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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 sets out circumstances in which you may opt to, or be directed to, appoint a single joint expert ( SJE) pursuant to CPR 35.1 and CPR 35.2(2). It surveys issues of selection, appointment, instruction, conduct, fees, and any track- or court-specific guidance. It also offers guidance on contesting an SJE’s conclusions. The Note further addresses the manner in which an SJE’s evidence is provided to, and relied upon by, the court, including through written questions and cross-examination. Experts and those instructing them should have regard to: all relevant CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims ('the Guidance') Practice Direction Pre- Action Conduct and Protocols, para 7 This Practice Note should be read alongside: Instructing an expert under the Guidance for the instruction of experts in civil claims ...
This Practice Note explores when and for what reasons you ought to pursue settlement of disputes, and the implications of failing to try to settle when directed to do so. For direction on who should participate in settlement discussions, the form a settlement might take, how it should be recorded, and the means of enforcement, consult the materials in this subtopic, including the following Practice Notes: Settling disputes—who, confidentiality and subject to contract Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling disputes—drafting the settlement agreement Resolving disputes concerning settlement agreements What is settlement? A settlement is the product of agreement between the disputing parties to compromise and/or conclude the litigation, or to resolve matters where no proceedings have yet started. It comes about when one party makes an offer that is accepted by the other or others. Not all parties to the...
This Practice Note reviews set-off provisions in leases and whether, following an assignment, a tenant may rely on a claim against an incoming landlord. A tenant may, at law, set off liquidated damages and, in equity, unliquidated damages for the landlord’s breach of covenant against rent falling due under the lease. In most leases, this ability to set off or make deductions is excluded by clear express terms. The Practice Note also examines whether a tenant can withhold rent or service charge where the landlord is in breach of the lease. A tenant is entitled: in certain circumstances at law, to set off liquidated sums; and in equity, to set off, including unliquidated damages for breach of covenant by the landlord, against rent accruing under the lease. However, the right to set off is commonly removed by express language. It is...
Bona vacantia denotes ‘ownerless goods’. Under section 1012 of the Companies Act 2006 ( CA 2006), any assets not otherwise disposed of and still held by a company at the time of a company’s dissolution pass to the Crown as bona vacantia. This Practice Note examines the enforcement of security—whether by a mortgagee’s sale or by appointing a receiver—over property that has vested in the Crown bona vacantia, following dissolution. It addresses bona vacantia property, disclaimer, escheat, the role of the Crown/ Government Legal Department and the HM Land Registry’s guidance. It looks at these matters collectively and in an overview. How is a company struck off? Broadly, a company can be struck off the register of companies in two ways: voluntarily, on an application by the directors by the Registrar of Companies—the Registrar may strike off and dissolve companies the Registrar considers are not carrying on...
Missives In Scotland, property deals are most often documented by missives of sale; see, for instance, the Property Standardisation ( PSG) PSG— Offers. A binding bargain emerges through an exchange of written offer and acceptance between the parties (frequently via their agents), and together these letters make up the missives. Often several formal communications pass between the parties before a final, unqualified acceptance is delivered, which brings the bargain to a close; see further: Formal requirements: Stair Memorial Encyclopaedia [7]. Once missives are concluded, a legally enforceable contract exists. The contract may equally be created by a sale and purchase agreement between the parties. If one party then fails to fulfil its obligations, that failure may amount to breach of contract and entitle the other to a legal remedy. For more detail, see: Conclusion of missives: Stair Memorial...
This Practice Note examines property disputes in Scotland arising: in delict under the Occupiers’ Liability ( Scotland) Act 1960 ( OL( S) A 1960) under consumer rights legislation concerning defective premises and the time limits for claims under the Prescription and Limitation ( Scotland) Act 1973 ( PL( S) A 1973) It does not address statutory repair duties for agricultural or residential tenancies. Broadly, obligations connected to property may arise: by force of law (statutory—see further: Obligations arising by force of law: Stair Memorial Encyclopaedia [2]) from a wrongful act (delictual—see further: Obligations arising from a wrongful act: Stair Memorial Encyclopaedia [3]) voluntarily (eg unilateral and contractual undertakings—see further: Voluntary obligations: Stair Memorial Encyclopaedia [4]) Delictual obligations arising from a wrongful act Delict governs legal wrongs. It is the counterpart of ‘ Tort law’ in England; see: Differences between Scots and English law: Stair Memorial Encyclopaedia [166] and Practice Note: What is a tort? In...
