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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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What are the issues for a tenant if the freeholder landlord becomes insolvent? This Practice Note sets out who rent should be paid to and the status of any rent deposit, what happens where the landlord breaches covenants in the lease, and the position regarding lease renewals and rent reviews. Rent payment According to the insolvency process engaged, rent is payable to: the liquidator the administrator the company voluntary arrangement ( CVA) supervisor (subject to the CVA’s terms) the fixed charge/ LPA receiver Rent deposit Rent deposits are usually arranged so that either: the landlord holds the funds for the tenant, with the tenant charging them in the landlord’s favour, or the landlord holds the funds on trust for the tenant If the deposit takes effect as a charge, the funds remain the tenant’s property but are handed to the landlord to be kept in a separate account. The tenant then grants a fixed...
This Practice Note outlines the matters a developer ought to weigh up regarding rights of light ( ROL) insurance, together with the usual prerequisites, terms and scope of cover under an ROL indemnity policy. The importance of assessing rights of light The potential encroachment upon rights of light is a pivotal issue for any developer when planning a new build or an extension to an existing structure from the outset. After HKRUK II v Heaney, it is apparent the courts may not merely award damages to those affected and could instead favour an injunction against the developer, even where the scheme has already been completed, rather than purely monetary redress. See Practice Note: Rights of light claims. Although damages can be substantial (frequently calculated by reference to up to 30% of the developer’s profit), they are typically still lower than the expense of an...
Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. In practice, see also Practice Note: New starter guide—entering into new commercial leases. An alienation clause regulates the extent to which (if at all) a tenant may dispose of the demised premises or permit a third party to occupy. The usual forms of disposal allowed are assignment, underletting and charging, and such transactions generally require the landlord’s consent. Certain leases also permit the tenant limited categories of other dealings, for example group sharing. The nature of the alienation permitted and the degree of landlord control over dealings will turn on several factors, including the type of premises, the length of the term and the rental structure (eg fixed rent or turnover). This Negotiation Guide reviews the principal elements of an alienation clause (also called a dealings clause), which can be included in a lease of...
A landlord may bring an introductory tenancy to an end only by securing and enforcing a court order for possession. Possession is mandatory, so the landlord need not prove any ground. Even so, no order will be granted unless the notice requirements for introductory tenancies have been met. Notice of Proceedings for Possession The landlord must give the tenant a Notice of Proceedings for Possession which sets out: its intention to apply to the court for a possession order the reasons it seeks possession the earliest date on which proceedings may start confirmation of the tenant’s right to have the decision reviewed the deadline for requesting a review that the tenant may obtain advice from a Citizens' Advice Bureau, a housing aid centre, a law centre, or a solicitor No particular form is prescribed for a Housing Act 1996, section 128 notice. The information required by HA 1996, s 128(7) need not appear on a...
This Practice Note is a reworked version of the Power Point Introduction to Planning Law, offering a set of slides and speaker notes to acquaint trainees, junior lawyers and lawyers from other practice areas with the fundamentals of Planning law. For the Power Point version, see: —powerpoint. When planning permission is needed ‘ Development’ Section 57 of the Town and Country Planning Act 1990 ( TCPA 1990) provides that planning permission is needed for the development of land. Under TCPA 1990, s 55, development means: the carrying out of building, engineering, mining or other operations in, on, over or under land (operational development), or the making of any material change in the use of any buildings or other land ‘ Operational development’ Operational development includes building, engineering, mining and other operations. Building operations Building operations are expressly defined to include demolition, rebuilding, structural alterations or additions to a...
What is an intrusive site investigation? An intrusive (phase 2) site investigation involves geotechnical and geo-environmental specialists collecting detailed and reliable information on a site’s physical and chemical ground conditions. These findings are then applied to: the design of earthworks and foundations, and determining whether contamination is present The UK follows a risk-based framework for the identification, assessment and management of contaminated land, based on the idea of a contaminant linkage (once called a pollutant linkage), ie contaminant-pathway-receptor. For further information, see Practice Note: Contaminated land—risk assessment. Site characterisation is generally carried out in a clear staged manner: screening phase: an initial investigation consisting of a desk study phase 1: a site walkover and qualitative risk assessment phase 2: intrusive site investigations involving the analysis of soil, groundwater and/or gas samples and a quantitative risk assessment For further information on desktop studies and phase 1 assessments, see Practice Note:...
