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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:
Most recent Practice notes
A tracked version outlining the changes to the Standard Commercial Property Conditions ( Third Edition—2018 Revision) ( SCPC) in Precedent: Contract for sale—freehold subject to leases can be accessed via the following link: The......
This Practice Note outlines the aims of the Protocol, effective from 13 January 2020, which concerns residential property located in Wales. It addresses the Protocol’s scope and the possible outcomes of non-compliance, the obligation on both sides to consider ADR, the required content of a tenant’s letter of claim and the landlord’s reply, the use and instruction of experts, costs, limitation, and the duty on tenants to permit reasonable access for inspection and remedial works. Before turning to the Protocol, a tenant should make sure the landlord already knows about the disrepair, as the Protocol is designed for situations that remain unresolved, despite the landlord being on notice of the defects and the need for repair. Scope The Protocol applies solely to residential property in Wales and covers claims by tenants and others (including lessees and members of the tenant’s family) arising from housing...
On 1 November 2023, the Scottish Government laid the Housing ( Cladding Remediation) ( Scotland) Bill (the Bill) before the Scottish Parliament. Its introduction followed the Scottish Government’s Programme for Government announcement in September 2023. Its purpose was to confer on the Scottish Government ‘new powers to remediate buildings with unsafe cladding that present a risk to life’. The Bill gained Royal Assent on 21 June 2024, thereby becoming the Housing ( Cladding Remediation) Scotland Act 2024 ( H( CR)( S) A 2024). H( CR)( S) A 2024 commenced on 6 January 2025. This Practice Notes considers the principal provisions of H( CR)( S) A 2024 and what they mean for property developers in Scotland. Background to H( CR)( S) A 2024—the Cladding Remediation Programme Scotland’s framework for building and fire safety differs from that in England and Wales. This is because building...
This Practice Note sets out the statutory right (subject to statutory qualifying criteria) of qualifying tenants of long leases of houses to obtain the freehold (individual enfranchisement), or to secure a 50-year extension of the house lease under the Leasehold Reform Act 1967 ( LRA 1967). It offers guidance on the qualifying criteria for premises and tenants, service of a tenant’s claim notice and the landlord’s notice in reply, applications to the First-tier Tribunal ( FTT) (or the Leasehold Valuation Tribunal ( LVT) in Wales) and County Court procedure, valuation and calculation of the purchase price, and completion of the acquisition. Houses—the right to enfranchise A tenant of a leasehold house and any attendant premises (such as a garden, garage, yard, etc) is entitled under the LRA 1967 to acquire: the freehold where all of the following are satisfied: the...
Introduction The planning regimes of England and Wales have diverged markedly in recent years, both in policy and statute. In Wales, planning is a wholly devolved responsibility. This divergence began in 2000 with the creation of the then Welsh Assembly Government. Although the Government of Wales Act 1998 transferred most planning matters, it was the second devolution referendum in 2011 that conferred primary law-making powers, paving the way for the Planning ( Wales) Act 2015 ( P( W) A 2015). That Act has further widened the gap between Welsh planning law and that elsewhere in the UK. P( W) A 2015 sets a statutory purpose for planning functions and clarifies the duty to pursue sustainable development under the Well-being of Future Generations ( Wales) Act 2015 ( WFG( W) 2015). Since March 2002, Welsh planning policy has been set out in Planning policy in Wales (...
This Practice Note examines general partnerships established under the Partnership Act 1890. It sets out the key statutes and case law that shape the legal framework for partnerships. It also explains how to assess whether an individual is a partner, when partners may properly be regarded as employees or workers, the extent of a partner’s authority, partners’ liability for the firm’s debts and obligations, and the treatment of partnership property... Sources of partnership law The principal source of law for a general partnership governed by English law (as distinct from a limited liability partnership, a limited partnership, or a partnership incorporated under Scottish law) is the Partnership Act 1890 ( PA 1890), which has remained largely unchanged for more than a century. However, it is not a comprehensive code: it expressly preserves the rules of equity and common law applicable to...
This Practice Note examines the interplay between the statutory moratorium in Schedule B1 to the Insolvency Act 1986 ( IA 1986), which stays most creditor or third-party steps against a company in administration, and a landlord’s ability to exercise its proprietary right of forfeiture under the company’s lease. For an outline of the moratorium that applies on administration, see Practice Note: The moratorium in administration. This Practice Note is concerned with obtaining relief from the moratorium so that a landlord may forfeit a lease; it does not cover other enforcement routes, eg commercial rent arrears recovery. For more detail, see Practice Note: Recovering rent arrears. Introduction to forfeiture Where a tenant does not pay rent under a lease, the landlord may seek to determine the lease either by applying to the court or by peaceable re-entry. Ordinarily, the landlord’s forfeiture powers arise from the lease, and a...
