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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 examines the impact of the Prudential Regulation Authority ( PRA) and the Financial Conduct Authority ( FCA) falling within the scope of the Freedom of Information Act 2000 ( FIA 2000). It complements broader notes on freedom of information and does not provide detailed guidance on making or answering FIA 2000 requests. In particular, it addresses the position of firms where the regulators might release material a firm regards as commercially sensitive or confidential. For additional reading, see Lexis+® UK IP and IT Practice Notes: Compliance with a freedom of information request Absolute exemptions to a freedom of information request Freedom of information request—flowchart The regulators and FIA 2000 For FIA 2000 purposes, the PRA and the FCA are classified as public authorities, so the public may submit requests to one or both regulators for disclosure of recorded...
Appeals in contempt proceedings Appeals arising from contempt are subject to distinct rules. Read this Practice Note alongside Practice Note: Civil contempt proceedings—appeals, purges and discharge. Determining an application for permission to appeal ( PTA) Decision on the papers or oral hearing? Whether a first or second appeal, permission to appeal is at first determined on the papers (see CPR 52.4(1) and CPR 52.5(1)). An oral hearing of the permission application will occur only in these circumstances: In the County Court and High Court—where the applicant seeks to have a paper refusal of permission reconsidered at an oral hearing, unless the judge who refused permission without an oral hearing has ordered that the applicant may not request such reconsideration ( CPR 52.4(2) and CPR 52.4(3)) In the Court of Appeal—where the judge dealing with the paper application directs that it be decided at an oral hearing ( CPR...
Powers to adopt The Highways Act 1980 ( Hi A 1980) empowers highway authorities to take on new highways by agreement, imposes a duty on them to look after adopted highways at the public expense, and enables payments to be made to highway authorities for highway works and their upkeep, where the authority is content that such works will benefit the public. Section 38 agreement Adoption under Hi A 1980, s 38 is a well-used mechanism for delivering new highways that are maintainable at the public expense. A developer must build streets to an agreed specification, having obtained the highway authority’s technical approval for the designs. This occurs under a legally binding agreement between the developer and the highway authority made pursuant to Hi A 1980, s 38, referred to as a section 38 agreement. The section 38 agreement sets out the...
Need for specific additional enquiry where highway access is crucial Direct connection to the highway can be pivotal to a scheme’s viability. In Gooden v Northamptonshire CC, the local authority ( LA) answered enquiries asserting—incorrectly—that the relevant strip formed part of the highway and was maintainable at public expense. On the strength of that response, the developer purchased the site and secured planning consent for a residential scheme. Four months later, the LA wrote to the developer explaining that part of the land had not been adopted. He brought a claim, arguing he would not have proceeded with the purchase had the reply been accurate. The court rejected the claim, holding that it had to be shown the LA knew, or ought reasonably to have foreseen, the nature of the transaction the developer intended and the purpose for which he might rely on the...
Offences involving highway obstructions Several provisions of the Highways Act 1980 ( Hi A 1980) set out particular kinds of highway obstruction or nuisance arising from placing objects on, or the use of, the highway—for instance, skips located on the carriageway and the oversailing of cranes or other projections. Each is linked to a specific offence, which can be avoided where a licence is applied for and granted by the highway authority. See Practice Note: Highways obstructions—building works, scaffolding and skips. In addition, section 22 of the Road Traffic Act 1988 makes it an offence to leave a vehicle or trailer in such a position or condition that it endangers other persons using the highway. The Clean Neighbourhoods and Environment Act 2005 ( CNEA 2005) also introduces ‘nuisance parking offences’ relating to displaying vehicles for sale or carrying out vehicle repairs on a road...
This Practice Note This Practice Note concerns the public’s legal entitlement to use vehicles, to ride a horse, or to drive animals along most highways. It outlines that the commonest ways of categorising highways are by the traffic allowed (for example, a footpath or bridleway) and by the maintaining authority (for example, a classified road or GLA road). It also provides an alphabetical list with descriptions of the principal highway types in England and Wales. The essential public right over a highway is for any person to pass and re‑pass along its length. On the majority of highways—though not every one—there is, in addition, a lawful right to use vehicular transport and/or to ride a horse and/or to drive animals from one place to another. The most usual classifications of highways into types are by permitted traffic and by maintenance authority. The...
The Environmental Information Regulations 2004, SI 2004/3391 ( EIR 2004) EIR 2004 grants the public a right to obtain environmental information held by public authorities. While openness is the default position, that duty to disclose is limited by several exceptions, most of which appear in regulation 12 of EIR 2004. For an outline of what amounts to environmental information, see Practice Note: Environmental Information Regulations 2004—what is environmental information? For guidance on when a request may properly be refused, see the Information Commissioner’s Office resource ‘ When can we refuse a request for environmental information?’ and a Q& A examining whether, beyond the rulings in Fish v Legal and Attorney- General for the Prince of Wales v the IC, as well as the ICO’s own guidance, there is further authority on what constitutes ‘control’ within the definition of public authority in the...
The Building Act 1984 ( BA 1984) BA 1984 authorises the Secretary of State or Welsh Ministers to create building regulations for multiple aims, among them safeguarding the health and safety of people in or around buildings. It creates criminal liability for contraventions of those regulations. It further allows practical guidance on the requirements of the building regulations to be set out in Approved Documents. The Building Regulations 2010, SI 2010/2214 ( Building Regulations), are issued under BA 1984 as its enabling statute......
