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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 considers the different legal bases for bringing a professional negligence claim This Practice Note examines the alternative legal foundations for pursuing a professional negligence claim, namely establishing that the professional owed the claimant a duty. At certain times, whether such a duty arises is intertwined with the nature of the loss claimed, which in turn defines the scope of the duty and related matters; for authoritative direction on these points, see: Professional negligence claim—scope of duty, causation and remoteness—checklist and related content. For guidance on starting a professional negligence claim, consult the following Practice Notes set out below: Starting a professional negligence claim—a practical guide Pleading professional negligence claims—worked hypothetical examples and related precedents For the required standard of care in professional negligence matters, refer to these key Practice Notes: Standard of care in professional negligence claims Standard of...
This Practice Note introduces key procedural features of the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, as they relate to claims under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996). The same provisions apply whether proceedings are issued under CPR Part 7 or CPR Part 8; see Practice Note: TOLATA 1996—when to use Part 7 and when to use Part 8. See also Practice Notes: TOLATA 1996—pre-action matters; TOLATA 1996—when to issue in the County Court and when to issue in the High Court; and TOLATA 1996— Part 36 offers. For practical guidance on the court’s approach to TOLATA 1996 claims, see Practice Note: Case law relating to TOLATA 1996 claims and Precedent: Specimen final orders under the Trusts of Land and Appointment of Trustees Act 1996. Costs budgeting Disclosure and...
This Practice Note addresses common questions that arise when planning works to a party wall, or when a neighbour proposes works. It considers situations where the adjoining owner consents to your plans, where consent is withheld or no reply is received, and where a neighbour’s wall suffers damage... Who has responsibility for repairing a party wall? It is essential to establish where the boundary lies. If the wall stands entirely on one owner’s land, that owner may be liable in nuisance for allowing it to fall into disrepair. See Practice Note: Private nuisance—general principles. In any event, section 2 of the Party Wall etc Act 1996 ( PWA 1996) gives the parties various rights concerning repairs, and adjoining owners may be required to contribute to costs. See Practice Note: Party walls—shared costs and security for damage. Also assess the cause of the...
This Practice Note summarises the statutory deadlines set out under the Landlord and Tenant Act 1954 ( LTA 1954) for issuing an application to the court for the renewal of business leases where a section 25 notice or section 26 request has been served, together with the mechanism for extending those periods under LTA 1954, s 29B(1) or s 29B(2), and the consequences of not taking timely action, whether by agreeing a further statutory extension of time to issue lease renewal proceedings, or by commencing proceedings within those limits, and the potential effect on the rentalisation of improvements and the date from which interim rent may fall due. It also outlines the process for any extension. Deadline for application to court The cut-off for either party to apply to the court for a new tenancy, or for an order terminating the existing tenancy without a new grant...
This Practice Note sets out guidance on the limitation periods for breach of contract claims under the Limitation Act 1980 ( LA 1980). It should be read alongside the following Practice Notes: Limitation Act 1980—general application, which details the core principles for calculating limitation periods pursuant to LA 1980, including when time begins to run and when it stops Limitation—the principal limitation periods, which provides an overview of the key limitation periods for disputes. In addition to high-level material relevant to breach of contract claims, it may assist with other claims that could apply concurrently on the facts For more general guidance concerning breach of contract and debt claims, see: Contractual breach damages and remedies—overview Debt...
This Practice Note summarises the main remedies available for breaches of a tenant’s repairing duties while the lease is ongoing, including an interim damages claim for disrepair, forfeiture (subject to the limits imposed by the Leasehold Property ( Repairs) Act 1938), serving a notice to repair under a ‘ Jervis and Harris’ clause, and specific performance. For dilapidations pursued after the term has ended, refer to Practice Note: Dilapidations claims at the end of the term. The available claims are: damages forfeiture entry and repair under a ‘ Jervis v Harris’ clause specific performance Claim for damages for disrepair during lease term During the lease term, a damages claim for breach of the tenant’s repairing covenant may not be an effective route because: where the Leasehold Property ( Repairs) Act 1938 ( LP( R) A 1938) applies (ie there is a fixed term of...
Landlord and tenant related Building Safety Act 2022 ( BSA 2022) time limits This Practice Note outlines time frames concerning service of: leaseholder deeds of certificate ( LDCs) a landlord’s request for an LDC a landlord’s certificate a previous landlord’s certificate notification of insolvency of responsible persons appeals against notices of liability served on other landlords Serve landlord’s first notice requesting an LDC Time limit: within five days of the landlord becoming aware that the leasehold interest is to be sold, or that a relevant defect exists. Reference: The Building Safety ( Leaseholder Protections) ( Information etc) ( England) Regulations 2022, SI 2022/859, reg 6. Further information: Under regulation 6 of SI 2022/859, unless the landlord has already obtained an LDC, the notice must be served before the notification date, namely five days after the date on which the landlord becomes aware that...
