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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 nature and core characteristics of easements. It considers the need for both a dominant and a servient tenement, and for those to be held in separate ownership; the requirement that the easement must accommodate the dominant tenement; and the necessity for it to be capable of constituting the subject matter of a grant. Nature of an easement An easement is an incorporeal right enjoyed by the holder of a legal estate (the dominant tenement) over land belonging to another (the servient tenement), which binds successors in title. Most easements are positive, permitting the dominant owner to enter upon or use the servient land in some fashion (eg a right of way). They can also be negative, stopping something from being done on the servient land and thereby giving the dominant owner the right to receive something from that land (eg a right to...
This Practice Note This Practice Note outlines what qualifies as an administration expense and highlights leading case law. In an administration, such expenses are paid out of the company’s assets in administration in a defined order: after fixed charge creditors but before preferential creditors, floating charge holders and unsecured creditors This sequence of priorities (the ‘waterfall’) was modified by the Corporate Insolvency and Governance Act ( CIGA 2020) where the administration is preceded by a moratorium under Part A1 of the Insolvency Act 1986 ( IA 1986). Various types of expense are identified by IA 1986 and the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. The IR 2016, SI 2016/1024 also set out, with specificity, the payment priority to be applied to the different categories of expense. Consequently, a creditor seeking to improve their position must not only...
This Practice Note provides a primer on arbitration in Scotland under the Arbitration ( Scotland) Act 2010 ( A( S) A 2010) and associated topics. It concentrates on how A( S) A 2010 diverges from the Arbitration Act 1996 ( AA 1996) as it applies in England, Wales and, separately, Northern Ireland (using ‘ England’ and ‘ English’ as convenient shorthand). For an overview of AA 1996, see Practice Note: A guide to the Arbitration Act 1996 ( AA 1996). Background to A( S) A 2010 Scotland’s legal system (‘ Scots law’) evolved independently from that of England and Wales. Its foundations lie in customary law, canon (church) law and Roman law, brought into Scotland in the late medieval era when Scottish jurists returned from study in the Netherlands and other continental European jurisdictions. After the 1707 union of the Scottish and English...
This Practice Note explains what proprietary estoppel is, how to advance a plea of proprietary estoppel, and gives examples of when, in practice, you may wish to rely on it. It examines proprietary estoppel from a general perspective. For sector-specific guidance on proprietary estoppel for property law practitioners, see Practice Note: for property disputes lawyers. —what is it? Unlike other species of estoppel (see Practice Note: Estoppel—what, when and how to plead), which will not usually found a cause of action, proprietary estoppel can. It is commonly deployed where a party ( B) seeks to assert a proprietary right in land owned by another ( A), where B has been led to believe—by promise, words or conduct and/or by A’s acquiescence—that B has, or can expect to acquire, an interest in that land. The decisions in Ramsden v Dyson and Willmott v Barber offer a...
What is a lease surrender? A lease surrender is a mutual, jointly agreed arrangement between the landlord and the tenant to terminate the lease prior to the expiry of the contractual term, and in a manner not contemplated within the lease itself (e.g. by exercising a break option, etc). An express surrender is effected formally, most commonly documented by deed, although a deed is not always necessary (see: Express surrender below). A surrender by operation of law (also called an implied surrender) arises where the landlord and tenant, through unequivocal and consistent conduct, demonstrate that they no longer regard the lease as continuing between them (see: Surrender by operation of law ( Implied surrender) below). Accordingly, a surrender is often the product of negotiation in circumstances where the tenant cannot otherwise divest itself of the lease. Its availability frequently depends on the...
For an at‑a‑glance, high‑level outline of the civil court structure and hierarchy in England and Wales, see: Courts and Tribunals Judiciary— Structure of Courts and Tribunals System. Several civil courts issue a court guide explaining how business in that court should be managed, which operates alongside, and in addition to, further guidance given in the Civil Procedure Rules ( CPR). For further details, see Practice Note: Court guides and other guidance. For information on: claims that must be brought and issued in the County Court, see Practice Note: Starting civil claims in the County Court commencing a claim under CPR 8 (alternative procedure for claims where there is no substantial dispute of fact), see Practice Note: CPR Part 8 claims (alternative procedure for claims) High Court or the County Court? Whether proceedings ought to be issued in the High Court or the County Court is, in the main,...
What are heat networks? Heat networks are systems that deliver heating to multiple users within a single building (communal heating) or across several buildings (district heating), drawing on shared heat source(s) and a shared distribution network of pipes and plant. Heat is usually supplied as hot water—steam is uncommon—and there is a growing move towards circulating lower temperature, ‘ambient’ heat... Where a DHN connects multiple properties, heat exchangers are typically employed to provide hydraulic separation between the central network and the individual building systems. This permits different pressures and circulation rates, and makes it easier to manage temperatures (and ownership) within local buildings... For further detail on the engineering of district heating networks, see Practice Note: District heating/heat networks—technology. This Practice Note summarises the obligations under the Heat Network ( Metering and Billing) Regulations 2014, SI 2014/3120 (as amended), which form a specific element of the legal...
