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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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A judgment creditor can ask the court for a charging order to secure what is owed, provided the judgment debtor holds chargeable assets ( CPR 73). Once a charging order is in place, the creditor may then seek an order for sale from the court, with a view to realising and recovering the amount due under the judgment. This Practice Note highlights key points to weigh up when deciding whether this enforcement route is appropriate, or whether it would be better not to pursue it. For broader guidance on charging orders, including what they are and the procedural steps required to obtain them, see the following Practice Notes: Charging orders—what are they and when to use them— CPR 73 Charging orders—how and where to apply Charging...
Ready, willing and able This Practice Note explains the meaning of ready, willing and able and highlights the upshot of serving an invalid notice. Where a party is ready, willing and able to complete, it may serve a notice to complete, thereby making time of the essence and enabling rescission of the contract. The Standard Conditions ( SCs) and the Standard Commercial Property Conditions ( SCPCs) prescribe how such a notice must be served. Although the focus is on commercial property transactions, it also briefly addresses residential aspects. Ordinarily, time is not of the essence for completing a land sale contract. If either seller or buyer postpones completion, the party in default is answerable in damages (and for compensation under the standard conditions) but cannot rescind unless and until time is made of the essence. It falls to the party who is ready, willing and able to...
This Practice Note examines how the Limitation Act 1980 ( LA 1980) operates, outlining its role and the circumstances and manner of its application. For help calculating limitation periods under LA 1980, including general rules on when time begins to run and when a claim is treated as ‘brought’ for limitation purposes, see Practice Note: Limitation—when will it end? For a summary of the principal limitation periods under LA 1980, see Practice Note: Limitation—the principal limitation periods. The function of limitation periods Statutory limitation periods aim to calibrate a balance between interests that compete and at times clash: the interest of the claimant in having the widest possible chance to pursue claims for legal redress, and the interest of the defendant in not being required to answer stale proceedings because: it is unjust for the...
Practice note This Practice Note examines where responsibility lies after an assignment of a lease term or the reversionary interest. It reviews how liabilities vary for tenants, landlords and guarantors in respect of both ‘old tenancies’ and ‘new tenancies’. Although it does not directly analyse liability between assignor and assignee (eg the seller and buyer), the principles set out in this Practice Note underpin the drafting of any property sale contract involving leases and guide how the parties should tackle drafting and negotiation of key issues, including apportionment of rents (such as service charge), rent arrears and unresolved rent reviews—see: Buyer’s practical contract negotiation collection......
Practice Note: Landlord’s consent to alterations This Practice Note outlines the options available to a landlord where a tenant has carried out unauthorised alterations: forfeiture, an injunction and/or claim for damages. For help on typical alteration covenants, and on assessing whether refusal of consent is reasonable, see Practice Note: Landlord’s consent to alterations......
Where a lease is assigned, the landlord may insist that the transferor tenant enters into an authorised guarantee agreement ( AGA) pursuant to section 16 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). This Practice Note examines what amounts to an AGA and explains how it functions to allow the outgoing tenant to underwrite some or all of the incoming tenant’s duties under the lease. It addresses the appropriate (and inappropriate) contents of an AGA, the status of the outgoing tenant’s guarantor on assignment (including guarantees of an AGA, often referred to as a GAGA), excluded assignments, and the release of the former tenant and its guarantor. What is an authorised guarantee agreement ( AGA)? An AGA is a guarantee provided by the assigning tenant which satisfies the requirements of LT( C) A 1995, s 16. Upon a lease...
This Practice Note considers allocation (by the court) of defended civil claims to one of the case management tracks: the small claims track, fast track, intermediate track or multi-track. It explains what is meant by 'allocation' and summarises the principal features of each track. The Note focuses on defended civil claims and the court's role in placing them on the appropriate case management path. The framework for allocating civil claims differs by the date proceedings are issued: Issued before 1 October 2023: three case management tracks—the small claims track, fast track and multi-track. Issued on or after 1 October 2023: four case management tracks—the small claims track, fast track, intermediate track and multi-track. For personal injury matters, the applicable rules turn on when the cause of action arises; for disease claims, they depend on when the first letter of claim is sent...
