Featured documents
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:
Most recent Practice notes
From 1 April 2007, sections 42 and 43 of the Mental Capacity Act 2005 ( MCA 2005) took effect. Together they activated a Code of Practice to direct everyone dealing with matters governed by the MCA 2005. Section 43 of the MCA 2005 set out the process, including consultation, that had to be completed before adoption of the code. Those steps were duly finished and, in line with section 42, a Code of Practice (the Code) was issued. That provision suggested there could be multiple codes, yet until 2008 it appeared that only a single composite code was envisaged. On 3 November 2008, however, an additional code—the Deprivation of liberty safeguards Code of Practice (the DOLS Code)—came into force. Its introduction followed the insertion of several new sections into, and other amendments of, the MCA 2005 by the Mental Health Act 2007 ( MHA 2007)....
Duty to achieve best consideration on disposal of land held by principal councils General duty Under section 123(1) of the Local Government Act 1972 ( LGA 1972), principal councils have broad freedom to dispose of land as they see fit. This covers, for example, selling the freehold, granting or assigning leasehold interests, and creating easements. In England, principal councils are those elected for a non-metropolitan county, a district or a London borough; in Wales, they are a county or county borough. In this note they are collectively described as local authorities ( LAs). That general power is curtailed by section 123(2), which requires LAs to secure the best consideration reasonably obtainable on a disposal, unless approval has been given by the Secretary of State for Communities and Local Government/ Ministers. Disposals by way of a short tenancy are excluded from this duty; a short tenancy means...
The Investigatory Powers Act 2016 ( IPA 2016) reshaped the statutory regime governing covert surveillance by public bodies, a regime that was largely, though not entirely, contained in the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). Local authorities hold powers under both IPA 2016 and RIPA 2000. In addition, the Covert Human Intelligence Sources ( Criminal Conduct) Act 2021 allows certain public authorities to authorise criminal conduct by covert human intelligence sources. For more detail, see News Analysis: Covert Human Intelligence Sources ( Criminal Conduct) Act 2021. Surveillance powers available to authorities The acquisition and disclosure of communications data (such as telephone billing information or subscriber details) Directed surveillance (covert surveillance of individuals in public places) Covert human intelligence sources ( CHIS) (for example, the deployment of undercover officers) Local authorities employ covert methods to support their statutory...
Interested parties In the context of judicial review, an interested party refers to any person—other than the claimant and defendant—who is directly affected by the claim. Where a judicial review claim is connected to proceedings in a court or a tribunal, every other party to those proceedings will qualify as an interested party in the review; eg if a defendant in a criminal case in the Magistrates or Crown Court brings a judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim. A person is regarded as directly affected if they are affected without the intervention of any intermediate agency, that is, without the involvement of any intervening body. For example, in R v Rent Officer Service, ex parte Muldoon, a local housing authority’s decision not to pay a housing benefit was...
In judicial review, noting that a document exists or once existed is usually achieved by the duty of candour, not by a formal disclosure process. Default lack of formal disclosure and inspection exercise By default there is no formal disclosure; it is not required unless the court directs otherwise. This is because judicial review turns on the legal consequences of mostly agreed facts; the court does not resolve factual disputes; and all sides owe a duty of candour to the court, so separate “disclosure” is unnecessary (though in practice the outcome is often similar). The same approach applies to judicial review, statutory reviews and appeals in the Administrative Court. The court retains a broad discretion to order disclosure, but that power will be exercised sparingly. General duty of candour All parties to judicial review are under a general duty of candour requiring them to reveal the...
This Practice Note ought to be read alongside Practice Note: Starting civil claims in the County Court, which addresses the general approach to commencing civil claims in the County Court. This Note explains where and how to issue a County Court money claim ( CCMC) under CPR 7. For guidance on issuing a claim in the County Court under CPR 8 (used where there is no substantial dispute of fact and for certain categories of proceedings), see Practice Note: Starting civil claims in the County Court— Where to issue CPR 8 claims in the County Court... What is a County Court money claim ( CCMC)? A money claim may pursue a specified or an unspecified sum ( CPR PD 7A, para 5.1(1)(b)) and includes a claim for damages—the CPR glossary defines damages as a ‘sum of money awarded by the court as...
