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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 outlines the principal provisions of the Electronic Communications Code (the ‘ Code’), introduced by the Digital Economy Act 2017 ( DEA 2017). It describes: the scope of Code rights; how those rights arise, whether by agreement between the parties or imposed by court order; provisions for assignment, sharing and upgrading; and how consideration and compensation are determined in Scotland. The Code The Code is set out in, and governed by, sections 106–119 and Schedule 3A, Part 1 of the Communications Act 2003 ( CA 2003), inserted by DEA 2017, s 4(2) and Sch 1. Commencing on 28 December 2017, it replaced the earlier Electronic Communications Code in Schedule 2 to the Telecommunications Act 1984 ( TA 1984), as amended by CA 2003. The Code confers statutory rights on telecommunication operators to enable the establishment and operation of their networks and is designed to support the roll-out of...
The Building Safety Act 2022 ( BSA 2022) contains extensive provisions and paves the way for significant changes to the law on building safety. For an overview of the reforms introduced by BSA 2022 and its principal measures, see Practice Note: Building Safety Act 2022—key provisions and issues. Parts 3 and 4 of BSA 2022 establish the framework for a new regulatory system for ‘higher-risk buildings’ ( HRBs), meaning buildings that are at least 18 metres tall or have a minimum of seven storeys and contain at least two residential units. By amending the Building Act 1984 ( BA 1984), Part 3 allows the creation of a stringent building control regime applying to the design and construction of works to HRBs. Part 4 of BSA 2022 imposes extensive risk-management and reporting obligations on those responsible for occupied HRBs. Together, these measures are known as the HRB...
This Practice Note on deceit claims sets out the elements required to pursue the common law tort of deceit: a false representation, an intention to deceive, reliance, and resulting loss. Deceit arises where a party knowingly makes a misrepresentation to defraud another, and that conduct causes loss to the victim. For further guidance on pursuing deceit claims, see: Deceit claims—pleading and standard of proof Remedies in deceit claims Deceit claim—what is it? Deceit occurs where a misrepresentation is made with the intention of cheating a party, and that intention later results in loss to that party. The common law tort of deceit is separate from, though closely aligned with, a claim in misrepresentation; see Practice Note: Deceit claims—pleading and standard of proof. Illustration— Connolly v Bellway Homes—property transaction In Connolly v Bellway Homes, the seller of development land secured damages from the buyer after relying on the...
This Practice Note sets out the commercial rent arrears recovery ( CRAR) framework found in section 72 of the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007), which superseded the common law entitlement to levy distress. It outlines which leases permit CRAR to be used, what kinds of rent fall within scope, and the steps to follow, including appointing enforcement agents, notifying the tenant, entering the premises, and taking and selling goods. It also addresses the ability to claim rent from sub-tenants within the statutory confines of the process, as described. Right to recover rent Under CRAR, a landlord may remove a tenant’s goods located at the demised premises to recover arrears of rent. The former common law remedy of distress has been abolished and replaced with this more tightly controlled statutory process; among other requirements, only certificated enforcement agents may act and tenants must...
ARCHIVED: This archived Practice Note is no longer updated and serves as general background material. In addition, certain links may no longer take you to the provisions as they stood on the date the guidance in this Practice Note was issued. For details of earlier and/or later amendments to the CPR, please consult: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note provides a concise synopsis of the CPR revisions that took effect on Thursday 31 July 2014. The 74th CPR update introduces a new Practice Direction 2C addressing the commencement of proceedings in the County Court. The practice direction applies to proceedings in the County Court. It explains to practitioners where claims and applications ought to be begun and whether they can be submitted, or moved, if commenced in the incorrect court. The......
ARCHIVED: This archived Practice Note is no longer maintained and is supplied purely for background reference. Please note that some links may not direct you to the provisions as they existed at the time this guidance was issued. For information on earlier and/or later amendments to the CPR, see: CPR updates—overview Procedure Rule Committee minutes—overview This Practice Note summarises the revisions to Practice Directions in the 98th Making Document dated 1 August 2018. The revisions introduce a new Practice Direction— Practice Direction 51T— The County Court Legal Advisers Pilot Scheme— Final Charging Orders—which enables legal advisers at the County Court Money Claims Centre, in specified circumstances, to make unopposed final charging orders (a charge placed over property or land to secure a judgment debt)......