What is an estoppel? As Lord Denning MR explained in Moorgate Mercantile v Twitchings (page [323]), estoppel is a rule of justice and equity which, in essence, means that where a person, through words or conduct, has led another to accept a particular state of affairs, he will not be permitted to resile from it if doing so would be unjust or inequitable. Although the House of Lords reversed Moorgate on its facts, this statement of principle was not displaced. In some cases, a party’s silence or inaction (that is, acquiescence) can ground an estoppel just as effectively as an express assurance or representation. As Calver J noted in Active Media v Burmester, Duncker, echoing the Court of Appeal in Ted Baker v Axa Insurance, the acquiescence doctrine arises where a reasonable person in the shoes of the party invoking the estoppel would...
Effective preparation of bundles Meticulous bundle preparation underpins a calm, efficient hearing and is something practitioners should keep firmly in view as part of their overall work for any hearing. This Practice Note offers a guide to creating and deploying electronic bundles (or e-bundles) in civil proceedings in England and Wales. It sets out practical pointers on the interface between digital case management and e-bundles, the varieties of electronic bundle, judicial expectations when assembling electronic bundles, guidance in the Civil Procedure Rules ( CPR) on preparing bundles, effective methods for preparing and using electronic bundles, and the benefits and drawbacks of using electronic bundles. It also surveys widely applicable tools to consider when collating evidence and other documentation electronically. For general guidance on preparing a bundle for: trial—see Practice Note: Preparing trial bundles an interim application—see Practice Note: Preparing for an application hearing—...
What are business rates? Business rates are a levy on property used for commercial purposes. They apply to most non-domestic premises, including shops, offices and pubs. Rates are also due where only part of a building is put to non-domestic use. For broader guidance on business rates, see Practice Note: Liability for business rates. Who is liable to pay business rates? In an insolvency setting, the occupier of the premises is responsible for business rates. A company is rateable as occupier only if it is in ‘actual possession’ and exercises a ‘sufficient measure of control to prevent strangers from interfering’. A company undergoing an insolvency process may still be treated as in occupation depending on the office-holder’s actions; for example, if trading continues while a buyer is sought. For more on what amounts to occupation, see Practice Note: Liability for business rates. A de minimis...
Current court fees This Practice Note sets out details of the principal court fees payable for civil proceedings in the Court of Appeal, High Court and County Court, as prescribed by the Civil Proceedings Fees Order, SI 2008/1053, Sch 1 (as amended). The majority of court fees for civil matters are contained in the Civil Proceedings Fees Order, SI 2008/1053, Sch 1, which is updated whenever any of the Schedule 1 fees are altered. Certain civil proceedings fees are prescribed in other legislation, including Supreme Court fees—see Practice Note: Supreme Court—costs, fees and funding—on or after 2 December 2024. A comprehensive list of the fees payable in civil proceedings is available on GOV. UK— Fees in the Civil and Family Courts—full list ( EX50A). A selection of the principal fees payable in civil proceedings is also set out on GOV. UK— Civil court fees (...
This Practice Note explores the aim of Part 36, explains what constitutes a Part 36 offer, and outlines the motivations for proposing one. It further supplies guidance on requesting clarification of a Part 36 offer and sets out the costs repercussions for both claimants and defendants when making and accepting Part 36 offers. Note that this Practice Note addresses the rules currently in force after 1 October 2023. For details of specific provisions in place before 1 October 2023 for Part 36 offers in fixed costs matters, see Practice Note: Part 36 offers—fixed costs (position prior to 1 October 2023). For guidance on Part 36 offers in civil claims that fall within the fixed costs regime on or after 1 October 2023, see Practice Note: Part 36 offers—fixed costs (position on or after 1 October 2023). The purpose of Part 36...
This Practice Note explains how the Standard Conditions of Sale ( Fifth Edition—2018 Revision) ( SCS) address insurance for the property, the consequences of pre‑completion damage, and the position where the buyer obtains early access. What happens if the property is damaged or destroyed between exchange and completion? Under Condition 5.1 SCS, the risk transfers to the buyer on the date the contract is made, mirroring the open‑contract approach. If the property suffers damage or is destroyed after exchange but before completion, the buyer remains obliged to complete. Even so, the seller must exercise reasonable care in relation to the property. Who insures between exchange and completion? Earlier editions of the SCS did not set out insurance responsibility fully, which could cause difficulties. As risk sits with the buyer from exchange, the buyer should arrange suitable cover from exchange of contracts. The buyer’s...
