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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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ARCHIVED : This archived Practice Note was prepared by reference to the earlier/old Electronic Communications Code (the previous Code) and, where premises might be affected by telecommunications leases governed by the previous Code, it flags drafting considerations and due diligence points where relevant. Nevertheless, its substance still has relevance for the purposes of the transitional arrangements in the new Code. It is not updated and is supplied solely as background information purposes only. The new Code (found in Schedule 3A, Part 1 to the Communications Act 2003) took effect on 28 December 2017. Under the transitional provisions in the new Code, set out in Schedule 2 to the Digital Economy Act 2017, subsisting agreements made under the previous Code (ie an agreement pursuant to paragraph 2 or 3, or a court order conferring Code rights under paragraph 5 of the previous Code) continue to...
In Scotland, under common law, a lease does not in fact end on the specified expiry date (ish) unless: either party serves proper and timeous notice of termination that notice is then implemented by subsequent conduct; and/or the tenant, in a separate document, confirms the lease will terminate and that they will vacate on the stated date Tacit relocation applies whether the lease was constituted: formally informally through circumstances engaging rei interventus, or orally See: Introduction: Stair's Laws of Scotland ( Stair Memorial Encyclopaedia) [373]. Tacit relocation does not extend to seasonal leases where no notice to quit is required, eg seasonal sporting leases or leases for grazing or mowing. For further information, see: Leases affected: Stair Memorial Encyclopaedia [375]. Effect of tacit relocation The principle of tacit relocation (silent re-letting) is that, where neither party gives notice of an...
Introduction to Su DS In natural landscapes, rainfall is caught by vegetation or seeps into the soil, depending on ground conditions, until the soil’s ability to absorb water is surpassed. When that threshold is crossed, surface runoff begins. In commercial or industrial schemes that replace green areas with buildings and hardstanding, interception and natural infiltration are removed or restricted, driving up runoff volumes. Heavy or long-lasting rainfall can therefore create substantial runoff and degrade water quality. Without suitable management this can lead to flooding and pollution, so well-considered drainage design is essential to prevent harm on site and further downstream. Su DS provide an alternative to conventional piped drainage for handling site rainfall run-off and have featured in flood risk policy across the United Kingdom for at least 15 years. The legal basis for Su DS in relation to major...
In Scottish conveyancing, suspensive conditions within missives are indispensable, allowing parties to conclude a binding contract while postponing particular obligations until specified requirements are fulfilled. When precisely drafted, they offer certainty, curb risk, and protect both purchasers and sellers by ensuring crucial matters—such as planning permissions, finance, or due diligence—are resolved before completion. This Practice Note summarises the legal framework, practical considerations, and proven techniques for drafting and negotiating suspensive conditions in missives. Transactional context Historically, Scottish property lawyers prided themselves on the rapid conclusion of missives for the sale and purchase of heritable property. Owing to the increased length and detailed terms in offers for both domestic and commercial assets, the time needed to reach conclusion has grown in step. Additional time required to secure loan offers from lenders has also affected the residential market and significantly slowed the conclusion of missives. Missives for buying and...
Archived: This Practice Note reflects provisions repealed on 1 April 2013 and is provided solely for historical reference. What is summary assessment? Summary assessment is the process by which the costs of an application are determined at the hearing of that very application (old rule 43.3). Typically, any such costs must be paid within 14 days, though the court may alter the timescale. For more detail, consult the Guide to the Summary Assessment of Costs issued by the Senior Courts Costs Office. Under old practice direction 44, para 13.2, the general position is that the court should direct summary assessment of costs: at the conclusion of a fast track trial at the end of a hearing lasting no longer than one day; if that hearing disposes of the whole action, the order on costs may encompass the entire claim in certain hearings before the Court of...
When/why would a lender or a borrower want to substitute security in a real estate finance ( REF) transaction? The choice by a lender or borrower to replace security in a REF deal will typically be shaped by the borrower’s business, the character of its property investments, and the current economic environment. The two most frequent situations are: where the lender has security over a property portfolio and has agreed, in the loan and security documents, a mechanism enabling assets within the charged pool to be swapped for alternative properties where the borrower manages a business with a fluid investment portfolio—for instance, an investment fund—so it faces commercial pressure to act quickly on purchases or sales, and therefore seeks, under its financing and security arrangements, the flexibility to dispose of properties and replace them with new...
