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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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Throughout this Practice Note, the terms ‘borrower’ and ‘mortgagor’ are treated as equivalent, and likewise ‘lender’ and ‘mortgagee’. This Practice Note applies to fixed charges as well, although it does not examine the marginal practical distinction between a fixed charge and a mortgage—see Practice Note: Mortgages for further reading on this topic. Priority of mortgages over registered land Under registered land, where several loans are secured over the same property by separate mortgages, each mortgagee is entitled to be paid out of the sale proceeds strictly and in accordance with the mortgages’ order of priority. The basic rule is that any two charges rank in the sequence of their creation ( Millet J in Macmillan Inc v Bishopsgate Investment Trust plc ( No 3))......
This Practice Note outlines how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented ( NDPR) property. It explores the interface between the MEES Regs 2015, SI 2015/962 and the Landlord and Tenant Act 1954 ( LTA 1954), considers challenges for landlords and tenants when subletting NDPR premises that are substandard, examines points arising for a landlord with a consent exemption on assignment, highlights due diligence considerations, and flags issues in real estate finance transactions where the asset is substandard (that is, holds an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’). It forms part of our Practical Notes series on minimum energy efficiency standards ( MEES). Under MEES Regs 2015, SI 2015/962, reg 27, a landlord must not let...
A landlord can oppose the grant of a new lease under section 30(1)(b) of the Landlord and Tenant Act 1954 ( LTA 1954) on the basis of persistent delay in paying rent. Under section 30(1)(b) LTA 1954, a landlord may resist renewal for persistent delay in paying rent. This note sets out the evidence for ground (b) and what the court will consider. The statute states: '…the tenant ought not to be granted a new tenancy in view of his persistent delay in paying rent which has become due'. There must be a pattern of late payment; it need not be lengthy, and large arrears are not required. The court will review the whole tenancy to decide if delay is persistent. In particular, it will look at: the inconvenience caused to the landlord (see Horowitz v Ferrand [1956] CLY 4843) (not reported by Lexis...
Practice Note This Practice Note sets out the full procedural guidance for court applications to renew or end a business tenancy, covers interim rent applications, and addresses Professional Arbitration on Court Terms ( PACT)......
This Practice Note outlines the practical issues that local authority landlords should consider when confronted with a housing disrepair claim in England. It explains the foundation for a repair claim and the practical steps to take when managing a claim, including whether the matter could be addressed through alternative dispute resolution outside the court process. It also covers the Awaab’s Law regime implied term and the new statutory time frames for local authority landlords to investigate and remedy specified emergency and HHRS hazards. The basis for a disrepair claim It is essential to understand the grounds on which a claim can be brought, together with some basic procedural points. Disrepair claims arise principally under contract and statute, and the basis of each is summarised below. Where there is a tenancy agreement, the claim will typically be for breach of contract. A copy of the tenancy...
What is a flexible tenancy? Introduced by the Localism Act 2011, a local authority may grant a flexible tenancy where: the tenant has previously lived in a council property under a family intervention, demoted or introductory tenancy prior written notice has been given confirming the tenancy will be flexible a landlord has granted a secure tenancy for a fixed term of not less than two years Once an authority has put in place a tenancy strategy or an interim policy, it may offer flexible tenancies instead of periodic secure tenancies. Each individual authority determines whether it will use flexible tenancies and in what circumstances: a flexible tenancy is a kind of secure tenancy for a fixed term of at least five years, or in exceptional cases, for a minimum of two years the principal distinction from a periodic secure tenancy is that a...
This Practice Note explores liquidators’ use of disclaimer in relation to contracts (commonly a sale contract or transfer) that include overage clauses or provisions, within the statutory framework for disclaiming onerous property under section 178 of the Insolvency Act 1986 ( IA 1986). It summarises what overage means, the liquidator’s power to disclaim onerous property, and whether overage can amount to ‘onerous property’ that a liquidator may disclaim in practice. It further considers how the court has applied the effect of disclaiming contracts containing overage in the decision of Groveholt Ltd v Hughes. For fuller guidance on a liquidator’s general power to disclaim onerous property, see Practice Note: The process of disclaimer by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986. For the procedure to be followed when a liquidator disclaims onerous property, see:...
