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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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Main remedies in Scottish landlord and tenant disputes The principal remedies available in the context of landlord and tenant disputes in Scotland are: Interdict Specific implement Payment action Damages action Rescission Retention of rent Irritancy Hypothec Action for recovery of heritable property Interdict Interdict is a court remedy used to restrain an actual or threatened breach of contract by a party; for example, a landlord may seek it to stop a tenant using the premises for a purpose other than that for which it is let. It is the counterpart of the English remedy of injunction. An interdict can be obtained in the Court of Session (by petition or summons, see: Introduction: Stair Memorial Encyclopaedia [88]) or in the sheriff court (by initial writ, see: Form of writ: Stair Memorial Encyclopaedia [382]). If brought in the sheriff court,...
Types of waste In England and Wales, aside from public health laws, landfill operations were not regulated until the Control of Pollution Act 1974 ( CPA 1974). As a result, older landfill sites may have taken in a broad spectrum of potentially hazardous materials, such as asbestos, chemical wastes, effluent and sludge. Waste falls into categories including commercial, household, industrial and hazardous. Before any waste is consigned to landfill it must be: treated (with limited exceptions) classified characterised to identify the class of landfill it will go to For details on the classification of waste, see Practice Note: Waste duty of care—classification and coding. In England and Wales, landfill disposal is regulated under the Environmental Permitting Regulations 2016. The Government has issued guidance on the disposal of waste to landfill in England......
The section 2 requirements in the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) are disapplied for certain contracts and trusts. This Practice Note identifies those categories and outlines how the exceptions take effect. Excepted contracts The contractual formalities set out in LP( MP) A 1989, s 2 do not apply to contracts: for leases not exceeding three years (ie short leases under Law of Property Act 1925, s 54) made in the course of a public auction regulated under the Financial Services and Markets Act 2000 (other than a regulated mortgage contract, regulated home reversion plan, regulated purchase plan or a regulated sale and rent back agreement) Constructive trusts The statutory formalities in LP( MP) A 1989, s 2 do not affect the creation or operation of resulting, implied or constructive trusts. No written evidence is required. A constructive trust arises in relation to legal title...
The Property key future developments tracker monitors significant forthcoming developments of interest to property lawyers. After a development takes place, it is transferred to the archive for the appropriate year. This is the archive of events that took place in 2019. Appeal matters What is happening? When? Find out more Town and village greens — registration and statutory incompatibility R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and another; R (on the application of NHS Property Services Ltd) v Surrey County Council and another, [2019] UKSC 58 The Supreme Court delivered its judgment on Wednesday 11 December 2019. The Supreme Court upheld two connected appeals against the Court of Appeal’s determination concerning registration of land as a town and village green ( TVG). It confirms that land obtained and held by a local authority in exercise of general...
ARCHIVED: This Practice Note has been archived and is not maintained The Property case tracker brings together all key 2022 judgments that we regard as relevant to property lawyers, presented in reverse chronological order. Cases appear in reverse chronological order, with the most recent decisions first. The tracker adopts the following definitions: AST: assured shorthold tenancy CVA: company voluntary arrangement FTT: First-tier Tribunal HMO: house in multiple occupation LPA: local planning authority NPPF: National Planning Policy Framework RRO: rent repayment order RTM: right to manage TCC: Technology and Construction Court UT: Upper Tribunal ( Lands Chamber) VTE: Valuation Tribunal for England See also the Property key future developments tracker, which follows the progress and outcome of appeal cases and their results; by contrast, this document offers a summary of all cases we consider pertinent to property lawyers generally, from 2022, in this field. See further: Property case...
Duration of an individual voluntary arrangement An individual voluntary arrangement ( IVA) is a formal arrangement between a person and their creditors under the Insolvency Act 1986 ( IA 1986). It functions as a contract between the parties, prepared by the individual and put before creditors for a decision. The debtor proposes how long the IVA should run, and the length will often be shaped by the planned source of funds. Where contributions come from ongoing trading income, a longer term is typically required, whereas a sizeable lump sum can shorten the timetable. An insolvency practitioner ( IP) will advise and guide the debtor, seek appointment as nominee, and, if approved, would usually act as supervisor, though the final proposal remains the debtor’s choice. Creditors then consider the terms and decide whether to accept them. An IVA may span anything from a few weeks or...
Islamic real estate finance Islamic real estate finance is gaining increasing traction and has become firmly embedded in the UK and global property arenas. Worldwide Islamic finance assets are assessed at over US$4.5tn, with the sector forecast to keep expanding to US$6.7trn by 2027. This growth has been, and is expected to remain, driven by worldwide economic developments, evolving demographic trends, higher income levels and rising investment from the Gulf Co-operation Council, itself spurred by strong returns across the Halal, infrastructure and Sukuk segments. Consequently, the UK is well positioned to continue capturing the advantages of this consistently expanding market. At the same time, conventional financial institutions are increasingly turning to Islamic finance to complement traditional equity and debt solutions. The purpose of this Practice Note is to consider in detail the principal Islamic real estate finance structures set out...