ARCHIVED: This archived Practice Note is no longer updated and is provided solely for background reference. In addition, some links may not lead to the provisions as they stood when this guidance was issued. For information on earlier and/or later CPR amendments, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Note summarises forthcoming CPR changes. The provisions take effect on 1 October 2014 by virtue of The Civil Procedure ( Amendment No 6) Rules 2014, SI 2014/2044, and the 75th Update— Practice Direction Amendments. Note: amendments that do not affect the DR PSL module are not considered here, including: personal injury ‘soft tissue injury claims’ (ie whiplash claims) proceedings under the Presumption of Death Act 2013 applications for injunctions under the Anti-social Behaviour, Crime and Policing Act 2013 For the full set of amendments to the CPR and Practice Directions from 1 October 2014, refer to SI...
ARCHIVED: This Practice Note is no longer maintained and is provided solely for background reference. In addition, some links may not lead to the provisions as they stood when the guidance in this Practice Note was issued. For details on earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Changes to the Civil Procedure Rules ( CPR) take effect on 1 October 2010. This note highlights the key changes. All practice notes affected by these amendments will be updated accordingly in due course. Electronic Disclosure A new Practice Direction 31B will be introduced to set out how practitioners should handle electronic disclosure and to offer guidance to those with limited experience in this field. Its objective is to encourage and assist parties to reach agreement on the disclosure of electronic documents in a...
ARCHIVED This Practice Note is archived, not kept up to date, and provided solely for background reference. Some links may no longer lead to the provisions as they were at the time this guidance was published. For details of earlier and later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Changes to the CPR took effect on 1 October 2009. This note outlines the principal changes. All other practice notes affected by these amendments have been updated. The CPR on service has likewise been revised to reflect and incorporate these changes as at 1 October 2009. Court opening times Court office opening hours are being streamlined across the system. A standard formula will determine when court offices are open during the Christmas and New Year period. Supreme Court Also on 1 October, the new Supreme Court assumed the judicial function previously exercised by the House of...
ARCHIVED: This Practice Note is archived, not updated, and is supplied solely for background reference. In addition, some links may no longer point to the provisions as they stood when the guidance in this Practice Note was issued. For details of earlier and/or later changes to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note reviews the Civil Procedure ( Amendment No.2) Rules 2018, SI 2018/479, which introduce amendments to the Civil Procedure Rules ( CPR), setting out changes that come into force on Monday, 7 May 2018. The SI has been approved by the Minister and placed before Parliament. Part 2—jurisdiction of the county court Part 2 is amended to implement new Practice Direction 2E— Jurisdiction of the County Court, which sets out the jurisdiction a legal adviser may exercise in the County Court. The revisions are: in the contents list, after the...
National non-domestic rates ( NNDR) This Practice Note sits within a broader series on NNDR. It sets out the legislative framework for billing and recovery, explains the collection fund, and outlines transitional reliefs and exemptions operating within the system, addressing periods both before and after the pandemic. For more on other facets of the NNDR scheme, see the following Practice Notes: National non-domestic rates—valuation and appeals National non-domestic rates—business improvement district, business rate supplements and retention Liability for business rates Currently, local authorities collectively keep half of business rates income. The remainder is paid to central government, which then uses it to fund grants for local authorities. For the 2023–24 financial year, authorities project non-domestic rating income of £25.1bn—representing what they expect to collect after allowing for all reliefs, accounting adjustments and amounts retained outside the rates retention scheme. They also...
Practice Note This Practice Note introduces the national non-domestic rates ( NNDR), commonly known as business rates, that apply to non-domestic premises in England and Wales. It summarises the scheme’s background and sets out how valuations are carried out. It also describes how to review entries and, where appropriate, challenge a local list or lodge an appeal against determinations already made. Property rating has existed in one form or another since 1601. The present framework was principally created by the Local Government Finance Act 1988 ( LGFA 1988), and has since been amended......
This practical note compiles links to essential official government guidance on the Building Safety Act 2022 ( BSA 2022), relating to landlord and tenant matters. General BSA 2022 guidance The Building Safety Act The Building Safety Act: secondary legislation Explanatory notes— Building Safety Act 2022 BSA 2022—landlord and tenant matters Building safety leaseholder protections: guidance for leaseholders Cladding and other fire safety works–information for residents How do these legal changes affect my lease? What are my building owner’s legal obligations? Qualifying date, qualifying lease and extent Definition of ‘relevant building’ Definition of ‘relevant defect’ Remediation costs: what leaseholders do and do not have to pay Leaseholder contribution caps How will cladding costs be paid for?......
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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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