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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 offers a succinct outline of the key remedies available to tenants where a landlord breaches covenant or interferes with the tenant’s rights. These span measures addressing a particular breach, such as an injunction or an award of damages, and broader solutions aimed at control of the premises, for example appointing a manager. Disputes commonly arise from covenants to provide services or to insure (and to apply insurance proceeds to reinstatement), or from hindrance of a tenant’s rights, including rights of access. For focused guidance: on disrepair, see Practice Note: Dilapidations during the term—claims by the tenant on the covenant for quiet enjoyment, see Practice Note: Derogation from grant and the covenant for quiet enjoyment on landlord insolvency, see Practice Note: Quick guide to property insolvency— Insolvency of a landlord on withholding of consent to assign or underlet, see Practice Note: Tenant’s remedies for...
This Practice Note outlines the range of options open to a landlord where a tenant breaches the lease, such as forfeiture, issuing a statutory demand, potential court action to recover rent or damages, or to seek an injunction, together with Commercial Rent Arrears Recovery ( CRAR) (including taking rent from sub-tenants), claims against guarantors and other relevant parties, actions against former tenants (by serving a notice under section 17 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995)), drawing on a rent deposit, and serving an entry and repair notice. Where a tenant breaks a lease covenant, various remedies are potentially available to the landlord, identified and described below. Before pursuing any remedy, landlords should consider whether: the tenant is subject to any form of insolvency. If so, check the list of restrictions on recovery action for each type of...
This Practice Note explores matters that arise in proprietary estoppel within a property context. For a broader overview of proprietary estoppel, please refer to Practice Note: Proprietary estoppel. The doctrine of proprietary estoppel Proprietary estoppel operates to modify or create proprietary interests in land, in circumstances where insisting on strict legal rights would be unconscionable in the circumstances. It thereby gives rise to an equity in favour of the person who is entitled to rely upon the estoppel. Unlike other forms of estoppel, it can also itself provide a cause of action. Proprietary estoppel arises where: a landowner ( D) gives an assurance or promise, or otherwise encourages another person ( C), leading C to believe that they have, or will have, a right or benefit in relation to D’s land C acts in reasonable reliance upon that assurance, promise or...
This Practice Note sets out guidance on carrying out a sale under an order for sale following a charging order, addressing the chosen route to sale (private treaty, auction, etc), matters to resolve before completion such as vacant possession, ending tenancies and redeeming incumbrances, and the application of the sale proceeds. Once a charging order is secured, the creditor gains a measure of security for the debt (which may in some instances be limited—see Practice Note: Charging orders over land—registration issues). If the debt stays outstanding, the creditor’s next step is to enforce the order against the debtor. Subject to the Charging Orders Act 1979, a charging order has effect and can be enforced in the same way as an equitable charge. In practical terms, enforcement involves obtaining an order for sale. Obtaining an order for sale A charging order merely secures the value of the...
When a dispute is resolved by a payment of damages or compensation, whether arising from a court order or an out-of-court settlement: the recipient (the claimant) will wish to establish if the amount is taxable, and the payer (the defendant) will wish to know whether any tax relief can be claimed This Practice Note examines those two issues in turn, in relation to direct UK taxes. The parties must also determine if the payment attracts VAT, which is addressed in Practice Note: VAT treatment of damages and compensation payments. Tax considerations may additionally be relevant to calculating the amount of the damages or compensation payment, as discussed in Practice Note: The effect of tax on the quantum of damages. Tax reliefs apply to payments made by public authorities under certain specified compensation schemes, including the Windrush Compensation Scheme and the Post Office Horizon...
Under the Defective Premises Act 1972 ( DPA 1972) A person undertaking work either: for, or connected with, providing a dwelling ( DPA 1972, s 1(1)); or concerning any part of a “relevant building”, being a building with one or more dwellings ( DPA 1972, s 2A); owes a duty to see that the work is carried out in a competent or, as appropriate, professional way, using suitable materials, so the dwelling is fit for human habitation. “ Fit for habitation” is not a freestanding obligation; it is the yardstick by which “competent”/“professional” execution and “suitable materials” are assessed. It is the measure by which workmanship and the appropriateness of materials are evaluated. Accordingly, liability under DPA 1972, ss 1(1) and 2A is strict: where the works or materials supplied have made the dwelling unfit for habitation, the defendant is in breach of the...
