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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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This Practice Note presents a summary of the position in respect of manorial rights, which encompass sporting rights, mineral rights, and the right to hold markets or fairs. It details the registration requirements applicable to these rights, and provides an account of how manorial rights may have arisen where land was formerly copyhold or became subject to an inclosure award. Origins of manorial rights They are remnants of the feudal system of land tenure. They can still subsist today in relation to land that: is former copyhold land, or was inclosed pursuant to an inclosure award Copyhold Copyhold was a form of tenure that developed from medieval customary practice and existed alongside freehold and leasehold tenure. It was held subject to certain manorial rights that could be exercised by the lord of the manor. Copyhold was abolished by the Law of Property Act 1922 ( LPA 1922). A number of...
In construction projects, the contractor’s contractual link under the building contract exists solely with the employer. Yet, on most schemes, other third parties will have an interest in the contract terms, the way the works are undertaken and/or the end-product. These parties ordinarily lack any contractual nexus with the contractor and, if they incur loss arising from the contractor’s act or omission, they cannot claim damages for breach of contract. Consequently, both such third parties and the employer will want their interests in the works protected so that, should loss be suffered, there is a viable route to redress... This Practice Note considers the third parties typically involved in construction projects and the common mechanisms used to protect their interests. It also examines how an employer can seek to pass down, within the building contract, obligations it has assumed under separate...
Practice Note This Practice Note sets out the full procedural guidance for court applications to renew or end a business tenancy, covers interim rent applications, and addresses Professional Arbitration on Court Terms ( PACT)......
What is a flexible tenancy? Introduced by the Localism Act 2011, a local authority may grant a flexible tenancy where: the tenant has previously lived in a council property under a family intervention, demoted or introductory tenancy prior written notice has been given confirming the tenancy will be flexible a landlord has granted a secure tenancy for a fixed term of not less than two years Once an authority has put in place a tenancy strategy or an interim policy, it may offer flexible tenancies instead of periodic secure tenancies. Each individual authority determines whether it will use flexible tenancies and in what circumstances: a flexible tenancy is a kind of secure tenancy for a fixed term of at least five years, or in exceptional cases, for a minimum of two years the principal distinction from a periodic secure tenancy is that a...
Sources of limited partnership law The principal legislation governing a limited partnership established under English law (as distinct from a general partnership, a limited liability partnership, or a general partnership constituted under Scottish law) is the Limited Partnerships Act 1907 ( LPA 1907). Nevertheless, it does not amount to a comprehensive code for limited partnerships and preserves the Partnership Act 1890 ( PA 1890) and the equitable and common law rules relevant to partnerships, which continue to apply except to the extent that they conflict with the express terms of the LPA 1907. As with general partnerships, the partners will frequently enter into a written agreement defining their respective rights and obligations inter se, setting out in detail the rights and duties owed between them, though this is not mandatory unless the vehicle is designated a private fund limited partnership (see Practice Note: Limited...
This Practice Note This Practice Note examines the typical activities of limited partnerships ( LPs) in finance transactions and outlines how to verify an LP’s capacity and authority under English law. Where two or more individuals carry on a business with the intention of making a profit, a partnership may arise. Partnerships are frequently used for small enterprises or professional practices. English law recognises two forms—general partnerships and LPs—each governed by specific legislation: General partnerships are subject to the Partnership Act 1890 ( PA 1890) — see Practice Note: The nature of a general partnership and its legal framework Limited partnerships are subject to the Limited Partnerships Act 1907 ( LPA 1907) — see Practice Note: The nature of a limited partnership and its legal framework For an LP to exist, there must first be a partnership with at least one general partner and one...
This Practice Note discusses the formation of a limited partnership under the Limited Partnerships Act 1907 ( LPA 1907). It further addresses, among other matters, the rules on a limited partnership’s name, required trading disclosures and the treatment of accounts. From 6 April 2017, the LPA 1907 was updated by the Legislative Reform ( Private Fund Limited Partnerships) Order 2017, SI 2017/514 (the LRO). A draft of the LRO was issued in January 2017 by HM Treasury, accompanied by an explanatory document. The LRO followed a government consultation launched in July 2015 and completed in October 2015 on proposed reforms to UK limited partnership law aimed at enhancing their use as vehicles for private equity and venture capital investment. The changes introduced by the LRO apply solely to limited partnerships that are designated as private fund limited partnerships ( PFLPs)....