If a tenant gives up some or all of the holding under an agricultural tenancy, whether because the landlord has served a notice to quit or otherwise, each party may have a claim to compensation. The potential level of compensation due from the landlord to the tenant can influence the decision to serve a notice to quit, and its timing. Compensation is primarily governed by statute, under either the Agricultural Holdings Act 1986 ( AHA 1986) or the Agricultural Tenancies Act 1995 ( ATA 1995), though common law and customary entitlements still play a small residual part. The express provisions of the tenancy agreement must also be considered. Claim by Tenant Tenant-right A tenant holding a tenancy protected by AHA 1986 and entered into after 1 March 1948 is entitled to compensation for ‘tenant-right’. Where the Act provides this entitlement, any claim based on custom or on an...
This Practice Note examines how easements are acquired through prescription (long use) at common law, via the doctrine of lost modern grant, and by statute (pursuant to the Prescription Act 1832). It explains how a claimant can satisfy each route, the scope of the right obtained, and further matters to weigh where the dominant or the servient tenement is let on a tenancy at the relevant time by either party. It also briefly addresses the question of whether a long-used easement can be safeguarded by registration at HM Land Registry. Presumed grant An easement can be founded by long use: at common law under the lost modern grant doctrine (a well-known branch of common law prescription) by statute (under the Prescription Act 1832 ( PA 1832)) The law of prescription is a means of proving an easement, not of creating it. It...
This Practice Note explains the circumstances in which the Landlord and Tenant Act 1954 ( LTA 1954) applies to the surrender of a business lease. Parties proposing to enter into a surrender agreement should confirm whether the lease benefits from the LTA 1954 security of tenure protections. If the tenant is protected under Part II and the required statutory procedure is not observed, any surrender agreement will not prevent the tenant from exercising the right to request (and obtain) a new lease under the LTA 1954. This can lead to costly complications and delay for a landlord seeking to take back the premises (for redevelopment, to occupy or to re‑let). For guidance on contracting out of the LTA 1954, see Practice Note: Contracting out of the Landlord and Tenant Act 1954—procedures, timing and pitfalls. When does the Landlord and Tenant Act 1954 apply on the...
The Third Edition The third edition of the Standard Commercial Property Conditions was released on 27 April 2017. It refreshed the Standard Commercial Property Conditions ( Second Edition) (the Second Edition), which dated from June 2004. The revision sought to capture developments in law and practice affecting commercial property transactions over the intervening period. A modest follow-up arrived in March 2018—the Standard Commercial Property Conditions ( Third Edition—2018 Revision) (the Third Edition). This introduced just one alteration, updating the definition of ‘clearing bank’ in SCPC 1.1.1(c) to align with changes to the Clearing House Automated Payment System... Summary of the main differences between the Second Edition and the Third Edition Value Added Tax ( VAT) Second Edition: SCPC 1.4.1—the seller warrants the sale is not a supply for VAT purposes. Alternatives in SCPC A1 (sale is standard rated) and SCPC A2 (transfer of going...
The Electronic Communications Code Section 4 and Schedule 1 of the Digital Economy Act 2017 introduced into the Communications Act 2003 an updated Electronic Communications Code, replacing the earlier Code on 28 December 2017. For guidance on the Code’s provisions, see the following Practice Notes: The Electronic Communications Code—code rights The Electronic Communications Code—terminating and renewing code rights Previous Electronic Communications Code [ Archived] This Practice Note addresses the obligations on electronic network providers designated as ‘ Code operators’ by the Code to comply with conditions showing they hold sufficient funds to satisfy their liabilities. These conditions are contained in the Electronic Communications Code ( Conditions and Restrictions) Regulations 2003, SI 2003/2553. The Communications Act 2003 and the Digital Economy Act 2017 ( Consequential Amendments to Secondary Legislation) Regulations 2017, SI 2017/1011—which deal with consequential amendments to secondary...
Wrongful interference with an easement as a private nuisance This Practice Note addresses wrongful interference with an easement as a form of private nuisance and explains: what amounts to actionable interference alteration and deviation of rights of way estoppel through acquiescence by a beneficiary remedies and damages procedural steps to bring and defend an easement infringement claim Interference with an easement amounts to private nuisance. A claimant must first prove the easement exists for any action to succeed. For broader guidance on private nuisance, see Practice Note: Private nuisance—general principles. In Gosling v Bradbury, the claimants sought a declaration confirming a legal easement entitling them to take water from a borehole on the defendants’ farm, together with an injunction preventing any further interference or obstruction of that supply. They also contended that there was an ancillary easement permitting...
