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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 Practice Note has been archived and is not maintained. The rent a tenant is required to pay is set out in the tenancy agreement binding the landlord and the tenant, which also regulates their legal relationship. Many agreements allow for rent to be increased during the term, especially where both parties foresee a longer tenancy. Conversely, where the arrangement is for a short, fixed period (as with many assured shorthold tenancies), the rent may stay at a single level for that fixed term. Exactly how rent is fixed, and what rights each party has in relation to increases, will depend on the type of tenancy. The key tenancy types and the legal rules that govern rent setting are outlined below. Private sector tenancies Rent Act tenancies What is a Rent Act tenancy? Most private sector tenancies today are assured or assured shorthold tenancies under the Housing Act 1988 ( HA...
2003 Act Tenancies Most tenancies under the 2003 Act— SLDTs, LDTs, MLDTs and, when commenced, repairing tenancies—are presently continuing on their contractual term rather than by tacit relocation. At the moment SLDTs and LDTs remain in being and, where the lease is silent, rent reviews fall under section 9 of the Agricultural Holdings ( Scotland) Act 2003. From 1 December 2017, the creation of new LDTs ceased (subject to the transitory provisions in the Land Reform ( Scotland) Act 2016 ( Commencement No. 6, Transitory and Saving Provisions) Regulations 2017 ( SSI 2017/299)), and MLDTs became available. Repairing tenancies have yet to commence, but the provisions outlined in this Practice Note will also apply to them. The rent review approach assumes the landlord is deemed to let not the farm as it stands, but only the farm benefiting from those items of fixed...
This Practice Note explores the principles underpinning rent review provisions. For further help on drafting and negotiating rent review clauses, consult Practice Notes: Negotiation guide—rent review clauses—commercial leases and Drafting index—linked rent review clauses. Onerous provisions Before turning to the rent review clause itself, remember that other terms in a lease can influence the figure reached at review. Hard-won points in negotiation may carry unwelcome consequences when the rent is reassessed. In a soft market, the inclusion of onerous provisions can completely erode the uplift that a more balanced lease might otherwise secure. In a rising market, a well-advised tenant aiming to curb increases at review will press for a discount to reflect unfair or burdensome obligations. Some provisions are consistently viewed as onerous, while others change their character and effect with prevailing market conditions. The following are the terms most likely to be relied upon by...
A trustee can be removed against their wishes in the following ways: under an express power in the trust instrument under section 36(1) of the Trustee Act 1925 ( TA 1925) by court order under TA 1925, s 41 by direction of the beneficiaries under section 19 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) Removal should not be undertaken lightly. Misconduct is not required: tension among the trustees may constitute sufficient grounds. However, a disagreement between the trustee and the beneficiaries about how the trustee exercises their discretion will generally not be enough on its own, though it can be considered. The overriding concern is always the beneficiaries’ welfare. Express power in the trust instrument Although TA 1925, s 36(2) expressly anticipates a power to remove trustees, in practice it is uncommon for a...
This Practice Note explores the use of virtual and electronic signatures in property transactions, and highlights the practical considerations that arise when deploying virtual or e-signatures to sign property contracts and to execute property deeds. For fuller material and analysis on electronic signatures and virtual signings, see Practice Notes: Virtual execution of documents and Electronic signatures. For general guidance on executing property contracts and deeds, see Practice Notes: Contracts for the sale of land—formation, signature and variation and Property deeds—use and execution of deeds in property transactions. See also Precedent: Guide to executing deeds and documents in property transactions. HM Land Registry and accepted signatures HM Land Registry sets specific rules for the use of virtual or electronic signatures across a range of deeds and paperwork, including: most registrable property deeds application forms, consents and certificates statements of truth powers of...
STOP PRESS ECCTA 2023 introduces identity verification for anyone submitting filings at Companies House. This is expected to become mandatory from November 2026. See: Registering Security at Companies House—changes under ECCTA 2023 for further details and timing. STOP PRESS On 16 March 2026, Companies House announced that on Friday 13 March it had been alerted to a security issue. A logged-in Web Filing user could, after following a specific sequence of actions, potentially view and amend certain elements of another company’s information without consent. Companies House has said that existing filed documents—such as accounts or confirmation statements—could not have been changed. There is, however, a risk that some personal data may have been accessed and that unauthorised submissions may have been made. Although information is currently limited, this could include, for example, a satisfaction of charge filing. Companies House has advised companies to review their...