ARCHIVED This archived Practice Note is not being updated and is supplied for background reference only. In addition, some links may no longer point to the provisions as they existed when the guidance in this Practice Note was issued. For information on earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. The 100th Making document also outlines changes taking effect on 1 January 2019; refer to Practice Note: Practice Direction changes— January 2019 [ Archived]. Copies of the Update— Practice Direction Amendments are available as follows: 4 September 2018 — Revocation of 99th Update— Practice Direction Amendments 1 October 2018 — County Court legal advisers The 98th Modifications adjust certain delegated powers of County Court legal advisers under CPR PD 2E This material is retained for context and should not be relied upon as current...
ARCHIVED: This Practice Note is archived, is not kept up to date, and is provided solely for background reference. In addition, certain links might not take you to the provisions as they stood on the guidance’s publication date. For details of earlier and/or later changes to the CPR, please consult the: CPR updates—overview and Procedure Rule Committee minutes—overview......
ARCHIVED: This archived Practice Note is not maintained currently and is supplied solely for background reference. In addition, some links may not take you to the provisions as they stood when the guidance in this Practice Note was published......
ARCHIVED: This Practice Note is archived, not maintained, and provided solely for background information. In addition, certain links may no longer point to the provisions as they stood on the date this guidance was published. For details of previous and/or subsequent changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. The new provisions take effect on 5 June 2014 as a result of the Civil Procedure ( Amendment No 5) Rules 2014 and the Practice Direction for the 73rd update. Costs budgeting Even before the amended CPR 3.12 provisions commenced on 22 April 2014, questions arose about how the new provisions should be interpreted. On 11 April 2014, the CPR Committee issued clarification. In short, the exemption in CPR 3.12 applies to the Admiralty and Commercial Court. For the explanation, see: The Civil Procedure ( Amendment No 5) Rules 2014 will come into force on 5 June,...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background only. In addition, some links may no longer point to the provisions as they were when this guidance was published. For information on earlier and/or later CPR amendments, see: CPR updates—overview and Procedure Rule Committee minutes—overview. A PDF of SI 2018/975 can be found here: Part 1 and Part 5. Part 1 These amendments are intended to give effect to the principles in the Welsh Language ( Wales) Measure 2011 and the Welsh Language Act 1993: that the Welsh language holds official status in Wales and that any person may use Welsh in legal proceedings in Wales. A new rule 1.5 is to be added which provides, in summary, that nothing within the overriding objective diminishes those principles—namely (a) the official status of the Welsh language in Wales under the 2011 Measure, and (b) the...
ARCHIVED: This Practice Note has been archived, is not maintained and is supplied for background reference only. Additionally, certain links may not lead to the provisions as they existed on the date this guidance was published. For information on prior and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note outlines the CPR amendments taking effect on 10 January 2015 as provided in SI 2014/2948. These revisions are introduced so that the CPR account for the provisions of the Brussels I (recast) regulation, which will apply, subject to transitional arrangements, from 10 January 2015. Note: content within Lexis+® UK DR refers to the recast regulation as Brussels I (recast). The CPR provisions describe the same regulation as the Judgments...
ARCHIVED: This archived Practice Note is no longer updated and is supplied solely for background and reference purposes only. What is the background to the changes? The coronavirus ( COVID-19) outbreak, together with the ensuing lockdowns and social distancing rules brought in by the UK government, has had a significant impact on companies and the wider economy. On 20 March 2020, ministers ordered the closure of businesses such as restaurants, pubs and leisure centres, and by 23 March 2020 a nationwide lockdown was in place, putting vast areas of the private sector into a deep freeze. Compulsory shutdowns have imperilled the finances of many once-viable firms, and for enterprises already under pressure they proved to be the final straw. To soften the economic fallout of coronavirus and keep the economy on basic life support, the government rolled out a suite of...
This Practice Note considers the torts of: trespass to land tort of conversion and trespass to goods trespass to the person (assault, battery and false imprisonment) privacy and defamation tortious product liability tortious liability for animals For guidance on other torts, see Practice Notes: Procedural abuse torts and similar Vicarious liability and multi-party torts For guidance on negligence claims, see Practice Note: Negligence—key elements to establish a negligence claim and related content. For practical guidance on negligence, nuisance and breach of statutory duty claims, see: Tort and negligence claims—overview. For guidance on bringing and defending claims against professionals, see: Professional negligence claims—overview. The tort of trespass to land This tort is committed where an individual ( D) carries out an act that brings about entry onto another’s land ( C) without consent or lawful...
