itself has long been a source of criticism, particularly because granting approval to develop land can materially influence its value. Traditionally, development undertaken by local authorities was chiefly to advance their functions, for example in education or transport. It is, however, increasingly common for local authorities to participate in commercial development. Where the planning authority is both the landowner and/or proposes to undertake development within its area, a distinct planning regime comes into effect. Relevant statutory provisions Section 316 of the Town and Country Planning Act 1990 ( TCPA 1990) makes provision in relation to land of ‘interested planning authorities’ and to the development of that land by those authorities, setting the framework that applies when they themselves are involved in...

What is permission in principle ( Pi P)? The Housing and Planning Act 2016 ( HPA 2016) created permission in principle ( Pi P), an England-only alternative consent route for housing-led proposals that separates high-level acceptance from detailed technical matters. When Pi P is followed by a grant of technical details consent, the combination amounts to full planning permission. Section 58A of the Town and Country Planning Act 1990 ( TCPA 1990) permits Pi P to be conferred for housing-led development of land in England. Under TCPA 1990, s 58A(2), development involving the winning and working of minerals is expressly excluded from eligibility for Pi P at all. According to the explanatory notes to HPA 2016 and the Planning Practice Guidance ( PPG), the government intends that the elements capable of being agreed through Pi P are confined to the site’s location, the uses (which must be...

Regulated tenancies Regulated tenancies—often referred to as protected, statutory or fair rent tenancies—arise under the Rent Act 1977 ( RA 1977) and constituted the chief private residential tenancy type until 15 January 1989. Where a tenancy was granted on or after 15 January 1989, when the Housing Act 1988 took effect and assured tenancies became the prevailing private residential model, inclusion within RA 1977 is possible only in narrowly defined situations. Nevertheless, a considerable proportion of protected tenancies persists and, if they are not properly recognised, a purchaser acquiring property subject to a regulated tenancy may pay too much and be unable to achieve vacant possession. RA 1977 tenancies carry very strong security; in the majority of cases the landlord must await the tenant’s departure, though the parties may sometimes negotiate a surrender in exchange for a financial incentive. Be aware that, although several...