This Practice Note It outlines the particular procedural phases in a judicial review application and then explains in detail the specific obligations for each phase, as set out by the CPR, CPR PD, and Administrative Court guidance......
Powers—general The statutory authority given to an LPA/fixed charge receiver is quite restricted. Therefore, to perform the functions required by the appointing mortgagee, the LPA/fixed charge receiver must rely on express powers contained within the mortgage deed. Statutory powers The statutory powers of an LPA/fixed charge receiver are found in section 109 of the Law of Property Act 1925 ( LPA 1925), and are limited in extent. Under LPA 1925, s 109(3), the receiver is authorised to demand and collect income from the property over which they are appointed and to provide receipts. In addition, under the LPA 1925 the LPA/fixed charge receiver may exercise any powers that have been delegated to them by the mortgagee......
This Practice Note outlines the options open to commercial tenants when a landlord of commercial premises fails to meet repairing obligations, covering potential claims for specific performance, damages, self-help remedies, rent set-off, and bringing the lease to an end, and contrasts the advantages and disadvantages associated with each choice. For claims by residential tenants, see Practice Note: Residential tenancies—landlord’s implied covenant of fitness for human habitation and statutory obligation to repair. For actions by landlords against tenants during the term, see Practice Note: Dilapidations during the term—claims by the landlord. For guidance on assessing whether repairing duties have been breached generally, see Practice Note: What is the appropriate standard of repair? A tenant faced with a landlord’s breach of its repairing obligations may pursue several routes to address the problem and prompt a remedy: an order for specific performance self-help a claim for...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 received Royal Assent on 27 October 2025 For guidance on the Act’s effect on residential tenancies in England, refer to Practice Note: Renters’ Rights Act 2025—key provisions. That Practice Note details which party must issue a break notice and on whom it must be served, along with the acceptable methods of service. It addresses whether service is permitted or required by contract, the statutory frameworks governing service of notices, and the deeming rules under: section 196 of the Law of Property Act 1925 ( LPA 1925) section 23 of the Landlord and Tenant Act 1927 ( LTA 1927) section 7 of the Interpretation Act 1978 ( IA 1978) the common law It further considers how break notices align with statutory security of tenure for assured shorthold tenancies ( ASTs) under the Housing Act 1988, and with...
Bankruptcy is an insolvency procedure for individuals, beginning on the date the bankruptcy order is made. This Practice Note examines the impact of a bankruptcy order on co-owned property. Legal title to co-owned property does not vest in trustee in bankruptcy Where two or more people own real property together, they hold it under a trust of land. When a bankruptcy order is made, a bankrupt’s property usually vests automatically in the Official Receiver/trustee in bankruptcy. However, property the bankrupt holds on trust does not. Thus, for co-owned property (whether as joint tenants or tenants in common), if one co-owner is made bankrupt, the legal title is unaffected; only the bankrupt’s equitable interest passes to the trustee. As the legal interest remains with the co-owners as trustees (unless they are replaced as trustees), any transfer should be executed by the bankrupt and the other...
This Practice Note outlines what charging orders are, which categories of judgment debt can be made subject to a charging order, and the kinds of property that may be charged. It also offers guidance on construing and applying the relevant CPR provisions. Depending on the court in which your case is progressing, you may need to consider additional rules—see the section: Court specific guidance below. What is a charging order? A charging order is an indirect enforcement tool that secures a judgment debt by imposing a charge over property owned by the judgment debtor. The liability may be met later by applying for an order for sale of the charged asset—see Practice Note: Order for sale—how to enforce a charging order. The framework for charging orders is contained in CPR 73 and CPR PD 73, with reference to the Charging Orders Act 1979 ( COA 1979)....
This Practice Note considers the concepts of confidentiality and without prejudice protection in the context of a mediation. The confidential character of mediation is a core element of the procedure, curbing the parties’ ability to disclose material connected to the mediation beyond the process unless everyone agrees. Mediation contracts commonly include a term dealing with confidentiality. For further information, see: Confidentiality of the mediation process. Exchanges that occur within a mediation are also ordinarily covered by the ‘without prejudice’ rule. This principle means that communications made in the course of genuine settlement discussions are not to be cited or relied upon in subsequent court proceedings, save for specified exceptions. As recognised in Pentagon Food Group v B Cadman, the contractual and formal framework of mediation renders it a particularly clear instance of ‘without prejudice privilege’, which can be reinforced by the parties’ mediation agreement and their...