Background This Practice Note explores the law of irritancy within the sphere of commercial leases in Scotland. It examines the distinction between legal and conventional irritancies, the procedure for exercising irritancy, available defences, and the consequences for sub-leases and charge-holders. It does not cover: human rights challenges to irritancy the interaction of irritancy with the corporate insolvency regime irritancy in the context of residential property, see Practice Note: Residential tenancies in Scotland—bringing to an end irritancy in the context of agricultural property, see Practice Note: Irritancy of agricultural tenancies in Scotland Irritancy is a landlord’s remedy that permits termination of a lease following a tenant’s breach. It is equivalent to the English remedy of forfeiture. An irritancy may arise by operation of law or be conventional. Legal irritancy An irritancy arising by law is known as a legal irritancy. Under Scots common law, the sole recognised legal irritancy is for...
Development documentation is a central element of any real estate finance transaction that involves the development of property. For further information, see Practice Note: Real estate development finance—introduction to the development documentation. The scope and content of the development documentation are dictated by the procurement route selected for the scheme. Here, procurement refers to purchasing services for the development works. This Practice Note sets out the key characteristics of the most common procurement approaches for developing a property: design and build procurement traditional procurement management contracting Lenders generally favour the design and build route as it provides the greatest degree of cost certainty and is the most widely adopted procurement method in the UK. By contrast, management contracting carries the highest cost exposure, is typically disliked by lenders, and is used less frequently than the other methods within the UK...
What are the issues for a tenant if an intermediate landlord becomes insolvent? This Practice Note considers to whom the rent might be payable, and addresses disclaimer, forfeiture and surrender of the superior lease. Rent payment An insolvent landlord might default on rent owed to its superior landlord. Under the Commercial Rent Arrears Recovery ( CRAR) regime, a superior landlord may issue a notice requiring an undertenant to pay rent straight to the superior landlord where the immediate tenant is in arrears, continuing until those arrears are cleared. If the undertenant then does not pay, the superior landlord may exercise CRAR against the undertenant. To promote fairness, where the tenant pays any sum under a notice served by a superior landlord, the undertenant may deduct that sum from the rent due to its immediate landlord, even if the amount has already been paid in full or in part by...
This Practice Note explains what interim rent means, when and how an interim rent application can be made under the Landlord and Tenant Act 1954 ( LTA 1954), the ways of calculating interim rent, and the impact on an interim rent application if lease renewal proceedings are discontinued... What is interim rent? Interim rent is the sum which, under LTA 1954, s 24A, a tenant must pay while its tenancy is continued under LTA 1954, s 24. For the conditions that must be met for a business tenancy to continue under s 24, see Practice Note: LTA 1954 business lease renewal—termination... Note there is no entitlement to apply for interim rent where a tenancy is continued under: LTA 1954, s 28, arising from an agreement for the grant of a future tenancy, or LTA 1954, s 36(2), where, after revocation of an order...
This Practice Note examines and summarises the position on interdict and interim interdict in Scotland. For guidance on: some other forms of relief in Scottish civil litigation, see the Practice Notes titled Retention and rescission in Scottish civil litigation, and Specific implement and interim specific implement in Scottish civil litigation the nearest equivalent procedures in England and Wales, see: Interim and final injunctions—overview, Freezing injunctions—overview, and Search and imaging orders—overview, which, as well as setting out overviews of these different forms of injunction, link through to more detailed guidance on diverse aspects of such injunctions in England and Wales Key: CCA 1981— Contempt of Court Act 1981 CSA 1988— Court of Session Act 1988 CR( S) A 2014— Courts Reform ( Scotland) Act 2014 RCS— Rules of the Court of Session 1994 SCCR— Act of Sederunt ( Sheriff Court Caveat Rules) 2006, SSI 2006/198 SC( S) A 1907— Sheriff Courts (...
In real estate finance transactions, the borrower’s principal asset is the property, and the lender’s security package is structured around obtaining adequate security over that property. Because the property is paramount, the lender will wish to be comfortable that the insurance arranged for the property is sufficient, and will also seek security over the borrower’s entitlement to any insurance proceeds (see Practice Note: Security in real estate finance transactions). The financing documentation will set out comprehensive insurance obligations on the borrower, typically contained in the facility agreement or the security documents. The Loan Market Association ( LMA) includes provisions addressing these matters in its: single currency term facility agreement for real estate finance multi-property investment transactions ( LMA Investment REF Facility Agreement), and single currency term facility agreement for real estate finance single property development transactions ( LMA...