What is a phase 1 audit? A Phase 1 environmental audit is an impartial appraisal by external environmental consultants of an organisation’s adherence to environmental legislation and its management systems. The purpose is to methodically and precisely examine site activities and the local environmental context to identify breaches and the likelihood of contaminated land liabilities. By flagging environmental risks, their potential impact can be gauged and suitable remediation actions proposed. When will a phase 1 audit be instructed? The need for, and extent of, any audit will vary according to several considerations, such as: the terms governing a transaction current and historic operations site characteristics and environmental sensitivity the client’s risk appetite and available budget In most cases, a Phase 1 audit is commissioned because of: potential environmental liabilities highlighted by an initial desktop review (see:...
What are petrol filling stations? Traditional filling stations retail petrol, diesel and paraffin, typically stored in underground tanks of varying sizes. Sites range from small urban or rural forecourts with only one or two pumps to larger garages that also operate full workshops providing repair and maintenance services. The overall number of forecourts has decreased since the 1960s, and many locations have shifted from oil company ownership to dealer operation. Activities Petrol is a blend of volatile hydrocarbons with chemical additives. Oxygenates are included to improve stability and deliver anti-knock properties; the amounts of anti-knock compounds are regulated by legislation and have been progressively reduced. In unleaded petrol, these have been replaced with other substances, such as methyl tertiary butyl ether ( MTBE), which acts as an octane booster. Detergents are also added to help keep carburettors, fuel injectors and inlet valves free from carbon...
What is an environmental report? Environmental reporting is typically carried out to evaluate site-specific environmental risks and liabilities. They are commissioned for a range of purposes, such as: undertaking due diligence on behalf of a purchaser or vendor of a property or corporate entity responding to regulatory action, or supporting ongoing environmental management by owners or operators Environmental reports can include: contaminated land assessments (desk-based, Phase 1, Phase 2 and remediation) flood risk assessments ground stability appraisals asbestos surveys The extent of data, analysis and assessment required depends on the probability and scale of the risk associated with any given site. An environmental consultant can advise which type of environmental report is needed. See Practice Note: Environmental investigations—types of searches and investigations. Why is peer review...
Alongside the more familiar company voluntary arrangements ( CVAs) and individual voluntary arrangements ( IVAs), insolvency law allows insolvent general partnerships to propose compromise terms to their creditors. Such arrangements are called partnership voluntary arrangements ( PVAs). When considering any proposal of this kind, partners should remember that they remain fully and personally responsible for all partnership liabilities. Accordingly, in the vast majority of cases it is prudent for each partner to put forward an IVA as well, in order to ensure their own position is comprehensively safeguarded. Applicable legislation Part II of the Insolvent Partnership Order 1994 ( SI 1994/2421) ( IPO 1994), as modified by the Insolvent Partnership ( Amendment) ( No 2) Order 2002 ( SI 2002/2708), applies the CVA regime in Part I of the Insolvency Act 1986 ( IA 1986) to insolvent partnerships via a PVA ( IA 1986, s 420). The IPO...
Source and availability Sources Trustees are granted specific statutory powers, chiefly under the Trustee Act 1925 ( TA 1925) and the Trustee Act 2000 ( Tr A 2000), which define their authority......
What are the key features of real estate finance? This Practice Note concentrates on what is commonly regarded as traditional real estate finance, ie borrowing against the income stream a property produces. At its most basic, traditional real estate finance is a facility advanced to a borrower and serviced, then repaid, from the rental receipts of the borrower’s property. ( Alternative routes to invest in real estate finance include sale and leaseback, real estate investment trusts, jersey property unit trusts and property derivatives. For further details, see: Methods of investing in real estate—overview). Real estate finance arrangements will generally be categorised as either investment finance or development finance, depending on whether the asset is acquired as an investment (ie it is already producing income) or acquired for development. For more information, see Practice Notes: Real estate...
For the purposes of this note, it is assumed that: This Practice Note outlines the actions overseas entities must follow when owning, buying or disposing of land to meet the requirements of the Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022). It should be read alongside Practice Note: Overseas entities and land under the Economic Crime ( Transparency and Enforcement) Act 2022—property registration and restrictions. the relevant land amounts to a qualifying estate for the purposes of EC( TE) A 2022 where an overseas entity already owns the land, title was entered further to an application to HM Land Registry ( HMLR) on or after 1 January 1999 the body in question is an overseas entity for the purposes of EC( TE) A 2022 references to: the ROE mean the register kept under EC( TE) A 2022, s 3;...