A buyer's right to the return of a deposit and the seller's right to forfeit the deposit in relation to a property sale and purchase contract are dealt with in the Standard Conditions of Sale ( SCS) and the Standard Commercial Property Conditions ( SCPCs) The Standard Conditions of Sale ( SCS) and the Standard Commercial Property Conditions ( SCPCs) set out a purchaser’s entitlement to recover a deposit and a seller’s entitlement to keep it in the context of a property sale and purchase. This Practice Note outlines what those standard provisions state, considers whether the court can intervene under section 49(2) of the Law of Property Act 1925, and explains the position if the buyer has paid no deposit or has paid over 10%. The general principle is that a deposit serves as an ‘earnest for performance of the contract’ and will be...
This Practice Note examines how the Standard Commercial Property Conditions ( Third Edition—2018 Revision) set out the parties’ respective responsibilities for the property’s physical state and for insurance during the period between exchange and completion. For fuller guidance on negotiating provisions dealing with insurance and risk, see Practice Note: Buyer’s contract negotiation guide—insurance and risk. When does risk pass to the buyer? Under SCPC 8.1, risk transfers to the buyer on exchange of contracts, which mirrors the open contract position. From that point, the buyer becomes responsible for any loss or damage affecting the property. Physical condition of the property Save where the seller is constructing or converting the property, the seller gives no assurance regarding its physical condition. SCPC 4.2.1 reflects the principle of caveat emptor and places an obligation on the buyer to investigate and inspect. The buyer has no claim against the seller for...
ARCHIVED This Practice Note, now archived, was prepared by reference to the former Electronic Communications Code (the previous Code) and offers guidance on the process for removing telecoms apparatus under paragraphs 20 and 21 of that earlier Code; in particular, it outlines the procedural steps to be observed, yet its substance still bears on the transitional provisions contained in the new Code. It is no longer updated and is provided solely as background information for reference. The new Code, set out in Schedule 3A, Part 1 to the Communications Act 2003 ( CA 2003), took effect on 28 December 2017. Under the transitional provisions in the new Code, located in Schedule 2 to the Digital Economy Act 2017, subsisting agreements under the previous Code (that is, an agreement under paragraph 2 or 3, or a court order conferring Code rights under paragraph 5 of the...
This Practice Note reviews the current law of prescription in Scotland. Major reforms were introduced by the Prescription ( Scotland) Act 2018 ( P( S) A 2018). Sections 5 and 13 of the P( S) A 2018 took effect on 1 June 2022. The remainder came into force on 28 February 2025 under the Prescription ( Scotland) Act 2018 ( Commencement, Saving and Transitional Provisions) Regulations 2022, SSI 2022/78. For guidance on: the specific rules governing the prescriptive period for obligations to make reparation/pay damages, see Practice Note: Short negative prescription in Scotland—the prescriptive period for obligations to pay damages the law of limitation in Scotland, see Practice Note: Limitation of actions in Scotland, which also addresses the distinctions between limitation and prescription in Scots law the nearest equivalent in England and Wales, see:...
This Practice Note explains how to prepare a costs budget and should be read alongside Practice Note: Costs budgeting—completing Precedent H (costs budget). It identifies which version of Precedent H is required, depending on when proceedings were issued, with links to the applicable forms. It also describes how to complete the document using a series of checklists. Further, it addresses matters arising in cases that call for costs budgets involving multiple parties, multiple sets of proceedings, or group litigation. Guidance is given on setting hourly rates for both incurred costs and projected future expenditure, including the use of composite or blended rates to forecast upcoming work. The Note also covers partial completion of a budget, avoiding double counting, who is permitted to sign the budget, the cost of producing the budget, the costs of costs management, and...
Practice Note This Practice Note outlines the objectives of the Protocol, in force from 13 January 2020 and applying only to residential property in England. It sets out: the Protocol’s scope and the possible outcomes of non-compliance the duty on parties to consider ADR what a tenant’s letter of claim should contain and how a landlord should respond when to instruct experts issues of costs and limitation the tenant’s obligation to allow reasonable access for inspection and repair Formerly the Pre- Action Protocol for Housing Disrepair Cases, it has been revised to reflect claims based on a landlord’s implied covenants concerning fitness for human habitation under section 9A of the Landlord and Tenant Act 1985, as amended by section 1 of the Homes ( Fitness for Human Habitation) Act 2018. Before relying on the Protocol, a tenant should ensure the landlord is already aware of the substandard housing...
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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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