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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 provides an overview of company voluntary arrangements ( CVAs) and their effect on legal proceedings from a dispute resolution angle. What is a CVA? A CVA is a contractual deal between a company and its creditors, serving as the corporate counterpart to an individual voluntary arrangement for individuals. The principal advantages of a CVA are: no requirement to prove insolvency, enabling steps to be taken early at the first indications of financial difficulty if the requisite majority approves—75% in value of creditors present in person or by proxy and voting on the proposal, and not opposed by more than 50% of independent creditors (ie those who are not associates)—it can be imposed on unsecured dissenting creditors; this process is known as cramdown (see Practice Note: The CVA proposal and procedure) the proposal binds creditors who are unaware of the CVA...
This Practice Note uses IA 1986 to refer to the Insolvency Act 1986. Note: it summarises the key points relating to administration from a dispute resolution perspective. Although it addresses companies, an administrator can also be appointed over a partnership or a limited liability partnership. What is administration? Administration is a procedure that gives a financially distressed company breathing space to pursue a rescue or restructure, or to secure a better result for all creditors than liquidation. Designed to be short, it should usually last no longer than a year. An administrator—an insolvency practitioner ( IP) who manages the company’s business and property—must seek to achieve one of three purposes, in order of priority: rescue the company as a going concern achieve a better outcome for the company’s creditors as a whole than if it were wound up, or realise the...
Repair and improvements Tenants are ordinarily not required to fund a landlord’s upgrades or enhancements to the property, as distinct from repairing it. The term of a tenant’s lease influences what it is reasonable for the tenant to contribute, even where service charge clauses are cast in broad terms. However, a covenant to provide services is wider and potentially more burdensome than a covenant to repair, and may permit a landlord to recover expenditure on works that extend beyond mere repair. In those circumstances, the recoverable service charge is the cost of delivering the service, and the repair versus improvement distinction is unlikely to matter. See News Analysis: Covenant to provide services goes beyond covenant to repair ( Southwark London Borough v Baharier). Where a lease obliges the landlord to consult tenants before embarking on major works, sums spent without that...
A landlord of commercial premises may carry express or implied obligations to supply services for the benefit of the tenant or tenants. Express covenants A promise to deliver a service creates a broader and potentially more burdensome obligation than a mere covenant to repair, and may, consistent with the tenant’s liability to pay the service charge, allow a landlord to recover the expense of works that go beyond repair. In such situations, it is the cost of delivering the service that makes up the service charge, and the line between repair and improvement is unlikely to matter: see News Analysis: Covenant to provide services goes beyond covenant to repair ( Southwark London Borough v Baharier). If a landlord does not act in a timely manner, it may ultimately be unable to recover the entire cost of repairs......
If a certificate is required to determine the service charge, Urban Splash Work Ltd v Ridgway and another [2018] UKUT 32 ( LC) confirms there is no overarching rule that providing certified accounts is, or is not, a condition precedent to liability for service charges (rather than simply part of the payment ‘machinery’)—the outcome depends on the exact lease wording and there is no generally applicable principle. Landlords should take care not to draft around circumstances personal to them, which could render the certification procedure unworkable once the reversion is assigned. In that event they would need to sue to recover the service charge because there would be no contractual route to obtain it (and, depending on the drafting and the circumstances, recovery might not be possible at all). There must be an express clause creating a duty to pay on account, as such an...
ARCHIVED : This Practice Note has been archived and is not maintained . The Commercial Rent ( Coronavirus) Act 2022 ( CR( C) A 2022) preserves and broadens the safeguards afforded to commercial tenants during the coronavirus ( COVID-19) crisis. It achieves this by ringfencing rent and service charge arrears built up while premises were mandated to shut, and by creating a statutory arbitration scheme through which sums can be written down or repayment postponed. A moratorium on landlord remedies also applies to shield tenants whilst arbitration is ongoing. Core provisions of CR( C) A 2022, together with the government’s Commercial rent code of practice following the COVID-19 pandemic (the Code), are outlined below. The government has additionally published statutory guidance on the Act’s terms. The window to commence arbitration has now closed, and with it the moratorium on landlord remedies where no...
This Practice Note sets out how rent review clauses operate in commercial leases. It also summarises the processes for resolving rent review disagreements by arbitration or expert determination. It does not address agricultural rent reviews; for those, see Practice Notes: Rent review under 1991 Act agricultural tenancies in Scotland and Rent review under 2003 Act agricultural tenancies in Scotland. Need for rent review Rent reviews enable commercial rents to be aligned with market conditions at the review date. They appear most often in longer commercial leases. Reviews occur at the intervals agreed in the lease’s rent review clause, typically every three to five years, though this may differ. In addition to specifying the dates, the lease should set out the method to be used for the review. Several approaches are available, discussed below; however, the open market rent basis is the most prevalent. For further detail, see:...