A limited liability partnership ( LLP) is not a traditional partnership but a corporate body created under the Limited Liability Partnerships Act 2000 ( LLPA 2000), which took effect on 6 April 2001. During the 1990s, many larger professional firms grew increasingly uneasy about the prospect of heavy personal exposure for partners and pressed the government to resolve the problem. Following consultation, the government introduced a new vehicle, the LLP, combining the internal flexibility associated with partnerships with limited liability for its partners. An LLP is therefore a body corporate rather than a conventional partnership, established by statute. The law applying to LLPs In practice, most rules governing LLPs are modified company law rather than partnership law. LLPA 2000 makes clear that, save as expressly provided in that Act or in regulations made under it, partnership law does not apply to an LLP. LLPA 2000...
This Practice Note addresses how to deal with an application for a licence to underlet the premises demised by a commercial lease (ie a lease management transaction). It explains when and why a tenant seeks consent to underlet, alongside the commercial motivations of both landlord and tenant. It also provides an overview of the transaction steps and guides you through the principal legal and commercial considerations. A tenant’s lease sets the parameters for disposing of the premises by granting an underlease. For guidance on negotiating an underletting clause in a lease, see Practice Note: Negotiation guide—alienation clauses—commercial leases. Understanding the commercial context—background and key concerns Almost without exception, commercial leases include some form of restrictions and conditions on a tenant’s ability to underlet. See ‘ Is landlord’s consent required to the underletting?’ below. Tenant—key commercial drivers and issues A tenant may apply to underlet at any point during the term of...
Application for a licence for alterations under an existing commercial lease This Practice Note addresses how to handle an application for a licence to carry out alterations under an existing commercial lease (eg as a lease management transaction). It explains when and why a tenant seeks consent to undertake works, together with the commercial motivations on both sides for landlord and tenant, where relevant. It then outlines the transaction pathway and guides you through the principal legal and commercial issues in practice. A tenant’s lease determines the extent to which the tenant may alter the demised premises in detail. For guidance on negotiating an alterations clause in a lease, see Practice Note: Negotiation guide—alterations clause—commercial leases. This Practice Note does not deal with the additional considerations that apply to alterations to an existing higher-risk building (eg subject to certain exclusions, a building that is over 18...
This Practice Note outlines elements of how letting and estate agents are regulated that could matter to consumers. It addresses duties to supply information, unfair terms in contracts, consumer safeguards against unfair trading, business protection from misleading marketing rules, the redress scheme, and codes of practice alongside practice statements. It also reflects obligations and responsibilities created by the Renters’ Rights Act 2025 ( RRA 2025). Estate agents Estate Agents Act 1979 The legal definition of ‘estate agency work’ provides that: a person is regulated as an ‘estate agent’ under the Estate Agents Act 1979 ( EAA 1979) where, in the course of a business, they act on instructions from a seller or buyer of an interest in land, either to introduce their client to a buyer or seller, or to secure the disposal or acquisition of that interest in land once a buyer or seller has been...
For any construction scheme that relies on external finance, the funder will usually instruct its own team of solicitors to prepare and/or settle the necessary legal paperwork. Among the many agreements to be finalised are the project development and building documents. The funder will also appoint a specialist construction solicitor to carefully scrutinise those construction documents and to negotiate with the borrower’s lawyer wherever it believes amendments are needed. That solicitor will expect the construction suite to safeguard the interests of both the borrower and the lender, in the immediate term (while the works are carried out) and over the longer term (once the works are complete). This Practice Note identifies the construction documents a lender’s lawyer will commonly examine and the issues that typically matter from the lender’s viewpoint. In this Practice Note, the expression borrower refers to the party that is taking funds from the...
Commercial lending transactions Commercial finance deals typically provide funding to sizeable corporate bodies, yet there are occasions when an individual is also part of the arrangement. For instance, a person may give a guarantee and/or offer security to support a business facility. This Practice Note explores the principal issues that may emerge when interacting with individuals within a commercial finance context. It reviews the kinds of steps an individual might take in such transactions and examines the individual’s capacity and authority when carrying them out. It also highlights other specific considerations when dealing with a private person in a commercial financing, including the usual representations and warranties the individual is expected to give in the finance documents, undue influence, and executing ‘legal’ assignments via powers of attorney. Please note, this Practice Note does not address scenarios where the individual concerned is the...
What are conditions precedent? In finance deals, conditions precedent ( CPs) are the requirements a borrower must satisfy: typically before it may submit a utilisation (drawdown) request; and before the lender is obliged to release the funds. They are set out in the facility agreement, which commonly requires each CP to be in a form and substance satisfactory to the lender. In real estate investment finance, property‑specific CPs aim to assure the lender that: it will obtain a first legal charge over the property; and the property is acceptable security for the loan. For more detail, see Practice Notes: Real estate finance—conditions precedent and the mechanics of drawdown in development facilities and Real estate finance—conditions precedent and the mechanics of drawdown in investment facilities. What are the usual property specific CPs? A satisfactory certificate of title or report on title The lender will require...