ARCHIVED: This Practice Note has been archived and is no longer maintained. FORTHCOMING CHANGE: Sections 224 to 251 of the Digital Markets, Competition and Consumers Act 2024 will, once commenced, revoke the Consumer Protection from Unfair Trading Regulations 2008 and substitute them with broadly comparable primary legislation to enhance consumer law enforcement. The new framework will begin on a date set by regulations made by the Secretary of State. This Practice Note examines consumer protection law and its connection to property, especially conveyancing transactions. It chiefly considers unfair contract terms and unfair commercial practices as treated by the Consumer Rights Act 2015 and the Consumer Protection from Unfair Trading Regulations 2008. Consumer protection legislation The main legislation The principal legislation relating to consumer rights protection in property law is: Consumer Rights Act 2015 ( CRA 2015) Consumer Protection from Unfair Trading...
What are conservation covenants? In essence, conservation covenants are voluntary, private undertakings between a landholder and a responsible organisation or body, for example a conservation charity or a public authority. Their purpose is to safeguard the natural environment and heritage assets for the benefit of the public at large. They stipulate duties tied to the land itself and bind present and future owners, offering the prospect of enduring conservation outcomes and benefits. A common illustration is a farmer committing to manage a woodland and permit public access, with oversight by a local woodland charity or similar body. They are viewed as complementing statutory or policy-led designations—such as Sites of Special Scientific Interest or National Parks—by enabling the private protection of land with conservation merit that sits outside the public designation regime. Part 7 of the Environment Act 2021 ( EA 2021) addresses...
This Practice Note examines how flat tenants may compel the purchase of a landlord’s interest under the Landlord and Tenant Act 1987 ( LTA 1987), and reviews the qualifying buildings and leaseholders, together with the mechanism and criteria of the acquisition order process. Compulsory acquisition of landlord's interest Under Part III of the LTA 1987, an acquisition order permits eligible long leaseholders of flats to force the purchase of the landlord’s estate in the block via a ‘nominated person’ where either: the landlord has breached duties to repair, maintain, insure, or manage the property; or the property has, for a minimum of two years, been run by a manager appointed under Part II of the LTA 1987. In all scenarios, the court may only grant the order if it considers it appropriate in the...
Contracts for commercial property frequently adopt the Standard Commercial Property Conditions ( Third Edition—2018 Revision) ( SCPC). SCPC 9 governs the handling of completion monies. For an overview of completion generally, see the Practice Note: How does completion happen? How much is payable? On completion, the buyer must pay the balance comprising the purchase price plus the chattels price, less any deposit already paid to the seller or their agent, and then adjusted to reflect: Apportionments made under SCPC 9.3 Any compensation payable or allowable under SCPC 10.3 Where the contract requires the seller to insure until completion, specified insurance sums or premiums in the circumstances set out in SCPCs 8.2.2 and 8.2.3 Ensure that VAT is included as appropriate (including VAT on apportionments) in accordance with SCPC 2, and that any accrued interest (as defined in SCPC 1.1.1(a)) is brought into account on...
This Practice Note sets out, in table form, the key distinctions between secure, introductory and flexible tenancies in England, addressing the tenancy’s term and status, the nature of the landlord, and the right to buy. From 1 December 2022, tenancies and licences of dwellings in Wales are regulated by the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016), subject to certain exceptions. The terms of both existing and new tenancies must be reviewed against RH( W) A 2016 to decide whether they are occupation contracts for the purposes of that Act and, if so, which category of occupation contract applies. Any tenancy or licence that is an occupation contract must comply with the Act’s comprehensive regime, which includes, among other requirements, providing a written statement setting out the contract terms. For further information, see Practice Notes: Renting Homes ( Wales) Act 2016—a summary of the key...
What is a CVA? A company voluntary arrangement ( CVA) is an agreement between a company and its creditors, overseen by an insolvency practitioner. That practitioner is initially the ‘nominee’, becoming the ‘supervisor’ once the arrangement takes effect. A CVA is typically put forward by the company’s directors, although an administrator or liquidator can also make the proposal. Its objective is to compromise the company’s debts or to set out a scheme for managing its affairs. The principal legislative sources are sections 1–7B of the Insolvency Act 1986 ( IA 1986) and Part 2 of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. For further reading on CVAs, the steps to implement them and their effect, see the following Practice Notes: Company voluntary arrangements—an introductory guide In what circumstances can a CVA be proposed and by whom? The CVA...
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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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