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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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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...
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 sits within a series that explores commercial property contract provisions from a buyer’s perspective, flagging practical adjustments and points to watch... the oversight of occupational leases ( OLs) affecting the property in the period between exchange and completion, and existing maintenance/service contracts It outlines how these matters are typically addressed in practice, points to the relevant Standard Commercial Property Conditions ( Third Edition — 2018 Revision) ( SCPCs) and offers practical due diligence and drafting pointers for buyers... Occupational lease management between exchange and completion The contract should specify how management issues concerning occupational leases will be handled during the interval between exchange and completion. Buyers should be most alert to this where the property is multi-let and there is a meaningful gap between exchange and completion. For a single-let asset with a brief period to completion (for example, under a month) a...
Save for limited exceptions, the Agricultural Holdings Act 1986 ( AHA 1986) applies solely to agreements made before 1 September 1995. An agricultural tenancy formed on or after 1 September 1995 will, in almost every instance, be a farm business tenancy regulated by the Agricultural Tenancies Act 1995 ( ATA 1995). For further guidance on farm business tenancies, see Practice Note: Farm business tenancies. Nevertheless, practitioners still regularly encounter tenancies governed by the AHA 1986, which continues to apply to: all agricultural tenancies entered into before 1 September 1995; and certain tenancies (principally succession tenancies) granted after that date which are specifically excluded from the application of the ATA 1995 Agricultural land for the purposes of AHA 1986 The AHA 1986 safeguards qualifying tenancies of ‘agricultural land’. Land qualifies as agricultural land only where it is used for ‘agriculture’ (as defined in AHA 1986, ss 1 and 96), and is so...
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...
Policy context The first National Planning Policy Framework (2012 NPPF) was issued on 27 March 2012 and came into force at once. It streamlined more than 1,000 pages of planning policy statements, guidance and circulars into a single text. Central to the 2012 NPPF was a presumption in favour of sustainable development. A refreshed NPPF followed in July 2018, with modest amendments in February 2019. Further updates arrived on 20 July 2021, September 2023 and December 2023 (the 2023 NPPF). The 2018, 2019, 2021 and 2023 iterations kept the presumption in favour of sustainable development, albeit with a shift in emphasis and practical application, as explored in this Practice Note. In July 2024, the government consulted on reforms to the NPPF, including proposals affecting the presumption in favour of sustainable development, considered further below (see ‘ Proposed changes to presumption insofar as it affects...
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 sets out the practical actions a practitioner can take to ensure a property is sale-ready from the outset of a transaction or in anticipation of a proposed disposal. Putting matters in order early: cuts out or reduces avoidable delay, which may in turn lower legal fees allows the seller’s solicitor to prepare the sale contract from an informed position helps the seller and their solicitor foresee any adverse points the buyer’s solicitor might uncover during due diligence Identifying issues at an early stage may enable the seller to remedy them or, at the very least, craft a negotiation plan aimed at minimising the risk of a price reduction and/or the deal collapsing. Initial steps The seller’s solicitor should acquaint themselves with the seller’s title so a comprehensive suite of legal papers (including a draft contract) and management...
A pre-pack administration sale refers to the disposal of a company’s business and/or assets that is arranged before the company enters administration, with completion occurring immediately after the appointment—sometimes within minutes. For broader background on pre-packs, see Practice Note: What is a pre-pack administration sale? This Practice Note examines the additional requirements introduced by the Administration ( Restrictions on Disposal etc to Connected Persons) Regulations 2021 (the Regulations), SI 2021/427, where the buyer is connected with the company. Note that the Regulations can also extend to post-packs—ie administrations where a deal is negotiated pre-appointment but, after appointment, a marketing process is conducted to test whether a better outcome could be achieved by selling to another party. Why were the Regulations introduced? Pre-pack administrations have historically been contentious. In a pre-pack, the administrator can dispose of the company’s assets without prior scrutiny and before...
This Practice Note explores the key considerations for both a developer landlord and a prospective tenant under an agreement for lease incorporating development obligations (often termed a ‘pre-let’ or ‘pre-letting agreement’), where: (i) the property to be let is yet to be constructed or will be subject to significant refurbishment, (ii) the landlord must complete the specified works by an anticipated target date, and (iii) thereafter the tenant will take a lease of the property. It also addresses related matters such as early access, tenant’s fit out, insurance, and similar issues. Terminology in this Practice Note This Practice Note adopts the following terminology: ‘ Pre-let’ A ‘pre-let’ refers to an agreement for lease involving substantial developer’s works. This arrangement is also sometimes called a ‘pre-letting agreement’ or a ‘development agreement’, though the latter can be ambiguous because it is also used to describe either: a ‘stand alone’...
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...