This Practice Note offers direction on the distinct rules governing the prescriptive period for obligations to pay damages (previously, to make reparation). It ought to be read alongside Practice Note: Prescription in Scotland. Read it in tandem with that note for context and alignment within the overall wider prescriptive framework in Scotland. For insight into the law of limitation in Scotland, consult Practice Note: Limitation of actions in Scotland, which likewise addresses the distinctions between limitation and prescription in Scots law. Key: PL( S) A 1973— Prescription and Limitation ( Scotland) Act 1973 P( S) A 2018— Prescription ( Scotland) Act 2018 PL( S) A 1973, s 11 concerns obligations to pay damages (irrespective of the obligation’s source). It applies to every action in contract or delict where damages are claimed. Until 28 February 2025, the section referred to obligations to ‘make...
Lenders' risk exposure In day-to-day secured lending businesses, lenders are increasingly alert to environmental risk. Every major UK bank must now, to a greater or lesser extent, incorporate a formal appraisal of environmental factors within secured lending credit risk assessment processes, though this typically relates more to commercial property than to residential property. Such scrutiny may appear within the solicitor/conveyancer’s report on title; however, lenders are more frequently implementing structured internal procedures, which can include instructing their panel Chartered Surveyors to evaluate environmental risk as part of the valuation process. The Law Society provides its members with guidance on ground contamination, flood risks and climate change, detailing steps to mitigate these issues and setting out best practice within its practice notes......
Environment ( Wales) Act 2016 The Welsh Government brought forward the Environment ( Wales) Bill ( E( W) Bill) on 11 May 2015. The Environment ( Wales) Act 2016 ( E( W) A 2016) obtained Royal Assent on 21 March 2016. E( W) A 2016 includes a degree of tidying of environmental matters in Wales, revising statutory targets for cutting emissions and carbon budgets, as well as clarifying the law for other environmental regulatory systems, including flood risk management and land drainage. This Practice Note does not, however, address those provisions. This analysis concentrates chiefly on E( W) A 2016, Part 1, which sets out detailed provisions intended to safeguard and to secure the goods and services produced by ecosystems, and to underpin the sustainable management of natural resources in Wales. Consequently, and building further on the establishment of a single...
What is the Renewable Heat Incentive ( RHI)? The RHI is a Great Britain government scheme offering payments to encourage the use of renewable heating in a market largely reliant on fossil fuels. The idea was that by providing financial support, hurdles such as high upfront costs and running expenses could be eased, boosting adoption. The scheme was split into two phases: Phase 1 launched in November 2011 for non-domestic systems across industrial, commercial and public sectors. It stopped accepting new applications on 31 March 2021. For more detail, see Practice Note: Non- Domestic Renewable Heat Incentive ( NDRHI)—scheme closure and key continuing features. Phase 2 covers the domestic RHI (following the Renewable Heat Premium Payment ( RHHP)) and began in April 2014. The domestic RHI closed to new applicants at midnight on 31 March 2022 and has been succeeded by the Boiler...
This Practice Note explores how the stages of commercial property sales differ between England and Wales and Scotland, covering pre-contract, contract, post-contract, completion or settlement, and post-completion or settlement. Assuming a straightforward transaction with no funding, the outline below sets out the principal steps at each stage for both jurisdictions... Pre-contract England and Wales Buyer submits pre-contract enquiries to the seller Buyer undertakes due diligence and orders required searches (for example official copies, land charges searches, coal mining reports, and local authority search and enquiries), see Practice Note: Pre-contract searches Seller circulates a draft contract incorporating the standard conditions of sale The parties negotiate the draft contract Buyer makes an official search with priority; see Pre-completion searches—checklist Scotland Seller supplies a title pack, comprising a copy title sheet where registered in the Land Register, or title deeds if still in the...
FORTHCOMING CHANGE : The Renters’ Rights Act 2025 obtained Royal Assent on 27 October 2025. For guidance on how the Act affects residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions. That Practice Note explains the nature of a periodic tenancy and the process and notice periods for ending such a tenancy. It also considers the effect of the Landlord and Tenant Act 1954 and distinguishes a periodic tenancy from a tenancy at will. What is a periodic tenancy? A periodic tenancy is a continuing letting that endures until a notice to quit is served. It may arise by express agreement or by implication. The period is usually determined by the interval by reference to which the rent is reserved, rather than when it is actually paid. For example, if the parties agree (or agreed under a previous fixed term lease) an annual rent of...