Where a lease contains no express repairing covenant, each party’s responsibility for repairs is curtailed. For landlords, liability is shaped by a mix of common law principles and statutory regimes; for tenants, it turns on the doctrine of waste and the implied duty to use the premises in a tenant‑like fashion. This Practice Note outlines those obligations and sources, addressing: what constitutes waste the distinct categories of waste the consequences if a tenant permits the property to decline the meaning of use in a ‘tenant-like manner’ Landlord's repairing obligations The landlord bears repairing duties only to the extent required by any express terms in the tenancy (in relation to which, see Practice Note: What is the appropriate standard of repair?)......
Highways not maintainable There exist a handful of highways for which no party bears any duty to maintain them at all in law. This arises only in very unusual cases where a landowner has dedicated a route as a highway, yet it has neither been adopted nor had responsibility for upkeep defined. In such a case, many wrongly assume the maker or dedicator of the highway becomes liable for maintenance and repair. That assumption is false. Where a way has been dedicated as a highway but not adopted, no one is responsible for its maintenance, as the dedicator is under no duty to maintain or repair it. Every other highway is maintained either at public expense, by a private company, or by one or more private individuals who, in most instances, prove to be frontagers or owners of the...
This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...
On 24 December 2020, the UK Government and the European Commission revealed they had reached agreement in principle on the legal framework for the future UK- EU relationship. Taking provisional effect from 1 January 2021 and entering fully into force on 1 May 2021, the EU- UK Trade and Cooperation Agreement ( TCA) sets out provisions on trade in goods and services, economic and social co-operation, law enforcement and security co-operation, alongside overarching governance rules. A series of related declarations and accords supplement the TCA, among them the Agreement on Security Procedures for Exchanging and Protecting Classified Information ( SIA) and a distinct Nuclear Cooperation Agreement ( NCA). It also features placeholders and commitments anticipating additional agreements to be concluded. Publicised only a week before the Brexit transition ended at 11 pm on 31 December 2020 ( IP completion day), the deal arrived at the...
Please be aware that obligations to implement reasonable adjustments to the physical features of shared parts have not yet taken effect. Accordingly, until they do, this Practice Note is supplied for information only. Physical features Section 20(4) of the Equality Act 2010 ( Eq A 2010) sets a general duty to take reasonable steps to make reasonable adjustments to a physical feature where it places a disabled person at a substantial disadvantage in relation to a relevant matter, compared with a person who is not disabled, so as to prevent or avoid the disadvantage......
STOP PRESS: From 25 March 2026, the principal elements of the Levelling-up and Regeneration Act 2023 that relate to plan-making have taken effect. This Practice Note is in the process of being revised to reflect this. Be aware that further sections of the Levelling-up and Regeneration Act 2023 ( LURA 2023), still awaiting commencement, remove the duty to cooperate, with regulations anticipated to implement that repeal during 2026. For more information, refer to: Abolition of the duty to cooperate in the Levelling-up and Regeneration Act 2023. What is the duty to cooperate? The duty to cooperate originated in the Localism Act 2011. It imposes a statutory obligation on local planning authorities ( LPAs), county councils and public bodies in England to work together constructively, proactively and continuously, so as to optimise the preparation of local (and marine) plans on strategic issues that cross...
This Practice Note explores when an individual living in a care home may postpone paying their fees by entering a deferred payment agreement ( DPA), and outlines the measures a local authority should adopt to make sure the DPA offers sound security for the monies advanced. A DPA is a mechanism through which the local authority covers the expense of a person’s care home placement where, absent the arrangement, that person would be liable for those costs. Sums disbursed by the authority build up as a debt, secured against an appropriate asset—most commonly the person’s former home. That liability becomes payable after the person’s death or, if earlier, on the sale of the property or other collateral. Deferred payment agreements—relevant law When assessing DPAs, the initial sources to consult are the primary legislation, regulations and guidance. These include: sections 34 and 35 of the Care Act 2014 ( CA...
Copyright theft Unauthorised use of copyright is a criminal matter under the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Trade Marks Act 1994 ( TMA 1994) and the Video Recordings Act 1984 ( VRA 1984). It may alternatively be brought under the Fraud Act 2006 ( Fr A 2006), or pursued as a conspiracy contrary to the Criminal Law Act 1977 ( CLA 1977), or at common law as conspiracy to defraud. See Practice Notes: Conspiracy and Conspiracy to defraud. Cases can be taken by the Crown Prosecution Service or by trading standards. Enquiries may call on HM Revenue and Customs, the UK Border Agency and the National Crime Agency. Most CDPA 1988 offences—namely those in CDPA 1988, s 107(1)(a)–(b), (d)(iv) and (e)—are either-way, meaning trial may occur in the magistrates’ court or the Crown Court. They are treated as the graver...
