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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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For comprehensive and authoritative commentary on regulating, consenting and incentivising the net zero energy transition under the law of England and Wales, see Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition. That textbook provides thorough, in‑depth analysis of topics addressed in this Practice Note. How are renewable energy projects typically structured? In most renewable generation schemes (particularly where project finance features), a special purpose vehicle ( SPV) is formed to hold the assets and to enter into the key project contracts. Construction and operations are usually contracted out, and financiers may insist that main contractors sign direct agreements, deferring termination rights so the funders can exercise step‑in rights (these arrangements are not depicted in Diagram A below). That position will almost invariably apply where the renewable project is project financed. For additional practical guidance on financing energy, power and...
Statute limits the amount that can be recovered from tenants of dwellings by way either of service charges (which include insurance rent) or administration charges In all instances, a landlord may recoup only what is reasonable, even if the lease states otherwise. The right to forfeit a lease for non-payment is also governed by statute, but falls beyond the scope of this Practice Note (see Practice Note: Statutory limitations on the landlord’s right to forfeit a long residential lease). Sections 18–25 of the Landlord and Tenant Act 1985 ( LTA 1985) set out the limits on, and reasonableness of, service charges, the ability to request a summary of relevant costs, and the implications of a change of landlord or an assignment, and they create an offence for failure to comply. These rules apply to all dwellings and cover all residential leases, except where LTA 1985, s 26...
NB This Practice Note addresses legislation that is not yet in force. Its implementation has been significantly delayed, and there is currently no indication from Government as to when the proposed measures will commence. Government concerns about the scale of termination payments in the public sector have persisted for some time, and recent administrations have expressed an intention to introduce controls over such payments. Three distinct but connected legislative developments have arisen from this. The first was signposted in the Queen’s Speech in 2014, forming part of the Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015). The then coalition government explained that this initial package was designed to tackle situations where a high-earning public sector office-holder left their role, received a substantial termination payment, and then moved into another public sector role either straightaway or shortly after receiving that payment. In those...
The public sector equality duty ( PSED) Set out in Part 11 of the Equality Act 2010 (ss 149–159), the public sector equality duty ( PSED) comprises a general equality duty applying UK-wide to public bodies listed in Schedule 19 of the Eq A 2010, alongside specific duties intended to support delivery of the general duty and enhance transparency. Although the general duty is identical across England, Wales and Scotland, the specific duties made under Eq A 2010, s 153 vary. In Wales, listed public bodies must meet particular specific duties that sit alongside the UK-wide general duty. These specific duties bind listed Welsh bodies only. They do not extend to non-devolved public authorities operating in Wales. Under Eq A 2010, s 149, the general duty requires public authorities and those exercising public functions to have 'due regard' to the need...
STOP PRESS: On 1 August 2023, the Cabinet Office unveiled three new collections of standard contract documents, comprising updated templates and accompanying guidance for the government’s Model Services Contract, Mid- Tier Contract and Short Form Contract. Further direction on adopting these standards is provided in a supplementary Procurement Policy Note ( PPN). PPN 08/23: Using Standard Contracts applies to central government departments, executive agencies and non-departmental public bodies, all of which have been urged to implement the standard contract forms ‘as soon as practicable’. Other public sector organisations are also encouraged to follow the approach set out in PPN 08/23, recommending the use of the standard contracts for all relevant procurements, rather than using bespoke contracts, unless there is an existing government framework or an industry standard contract already in place (for example, for construction projects). Where appropriate, adopting the standard contracts aligns with...
This Practice Note This Practice Note is the second in a trio addressing health care procurement under the Provider Selection Regime ( PSR), brought into effect by the Health Care Services ( Provider Selection Regime) Regulations 2023 ( PSR Regs 2023), SI 2023/1348, operative from 1 January 2024. It sets out the procurement routes available to relevant authorities responsible for planning, purchasing and delivering health and care services, namely the: direct award route—divided into three types of direct award most suitable provider route competitive route It also summarises the mandatory procedural obligations that apply to every procurement. Further, it highlights additional factors for relevant authorities when awarding contracts using any approach other than direct award processes A and B, namely the: Basic selection criteria Key criteria Exclusions Conflicts of...
