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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 explores keep open clauses in Scottish commercial leases. It explains what a keep open clause is and why parties may wish to include one in their lease; identifies key points for a solicitor when drafting; and outlines the remedies a landlord may seek where a tenant breaches the clause. It also briefly contrasts the enforcement approaches in Scotland and England, and notes the factors considered by the Scottish courts during enforcement. The Practice Note does not address the legal position outwith Scotland, other than short commentary on the difference in the English and Scottish court’s approach to enforcing keep open clauses. Accordingly, it does not cover drafting issues for English solicitors or the English common law. User restrictions and matters relating to change of use provisions are likewise excluded. Keep open clauses-the basics Common law...
FORTHCOMING CHANGE : On 27 October 2025, the Renters’ Rights Act 2025 obtained Royal Assent. For guidance on the Act’s effect on residential tenancies in England, refer to Practice Note: Renters' Rights Act 2025—key provisions. Distinguishing between categories of private residential tenancy turns on the date the tenancy was created and the legislation then in force. This Practice Note surveys the principal forms of private residential tenancy in England and examines four categories: regulated tenancies under the Rent Act 1977 ( RA 1977) assured tenancies under the Housing Act 1988 ( HA 1988) assured shorthold tenancies under HA 1988 common law tenancies In Wales, most private residential tenancies are occupation contracts under the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016), which commenced on 1 December 2022 and abolished various tenancy types, including assured and assured shorthold tenancies. Existing assured and assured shorthold tenancies were...
Pursuant to Part 2 of the Commonhold and Leasehold Reform Act 2002 ( CLRA 2002), holders of long leases of flats in predominantly residential buildings (subject to specified exceptions) are entitled to assume control of the building's management: regardless of any fault by the landlord with no obligation to pay compensation This right to manage may only be exercised through membership of a right to manage ( RTM) company. Qualifying premises Qualifying premises applies where the following conditions are met: they comprise a self-contained building or part of a building, with or without appurtenant property they contain two or more flats held by qualifying tenants, and the total number of flats held by qualifying tenants is at least two-thirds of the overall number of flats in the...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 gained Royal Assent on 27 October 2025. For guidance on how the Act affects residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note sets out the range of obligations on private sector landlords in England designed to enhance safety standards within private tenancies. It addresses the requirements of: Gas Safety ( Installation and Use) Regulations 1998, SI 1998/2451 (as amended by the Gas Safety ( Installation and Use) ( Amendment) Regulations 2018, SI 2018/139) ( GSR 1998) Smoke and Carbon Monoxide Alarm ( England) Regulations 2015, SI 2015/1693 (as amended by the Smoke and Carbon Monoxide Alarm ( Amendment) Regulations 2022, SI 2022/707) ( SCM 2015) Electrical Safety Standards in the Private Rented Sector ( England) Regulations 2020, SI 2020/312 ( ESS 2020) For wider material on fire safety,...
Practice Note This Practice Note sets out who may seek remediation orders and remediation contribution orders, explains the subject matter of such orders, identifies potential respondents, and outlines the steps to apply. The Building Safety Act 2022 ( BSA 2022) introduces provisions designed to shield certain leaseholders of ‘relevant buildings’ from bearing the expense of remedying specific historic building safety defects, while creating routes to recover those sums from persons who are landlords under leases of the building (or any part of it), pursuant to sections 116–124 and Schedule 8. As a consequence, in defined circumstances, landlords will be prevented from passing on, through the service charge, some or all of the costs they incur in addressing fire safety related defects to leaseholders via the service charge mechanism......
Parties should address explicitly within a licence for alterations any clash between the tenant’s covenants in the lease and the scope of works the landlord intends to permit. This Practice Note examines the statutory position alongside the common law approach, and highlights the potential risks where a landlord agrees to alterations that the lease prohibits. For general guidance on a landlord’s consent to alterations, see Practice Note: Landlord’s consent to alterations. See also Repairs and alterations—overview. Statutory provisions Under Section 143 of the Law of Property Act 1925, when a tenant is licensed to do an act, the licence, unless it states otherwise, extends only to: the permission actually granted, or the specific breach of any provision or covenant mentioned, or any other matter expressly authorised to be done The licence does not bar proceedings for any subsequent breach, unless the licence...
Impact of appointment The consequences of appointing a receiver under the Law of Property Act 1925 ( LPA 1925), or following a fixed charge (described in this Practice Note as an LPA/fixed charge receiver), differ markedly from the appointment of an administrator, liquidator, or a trustee in bankruptcy. This should not be conflated with those appointments. Putting in place an LPA/fixed charge receiver is a mortgagee’s remedy. It is not an insolvency process and does not, of itself, indicate that the mortgagor is insolvent. It does not, as such, amount to insolvency. Subject to the lease terms, landlord/lessor remedies—such as forfeiture—available when a lessee enters an insolvency process may not be engaged merely because an LPA/fixed charge receiver is appointed. That said, the appointment does simply affect the property, though the consequences are less severe than where insolvency procedures are actually underway. The...