This Practice Note This Practice Note outlines procedures for handling the release of security over commercial (rather than residential) property and the matters to consider when redeeming a commercial mortgage. In residential conveyancing, most deals complete using the Law Society’s Code for Completion by Post (the Code), which includes an undertaking by the seller’s solicitor to redeem the seller’s mortgage on the property. Although the Code is stated to apply to both residential and commercial transactions, it will not always be suitable either to give the undertakings in the Code or to rely on them for the release of security over the property. A departure from the Code’s terms may need to be negotiated depending on the transaction. This Practice Note proceeds on the basis that the buyer and/or the buyer’s lender requires the seller’s mortgage to be discharged on...
Background to the regulation of home finance transactions The regulation of home finance transactions developed in stages. In 2000, HM Treasury signalled its plan to bring mortgage lenders within scope, and in December 2001 it refined those plans to include mortgage intermediaries. On 31 October 2004—commonly known as M Day—both lenders and intermediaries involved in regulated mortgage contracts ( RMCs) came under regulation... Thereafter, the Regulation of Financial Services ( Land Transactions) Act 2005 was enacted. This empowered the Financial Conduct Authority ( FCA), and before it the Financial Services Authority, to regulate activities comparable to those already overseen for RMCs, but where the provider acquires land rather than simply supplying finance for a homeowner’s purchase. As a consequence, the Financial Services and Markets Act 2000 ( Regulated Activities) Order 2001 ( RAO) SI 2001/544 has been amended on two...
This Practice Note outlines how regulated home purchase plans (including Islamic finance), equity release arrangements and regulated sale and leaseback agreements are structured quite broadly. For advice on the regulation of home finance transactions, refer to Practice Note: Regulated mortgage contracts and home finance transactions defined. Regulated home purchase plans A regulated home purchase plan ( HPP) resembles a mortgage and supplies home buyers with funding aligned with Islamic law by excluding the charging and receipt of interest. HPPs fall under the supervision of the Financial Conduct Authority ( FCA)......
Registration authorities Applications to register a town or village green ( TVG) must be lodged with the registration authority for the land in question. In most cases this will be the county council, a unitary authority, a metropolitan district council, or a London borough. Where the land falls within more than one registration area, submit the application to the authority in whose area the majority of the land is situated. Legislation and guidance Legislation Section 15 of the Commons Act 2006 ( Co A 2006) sets out the statutory criteria for registration (see Practice Note: What is a town or village green?— Statutory requirements for registration). For most of England, procedure on applications is governed by the Commons ( Registration of Town or Village Greens) ( Interim Arrangements) ( England) Regulations 2007, SI 2007/457 (the English CR Regulations). However, applications made to pioneer...
On 1 August 2022, the register for overseas entities came into operation. Any overseas entities intending to purchase, dispose of, transfer, or mortgage land or property in the UK were required to enrol with Companies House and state their registrable beneficial owners or managing officers by 31 January 2023 (thereby marking the formal close of the register’s transitional period). Separately, it should be noted that an overseas company must also be recorded at Companies House if it sets up an ‘establishment’ in the UK. An establishment means a branch within the terms of the Eleventh Company Law Directive, or a place of business that is not a branch. That filing obligation arises under the Overseas Companies Regulations 2009. It is wholly separate and distinct from the regime outlined here concerning overseas entities that hold property in the UK. For more detailed...
The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) Governs the ongoing liability of former tenants and their guarantors for rent and service charge after a lease has been assigned. This Practice Note addresses: when arrears may be pursued from a former tenant or their guarantor the notice steps a landlord must follow to recover arrears from a former tenant or their guarantor (a ‘s 17 notice’) the entitlement to, and terms of, an overriding lease, together with the application process key considerations for landlords before issuing a s 17 notice Landlords must serve notice promptly for any ‘fixed charge’ that has fallen due, or they forfeit the right to recover it. After payment, former tenants and their guarantors may request an overriding lease. LT( C) A 1995, s 17 was introduced to tackle a significant issue faced by former tenants and guarantors during the early 1990s...
Receivers—background In English law, receivers have long functioned as a remedy for creditors and others seeking to safeguard their interests in assets, with origins reaching back to the fifteenth century. In a report from 1868, Vice‑ Chancellor Griffiths observed that appointing a receiver ranked among the oldest remedies known in this country... Law of Property Act 1925 ( LPA Receivers) The Law of Property Act 1925 ( LPA 1925) confers on a mortgagee the power to appoint a receiver when the mortgage monies fall due. A receiver is an individual appointed by a mortgagee, or by the court, whose function is to gather income from, and protect, the property over which they are appointed. In practice, a mortgagee may turn to a receiver to deal with the asset more efficiently than the mortgagee would itself, particularly where specialised expertise is required. Typical...