ARCHIVED : This archived Practice Note was prepared with reference to the earlier/old Electronic Communications Code (the previous Code) and addresses the distinctions between the general and special regimes under that earlier Code; however, its substance still bears on the transitional provisions contained in the new Code and therefore remains pertinent. It is not maintained and is provided solely as background information. The new Code (under Schedule 3A, Part 1 to the Communications Act 2003) took legal effect on 28 December 2017 and is now in force. The transitional provisions in the new Code, found in Schedule 2 to the Digital Economy Act 2017, state that although subsisting agreements under the previous Code (ie an agreement under paragraph 2 or 3 or a court order granting Code rights under paragraph 5 of the previous Code) continue to operate as an agreement under the new Code, they are...
Introduction The Agricultural Credits Act 1928 ( ACA 1928) introduced a tailored form of security enabling a farmer to confer a single charge (termed in the ACA 1928 an ‘agricultural charge’) in favour of a bank over their personal chattels and compensatory payments. This spans all the farmer’s farming stock and other agricultural assets, though not the land on which they work. Prior to the ACA 1928 coming into force, if a farmer wished to secure non-land assets, such security had to be taken as a Bill of Sale under the Bills of Sale Act 1878 and the Bills of Sale Act (1878) Amendment Act 1882, which governed charges over chattels. Bills of Sale remain an alternative security, particularly for non-bank lenders. Agricultural charges, however, are expressly excluded from the Bills of Sale legislative requirements. The arrival of agricultural charges under the ACA 1928 was...
Letting farmland is tightly governed by law. In Scotland, ordinary commercial leases are influenced by statute only to a limited extent, whereas for agricultural property the opposite applies... Types of Agricultural Leases There are four categories of agricultural lease: 1991 Act Tenancies, often termed ‘traditional’ or ‘secure’ tenancies, regulated by the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991) 2003 Act Tenancies, of which there are several forms, regulated by the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003) grazing tenancies unusual tenancies, principally liferent leases and indefinite tenancies, which are not covered in this Practice Note Crofting tenancies distinguished from agricultural leases Although a lease in legal terms, a croft tenancy held by the crofter constitutes the primary interest in the croft land occupied. Landlords of crofts hold very limited rights. While a croft began in its...
Practice Note This Practice Note outlines the terms typically found in a limited partnership agreement for partnerships established under the Limited Partnerships Act 1907 ( LPA 1907). It also sets out the default statutory rules that apply where no limited partnership agreement is in place, as well as the provisions commonly included in such agreements. With effect from 6 April 2017, the LPA 1907 was amended by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017, SI 2017/514 ( LRO). A draft of the LRO was issued in January 2017 by HM Treasury, together with an explanatory document. The LRO followed a government consultation that began in July 2015 and concluded in October 2015 on proposed amendments to UK limited partnership legislation to make these structures more effective vehicles for private equity and venture capital investments. The reforms introduced by the LRO apply solely to...
This Practice Note includes links to the UK Finance Mortgage Lenders' Handbook (previously called the CML Lenders' Handbook) and the Building Societies Association Mortgage Instructions. Both of these documents set out clear and detailed guidance for conveyancers representing lenders in residential conveyancing transactions......
Corporate deals call for a sizeable group of lawyers across multiple disciplines, alongside other expert professional advisers, all required to collaborate closely, frequently against very tight deadlines and schedules. Where property assets feature in the deal, property solicitors and related specialists become a vital and integral element of the overall exercise. This Practice Note explains how a property solicitor can handle correspondence and documentation efficiently within corporate transactions. Before commencing transaction—initial considerations Before the property solicitor begins work on the matter they should confirm at the outset: which party they are representing......
Joint ventures are gaining traction across the agricultural sector, offering routes for farmers who wish to lighten their workload, contemplate stepping back, or for landowners preferring not to farm directly. A range of joint venture agreements exists, and the appropriate model will usually hinge on multiple considerations. This Practice Note examines the main joint venture formats—what they involve, the issues to weigh when selecting the most suitable option for the parties, the means by which each arrangement is created, and other matters to address when advising clients. From the outset, note that these structures can be fluid: parties might begin with a licence to occupy, giving time to build familiarity, then progress to a partnership or share farming arrangement, which might later become a farm business tenancy if the landowner plans to retire from active farming. This incremental pathway lets the parties become...
In property transactions, the buyer, tenant or lender will review the property title before progressing. Yet, between that examination and the point when the deed in their favour (the Deed) is submitted for registration at the relevant land register, circumstances may change, potentially depriving the buyer/tenant/lender of the rights they anticipated. Although the contract between the parties will allocate this risk, there are also protections within the registration process. See Practice Note: The ‘registration gap’. In England and Wales, the risk is managed by carrying out an official search with priority (a priority search) at HM Land Registry and ensuring the Deed is registered within the priority period. See Practice Note: Pre-completion searches— Official search with priority—registered land or seller’s title pending first registration—registrable dispositions for valuable consideration. In Scotland, the position is covered by using an advance notice and ensuring the Deed is...
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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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