This Practice Note explores the position concerning the diligence of inhibition in Scotland. For direction on: other types of diligence in Scottish civil procedure, see Practice Note: Enforcement in Scottish civil litigation, which in turn links to detailed guidance on a range of diligences available in Scotland the counterpart in England and Wales, see: Introduction to enforcement—overview which, as well as providing an overview of this area, links to more detailed guidance on various aspects of domestic enforcement in England and Wales cross-border enforcement, see Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners which, in addition to offering an overview of this topic, links to more detailed guidance on multiple aspects of cross-border enforcement In 2020, the Scottish Government commenced a policy review of diligence measures in Scotland, culminating in the Bankruptcy and Diligence ( Scotland) Act 2024, which...
This Practice Note considers when an indemnity covenant ought to be provided upon the transfer of land by a seller to a buyer. What is an indemnity? An indemnity is a primary undertaking, meaning one party agrees to shoulder the expense of specified losses or liabilities incurred by another in defined situations. Land transfers frequently include a promise by the buyer to indemnify the seller against any losses suffered as a result of the buyer’s breach of covenant. When is an indemnity covenant needed in a transfer? A transfer should contain an indemnity covenant where, after completion, the seller remains, or may remain, responsible under covenants affecting the property. There are several scenarios where this can occur in relation to covenants affecting the property. Property is subject to covenants Someone who has entered into a covenant relating to land will, on disposing of the land, almost...
ARCHIVED: This Practice Note is founded on provisions revoked on 1 April 2013 and is retained for historical purposes. General Where costs are assessed on the indemnity basis, the court will proceed as follows: disallow costs that have been incurred unreasonably or are plainly unreasonable in amount overall disregard entirely whether or not the costs are proportionate resolve any uncertainty about whether costs were reasonably incurred in favour of the receiving party CPR guidance The CPR provides no express guidance on when indemnity costs will be awarded, although it does specify two situations in which such orders are likely to be made: costs payable under a contract......
When a charity is created as a trust, the reality that its property, investments and contracts are held by the individual trustees in their own names means all such assets must be transferred or novated each and every time the trustee body’s composition changes from time to time (e.g. on death, retirement, or the appointment of a new trustee). A way to sidestep this is for the charity’s trustees to constitute themselves as a corporate body under Part 12 of the Charities Act 2011 ( CA 2011). This enables the charity’s property to be held by a permanent corporate trustee, while individual trustees are still appointed and removed in the ordinary manner, as is customary, and continue to manage the charity with the same powers and responsibilities as before, on the same basis. Trustee incorporation is available to every charity, including those exempt or...
As from completion, an incoming landlord is: for an ‘old’ tenancy (ie usually granted before 1 January 1996): obliged to comply with all landlord covenants that have “reference to the subject matter” of the lease; and for a ‘new’ tenancy (ie generally granted on or after 1 January 1996): bound by all landlord covenants save for those that: did not bind the seller immediately before the assignment are stated to be personal to another person, or are unenforceable for want of registration under the Land Registration Act 2002 or the Land Charges Act 1972 An incoming landlord is not directly liable for breaches of landlord covenants occurring before completion. For old tenancies this position arises from case law. For new...
ARCHIVED Where a tenant remains in occupation following the expiry of an earlier tenancy that lacks security of tenure, it is a live question whether the circumstances (including rent being paid) evidence an agreement to enter into a fresh periodic tenancy or indicate a lesser, interim arrangement, namely a tenancy at will. As a general rule, where one party permits another to take possession of land and accepts rent, then, in the absence of any other relevant factor, the sensible and reasonable inference is that the parties intended to create a periodic tenancy. Nevertheless, the courts have repeatedly concluded that this presumption of a fresh periodic tenancy is rebutted where the occupier goes into possession, or holds over, whilst the terms of a new contracted-out lease are under negotiation; in those conditions the relationship has been treated as a tenancy at will. The...
There are three different ways by which the creation of an easement can be implied at common law: necessity intended use the rule in Wheeldon v Burrows Be aware that easements may likewise also be implied by statute under section 62 of the Law of Property Act 1925 ( LPA 1925); for additional guidance, see Practice Note: Easements— LPA 1925, s 62 and permissions. An implied grant at common law stems from an express disposal of either the servient or the dominant tenement (or a contemporaneous disposition of both). Such implications only arise where the dominant and servient tenements were formerly held in common ownership. An implied easement can also arise on the grant of a lease in the same circumstances as on a transfer or conveyance; however, its duration is confined to the period for which the lease actually...
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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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