What duty is owed by a landlord under the Defective Premises Act 1972 ( DPA 1972)? This Practice Note explains the landlord’s obligations under the DPA 1972, the circumstances in which they arise, duties owed to others (including trespassers), whether disrepair is required, if awareness or notice of a defect is needed, and the effect of works during the tenancy. When the duty takes effect Obligations to third parties and trespassers The necessity for disrepair Whether knowledge or notification of a defect is required The position where works occur during the tenancy For guidance on duties under DPA 1972, sections 1(1) and 2A (the latter introduced by section 134 of the Building Safety Act 2022) for those undertaking work for or connected with providing a dwelling, or other work relating to a dwelling, how those obligations operate, and their...
This Practice Note examines matters arising when a party to a lease dies during the term, including the consequences for the lease, any termination rights that may emerge, how to serve notices on a deceased landlord or tenant or refer to them in proceedings, and the principle of survivorship. It also addresses what occurs on the death of a guarantor, and the approach to registration. Vesting in personal representatives Death of the tenant The lease does not determine on the death of a sole tenant. Rather, the term (fixed or periodic) vests in the tenant’s personal representatives ( PRs). It does not devolve under any Will or intestacy until expressly assigned. Where there is a Will, the executors take the lease immediately on the tenant’s death. If the tenant died intestate, or there are no validly appointed executors willing or able to act, the lease vests in the...
This Practice Note outlines the core principles governing awards of damages in tort actions. It addresses the compensatory purpose of tort damages; separates general from special damages; explains when exemplary (punitive) and aggravated damages may be available in tort; considers restitutionary and ‘user’ damages; sets out the date and method of assessment; deals with interest on tortious awards; and the reduction of damages through contributory negligence and mitigation. It also summarises when damages may be recoverable for a tortious wrong, including negligence. For further reading, see Practice Notes: The remedy of damages—general principles; Loss of chance damages; Claiming damages—tort and contract claims compared. It does not cover damages in clinical negligence or personal injury claims. General principles of liability in tort claims To succeed in a tort claim for damages, a claimant must, on the balance of probabilities, establish that: the...
Part 26A restructuring plans ( RPs) Since 26 June 2020, Part 26A restructuring plans ( RPs) have been in force by virtue of the Corporate Insolvency and Governance Act 2020 ( CIGA 2020). Section 7 and Schedule 9 of CIGA 2020 inserted a new Part 26A into the Companies Act 2006 ( CA 2006), entitled ‘ Arrangements and Reconstructions for Companies in Financial Difficulty’. The framework for their use is informed by: the applicable Practice Statement (see Practice Note: The Practice Statement for Part 26 schemes and Part 26A restructuring plans (2025)); and the Explanatory Notes, which are admissible to assist with interpretation without any need to show that the legislation is ambiguous or unclear (per Snowden J, as he then was, in Re Virgin Atlantic Airways, applying Re Flora v Wakom ( Heathrow) Ltd). These RP provisions represent a permanent reform of the UK’s...
What is a moratorium? Part A1 of the Insolvency Act 1986 ( IA 1986) sets out a mechanism by which directors of companies that are insolvent, or at risk of becoming insolvent, may obtain a moratorium. The moratorium runs for an initial period of 20 business days and can be extended in several ways: by the directors with or without creditors’ consent, by the court on the directors’ application, while a proposal for a company voluntary arrangement ( CVA) is pending, and by the court in other proceedings. Its purpose is to give viable businesses time to restructure or source new investment without certain creditor action. Oversight is provided by an insolvency practitioner acting as a ‘monitor’, although the directors continue to run the business day to day (a...
rules on interpreting contracts (agreements) This Practice Note outlines the rules for construing contracts and their terms, reviewing leading cases— Rainy Sky v Kookmin, Arnold v Britton, and Wood v Capita—together with the principal canons of construction. It should be read alongside the Practice Notes: Contract interpretation—the guiding principles; and How to approach a contractual interpretation dispute—a practical guide. Lord Hoffmann’s five principles in ICS v West Bromwich Building Society (see Practice Note: Contract interpretation—the guiding principles) provide the central approach to interpretation, which is then supported by general rules or guidelines (often called canons of construction) used to help determine the meaning of a written agreement. This Practice Note examines the most significant of these, namely: the whole document is relevant commercial sense (business common sense) and avoiding an unreasonable outcome cutting down rights and remedies saving the...
This Practice Note sets out guidance on claims for ‘use and occupation’ or mesne profits, and on when double rent or double value can be sought. Claims for use and occupation A claim for use and occupation arises where land is occupied without an express agreement stipulating the rent. In such cases, the landlord may sue to recover a reasonable sum for the land’s occupation. The recovery takes the form of damages for breach of an implied promise to pay for using the land. The claim only lies where the tenant actually entered the premises with the landlord’s permission, and not as a trespasser (in which event, see Mesne profits below). The landlord must establish an express or implied contract with the occupier and must hold the legal estate ( Morgell v Paul (1828) 2 Man & Ry KB 303 (not reported by Lexis...