In England and Wales, bankruptcy is the formal mechanism by which a court or the bankruptcy adjudicator makes a bankruptcy order against an individual. Although a company can proceed to voluntary liquidation without the court’s involvement, only the court or the adjudicator can place an individual into bankruptcy. The route available to a debtor’s creditors follows a set procedure, which may include a pre-action step (the statutory demand), and is taken under the Insolvency Act 1986 ( IA 1986) and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. The Practice Direction on Insolvency Proceedings ( PDIP) applies as well. Types of bankruptcy petition and who can present one creditors' petition—any creditor, whether acting alone or with other creditors, who is owed a liquidated, undisputed sum meeting or exceeding the bankruptcy limit (for petitions presented on or after 1 October 2015,...
Cycle track A ‘cycle track’ is a route that forms part of a highway, giving the public a right of way on pedal cycles (excluding pedal cycles that are motor vehicles), with or without a corresponding right on foot. Cyclists may use existing: all-purpose highways bridleways restricted byways byways open to all traffic ( BOATS) However, to offer cyclists an area free from motor vehicles yet suitably surfaced, it is necessary to create a cycle track through the appropriate legal procedure. Cycle tracks can be established by converting an existing right of way (by downgrading or upgrading highway rights), or by creating a new cycle right. The Department for Transport ( Df T) has published guidance on the legal procedures for creating cycle tracks......
For any dispute resolution lawyer scrutinising a contract during a dispute, two central questions arise: what does the contract signify? what rights and obligations do the parties hold under it? This Practice Note explains the five interpretative principles the courts employ to address those questions, first articulated by Lord Hoffmann in 1998 in the leading case Investors Compensation Scheme v West Bromwich Building Society ( ICS), with additional guidance from later Supreme Court authorities: Rainy Sky v Kookmin (2011), Arnold v Britton (2015) and Wood v Capita (2017), as outlined further below. Read this alongside Practice Note: Contract interpretation—rules of contract interpretation. Depending on the forum in which your case is heard, you should also consider any extra requirements—see below: Court specific guidance. ICS v West Bromwich Building Society— Lord Hoffman's guiding principles In 1998, in Investors Compensation Scheme v West Bromwich Building Society, Lord...
What is a remediation notice? A remediation notice is a formal written direction requiring an ‘appropriate person’ to undertake the remediation of contaminated land under Pt IIA of the Environmental Protection Act, 1990 ( EPA 1990). For further detail, see Practice Note: Contaminated land—meaning of remediation. An ‘appropriate person’ is: the individual(s) who caused or knowingly permitted the contaminating substances to be in, on or under the land concerned ( Class A), or the owner or occupier of the contaminated land, but only where a Class A person cannot be identified ( Class B) For more information, see Practice Note: Contaminated land—identifying Class A and B appropriate persons. According to the Environment Agency’s ( EA) Dealing with contaminated land in England, only 19 remediation notices had been issued under Part IIA in England (one of which related to a special site). This contrasted with 446...
When a public body undertakes consultation on a prospective decision, it should do so while the plans are still genuinely provisional, provide sufficient material, and allow enough time for a meaningful, informed reply, so that feedback is considered with an open mind, and to ensure decision-makers approach the feedback without predetermination. The legal requirements for consultation, first articulated in R v Brent London Borough Council ex parte Gunning, were firmly endorsed by the Supreme Court in Moseley, within the context of a statutory obligation on a local authority to consult. How and when does the duty to consult arise? No general, universal obligation compels public authorities to consult those impacted by their choices; the requirement may be imposed by statute, or may arise in public law either from the duty to act fairly, or because a legitimate expectation has been created. Simply...
STOP PRESS: From 24 February 2025, the key provisions of the Procurement Act 2023 ( PA 2023) take effect. Any procurement launched on or after this date must comply with PA 2023, while procedures started under earlier regimes—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 run and overseen under those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law: PCR 2015 are EU‑derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. This Practice Note offers a concise primer on legal issues arising when public bodies...
Popular documents
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 ]...
Discover more from LexisNexis