Overreaching is a statutory device enabling a mortgagee (among others) to convey title to a purchaser free from any charges or encumbrances that rank after the mortgagee’s security. It is also available on receivership disposals by ensuring the transfer is executed by the mortgagee rather than the receiver. Overreaching may likewise occur where a mortgagee takes security for repayment of a loan from trustees of a trust. The mortgagee will wish to ensure that the security granted by the trustee overreaches the beneficiaries’ equitable interests. For further detail, see Practice Notes: Enforcement issues for trust property and Overreaching—sales by trustees of land. Buyer’s requirements On taking an appointment, a receiver should consider what a prospective buyer will require. Typically, the buyer will seek to acquire the property free from all charges, including the charge in favour of the selling mortgagee and any other charges...
Property case tracker The Property case tracker brings together significant 2026 judgments we consider pertinent to property lawyers, listed in reverse chronological order. The tracker uses the following definitions: AST: assured shorthold tenancy CVA: company voluntary arrangement FTT: First-tier Tribunal HMO: house in multiple occupation LPA: local planning authority NPPF: National Planning Policy Framework RRO: rent repayment order RTM: right to manage TCC: Technology and Construction Court UT: Upper Tribunal ( Lands Chamber) VTE: Valuation Tribunal for England See also the Property key future developments tracker, which follows the progress and outcomes of appeal matters, while this tracker provides a summary of all cases we deem relevant to property practitioners. See further: Property case tracker—2025 Property case tracker—2024 [ Archived] Property case tracker—2023 [ Archived] Property case...
This Practice Note outlines the statutory entitlement (subject to statutory qualifying criteria) of a tenant holding a long lease of a flat to acquire a 90-year extension of that lease under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). It includes guidance on valuation and the assessment of the premium; procedure, including service of a section 42 notice and a section 45 counter-notice; the position of intermediate landlords; registration; assignment; initial deposit; consequences of non-compliance; terms of the new lease; First-tier Tribunal ( FTT) (or Leasehold Valuation Tribunal ( LVT) in Wales) and County Court procedure; payment of the premium; completion; and withdrawal of claim. For a table setting out common statutory time limits in the lease extension procedure, see Practice Note: Quick guide to time limits for lease extensions under the Leasehold Reform, Housing and Urban...
The RTM company Only a right to manage company can obtain and then use the right to manage. Such a company must be a private company limited by guarantee, and its objects must include the right to manage. In England, the form of the company’s articles is set by the RTM Companies ( Model Articles) ( England) Regulations 2009, SI 2009/2767; in Wales, by the RTM Companies ( Model Articles) ( Wales) Regulations 2011, SI 2011/2680 (together, the Articles Regulations). There is no requirement for the company’s name to contain the letters ‘ RTM’ ( Fairhold Mercury v HQ ( Block 1) Action Management). The articles of association must also describe the premises with adequate precision......
Expert determination is a form of alternative dispute resolution ( ADR). This Practice Note outlines expert determination for technical or contract interpretation disputes. It describes the process, addresses how the parties agree to select or appoint the expert, and considers the expert’s jurisdiction. It also covers the binding effect of the expert’s decision, as well as procedure, limitation and potential claims against experts. For general guidance on ADR and other options, see the following Practice Notes: What is ADR? Which form of ADR? What is expert determination? Expert determination is a binding mechanism where an independent expert in the relevant discipline decides a dispute between parties in accordance with provisions they have agreed. It is most often used where an existing agreement provides for referral of a particular issue to an expert. It is especially suited to technical disputes, such as: Rent...
The purpose of a statutory demand The purpose of a statutory demand is to demonstrate that a company cannot pay its debts, rather than the creditor relying on section 123(1)(e) or section 123(2) of the Insolvency Act 1986 ( IA 1986). A statutory demand is a written demand, in the prescribed form, for a debt over £750, served on a company by leaving it at the company’s registered office ( IA 1986, s 123(1)(a)). This threshold is not altered by the increase in the bankruptcy level for bankruptcy petitions from £750 to £5,000 that came into force on 1 October 2015. If the statutory demand is left unpaid and is not disputed, the company is treated as unable to pay its debts, giving a creditor grounds to present a winding-up petition against the company. When not to use a statutory demand A statutory demand should not be used...