This Practice Note forms part of a wider set addressing National Non- Domestic Rates ( NNDR). It looks at business improvement districts ( BIDs), outlining their purpose, what they are, and the processes for their creation and funding. It also considers business rates supplements and the retention of NNDR by local authorities. What are business improvement districts? Section 41 of the Local Government Act 2003 ( LGA 2003) introduces the statutory framework for BIDs. Under it, a billing authority may impose an additional levy on ratepayers within a BID area to finance projects that deliver extra services or further enhancements for the benefit of the local community (defined broadly as ‘those who live, work or carry’ on any activity in the district). Two or more billing authorities can agree to establish BIDs that span their borders, known as joint...
Leases and licences This Practice Note examines the key characteristics of leases and licences, together with the approach adopted by the courts when determining whether an agreement or other occupation arrangement is a lease or a licence. As tenants often enjoy significant statutory protections compared with licensees, drawing the line between a lease and a licence is frequently critical. Disputes and uncertainty regularly arise where the parties permit occupation of land or premises without properly and accurately recording their bargain in writing. Best practice is for the parties to enter into a written lease or licence that clearly and faithfully reflects the nature of the tenant’s or licensee’s occupation, and practical guidance on entering into licences, tenancies at will and other short term letting arrangements can be found in Practice Note: How to enter into short-term lettings and licences of commercial premises. In the absence of an...
It is common for parties to revisit and adjust the provisions of a current lease. A deed of variation can capture and implement agreed amendments, yet it is neither the sole mechanism for altering a lease nor invariably the right one. The most suitable structure for changing lease terms depends on: the nature of the amendment the parties intend to make, and the particular circumstances impacting the existing lease As with any transaction, appropriate due diligence and careful risk management are essential. This Practice Note covers: principal risks arising from a lease variation amendments that should not be effected by a deed of variation due diligence requirements for a lease variation transaction what a deed of variation should contain pre-completion issues (existing covenant breaches, completion mechanics) post-completion steps (registration, notices, tax) For guidance on structuring a lease re-gear, see...
The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) The Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995) sets out a statutory framework governing in detail the passing of the benefit and burden of lease covenants, together with the discharge and release of landlord and tenant obligations arising thereunder, for any ‘new tenancy’ (as defined in LT( C) A 1995, s 1, ie the majority of leases granted on or after 1 January 1996). From 2010 to 2016, inclusive, a series of decisions closely examined the wide anti-avoidance rules in LT( C) A 1995, s 25, particularly as they affect guarantor liability. Those decisions demonstrated that the anti-avoidance regime, when read with the statutory provisions for the release of guarantors, can create material difficulties when structuring transactions that involve assigning a ‘new tenancy’ and...
FORTHCOMING CHANGE : The Scottish government has begun a review of LBTT, starting in spring 2025. Land and buildings transaction tax ( LBTT) superseded stamp duty land tax ( SDLT) in Scotland from 1 April 2015. This Practice Note offers a primer on LBTT. Three other Practice Notes explore specific elements in more detail, namely: Scotland: Land and buildings transaction tax ( LBTT)—chargeable consideration and LBTT rates Scotland: Land and buildings transaction tax ( LBTT)—particular transactions and taxpayers Scotland: Land and buildings transaction tax ( LBTT)—administration and compliance Collectively, these Practice Notes cover chargeable consideration and LBTT rates, examine particular transactions and taxpayers, and set out administration and compliance matters in detail than this introductory overview provides. Background to LBTT The Scotland Act 1998 ( SA 1988) established the Scottish Executive (now the Scottish government) and the Scottish Parliament. SA 1998 conferred limited income tax...
For most leases, an assignment can only proceed with the landlord’s consent. This Practice Note explains what occurs if the seller fails to obtain that consent before completion, and how the matter is treated under the Standard Conditions of Sale (5th Edition) ( SCs) and the Standard Commercial Property Conditions ( SCPCs) ( Second or Third Editions). Although primarily directed at commercial property, it also touches on residential aspects... Standard Conditions of Sale Where: a contract for the sale of leasehold land incorporates the SCs (fifth edition—2018 Revision): Encyclopaedia of Forms and Precedents para [460], and the lease stipulates that the landlord’s consent is needed for an assignment the SCs provide an express right to rescind in specified circumstances. Under SC 8.3.3, provided a party is not in breach of the obligation in condition 8.3.2, either party may rescind the contract by giving notice to the...
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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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