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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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A court may order the payment of occupation rent where one beneficial co-owner moves out of a property and the other remains in residence, enjoying its use and advantages without sharing them during that period. Before the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), such matters were resolved by equitable doctrines labelled ‘equitable accounting’ or ‘equitable compensation’ by the courts. In Stack v Dowden, Baroness Hale explained that these equitable principles were superseded by TOLATA 1996, ss 12 and 13. Nonetheless, subsequent authorities still refer to those principles and pre- TOLATA 1996 case law; despite the shift to a statutory framework; and in Stack v Dowden itself, Baroness Hale indicated that the criteria in TOLATA 1996 should be applied rather than the old cases, though outcomes may often be the same in practice and frequently align. It is not necessary to prove an...
Vitiation of an insurance policy An insurance contract can be vitiated (rendered invalid) if the insured: misstates or withholds any material fact before the policy is placed, or fails to meet obligations imposed during the policy term These obligations are typically framed as warranties. In the event of: 'deliberate or reckless' non-disclosure or misrepresentation, the policy is void from inception (ab initio) a breach of warranty, cover is suspended (rather than finally discharged) and revives once the breach is remedied Where the breach is deliberate or reckless, the insurer is not required to refund any premiums paid. A breach of warranty must be linked to the particular loss at issue; the insurer cannot decline a claim where the insured’s failure to comply with the term could not have increased the risk of the loss that actually occurred in the...
ARCHIVED: This Practice Note gives an overview of the non-resident capital gains tax ( NRCGT) charge that applied to certain non- UK resident persons when they disposed of UK residential property on or after 6 April 2015 and before 6 April 2019. This note is archived and is no longer maintained. From 6 April 2019, changes to the taxation of gains realised by non- UK residents on UK immovable property took effect, as set out in section 13 and Schedule 1, Part 1 to the Finance Act 2019. For the position from 6 April 2019, see Practice Note: Non-residents and tax on chargeable gains from 6 April 2019—gains and UK immovable property. For disposals taking place on or after 6 April 2015 and before 6 April 2019, NRCGT applied where non- UK residents disposed of UK residential property. The rules covered: Non- UK...
This Practice Note This Practice Note outlines why exclusion clauses appear in property agreements and identifies situations where they may carry no weight, including at common law where fraudulent misrepresentation is in issue. It also addresses the Unfair Contract Terms Act 1977 ( UCTA 1977), under which provisions that seek to exclude liability for misrepresentation must satisfy a test of reasonableness, and reviews case law concerning the Standard Conditions. Exclusion clauses are intended to safeguard a contracting party by restricting or removing exposure to claims for breach of contract or in tort. Within property transactions, such clauses are most often framed as ‘non-reliance’ provisions, seeking to negate the seller’s responsibility for misrepresentation. A typical clause provides that the buyer enters into the contract solely on the strength of their own inspection and the terms set out in the agreement, and not in reliance on any...
The Non- Domestic Renewable Heat Incentive ( NDRHI) ceased taking new applications on 31 March 2021. However, in limited cases an application for accreditation (for installations) or for registration (for biomethane production) can still be submitted after that date, as outlined in this Practice Note. This Practice Note also offers a detailed account of the NDRHI’s status in relation to: scheme closure continuing obligations for accredited or registered installations the role of the Office of Gas and Electricity Markets ( Ofgem) how the NDRHI interacts with Contracts for Difference ( Cf D) and the Capacity Market ( CM) the Green Gas Support Scheme ( GGSS), the successor subsidy to the NDRHI What is the NDRHI? The NDRHI applies in GB. A separate but comparable scheme in Northern Ireland has also closed to new applicants and, following a...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 secured Royal Assent on 27 October 2025. For guidance on how the Act affects residential tenancies in England, refer to Practice Note: Renters' Rights Act 2025—key provisions. This Practice Note examines which non-domestic privately rented properties ( NDPR) fall within the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962; it also addresses the prohibition on letting NDPR and the way minimum energy efficiency standards ( MEES) interact with energy performance certificate ( EPC) requirements. It forms part of our MEES Practice Note series... Implementation of the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 For an overview of the background to the development of MEES, see Practice Note: Minimum energy efficiency standards ( MEES) in the private rented...
This Practice Note reviews the duty of fair presentation under the Insurance Act 2015 ( IA 2015), which applies to non-consumer insurance. For practical guidance on disclosure in the consumer context, see Practice Note: A guide to the Consumer Insurance ( Disclosure and Representations) Act 2012. For fuller coverage of IA 2015, see Practice Note: Insurance Act 2015 ( IA 2015)—essentials... Duty of ‘fair presentation’ Under IA 2015, s 3, an insured must give a fair presentation of the risk to the insurer. This duty comprises three distinct elements: disclosure: the insured must comply with either the ‘primary’ or ‘secondary’ disclosure obligation: primary duty: the insured must reveal every material circumstance it knows or ought to know. For what is ‘known’, the relevant knowledge is that of those tasked with arranging the insurance on the...