The Building Safety Act 2022 ( BSA 2022) The Building Safety Act 2022 ( BSA 2022) introduced sweeping reforms to the legal framework for building safety. For an overview of the changes made by BSA 2022 and its principal features, see Practice Note: Building Safety Act 2022—key provisions and issues. Parts 3 and 4 of BSA 2022 set the foundations for a fresh regulatory system for ‘higher-risk buildings’ ( HRBs). By amending the Building Act 1984 ( BA 1984), Part 3 enabled a more stringent building control regime to govern the design and construction of works to HRBs. The detailed requirements of this regime were contained in a suite of secondary legislation laid in August 2023, which came into force on 1 October 2023. Part 4 places extensive obligations on those accountable for occupied HRBs, particularly in relation to risk management and...
This Practice Note outlines the criminal offences a local highway authority may rely on when prosecuting matters relating to highway obstructions. It does not consider civil powers, which are dealt with in Practice Note: Local authority powers to manage highway obstructions—civil remedies. What is an obstruction? There is no exhaustive list, nor a single statutory definition, of an obstruction. In Trevett v Lee, Lord Evershed broadly characterised it as something that, either temporarily or permanently, takes all or part of the highway out of public use. To that broad understanding, one can add the element of acting without lawful authority. A highway authority can, however, authorise or grant a licence for what would otherwise be an unlawful obstruction by issuing permits, for example: builders’ skips scaffolding temporary deposit of building materials See Practice Note: Highways...
The problem: a local authority cannot contract with itself It is far from unusual for a local authority to progress development on land it owns. Paragraph 125 of the National Planning Policy Framework ( NPPF) positively urges local planning authorities ( LPAs) to champion and facilitate the reuse of under-utilised sites and buildings, particularly where this would address identified housing needs in areas with tight land supply and where existing plots could be deployed more efficiently. In such circumstances, the LPA ends up determining the authority’s own planning submission. Frequently, planning obligations under section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) are required to secure necessary mitigation for the scheme before permission can be issued. Although the LPA in its decision-making role and the authority as proprietor exercise distinct functions, they ultimately comprise the same legal person. An entity cannot make a...
Key Planning resources are available in Lexis+® UK and are linked throughout the Planning materials, delivering practical commentary, legislation, rules and guidance for Planning practitioners. Please note that the titles mentioned are only accessible with the appropriate Lexis+® UK subscription(s). Butterworths Planning Law Service Prepared by No 5 Chambers alongside other prominent legal specialists, Butterworths Planning Law Service offers practical guidance and incisive commentary across all elements of Planning law in England and Wales. It also features time‑saving standard forms and precedents, together with a comprehensive library of relevant materials, including the latest government guidance. Who should use this resource? It is of general interest to Planning practitioners undertaking research in these areas, with a particular focus on case law......
Environment Act 2021 Key date Royal Assent: 9 November 2021 Subject Environmental principles, governance, regulation, air pollution, waste and plastics, biodiversity, water and resource planning Context The Environment Act 2021 ( EA 2021) obtained Royal Assent on 9 November 2021. A number of substantive measures started on 9 January 2022, with further provisions commencing, and continuing to commence, via secondary legislation made by the Secretary of State, the Welsh Ministers, the Scottish Ministers or, where relevant, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland: The Environment Act 2021 ( Commencement No 1) Regulations 2021, SI 2021/1274, initiated specified provisions of EA 2021, Part 1, from 17 November 2021 The Environment Act 2021 ( Commencement No 2 and Saving Provision) Regulations 2022, SI 2022/48, activated further provisions under EA 2021, Parts 1 and 3–7, with effect from 24 January 2022, 1 April 2022, 1 May 2022 and 30...
What hedgerows are protected? Some hedgerows are controlled by the Hedgerows Regulations 1997 ( HR 1997), SI 1997/1160, made under the Environment Act 1995. Two tiers of protection apply, outlined below: a hedgerow meeting criteria on length and position in HR 1997, reg 3 cannot be removed unless the relevant local planning authority ( LPA) has been given written notice of the intended works the LPA may only stop removal if the hedgerow is also classed as an important hedgerow for the purposes of HR 1997, reg 4 In England, the Management of Hedgerows ( England) Regulations 2024 ( MH( E) R 2024), SI 2024/680 further require: a two metre buffer from the centre of an important hedgerow to be created and maintained, within which land cannot be cultivated and fertilisers cannot be applied no cutting or trimming of an...
Introduction to flood risk The UK carries a legacy of building in places vulnerable to flooding from rivers, surface run-off and groundwater. Ongoing expansion into rural and low-lying districts has resulted in around six million homes and properties being at risk of inundation today. This stems in particular from exposure to riverine, coastal and surface-water sources and supports a policy focus on risk-led spatial planning. Assessing flood risk is essential as property, legal and financial markets grow more sensitive to flood exposure and the rising costs of flood damage over time. Because flood risk management is now central to all new schemes and to property conveyancing, a variety of products and assessments are widely available in the market place offering differing scope and depth—see Practice Notes: Flood insurance and Flooding—flood searches. History of planning policy on flood risk Planning Policy Guidance 25:...
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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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