The Tenant Fees Act 2019 ( TFA 2019), effective from 1 June 2019, bars landlords and letting agents from asking tenants of certain residential tenancies in England to pay charges other than those expressly permitted. In effect, a landlord’s agent may not levy fees for viewings, referencing, inventories, or any other item not specifically allowed. The Act also sets caps on the sums that can be taken as a security or holding deposit, as well as on certain other payments. Comparable legislation for Wales, the Renting Homes ( Fees etc) ( Wales) Act 2019 ( RH( Fe)( W) A 2019), took effect on 1 September 2019. It is not the same as TFA 2019; the key differences are identified below. Tenancies affected TFA 2019 applies to any ‘tenancy of housing in England’. A ‘tenancy’ means: before 1 May 2026, an assured shorthold tenancy ( AST) under...
This Practice Note summarises the court’s powers when making a special guardianship order ( SGO), including decisions about a child’s surname and any removal from the jurisdiction. It also sets out what becomes of existing orders once an SGO is made and the need to consider whether to make a child arrangements order with contact provisions. Existing orders Making an SGO does not, by itself, end any order made under section 8 of the Children Act 1989 ( Ch A 1989) (an s 8 order). Before granting an SGO, the court must specifically consider whether any existing s 8 order should be varied or discharged. The governing test is whether it is in the child’s best interests for an existing order to remain operative. If a CAO with contact provisions stays in force and there is an...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) take effect and apply. Competitions commencing on or after that date must proceed under PA 2023, while procurements started under the 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 in line with those rules and procedures accordingly. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. This material concerns the Procurement Act 2023 regime. It provides practical guidance on public procurement under the Procurement Act 2023 ( PA 2023). For practical guidance on light touch contracts under the former legislation, see Practice Note: Considerations when authorities procure contracts that are not subject to the full...
Context Compulsory purchase powers permit designated bodies, called acquiring authorities, to take land without the owner’s consent where Parliament has conferred authority, so that the body can deliver defined functions in the public interest. A person whose land is taken compulsorily will ordinarily be entitled to compensation. These powers exist only by virtue of statute. Numerous enabling provisions appear across Acts of Parliament; each will set out which body or bodies may acquire land and/or rights over land by compulsion, and the purposes for which acquisition is permitted. Typically, such provisions empower public authorities and government departments to obtain land and/or interests in land needed to perform their functions, but they do not delineate the particular plots to be acquired. Even where an acquiring authority benefits from enabling powers, it must still draft, make and secure confirmation of a specific CPO...
Consequences of non-compliance If any requirement in a remediation notice remains unmet, the enforcing authority will need to decide whether to: prosecute commence civil proceedings carry out the remediation work itself Prosecution for non-compliance Offence Failing, without reasonable excuse, to comply with any requirement in a remediation notice is an offence. A person may therefore be prosecuted even where there has only been partial compliance with the notice. Whether someone has a reasonable excuse for non-compliance is a question of fact to be determined by the specific circumstances of the case......
Circumstances in which the duty to give reasons for planning decisions arises In 2013, the statutory obligation on local planning authorities ( LPAs) to provide reasons when granting planning permission was removed. Nevertheless, there remain situations in which a duty to give reasons for granting or refusing planning permission arises, either under specific statutory provisions or through the common law ‘filling the gap’. The main categories of planning decisions where reasons must, or may, be provided are: Decisions by the Secretary of State (including those delegated to inspectors): following an inquiry or hearing on appeals determined by written representations in relation to call-in decisions Decisions at any level on applications for...
STOP PRESS: From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) came into force. Procurements launched on or after that date must be conducted under PA 2023. Procurements initiated under the previous frameworks—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 let and managed in line with those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. This content concerns the Procurement Act 2023 regime and offers practical guidance on public procurement under PA 2023. For practical guidance on procedures used under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, see the following Practice Notes: Public procurement—open procedure—pre- PA 2023 Public...
For additional practical guidance on key legal issues in the wind sector, see also the textbook: Wind: Projects and Transactions. What is a 'generating station'? There are several different statutory definitions of a ‘generating station’ depending on context; however, for planning purposes the term will generally be accorded its plain or ordinary meaning, with the proviso that section 235 of the Planning Act 2008 ( PA 2008) imports the inclusive definition in section 64 of the Electricity Act 1989 ( EA 1989) for all purposes other than Part 11. In all other parts, for a generating station wholly or mainly driven by water, ‘generating station’ includes every structure and work for holding or channelling water for a purpose directly connected to the generation of electricity by that station. Planning permission for generating stations at or under 50 megawatts ( MW) Onshore power station...