This Practice Note outlines elements of how letting and estate agents are regulated that could matter to consumers. It addresses duties to supply information, unfair terms in contracts, consumer safeguards against unfair trading, business protection from misleading marketing rules, the redress scheme, and codes of practice alongside practice statements. It also reflects obligations and responsibilities created by the Renters’ Rights Act 2025 ( RRA 2025). Estate agents Estate Agents Act 1979 The legal definition of ‘estate agency work’ provides that: a person is regulated as an ‘estate agent’ under the Estate Agents Act 1979 ( EAA 1979) where, in the course of a business, they act on instructions from a seller or buyer of an interest in land, either to introduce their client to a buyer or seller, or to secure the disposal or acquisition of that interest in land once a buyer or seller has been...
This Practice Note forms part of a wider set addressing National Non- Domestic Rates ( NNDR). It looks at business improvement districts ( BIDs), outlining their purpose, what they are, and the processes for their creation and funding. It also considers business rates supplements and the retention of NNDR by local authorities. What are business improvement districts? Section 41 of the Local Government Act 2003 ( LGA 2003) introduces the statutory framework for BIDs. Under it, a billing authority may impose an additional levy on ratepayers within a BID area to finance projects that deliver extra services or further enhancements for the benefit of the local community (defined broadly as ‘those who live, work or carry’ on any activity in the district). Two or more billing authorities can agree to establish BIDs that span their borders, known as joint...
Leases and licences This Practice Note examines the key characteristics of leases and licences, together with the approach adopted by the courts when determining whether an agreement or other occupation arrangement is a lease or a licence. As tenants often enjoy significant statutory protections compared with licensees, drawing the line between a lease and a licence is frequently critical. Disputes and uncertainty regularly arise where the parties permit occupation of land or premises without properly and accurately recording their bargain in writing. Best practice is for the parties to enter into a written lease or licence that clearly and faithfully reflects the nature of the tenant’s or licensee’s occupation, and practical guidance on entering into licences, tenancies at will and other short term letting arrangements can be found in Practice Note: How to enter into short-term lettings and licences of commercial premises. In the absence of an...
The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) sets out a statutory framework governing in detail the passing of the benefit and burden of lease covenants, together with the discharge and release of landlord and tenant obligations arising thereunder, for any ‘new tenancy’ (as defined in LT( C) A 1995, s 1, ie the majority of leases granted on or after 1 January 1996). From 2010 to 2016, inclusive, a series of decisions closely examined the wide anti-avoidance rules in LT( C) A 1995, s 25, particularly as they affect guarantor liability. Those decisions demonstrated that the anti-avoidance regime, when read with the statutory provisions for the release of guarantors, can create material difficulties when structuring transactions that involve assigning a ‘new tenancy’ and...
This Practice Note sets out the limits on a landlord’s enforcement where a tenant faces insolvency in the most common situations. It addresses issuing court proceedings for rent or damages, taking action against guarantors or former tenants, seeking rent from subtenants, drawing down on a rent deposit deed, applying the CRAR procedure, forfeiture by peaceable re-entry, forfeiture through court proceedings, and serving notice on an insolvency practitioner requiring an election on disclaimer of the lease. For a general introduction to property insolvency see Practice Note: Quick guide to property insolvency. Restrictions on landlord remedies Bankruptcy Court proceedings for rent or damages: Not without the court’s leave ( IA 1986, s 285(3)). Pursue guarantors/previous tenants: Yes, under IA 1986, s 281(7). Claim rent from subtenants: Yes, under IA 1986, s 281(7). Use rent deposit deed: Depends on the deposit...
For most leases, an assignment can only proceed with the landlord’s consent. This Practice Note explains what occurs if the seller fails to obtain that consent before completion, and how the matter is treated under the Standard Conditions of Sale (5th Edition) ( SCs) and the Standard Commercial Property Conditions ( SCPCs) ( Second or Third Editions). Although primarily directed at commercial property, it also touches on residential aspects... Standard Conditions of Sale Where: a contract for the sale of leasehold land incorporates the SCs (fifth edition—2018 Revision): Encyclopaedia of Forms and Precedents para [460], and the lease stipulates that the landlord’s consent is needed for an assignment the SCs provide an express right to rescind in specified circumstances. Under SC 8.3.3, provided a party is not in breach of the obligation in condition 8.3.2, either party may rescind the contract by giving notice to the...