Under Part 8 of the Anti-social Behaviour Act 2003 ( ABA 2003), local authorities ( LAs) can address complaints concerning high hedges. This Practice Note explains what constitutes a high hedge, who may complain, the steps they must take, remedial notices, non-compliance, and appeals. Under ABA 2003, Pt 8, LAs are empowered to handle complaints in respect of high hedges. It sets out processes, outcomes and routes of challenge for affected parties too. Who can complain?......
ARCHIVED: This Practice Note is archived, is not maintained, and is supplied for background reference only. In addition, some links may no longer lead to the provisions as they stood at the time the guidance was published. For information on earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. Underlying documents The Civil Procedure ( Amendment) Rules 2016, SI 2016/234 sets out revisions to the Parts of the CPR. The Making Document, issued by the Ministry of Justice on Thursday 25 February 2016, details changes to the practice directions. Coming into force date February 2016 23 February 2016—amendments to CPR PD 12 concerning Default Judgment. These changes reflect last year’s commencement of the Hague Convention on the Choice of Court Agreements 23 February 2016—amendments to CPR PD 74A on Enforcement of judgments in different...
ARCHIVED: This Practice Note is archived, is not being updated and is provided solely for background reference. In addition, certain links may no longer point to the provisions as they stood when the guidance was first issued. For details on earlier and/or later changes to the CPR, refer to: CPR updates—overview and Procedure Rule Committee minutes—overview. New Rolls Building electronic working pilot scheme ( CPR PD 51O) Date in force : Monday 16 November 2015 CPR PD 51O sets out a new, optional electronic working pilot that will commence on Monday 16 November 2015 for a period of one year. It extends to both fresh and ongoing cases within the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court ( TCC), the Mercantile Court and the Admiralty Court at the Royal Courts of Justice ( RCJ), Rolls Building,...
This Practice Note explores certain matters that can arise when enforcing security by appointing a receiver over property held on trust. It also addresses trust considerations in the setting of security granted by a partnership. Several banks have experienced issues when relying on standard-form security documents where their client is a partnership and the secured property is either used by the partnership or constitutes a partnership asset. Commonly, enforcement pitfalls have not been anticipated when the security is taken, and the standard documentation has not been modified to accommodate this. Trusts of land HM Land Registry’s Land Register records ownership of the legal estate in land—the ‘paper title’—that is, the rights of the registered proprietors to execute a valid transfer passing ownership to another person. The Land Register does not record the beneficial (equitable) interest and, as a result, the Land Registrar is not fixed with...
A rentcharge A rentcharge is a monetary sum secured on land. It can impact both freehold and leasehold interests, binding each estate alike. Ordinarily, the owner of the rentcharge (the 'rent owner') retains a recurring payment when a property is disposed of on sale, payable at set intervals. Rentcharges were common in the Victorian period, being used to give the seller of freehold land a continuing income from the property after completion of the transaction. The amounts involved were material at the time, but today the yearly sums reserved by rentcharges are typically under £10. They are sometimes, albeit mistakenly, described as 'ground rent' or 'chief rent'. Rentcharges are also employed to make positive covenants, or contributions towards the cost of services, enforceable against successors in title—often called estate rentcharges (see Practice Note: Estate...
This Practice Note explores what liquidated damages provisions are and, in brief, when they are used and in what manner. It then concentrates, in particular, on the judiciary’s method when assessing whether an alleged liquidated damages term is in truth a penalty and thus unenforceable; following the authorities through to the approach now taken after the Supreme Court’s 2015 Makdessi/ Parking Eye ruling and examining, specifically, matters such as when terms for accelerated payment, default interest, or positive inducements may amount to a penalty. Consideration is also given to whether liquidated damages endure following termination and to their connection with partial performance. What is a liquidated damages clause? A liquidated damages clause is a contractual term by which the parties to an agreement fix, in advance, a specified sum of money to be paid by the defaulting party to the innocent party upon breach of...
An unpaid vendor’s lien operates as an equitable charge, giving the seller security in equity for the agreed price, and it applies to both freehold and leasehold property. Nature This lien is an equitable right to a charge that exists independently of contract terms and of possession, arising automatically by operation of law. It is grounded in the principle that a person who has obtained possession of property under a contract for valuable consideration cannot retain it without paying that consideration. As an equitable remedy it is subject to the usual equitable constraints, and relief may be withheld if the vendor’s conduct has been improper. When it arises The lien comes into existence on exchange of contracts and is not contingent on completion. It persists even where the vendor executes an outright transfer and surrenders possession of the property (and, if relevant, the title deeds). It arises: whether all or part of the...
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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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