This Practice Note sets out guidance on the options available and different approaches for allocating service charges on the sale of commercial property where occupational leases are in place, and on handling the transfer of sinking funds on such transactions. Apportioning service charge under the Standard Commercial Property Conditions In disposals of investment assets, where numerous occupational tenancies typically exist and rental, service charge and insurance rent payments, sinking funds and rent reviews are ongoing, the default framework contained in the Standard Commercial Property Conditions ( Third Edition – 2018 Revision) ( SCPC) is often expressly tailored to address, in greater detail, the apportionment of these sums and the transfer of sinking funds......
Securing necessary easements over third party land When land owned by others lies between a proposed scheme and the adopted road, developers will appreciate that a right of way must be obtained across that intervening land to reach the site itself and in order to access the development. Equally, easements for utilities and service infrastructure must not be forgotten or sidelined. Where an estate is disposed of in parts, the continued supply of essential services to the new development is dependent on the effective grant of easements across any land in third party ownership. The utility provider’s rights A network operator can elect either to take a private easement permitting the installation and upkeep of apparatus over neighbouring land, or alternatively to proceed under statutory powers (for instance, under the Water Industry Act 1991 or the Electricity Act 1989—see Practice Note: Statutory wayleaves and rights of...
Offer back clauses (also referred to as surrender back) require a tenant, prior to any assignment and/or underletting, to first propose giving up the lease to the landlord in question. That ability to assign or underlet only arises if the landlord simply refuses the tenant’s proposal made to them. In practical terms, this amounts to a pre-emption right (often termed a right of first refusal). Advantages and disadvantages Such provisions allow the landlord to block an assignment or underletting and compel the tenant to leave the premises. Where the tenant must offer a surrender without payment, the landlord may exploit increased rents by taking the surrender and re-letting at the market rent......
The Law Society released its practice note on flood risk on 23 May 2013, responding to the growing exposure of properties to flooding and the knock‑on consequences for obtaining a mortgage, arranging insurance cover and selling a property. Subsequent updates were made on the following dates: on 18 December 2014 to consider proposed changes to the Flood Re insurance scheme and to refer to new flood maps published by the Environment Agency ( EA), with detail in News Analysis: Updated Law Society practice note on flood risk; on 10 February 2016 ahead of Flood Re’s launch in April 2016, and also to account for insurance changes to the CML Handbook; on 31 January 2020 reflecting increasing concern about flood risk for property owners as a consequence of climate change. As solicitors are not qualified to advise on flood risk or to...
The stamp duty land tax ( SDLT) rules that apply when a tenant holds over a lease are complex. Since SDLT came into force, the regime has been amended, and differing situations can produce different outcomes. Which provisions apply will depend on, among other factors: whether the original lease was a stamp duty or SDLT lease (ie it was chargeable to stamp duty or SDLT when granted) the date on which the original lease was granted the date on which the original lease came to an end when the new lease is granted, and the commencement date expressed for the term of the new lease The relevant provisions are found in paragraphs 3, 3A and 9A of Schedule 17A to the Finance Act 2003 ( FA 2003). SDLT ceased to apply to any land transaction involving interests in or over land in...
All information set out below is available for public inspection under section 66 of the Land Registration Act 2002 ( LRA 2002), known as the general right of inspection, unless excluded by section 66(2): recorded on the register of title; in the Registrar’s possession and cited on the register of title; entered on the register of cautions against first registration; and held by the Registrar in connection with an application made to the Registrar. How can information be kept confidential?......
Background One of the core tenets of an effective insolvency regime is that an insolvency practitioner (described in this Practice Note as an ‘ IP’) may examine the conduct of the insolvent party (described in this Practice Note as the ‘ Debtor’) in the period preceding insolvency, to determine whether earlier transactions have improperly disadvantaged the valid claims of creditors by reason of antecedent dealings. For instance, a Debtor facing financial distress might have disposed of particular assets at undervalue to generate quick cash in the short term. Yet, by doing so (and effectively placing those assets beyond creditors’ reach) the Debtor may have weakened creditors’ prospects of recovery and nullified any security they held over those assets (for example, a floating charge), rendering it redundant. Although an IP will, for the most part, be focussed on a snapshot of the Debtor’s assets and...
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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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