Ground rent ‘ Ground rent’ typically describes a modest or nominal sum payable under a long lease that has been granted for a premium. Ground rent is payable by the tenant to the landlord (most often yearly or bi-annually). It is distinct from a service charge and is not meant to reimburse the landlord for expenditure. Properties that can attract ground rent include houses and flats, as well as commercial land and buildings. From 30 June 2022, the Leasehold Reform ( Ground Rent) Act 2022 ( LR( GR) A 2022) limits the level of ground rent a landlord of an individual dwelling may lawfully charge a tenant under a ‘regulated lease’ (as defined in LR( GR) A 2022, s 1) (a Regulated Lease)—see: What is a ‘regulated lease’? For a Regulated Lease, ground rent is regarded as capped at the specified lawful...
When do these fees apply? The Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007), read together with the Taking Control of Goods Regulations 2013, SI 2013/1894, prescribes the process for taking control of goods: to satisfy a judgment debt (see: Taking control of the debtor’s goods—overview), or under the commercial rent arrears recovery ( CRAR) regime (see Practice Note: Commercial rent arrears recovery ( CRAR)) The act of taking control of goods is undertaken by authorised enforcement agents. They may levy specified fixed fees set out in the Taking Control of Goods ( Fees) Regulations 2014 ( Fees Regulations), SI 2014/1. The Fees Regulations draw a distinction between: enforcement other than under a High Court writ (this therefore includes the CRAR process or a County Court warrant of control), and enforcement under a High Court writ The fixed-fee framework is organised by stages of...
STOP PRESS: From 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are in force. Procurements initiated on or after that date must proceed under PA 2023, while procurements begun under earlier legislation must continue to be conducted and administered in line with that framework. Earlier legislation includes: the Public Contracts Regulations 2015 ( PCR 2015) the Utilities Contracts Regulations 2016 the Concession Regulations 2016 the Defence and Security Public Contracts Regulations 2011 See Practice Note: Introduction to the Procurement Act 2023— PA 2023. This content concerns the Procurement Act 2023 regime. It provides practical guidance on public procurement under PA 2023. The fundamental rules and concepts on disclosure are consistent for challenges under PA 2023 and under the former regime. As PA 2023 savings and transitional measures allow both regimes to operate in tandem for live...
Works to trees Generally, operations to trees do not amount to development for the purposes of section 55 of the Town and Country Planning Act 1990 ( TCPA 1990), so planning permission is not normally needed (see Practice Note: Operational development). Nevertheless, TCPA 1990, s 197 places a duty on the local planning authority ( LPA) to: secure, where appropriate, that when granting planning permission for any development, adequate arrangements are made, via conditions, for the safeguarding or planting of trees; and make such tree preservation orders ( TPOs) as the LPA considers necessary in connection with granting that permission Accordingly, any tree works must accord with relevant planning conditions and, where trees are subject to a TPO, certain operations are prohibited without the LPA’s consent (see below: Protecting trees through tree preservation orders). In addition, TCPA 1990, s 211 (and...
This Practice Note provides an outline of the principal offences relating to the sale of alcohol to under‑age children under the Licensing Act 2003 ( LA 2003). For general information on alcohol licensing, see: Licensing of alcohol and entertainment—overview. It highlights the principal legal provisions governing such sales. The children and alcohol offences LA 2003 establishes a wide array of child‑related alcohol offences that may arise in practice. The most common are the following, set out below: sale or supply of alcohol to children permitting the sale or supply of alcohol to children persistently selling alcohol to children purchase of alcohol by or on behalf of children Note, however, that purchase of alcohol by or on behalf of children under LA 2003, s 149 is rarely prosecuted in practice. All offences under LA 2003 are summary‑only matters that can be tried only in the magistrates' court, with some exposing...
This Practice Note explains the zero-rating of VAT for developers who sell or let dwellings they have built Why does zero-rating matter? Without zero-rating, the supply is typically exempt, meaning the developer is unable to reclaim VAT (ie input tax) on related expenditure, for example on professional fees and potentially on the site acquisition. For more details, see Practice Note: When can a person recover VAT? The building services provided during the construction of the dwelling will, in most cases, already have been zero-rated; see Practice Note: VAT treatment of building work. Where that is so, a developer who did not suffer VAT on buying the site may view zero-rating of sales and leases as advantageous, though not strictly necessary Why might zero-rating not apply? ......
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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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