Resulting trusts represent one of the three species of trust that do not need to be declared or evidenced in writing at all. The others are constructive and implied trusts, though it is arguably doubtful whether any implied trust exists that is not in reality either a resulting trust or a constructive trust (‘implied’ in this setting often being used simply as a synonym for ‘resulting’ or ‘constructive’). Categorisation of resulting trusts Resulting trusts are either presumed or automatic. A presumed resulting trust arises where: there is a voluntary transfer of property by one person to another; or title to property is placed in the name of someone other than the person who provided the purchase money or other consideration for the acquisition An automatic resulting trust arises where the disposing party has failed to dispose of the entirety of their legal and...
For freehold and long leasehold land Any interested party may formally apply to the court, under section 84(2) of the Law of Property Act 1925 ( LPA 1925), for a declaration stating whether the land is affected by any restriction and, if so, to identify its nature, extent and enforceability in detail. A ‘person interested’ who can apply includes any of the following categories: the freehold proprietor of land benefitting from, or bound by, a restrictive covenant a mortgagee of that freehold proprietor a person contractually entitled to the land that is benefitting from, or is burdened by, the restrictive covenant, or a person with an interest arising under an option over land benefitting from, or burdened by, the restrictive covenant The wording of s 84(2) is deliberately broad and can be invoked to assess the validity or...
Covenants restricting the use of land imposed by a seller may be divided into three classes: covenants created for the seller’s own personal advantage covenants imposed in the seller’s capacity as owner of other retained land, of which the land sold once formed part, intended to protect or benefit the land kept back covenants on the sale of land to multiple purchasers who, together with their respective successors in title, are meant mutually to enjoy the benefit of, and be bound by, those covenants The first class is enforceable only by the seller, unless it is expressly assigned to a third party. For instance, in Cosmichome, a covenant requiring the buyer to occupy the property solely for a specified purpose, capable of being lifted on payment of overage, was held not to be aimed at protecting or benefiting the seller’s land, but to be purely personal to the...
This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...
What is a pre-pack administration sale? A pre-pack administration sale is an arrangement where the disposal of some or all of a company’s business and assets is agreed with a buyer before an administrator is appointed, and the administrator completes the deal immediately upon, or soon after, taking office, following their formal appointment. The transaction concludes before any creditors’ meeting and without the court’s sanction, and it is implemented by the administrator. While confirmed as lawful in practice, pre-packs attract mounting and increasingly vocal criticism over opacity and insufficient attention to creditors’ interests, especially when the acquirer is the incumbent management team. The Statement of Insolvency Practice 16 ( SIP 16), issued by the Joint Insolvency Committee, regulates pre-packs to answer these concerns and criticisms. It imposes obligations on the administrator in connection with the pre-pack sale, including broader external marketing...
This Practice Note offers guidance on interpreting and applying the relevant provisions of the CPR. Depending on the court handling your case, you may need to consider additional requirements—see below. It clarifies when the Practice Direction Pre- Action Conduct and Protocols (the Practice Direction) takes effect and outlines its aims and principles. It also covers what a claimant should include in a letter of claim and what is expected in the defendant’s reply, and briefly touches on ADR, limitation and experts. When does the Practice Direction on Pre- Action Conduct and Protocols apply? The Practice Direction sets out the conduct generally expected of parties before proceedings are issued. Its provisions apply across the board, but it is specifically stated to govern where none of the more detailed pre-action protocols is relevant to your claim (see Practice Direction Pre- Action Conduct and Protocols, para 2). For...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
Introduction Section 203 of the Housing and Planning Act 2016 ( HPA 2016) grants authority to override easements and other rights benefitting neighbouring land where this is connected with development. HPA 2016, s 203 commenced on 13 July 2016 and superseded and extended the former powers in section 237 of the Town and Country Planning Act 1990 ( TCPA 1990). The provision applies across England and Wales. HPA 2016, s 203 (and previously TCPA 1990, s 237) has been invoked on prominent schemes to address rights of light and comparable easements or restrictive covenants that might otherwise halt progress. In practice, when a particular development programme is jeopardised because agreement cannot be reached to release specified rights, developers have sought local authority intervention, asking it to use its powers to appropriate or acquire the development site (or a portion of it), thereby...