Main remedies in Scottish landlord and tenant disputes The principal remedies available in the context of landlord and tenant disputes in Scotland are: Interdict Specific implement Payment action Damages action Rescission Retention of rent Irritancy Hypothec Action for recovery of heritable property Interdict Interdict is a court remedy used to restrain an actual or threatened breach of contract by a party; for example, a landlord may seek it to stop a tenant using the premises for a purpose other than that for which it is let. It is the counterpart of the English remedy of injunction. An interdict can be obtained in the Court of Session (by petition or summons, see: Introduction: Stair Memorial Encyclopaedia [88]) or in the sheriff court (by initial writ, see: Form of writ: Stair Memorial Encyclopaedia [382]). If brought in the sheriff court,...
The section 2 requirements in the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) are disapplied for certain contracts and trusts. This Practice Note identifies those categories and outlines how the exceptions take effect. Excepted contracts The contractual formalities set out in LP( MP) A 1989, s 2 do not apply to contracts: for leases not exceeding three years (ie short leases under Law of Property Act 1925, s 54) made in the course of a public auction regulated under the Financial Services and Markets Act 2000 (other than a regulated mortgage contract, regulated home reversion plan, regulated purchase plan or a regulated sale and rent back agreement) Constructive trusts The statutory formalities in LP( MP) A 1989, s 2 do not affect the creation or operation of resulting, implied or constructive trusts. No written evidence is required. A constructive trust arises in relation to legal title...
ARCHIVED: This Practice Note has been archived and is not maintained The Property case tracker brings together all key 2022 judgments that we regard as relevant to property lawyers, presented in reverse chronological order. Cases appear in reverse chronological order, with the most recent decisions first. The tracker adopts 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 outcome of appeal cases and their results; by contrast, this document offers a summary of all cases we consider pertinent to property lawyers generally, from 2022, in this field. See further: Property case...
ARCHIVED: This archived Practice Note is no longer updated and is provided solely for background reference. Additionally, certain links might not point to the provisions as they stood on the date the guidance in this Practice Note was issued. For more details on earlier and/or later amendments to the CPR, consult: CPR updates—overview and Procedure Rule Committee minutes—overview......
Contract Where an agreement is entered into by two or more parties, it may include a promise or obligation undertaken by two or more of them. Any such promise may be: joint several joint and several Whether an undertaking in contract is joint, several, or joint and several is a matter of construction, depending on the parties’ intention as revealed by the terms of the contract. For example, in Rhinegold Publishing v Apex Business Development, statutory demands were issued against Rhinegold Ltd and a related company, Tannhauser Ltd, for approximately £22,000 and £31,000 respectively. A settlement agreement followed under which the parties agreed to pay the sums due, but Tannhauser did not fully comply. Although the agreement was silent on liability, the High Court decided that, on a proper reading, the parties were jointly and severally liable. As a result, Rhinegold had to meet the...
Background This Practice Note explores the law of irritancy within the sphere of commercial leases in Scotland. It examines the distinction between legal and conventional irritancies, the procedure for exercising irritancy, available defences, and the consequences for sub-leases and charge-holders. It does not cover: human rights challenges to irritancy the interaction of irritancy with the corporate insolvency regime irritancy in the context of residential property, see Practice Note: Residential tenancies in Scotland—bringing to an end irritancy in the context of agricultural property, see Practice Note: Irritancy of agricultural tenancies in Scotland Irritancy is a landlord’s remedy that permits termination of a lease following a tenant’s breach. It is equivalent to the English remedy of forfeiture. An irritancy may arise by operation of law or be conventional. Legal irritancy An irritancy arising by law is known as a legal irritancy. Under Scots common law, the sole recognised legal irritancy is for...
What are the issues for a tenant if an intermediate landlord becomes insolvent? This Practice Note considers to whom the rent might be payable, and addresses disclaimer, forfeiture and surrender of the superior lease. Rent payment An insolvent landlord might default on rent owed to its superior landlord. Under the Commercial Rent Arrears Recovery ( CRAR) regime, a superior landlord may issue a notice requiring an undertenant to pay rent straight to the superior landlord where the immediate tenant is in arrears, continuing until those arrears are cleared. If the undertenant then does not pay, the superior landlord may exercise CRAR against the undertenant. To promote fairness, where the tenant pays any sum under a notice served by a superior landlord, the undertenant may deduct that sum from the rent due to its immediate landlord, even if the amount has already been paid in full or in part by...
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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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