FORTHCOMING CHANGES : There are a number of proposed reforms to the leasehold and enfranchisement landscape—see Practice Note: Property key future developments tracker for further details. This Practice Note sets out the principal time limits for exercising the statutory entitlement (subject to statutory qualifying criteria) of qualifying tenants holding long leases of flats to together acquire the freehold of the relevant premises containing the flats (collective enfranchisement) under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). It also explains the implications of missing those deadlines, including limits for service of a section 21 counter-notice, for service of the draft lease and responses, and for applications to the First-tier Tribunal ( FTT) (or Leasehold Valuation Tribunal ( LVT) in Wales) and/or to the County Court. For more comprehensive guidance on the LRHUDA 1993 collective...
This Practice Note explains the statutory entitlement, subject to statutory qualifying conditions, of qualifying tenants with long leases of flats to acquire, collectively, the freehold of the building containing those flats under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). It outlines the tests for qualifying premises and tenants, the service of a section 13 notice and any section 21 counter-notice, applications to the First-tier Tribunal ( FTT) (or the Leasehold Valuation Tribunal ( LVT) in Wales), County Court procedure, valuation and calculation of the purchase price, and completion of the acquisition. For a summary of typical time limits involved in the collective enfranchisement procedure, see Practice Note: Quick guide to time limits for collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993. The collective right to...
This Practice Note provides a concise overview of bankruptcy and its effect on legal proceedings from a dispute resolution standpoint, summarising key points in practice... What is bankruptcy? Bankruptcy is an insolvency route for individuals. It applies to individuals only. Prior to 6 April 2016—and in contrast to corporate liquidation—only the court had power to make an individual bankrupt. From 6 April 2016, a new bankruptcy applications regime took effect, replacing debtors' bankruptcy petitions, though creditors' petitions remained unaffected. Petitions lodged by debtors before that date were unaffected; now, anyone seeking their own bankruptcy must file an online application decided by an adjudicator—an official of the Insolvency Service—rather than the court. For more detail and background, see News Analysis: New bankruptcy applications regime to come into force. Once a bankruptcy order is made—by the court or by the...
Practice Note This Practice Note explains the exposure of an incoming tenant, on assignment of a lease, to historic breaches of that lease committed by its predecessor. It considers what this means for the assignee in relation to both continuing breaches and those that are once-and-for-all. For guidance on the responsibilities of an incoming landlord, on assignment of the reversion, for prior breaches of an occupational lease by its predecessor—and the position on recovering accrued rent arrears—see Practice Note: Incoming landlord’s liability for pre-existing breaches; and for a concise overview of how the benefit and burden of covenants transfer on assignment generally, see Practice Note: Quick guide to benefit and burden of covenants on assignment. The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) provides that, as a general rule, any lease granted on or after 1 January 1996...
A landlord or a tenant may require details about the other party’s interest in the premises before serving a valid notice to renew, or to bring a tenancy to an end. Either party is entitled to serve a section 40 notice to ask for such information. This step seeks relevant details from the other. Why serve a section 40 notice? If a tenant wishes to renew a tenancy protected by Part II of the Landlord and Tenant Act 1954 ( LTA 1954), they must serve a section 26 request on the ‘competent’ landlord. Provided the tenant meets the qualifying conditions in LTA 1954, s 26(1), the tenant may issue a section 40(3) notice to identify who the competent landlord is, and to find out whether any third party interests affect the property. Those conditions are that the tenant occupies under: a tenancy granted for a fixed term...
Cohabitants and other co-owners or co-occupiers of property Cohabitants and other co-owners or co-occupiers of property frequently neglect to set out the precise scope of their respective beneficial stakes in the shared home. As a consequence, significant uncertainty can arise if, for example, the relationship later ends, or a bankruptcy trustee or a creditor of one party seeks to realise that individual’s supposed portion of the property. Typical scenarios in which the parties’ beneficial interests are not adequately articulated arise where: the home stands in joint names without any express declaration of trust as regards the beneficial shares title is in only one name (again on the basis there is no declaration of trust saying it is held on trust for that person and the cohabitant/co‑occupier and specifying their respective proportions) This Practice Note addresses the second of those...