A large proportion of the standard conditions precedent ( CPs) for a typical syndicated loan will also commonly be applicable to a real estate finance transaction. For information on those conditions precedent, see Practice Note: Conditions precedent. This Practice Note concentrates on the real estate finance–specific conditions precedent that typically arise in a real estate finance investment transaction. For development facilities, additional conditions precedent must be satisfied and the drawdown mechanics are different. These requirements reflect the fact that the property being purchased will be developed over the term of the facility, and the lender will need to approve the development plans before any funding is released. For more information, see Practice Note: Real estate finance—conditions precedent and the mechanics of drawdown in development facilities. Purpose of conditions precedent Conditions precedent are included in finance documents for the benefit and protection of lenders,...
Many of the standard covenants found in a conventional syndicated loan facility will likewise apply to a real estate finance investment transaction. For guidance on those provisions, including an explanation of what covenants are and the reasons they are employed, see Practice Note: Covenants; that resource explains their purpose and operation. This Practice Note focuses on the particular covenants that are commonly seen in a real estate finance investment transaction, and it concentrates on investment deals in the property finance sphere. Additional covenants must be observed in real estate finance development facilities, and compliance with these additional undertakings is required. These arise because the property financed will be developed during the term of the facility agreement, over the whole duration agreed between the parties. For further detail, see Practice Note: Real estate finance—covenants in development facilities for a fuller...
Real estate finance investment facilities provide a loan to a borrower to acquire a single property or a portfolio (or to refinance an earlier acquisition). Security is taken over the asset being acquired (or refinanced) and over the cashflow it produces (ie rental receipts). Property-related due diligence is among the most critical elements of the deal before funds are advanced. Ensuring the property’s value and condition are preserved for the duration of the loan is likewise essential. Bank account mechanics are central to real estate finance investment deals and can be relatively intricate. In a simple structure, tenants pay rent into a secured account, which is applied to service interest and repay capital on the facility. Surplus monies may then be swept to the borrower’s current account and drawn by the borrower. This Practice Note sets out the principal features of a...
Development documentation sits at the heart of any real estate finance deal that involves building out a site. These papers set out the scope of the scheme, define how the project team interacts, allocate duties, and fix the expected costs. The worth of a property can be heavily undermined if the construction works are left unfinished. It is in the funder’s interests, just as much as the borrower’s, that a scheme is delivered on programme and within budget. Commonly, the lender takes security over the borrower’s contractual rights under the principal development agreements by taking an assignment for security purposes, which enables the lender, should problems emerge with the borrower, to call upon the counterparty to step in and carry out the contract obligations to completion, as clearly set out therein......
Building Safety Act 2022: The Building Safety Act 2022 ( BSA 2022) brought in sweeping changes to the legal and regulatory framework governing building safety. Although these reforms are crucial for construction practitioners, the Act is equally pertinent to banking and finance lawyers working on real estate development finance deals. For further detail, see Practice Note: Building Safety Act 2022—implications for finance transactions involving real estate and real estate development. Real estate development finance facilities typically provide a loan enabling a borrower to acquire and develop a property (or portfolio), or to carry out development on assets it already owns. Such funding is secured over the property, the suite of development documents, and the future cashflow generated by the asset (for example, rental income) once the whole or part of the scheme has reached completion. Thorough due diligence on the property and the proposed scheme is a...
The development of property can be carried out by different procurement methods. For further details and context, see Practice Note: Real estate development finance—introductory guide to forms of procurement. The principal procurement routes commonly used to deliver a property development scheme are as follows: design and build procurement traditional procurement management contracting Across the UK, design and build is the procurement route most often chosen. The selected route shapes both the scope and substance of the development documentation for the scheme. Such documentation is central to any real estate finance deal that entails property development activity. This Practice Note outlines and explains the core development documentation involved, namely the following: the building contract parent company guarantees and bonds the sub-contracts (which may include sub-contracts for design, in design and build procurement) the professional consultant appointments the insurances collateral warranties (or third party rights), and planning permission In practice, a lender will commonly require security over the...
STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) are live. Any procurement launched on or after that date must follow PA 2023. Exercises commenced under the prior regime must continue and be managed under those rules: Public Contracts Regulations 2015 ( PCR 2015) Utilities Contracts Regulations 2016 Concession Regulations 2016 Defence and Security Public Contracts Regulations 2011 See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on status and interpretation, see Practice Note: Assimilated law. Brexit impact—public procurement The UK public procurement regime stems from EU procurement laws and is consequently affected by the UK’s withdrawal from the EU. While the law...
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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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