This Practice Note outlines the duty of care owed by valuers and the scope of their potential liability to purchasers, vendors and mortgagees for erroneous valuations. It considers the permissible margin of error, the measure of damages, claimants’ contributory negligence, and efforts to exclude liability. It does not address a valuer’s liability when acting within an expert determination or an arbitration. For general guidance on arbitration and expert determination, see: Settlement and settling disputes for property disputes lawyers—overview. Duty of care A valuer appraises or determines the value of property, or sets a price for it. In performing that task, a valuer must exercise reasonable care and skill. This obligation is typically an express or implied term of the contractual retainer, but it also arises independently in the tort of negligence......
FORTHCOMING CHANGE On 27 October 2025, the Renters’ Rights Act 2025 obtained Royal Assent. For guidance on the Act’s effect on residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note sets out mortgagee possession claims, including the mortgagee’s right to seek possession and their duties once in possession, the mortgagor’s right to request time to pay under the Administration of Justice Act 1970, the position of any tenants of the mortgagor, the pre-action protocol, and the process for bringing a claim. For guidance on the range of remedies available to mortgagees, see Practice Note: Mortgages and land—enforcement of mortgages and legal charges over land. The right to possession Where a mortgagor has fallen into default, the mortgagee will often wish to sell the property and may first need to secure possession. However, it is also possible to: sell without taking...
Section 62 of the Law of Property Act 1925 ( LPA 1925) (section 62) At its core, it works as a drafting shortcut. Yet on a transfer of part, it can turn permission—eg to use an area for car parking—into a right that cannot be defeated......
This Practice Note explores the limitation period(s) that apply to professional negligence claims. It examines the date of accrual in both contract and tort, and summarises the courts’ approach to issues that commonly arise in such claims. For related limitation guidance, see: Limitation—overview and Practice Notes: Limitation Act 1980—general application Limitation—contract claims Limitation—tort claims For general guidance on professional negligence claims, see also: Professional negligence claims—overview. Professionals owe duties to their clients in both contract and tort Where a professional undertakes responsibility to perform services for another who will rely on them, a duty in tort to exercise reasonable skill and care may arise, even though those services are provided under a contract between the same parties ( Henderson v Merrett, contrasted with Tai Hing v Liu Chong Hing)......
This Practice Note outlines how light obstruction notices ( LONs) operate, clarifies the ‘19 years and 1 day’ principle and its bearing on applications for temporary or definitive certificates, sets out the impact registration of a LON has on rights of light, explains the process for lodging such a notice, and states the circumstances in which it can be cancelled, covering application, registration, effect and cancellation scenarios. Light obstruction notice procedure A building owner may acquire a prescriptive right to light at law over adjoining land where light has been enjoyed for 20 years without an interruption of a year or more. Under the Rights of Light Act 1959, the owner of the neighbouring land can formally prevent such rights arising by applying to the local authority or HM Land Registry ( HMLR) to register a notice treated as an obstruction to light, known as a...
Differences between leases and licences to occupy Leases In Scots law, a lease is a contract permitting a tenant to occupy a landlord’s heritable property for a set period, in exchange for rent, typically paid on a periodical basis and usually in money (though payment in goods is possible, albeit uncommon). The four cardinal elements of a lease are generally accepted as: defined subjects a rent an agreed duration identification of the separate parties For further information, see: Cardinal elements: Stair Memorial Encyclopaedia [4]. If the other cardinal elements are present but the length is not, the court may imply a duration of one year. Licences to Occupy A licence to occupy (licence) is a contract falling short of a lease, granting a right to use property, or part of it, rather than any possessory right in the property itself being ceded; see: Licence: Stair...
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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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