Dissolution If a company governed by the Companies Act 2006 (or any earlier Companies Acts) is dissolved, all property it owns at the moment of dissolution—together with any rights vested in it or held on trust for it, but excluding assets it holds on trust for another—vests in the Crown as bona vacantia (that is, ownerless property) under CA 2006, s 1012(1). Where the company’s registered office lies within the Duchy of Cornwall or the Duchy of Lancaster, the bona vacantia instead passes to the relevant Duchy. Be aware that freehold land situated within the Duchy of Cornwall vests in the Duke of Cornwall on dissolution regardless of the location of the company’s registered office. Note: the Duchy of Cornwall is held by the Duke of Cornwall under a 1337 charter (which grants the dukedom to the monarch’s eldest son and heir to the...
Practice Note This Practice Note sets out the rule prohibiting derogation from grant and the situations in which it operates in the context of leases. It also considers the covenant of quiet enjoyment, its interplay with derogation from grant, and highlights common drafting issues alongside other matters for consideration. The rule against derogation from grant functions in addition to any quiet enjoyment obligation and is not displaced by an express quiet enjoyment covenant. Although there is considerable overlap between the two, a crucial distinction exists. The obligation not to derogate from grant runs with the land. Thus, if a landlord lets one property and sells the neighbouring one, the purchaser is not liable to the adjoining tenant under the quiet enjoyment covenant, since they are not, and have never been, that tenant’s landlord. However, the purchaser is liable to the tenant in respect of the...
When weighing up whether, and in what way, to pursue a claim for judicial review, your opening task is to assess if that procedure is the suitable mechanism for resolving the issues presented by the matter before you. For additional help, see Practice Note: Judicial review—what it is and when it can be used. Time limits If judicial review is the route chosen, the next step will typically be to confirm there is still time to commence proceedings. Under CPR 54.5, claims for judicial review (apart from the three exceptions referred to below) must be issued promptly and, in any event, within three months of the date on which the grounds first arose. Promptness is an overriding requirement, and you should not assume a claim is in time merely because it is brought within three months. Accordingly, once the basis for the challenge has...
Default position Bilateral surrender—termed renunciation under Scots law—describes how a tenant relinquishes rights arising under a lease. This may occur by express agreement between the parties, or through the landlord’s acquiescence, which carries an implied discharge of claims against the tenant. The framework applies to both residential and commercial leases. For Agricultural tenancies, see Practice Note: Resumption of agricultural holdings in Scotland and partial notices to quit. Under Scots law, neither party is able to renounce unilaterally. Renunciation is distinct from: abandonment where the tenant justifiably rescinds the contract owing to a material breach by the landlord (see: Rescission or abandonment: Stair Memorial Encyclopaedia [200]) abandonment where the tenant unjustifiably repudiates the contract and deserts the subjects (see: To Remain in Possession: General: Stair Memorial Encyclopaedia [175]) Where renunciation does not arise by agreement but instead amounts to abandonment, the landlord is presumed not to have...
The Standard Conditions of Sale ( Fifth Edition—2018 Revision) ( SCS) comprise the typical terms underpinning most agreements for buying and selling residential property in England and Wales. For more detail on the SCS, refer to Practice Note: Standard Conditions of Sale ( Fifth Edition—2018 Revision)—a guide to the principal provisions. This Practice Note explains how the SCS deal with payment of completion monies and the issues that commonly arise. It sets out the SCS approach to completion funds and flags recurring practical points. It also addresses matters to bear in mind where a mortgage needs to be discharged. How much is payable?......
Secure tenancy This Practice Note outlines the tests in section 79 of the Housing Act 1985 ( HA 1985) that must be satisfied for a tenancy to be secure, and then examines each test in detail. It considers whether the accommodation constitutes a dwelling, whether the dwelling is the tenant’s principal home, the landlord requirement, the tenant requirement, and the Schedule 1 HA 1985 exceptions where a tenancy or a licence cannot be secure. It also explains how a secure tenancy can be varied and highlights the additional rights available to secure tenants. Secure tenancies are the tenancy form most commonly provided by local authorities ( LAs). The definition of a secure tenancy, and the rights afforded to secure tenants, are derived from Part 4 of the Housing Act 1985 ( HA 1985)......
The principal limitation periods The following table sets out the main categories of action and specifies how many years a claimant has to issue proceedings under the Limitation Act 1980 ( LA 1980), highlighting, where relevant, the applicable statutory provisions and authorities as appropriate. For help on identifying the applicable limitation period (ie the point at which time begins to run and when it ceases), refer to Practice Note: Limitation Act 1980—general application. Please note the table below is not comprehensive; it does not list every possible claim. It concentrates on those actions most likely to matter to a dispute resolution practitioner and omits certain highly specific causes of action, for instance, successive conversions of goods ( LA 1980, s 3), although these are contained within the LA 1980......
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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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