An overseas company can act as seller, purchaser, landlord, tenant, guarantor, or mortgagee in relation to the sale or letting of land in England and Wales, on the same basis as a company incorporated in England and Wales......
This Practice Note highlights the principal points to weigh up when acting for an outgoing tenant and advising on the assignment of a rack rent (occupational) commercial lease. See also Practice Note: Transferring commercial property—a practical guide, together with the Assignment of a rack rent lease (assignor)—checklist. Is the landlord’s consent required to the assignment? Carry out the following checks in sequence, in particular: Carefully scrutinise the lease terms, together with any deeds of variation and, where necessary, any other supplemental documents. If the lease is registered and contains HM Land Registry prescribed clauses, the register will confirm whether or not the lease includes provisions that restrict or prohibit dispositions, as shown by clause LR8 of the lease. Consider whether a restriction has been entered on the title expressly barring assignment without the landlord’s consent. Where relevant, review any superior lease carefully to establish if assignment is...
What effect does insolvency have on the operation of a lease? This Practice Note explores how insolvency influences the day-to-day operation of a lease and addresses the principal concerns that commonly emerge when an insolvency practitioner ( IP) becomes involved in the landlord and tenant relationship for commercial premises... Types of insolvency process The relevant insolvency procedure is determined by the tenant’s location (for a corporate entity, its registered office), rather than the situs of the leased property. For the purposes of this Practice Note, it is assumed that the landlord and tenant are both based in Scotland and that Scots law governs the lease. The main formal insolvency procedures in Scotland are summarised below... Corporate Administration Administration offers a framework designed to enable the rescue of an insolvent company. An administrator is appointed and, while the company remains in existence, it acts through that...
The Non-resident Landlords Scheme ( NRL Scheme) Under the Non-resident Landlords Scheme, income tax at the basic rate must be withheld from rental payments due to non-resident landlords from a UK property business and remitted to HMRC. The NRL Scheme is generally operated by: letting agents (irrespective of the rent level); or where there is no letting agent, tenants who: pay more than £100 per week (or £5,200 per year); or, where occupation is for under one year, a proportionate sum determined by the duration of occupation; or or those notified by HMRC that they must operate the NRL Scheme. HMRC issues detailed guidance for letting agents and tenants on how the NRL Scheme should be run and their...
ARCHIVED : This archived Practice Note was produced in the setting of the earlier/old Electronic Communications Code (the previous Code) and addresses who held Code powers and who enjoyed Code protection when sharing sites under the former Electronic Communications Code; however, its material remains directly pertinent for the transitional provisions contained in the new Code. It is not kept up to date and is provided solely for general background information. The new Code, set out in Schedule 3A, Part 1 to the Communications Act 2003, commenced on 28 December 2017. The transitional provisions within the new Code, as outlined in Schedule 2 to the Digital Economy Act 2017, state that subsisting agreements made 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 previous Code) will continue to operate as an...
ARCHIVED: This Practice Note is archived and is no longer maintained. Introduction Feed-in Tariffs ( Fi Ts) provide financial support for electricity produced from low-carbon sources. They deliver guaranteed payments per kilowatt hour (p/k Wh) over a set term to small-scale low-carbon generators. These payments are made by electricity suppliers, who recover the extra expense from their customers, so the additional cost of renewable power is shared across the whole electricity market. For wider details on the Fi T scheme and current activity, including consultations, regulatory guidance and key amendments, refer to the resources below. Practice Note: Feed-in tariff ( Fi T)—key features and the Feed-in tariff scheme tracker showing status and recent developments Ofgem: Essential Guide to applying for ROO- Fi T accreditation Closure of the Fi T On 19 July 2018, BEIS confirmed (as expected) that the Fi T would close to new...
This Practice Note outlines the regulatory requirements that relate to fire safety within the workplace environment. It focuses specifically on an office-based, non-residential workplace context. Other sector- or premises-specific rules may apply in different contexts and environments, particularly for residential and domestic buildings, such as flats and multi-storey residential properties. Requirements for fire safety in residential and domestic premises, and building regulations relating to fire safety, are expressly outside the scope of this Practice Note. For practical information about managing fire safety in an office-based workplace, see Practice Note: How to manage fire safety in the workplace. Legislative requirements There are several statutory obligations concerning workplace fire safety, including the following areas: what constitutes a workplace who is a ‘responsible person’ general fire precautions, for example: recognition and control of fire risks ...
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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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