This Practice Note examines the main forms of policies or guarantees (excluding standalone latent defects insurance products) currently available to shield homeowners and developers from faults in newly built and newly converted properties. It reviews several of the most common warranties: those offered by the National House Building Council ( NHBC Buildmark or Buildmark Choice), Premier Guarantee and Local Authority Building Control ( LABC). These providers jointly launched the Consumer Code for Home Builders (the Code) in April 2010. The Code sets out standards of good practice, processes and information that registered homebuilders must follow... What are new home warranties? A new home warranty is an insurance contract that provides purchasers of a new-build or newly converted dwelling with cover for certain categories of building defects. Such warranties have been in place for many years. Cover applies up to defined limits and for a defined...
This Practice Note examines the New Homes Quality Code ( NHQC) alongside the Consumer Code for Home Builders ( Consumer Code). It outlines their principal elements, identifies those required to adhere to them, and explains their overarching objectives. It also contrasts their scope and intended outcomes. Purchasers of newly built properties should confirm which code applies to their transaction. Building Safety Act 2022 and the new homes ombudsman scheme Under section 136 of the Building Safety Act 2022 ( BSA 2022), the Secretary of State is empowered to set up a new homes ombudsman scheme. Section 142 of BSA 2022 further allows the Secretary of State to issue or endorse a code of practice covering expected standards of conduct and quality for scheme members. These measures have not commenced. However, the government indicated that the new homes ombudsman scheme would begin within 12–18 months of BSA 2022...
Climate change and sustainability are now central issues for the property sector The built environment accounts for a significant share of greenhouse gas ( GHG) emissions, and clients—developers, investors, real estate investment trusts ( REITs), pension funds, funders and asset managers—are facing rising regulatory demands and sharper market scrutiny. UK and EU regimes require compulsory disclosures on GHG emissions, energy performance and broader environmental, social and governance ( ESG) considerations. Alongside this, a swell of voluntary frameworks and benchmarks have produced an ‘alphabet soup’ of standards that investors, occupiers and lenders are increasingly insisting upon. At the same time, eligibility for sustainable or green finance is tied to demonstrable sustainability outcomes. This Practice Note outlines the principal implications of climate change, net zero and sustainability, together with the mandatory and voluntary reporting landscapes, with a particular emphasis on those applicable to property in England and Wales. It...
Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. A repair clause outlines the rights and duties of the landlord and the tenant concerning the repair and upkeep of the tenant’s premises throughout the lease term. In a multi-let property, the parties should also assess how this dovetails with the service charge provisions and the landlord’s obligation to deliver the services (which ought to include repairing and maintaining the common parts). This Negotiation Guide reviews the principal elements of a repair clause that can be incorporated into a commercial lease. It proceeds on the basis that the property contains no residential units and therefore does not address the impact of the Building Safety Act 2022 on landlord and tenant repair matters (eg relevant defects). See instead: Building Safety Act 2022...
Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. It examines the core components of an insurance clause intended for a commercial property lease. Such a clause defines the respective obligations and liabilities of landlord and tenant concerning insurance of the property, including: who arranges the buildings insurance, the scope of what is insured, who bears the cost, and which risks are covered. It also allocates risk and responsibility if the property is damaged or destroyed by an insured, or an uninsured, risk. This Negotiation Guide focuses on the usual position that the landlord insures, which is standard in a commercial rack rent lease. Even where the tenant takes a lease of whole, the landlord typically seeks to protect the capital value of its asset...
Negotiation Guide This Negotiation Guide sits within the Practical lease negotiation collection. Refer also to Practice Note: New starter guide—entering into new commercial leases. For multi-let buildings, it is prudent for the landlord to manage structural repairs, maintenance of common parts, and delivery of shared services, with the expenditure recovered from occupiers via a service charge. This is achieved through a service charge clause (or schedule). A standard commercial service charge clause will cover: the landlord’s duty to deliver the services a schedule of service charge items the landlord may recover from the tenant a requirement for the tenant to contribute the appropriate proportion of those costs workable procedures for payment and end-of-period reconciliation These provisions clarify responsibilities and support coherent estate management by the landlord, whilst ensuring each tenant funds a proportionate share of the expenditure. This guide examines the principal components of a commercial service charge clause that can be...