NOTE With effect from 14 August 2023, the County Court Money Claims Centre ( CCMCC) and the County Court Business Centre ( CCBC) have been retitled the Civil National Business Centre ( CNBC)—see: LNB News 14/08/2023 12— CCMCC issues name and performance update. This Practice Note explains how to seek a charging order under CPR 73 and CPR PD 73. It outlines the application steps, namely: which form to use, how to complete it, and where to submit your completed application form It also provides guidance on interpreting and applying the relevant CPR provisions. Depending on the court dealing with your matter, further requirements may apply—see Court specific guidance below. This Practice Note is relevant whether your charging order application is made via the Civil National Business Centre ( CNBC) or in a non- CNBC case. Be aware that special provisions apply to charging orders over...
This Practice Note provides an introduction to the law of tort by addressing three questions: what does the concept of being liable in tort mean, and how does tort relate to contract and criminal law? how has the law of tort developed? what is the scope of tort, ie which interests does it protect, what conduct does it allow or punish, and what impact has the Human Rights Act 1998 had on tort law, particularly calls for a general tort of privacy? What is tort law? The word ‘tort’ stems, indirectly, from the Latin ‘tortus’, denoting crooked or twisted—in other words, a wrong. It follows that a tort is a civil wrong that arises where one person unfairly causes another to suffer loss or harm. A person who commits a tort is legally liable to the injured party, who is provided with a remedy in law, such as...
This Practice Note explains what occurs to a lease when it is disclaimed, and considers the consequences for landlords, tenants, sub-tenants, former tenants and guarantors, together with the effect of a vesting order... Effect of disclaimer A liquidator or trustee in bankruptcy may disclaim onerous property and contracts. Where a tenant is insolvent, a lease of trading premises will typically be onerous, with unpaid rent forming part of the tenant’s debts and duties... For the steps involved in a disclaimer, refer to the Practice Note on the process by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986... When a liquidator or trustee disclaims, the tenant’s rights, interests and liabilities under the lease cease from the date of disclaimer. If the tenant alone holds any interest or bears liability in relation to the lease, it ends entirely for all...
General The most recent iteration of the PDIP took effect on 3 July 2020. It supersedes earlier practice directions, practice statements and practice notes concerning insolvency proceedings, except for: the Corporate Insolvency and Governance Act Practice Direction of 3 July 2020 the Temporary Insolvency Practice Direction of 6 April 2020 the Practice Statement for schemes of arrangement concerning Part 26A of the Companies Act 2006 of 30 June 2020 It leaves the Practice Direction: Directors’ Disqualification Proceedings unaffected and should be read alongside insolvency legislation. The PDIP comprises seven sections: part one — general provisions part two — company insolvency part three — personal insolvency part four — appeals part five — Financial Markets and Insolvency ( Settlement Finality) Regulations 1999 ( Financial Markets Regulations), SI 1999/2979 part six — applications concerning the...
Immediately after the trustee in bankruptcy (trustee) is appointed, the bankrupt’s estate passes to them, and the bankrupt’s assets—often led by their home—typically represent the most significant part of the estate. On taking office, the trustee’s overriding objective is to protect and realise the value of the bankrupt’s share in any property so that bankruptcy creditors receive the proceeds in the bankruptcy estate......
This Practice Note outlines the required contents of a Part 36 offer, identifies to whom the offer must be directed, and highlights the additional stipulations for a defendant’s Part 36 proposal. It also explains how to make a Part 36 offer confined to part of the claim or focused on a specific issue within the claim. The Note addresses offers in proceedings with multiple parties, the need for a relevant period of at least 21 days, and the treatment of interest. It further considers situations involving a litigant in person, as well as the inclusion of a non-monetary element within a Part 36 offer... What a Part 36 offer must include A compliant Part 36 offer does not have to be presented in a letter; a party may instead use Form N242A ( CPR PD 36, para 1.1)......
Occupiers' Liability Act 1957 Under the Occupiers' Liability Act 1957 ( OLA 1957), an occupier of premises owes a common law duty of care to all their visitors for risks arising from the state of the premises, and from things done or left undone upon them. In every case, the occupier must exercise such care as is reasonable in the circumstances. The test for liability under OLA 1957 is: the claimant must be a visitor at the material time the defendants must be occupiers the defendant must have breached the statutory duty to take such care as, in all the circumstances, was reasonable to see that the claimant was reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupiers to be there the breach must have caused the claimant...
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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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