This Practice Note highlights the risks in mixed use developments that may arise where residential leaseholders of flats exercise: their collective right of pre-emption their collective right to acquire the freehold their collective right to manage the individual right to obtain an extended lease It also reviews the typical structuring approaches adopted to lessen the impact of those rights. Why is structuring a mixed use scheme important? Mixed use developments combine one or more buildings in commercial, retail and/or industrial use with an element of residential accommodation. Even if the residential part is merely ancillary to the principal commercial purpose, such schemes must be handled with particular care. Common pitfalls and challenges include: Right to buy/right of pre-emption — The Landlord and Tenant Act 1987 ( LTA 1987) grants qualifying long lease residential tenants a collective right of first refusal to...
Application by party to lease for variation Any party to a long lease of a flat may apply to the First-tier Tribunal ( Property Chamber) in England or the leasehold valuation tribunal in Wales to vary a lease that fails to make satisfactory provision for repairs/maintenance (including installations), building insurance, services needed for a reasonable standard of accommodation, the recovery and computation of service charges, or other prescribed matters. “ Satisfactory provision” has its ordinary meaning; the lease need not be seriously defective. Tribunals will not cure drafting errors, tenant non-observance or perceived inequities, and a service charge shortfall alone is insufficient. They have no jurisdiction to rectify mistakes. A respondent may seek corresponding variations of other long leases with the same landlord. A majority application is possible where the object cannot be achieved unless all leases are varied; statutory consent thresholds apply. Only changes...
Starter tenancies A starter tenancy is a form of assured shorthold tenancy issued by a registered provider of social housing ( RP), akin to a local authority introductory tenancy (see: Tenancies that are not secure — Introductory tenancies). These arrangements were brought in to allow swift action to safeguard communities from anti-social behaviour and to align with the government’s Respect Standard for Housing Management. Once an RP decides to run a starter tenancy scheme, every new tenant, or those within a designated area, will be granted a starter tenancy. From 1 December 2022, tenancies and licences of dwellings in Wales are regulated by the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016) (subject to certain exceptions). New assured shorthold tenancies can no longer be created, and existing assured shortholds automatically convert to occupation contracts. The terms of both existing and new...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background reference only. Starter homes policy 2014 starter homes consultation In December 2014, the government set out plans for a new Starter Homes initiative, starting a consultation on planning changes to back the delivery of 100,000 additional low-cost homes for young first-time buyers. It observed that rising house prices left ‘too many hard-working people in their twenties and thirties’ unable to get onto the property ladder, and proposed to: introduce a national Starter Homes exception sites policy so homes could be built on underused or unviable brownfield land, not presently allocated for housing, on both public and private sites secure, via planning obligations or conditions, that newly built Starter Homes were only available to purchase or occupy by young first-time buyers and sold at least 20% below open market value remove duties on...
This Practice Note reviews the different stamp duty land tax ( SDLT) rates, including those that apply to transactions involving rent. For general guidance on when SDLT is chargeable, see Practice Note: Land transactions, chargeable interests and chargeable transactions. From 1 April 2015, SDLT no longer applies to any land transaction concerning interests in or over land in Scotland. From that date, such transactions are within land and buildings transaction tax ( LBTT), subject to transitional provisions. Accordingly, any references in this Practice Note to ' UK land' or similar wording, in the context of SDLT, should be understood as excluding interests in or over land in Scotland from 1 April 2015. For further information, see the LBTT subtopic. SDLT also ceased to apply to any land transaction involving any interest in or over land in Wales from 1 April 2018. From that date, land...
SRA Transparency Rules The Solicitors Regulation Authority ( SRA) requires law firms to publish on their websites the prices they charge and what these encompass. This does not apply to all legal work, only to: Five types of services for the public: Residential conveyancing Uncontested UK probate and estate administration Immigration applications and appeals (excluding asylum) Minor motoring offences Employment tribunals (employee claims for unfair or wrongful dismissal) Three types of services for businesses: Debt recovery (up to £100,000) Employment tribunals (defending claims for unfair or wrongful dismissal) ...
A split reversion, sometimes termed a severed reversion, arises where the reversionary interest in one segment of a leasehold estate is vested in one reversioner, while the reversion to the remaining part is vested in another reversioner. The presence of a split reversion may create several difficulties in relation to: apportionment of rent (see Apportionment of rent and deeds of apportionment below) compliance with the landlord covenants in the lease (see Compliance with landlord covenants below) a buyer’s indemnity covenant (see Buyer’s indemnity covenant below) business tenancies (see Tenancies under Part II of the Landlord and Tenant Act 1954 below) forfeiture and notices to quit (see Forfeiture and notices to quit below) surrender (see Surrender below) Examples of split reversions Two or more landlords owning separate parts of the reversion This can occur where two or more...