Throughout this Practice Note, the terms ‘borrower’ and ‘mortgagor’ are treated as equivalent, and likewise ‘lender’ and ‘mortgagee’. This Practice Note applies to fixed charges as well, although it does not examine the marginal practical distinction between a fixed charge and a mortgage—see Practice Note: Mortgages for further reading on this topic. Priority of mortgages over registered land Under registered land, where several loans are secured over the same property by separate mortgages, each mortgagee is entitled to be paid out of the sale proceeds strictly and in accordance with the mortgages’ order of priority. The basic rule is that any two charges rank in the sequence of their creation ( Millet J in Macmillan Inc v Bishopsgate Investment Trust plc ( No 3))......
Introduction This Practice Note presents a primer on mortgages over land. It examines when a mortgage is needed, differentiates between legal and equitable mortgages, and contrasts mortgages with charges. For guidance on other categories of security over property, see Practice Note: Types of security. For guidance on taking a new mortgage over land, see Practice Note: Mortgages and land—entering into new mortgages and legal charges of land. When is a mortgage needed? A purchaser of land or property will typically finance the acquisition by borrowing the whole, or the bulk, of the price. Alternatively, an existing owner may seek to raise money for another purpose without disposing of the land or property outright. A lender may choose to advance funds and rely only on the borrower’s obligation to repay (known as ‘unsecured lending’). If the borrower fails to repay, the lender may obtain a judgment for the...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 obtained Royal Assent on 27 October 2025. For advice on how the Act affects residential tenancies in England, refer to Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note examines the minimum energy efficiency standards ( MEES) for domestic private rented property ( DPR) set out in the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962. Its emphasis is the bar on granting, or continuing, tenancies of domestic private rented homes that fall below the required standard. It forms part of our suite of Practice Notes on MEES. For context and a summary of how MEES evolved, see Practice Note: Minimum energy efficiency standards ( MEES) in the private rented sector—snapshot......
This Practice Note summarises the minimum energy efficiency standards ( MEES) for the private rented sector arising from the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962. It sets out how the rules operate for both non-domestic and domestic private rented properties, and points to guidance, strategy, policy and consultations concerning the bar on letting substandard domestic and non-domestic private rented property... Minimum energy efficiency standards ( MEES)—background Legislation The UK has put in place several statutory targets on energy efficiency and carbon reduction, including the obligation in section 1 of the Climate Change Act 2008 ( CCA 2008), as amended by the Climate Change Act 2008 (2050 Target Amendment) Order 2019, SI 2019/1056, to reduce carbon levels by at least 100% from 1990 levels by 2050 (capturing greenhouse gas emissions from...
This Practice Note outlines the effect on both landlords and tenants of non-domestic private rented ( NDPR) property of the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, together with the exclusions and exemptions relevant to NDPR property. It forms part of our series of Practice Notes on minimum energy efficiency standards ( MEES). MEES Regs 2015, SI 2015/962, reg 27 (prohibition on letting substandard NDPR property) Under reg 27, a landlord must not let substandard NDPR property unless: 'relevant energy efficiency improvements' are undertaken ( MEES Regs 2015, SI 2015/962 reg 29), or one of the exemptions in MEES Regs 2015, SI 2015/962 chapter 4 (consent, devaluation or temporary exemptions) apply An exemption must be registered on the national PRS Exemptions Register ( PRS Exemptions Register) before it can be relied on. The...
This Practice Note outlines how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented ( NDPR) property. It explores the interface between the MEES Regs 2015, SI 2015/962 and the Landlord and Tenant Act 1954 ( LTA 1954), considers challenges for landlords and tenants when subletting NDPR premises that are substandard, examines points arising for a landlord with a consent exemption on assignment, highlights due diligence considerations, and flags issues in real estate finance transactions where the asset is substandard (that is, holds an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’). It forms part of our Practical Notes series on minimum energy efficiency standards ( MEES). Under MEES Regs 2015, SI 2015/962, reg 27, a landlord must not let...
This Practice Note examines the implications for landlords and tenants of non-domestic private rented ( NDPR) property arising from the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962. It reviews matters to consider in relation to minimum energy efficiency standards ( MEES) under existing leases, and evaluates how MEES shapes new commercial lease negotiations on service charge, tenant alterations, statutory compliance, yielding up, rent review, the landlord’s right of entry, and controls on a tenant’s ability to carry out works affecting a property’s energy performance certificate ( EPC) rating. It forms part of our series of Practice Notes on MEES. Under MEES Regs 2015, reg 27, a landlord must not let, or continue to let, substandard NDPR premises (those with an EPC rating of ‘ F’ or ‘ G’) unless: ‘relevant energy...
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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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