This Practice Note outlines the principal distinctions between mediation and litigation in England and Wales, alongside their likely benefits and drawbacks. What is mediation? Mediation is one of the most familiar and widely used forms of alternative dispute resolution ( ADR). It is a confidential procedure in which an impartial third party (the mediator) helps the parties work towards an agreed outcome to settle their dispute. For a summary of the process, see: Mediation—overview. In July 2021, the Ministry of Justice issued a ‘guide to a civil mediation’ explaining the advantages of civil mediation and how to identify a suitable mediator. Why consider mediation? There are many grounds for seeking a negotiated resolution, including: Preserving the commercial relationship between the parties Minimising the cost and duration of court proceedings Keeping the dispute confidential For general guidance on settling disputes, see Practice Note: Settling...
What is a restrictive covenant? A restrictive covenant is a binding promise attached to land that limits how the owner may use it. See Practice Note: Restrictive covenants-nature and characteristics. The covenantee, or beneficiary, is the person who owns the benefitting land and enjoys the restriction’s advantage. The beneficiary is commonly the party resisting any release or alteration (though not invariably-see below). The covenantor, or burdened owner, is the person who owns the land subject to the restriction and bears its burden. The burdened owner is often the party seeking a release or change (though not invariably-see below). This Practice Note uses the terms ‘beneficiary’ and ‘burdened owner’ rather than ‘covenantee’ and ‘covenantor’ to recognise that ownership of the land may have changed since the covenant was created. How to discharge or modify a restrictive covenant There are two principal routes to discharge or modify a...
Building Safety Act 2022 ( BSA 2022) The government presented the Building Safety Bill (the Bill) to Parliament in July 2021, with the intention of implementing the recommendations and principles from Dame Judith Hackitt’s ‘ Independent Review of Building Regulations and Fire Safety’. The Bill received Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). The BSA 2022 brings fundamental reforms to the law and regulation of building safety, aiming to ‘secure the safety of people in or about buildings and improve the standard of buildings’. For an outline of the BSA 2022’s scope and analysis of its principal measures, see Practice Note: Building Safety Act 2022-key provisions and issues. Reforms introduced by the BSA 2022 include new statutory rights of action against parties who have supplied cladding and construction products that cause a residential property to be ‘unfit for...
This Practice Note gives guidance on the scope and interpretation of section 38 of the Building Act 1984 ( BA 1984) The government signalled that BA 1984, s 38 would commence ‘alongside’ the legislative changes that took effect under the Building Safety Act 2022 on 28 June 2022, but no regulations have yet been published to commence it. Section 38 states that, where a duty set by the building regulations is breached and damage results, the breach is actionable. In effect, parties who do not comply with the building regulations may face civil liability. This Practice Note clarifies what the building regulations cover, who may bring or face claims under BA 1984, s 38, and the damages that might be recovered in a claim relying on s 38. The focus is on those regulatory provisions that prescribe standards for building work, where...
NOTE: With effect from 14 August 2023, the County Court Money Claims Centre ( CCMCC) and the County Court Business Centre ( CCBC) have been retitled the Civil National Business Centre ( CNBC)-see: LNB News 14/08/2023 12- CCMCC issues name and performance update. This Practice Note sets out what happens after an application for a charging order is issued. The process varies according to whether the application is lodged in the Civil National Business Centre ( CNBC) or in another forum (for example, the High Court or a County Court Hearing Centre). For a concise overview of the process, see: Charging orders-route map to a final charging order-flowchart. For advice on where different applications should be commenced, and how to issue the application, see Practice Note: Charging orders-how and where to apply. Be aware there is a distinct process where the judgment debtor is a...
This Practice Note explains liability for business rates, the three categories of taxpayer recognised by the Local Government Finance Act 1988 ( LGFA 1988) (occupiers, owners and persons named in central rating lists), and outlines the meaning of ‘hereditament’, rateable occupation and matters concerning tenant fit-out works... LGFA 1988 sets out three kinds of ratepayer: occupiers owners persons named in central rating lists Occupiers An occupier is anyone who, on any day in a chargeable financial year (a 12-month period beginning on 1 April), occupies all or part of a hereditament that appears for that day in the current local non-domestic rating list... Owners An owner is the person with the right to possess the hereditament. They are liable to be rated where: the hereditament is empty they are entitled to the whole hereditament shown for the day in the current local...
This Practice Note outlines compulsory and discretionary business rates relief for charities, plus empty property rates, mitigation and risk. FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) received Royal Assent on 24 February 2022 and will be introduced in phases up to March 2024. It implements the majority of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a summary of the accepted recommendations, see News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. For further guidance on the roll-out of CA 2022, see News Analysis: Charities Act 2022-what do we know so far? Discretionary relief Under sections 43(6) and 47 of the Local Government Finance Act 1988 ( LGFA 1988) and LGFA 1988, Sch 4ZA Pt 2, para 2, a charity occupying commercial premises qualifies for a mandatory 80% reduction in business rates,...
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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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