A proprietor of commercial property may choose to permit a tenant or licensee to occupy the premises on a short-term or interim basis. This might be because: they wish to optimise income from the asset while a longer-term solution is arranged; for example, during the period when planning permission is being obtained for redevelopment the parties are working towards a longer-term deal and the occupier wants to move in while a lease is negotiated and completed the operating model relies on short-term lettings or licences, such as traders in a market hall or desks in serviced offices the business needs one or more employees to live on-site to carry out their duties more effectively This Practice Note outlines the practical steps and key issues to weigh up when deciding how best to document these...
From 1 October 2022, a compulsory licensing regime for short-term let ( STL) properties took effect across Scotland. Following 1 October 2022, first-time STL operators must hold a licence prior to accepting bookings or welcoming any paying guests. Running a short-term let without a licence is a criminal offence, punishable on summary conviction by a fine not exceeding £2,500 under the applicable law. This practice note aims to explain when an STL is required. For procedural steps and practical guidance on applying to the local authority, see Practice Note: Short-term let licences– Scotland—procedure for further details. What is a short term let ( STL)? The Civic Government ( Scotland) Act 1982 ( Licensing of Short-term Lets) Order 2022, SSI 2022/32 (‘2022 Order’) established a fresh regulatory framework for a STL in Scotland. Under Article 3 of the 2022 Order ( SSI 2022/32), a short term let is ‘the use of...
A compulsory licensing regime for short-term let ( STL) properties came into force on 1 October 2022 in Scotland. From that date, first-time STL operators must hold a licence before accepting reservations or hosting guests. Running an STL without a licence is an offence in criminal law, punishable on summary conviction by a fine of up to £2,500... This Practice Note aims to set out how applications are made to the local authority (the ‘licensing authority’). It does not address planning matters or appeals against rejected STL applications. For guidance on when a licence is needed, see Practice Note: Short-term let licences– Scotland—requirements... How to apply for a STL licence Legislative background Under Part 1 of the Civic Government ( Scotland) Act 1982 ( CG( S) A 1982), each licensing authority may specify activities that require a licence. For STL licensing, and subject to the...
In a share purchase agreement ( SPA), it is standard for the seller to grant the buyer warranties and indemnities. Why warranties and indemnities are needed For any share acquisition, the buyer starts from the maxim caveat emptor (let the buyer beware). As they cannot know with certainty exactly what they are acquiring when buying a company, the purchaser seeks protection from the default common law position by building suitable contractual terms into the SPA in the shape of warranties and indemnities. Taken together, these provisions protect the purchaser against the uncertainties inherent in the target and address the caveat emptor rule. The buyer will also undertake due diligence on the target company (or target group) to learn as much as possible before proceeding. For additional detail on the diligence process, see Practice Note: Due diligence—share and asset purchases. Without warranties or...
This playbook offers guidance on negotiating two clauses—covering arrears and the Seller’s release—in a sale agreement for a property let on one or more commercial leases. It is intended for lawyers acting for the Seller and for in-house counsel, who should tailor it to address client-specific issues and to safeguard the client’s position. The level of risk noted may vary by client. The playbook sets out preferred drafting, fallback wording, and guidance that favour the Seller. For a full list of related content, see the Contracts subtopic. For template sale agreements, see Contract for sale—freehold subject to leases and Contract for sale—leasehold subject to leases. See also Practice Note: Dealing with rent arrears on the sale of a property subject to leases. Arrears Clause name: Arrears Alternative names: N/ A Risk: Medium Explanation: Arrears are any sums owed by an occupational tenant that the Seller has not...
Forms of business vehicle in the UK There are numerous forms of business vehicle, and choosing the most suitable structure to operate a business is vital; that selection can affect whether a business succeeds or fails. No single vehicle will meet every enterprise’s needs and expectations. Each option presents its own advantages and drawbacks. Deciding which vehicle to employ for a particular venture is complex and turns on a range of legal, tax and commercial factors; a perfect match may not exist. Moreover, the vehicle first adopted to run a given business may cease to be the best fit as that business grows and matures. The chosen vehicle should therefore be reviewed periodically. If the original vehicle proves unsuitable, a different vehicle can be used to assume the business, although changing vehicles can be expensive, depending on the...
Scope of this Practice Note This Practice Note offers an overview of security reviews and outlines: when and for what reasons a lender may instruct its lawyers to undertake a security review preparatory steps before commencing a security review the approach to presenting the outcome of the security review to the lender It forms part of a trio of documents addressing how to conduct and present a security review, intended to be used together. The accompanying documents are: a Security review checklist, which details the searches and verifications to be performed during the security review a Precedent: Security review report, to be used for delivering the findings of the security review to the lender Security reviews—when and why? Frequently, the initial step in a restructuring is the lender asking its legal advisers to carry out a...
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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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