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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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Linking headlease rent to underlease rents The rent payable under a headlease can be tied directly to the rent paid, or payable, under actual or anticipated underleases granted out of it. In such a structure, the headlease rent is often described as a 'geared rent', 'shared rent', 'side-by-side rent' or 'indexed rent', and a lease featuring this type of rent is sometimes referred to as an 'equity-sharing lease'. Typically, the headlease provides for a base rent, with an additional amount calculated and payable as a defined percentage of the tenant’s 'gross revenue' (as defined in the headlease) arising from underlettings—see Calculating the tenant’s 'gross revenue' below. This type of arrangement: is really only suitable where underlettings are envisaged when the headlease is granted—accordingly, it is well suited where a freeholder grants a long headlease (typically in excess of 125 years) to a developer who will...
What is a DRO? Debt Relief Orders are a newer, streamlined route to clear the slate for people who cannot afford to go bankrupt. A DRO is granted in relation to qualifying debts. A qualifying debt is one that is: for a liquidated amount payable now or at a future date unsecured not an excluded debt Under the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 9.2, an excluded debt means: any fine for an offence, or an obligation arising from an order in family proceedings, or a maintenance assessment or maintenance calculation under the Child Support Act 1991 any obligation under a criminal confiscation order student loans damages relating to the death of, or personal injury to, any person a crisis loan or budgeting loan made under the Social Security...
This Practice Note addresses transactions involving land charged by way of mortgage. It reviews how far a mortgagor may deal with the land, the situation of a tenant where the reversion is mortgaged, and the requirement for the mortgagee’s consent to dealings. For guidance on discharging a land mortgage, see Practice Notes: Land registration—legal and equitable charges and HM Land Registry and Commercial property—dealing with undertakings and release of security... Mortgagor’s power to deal with land Statutory powers Under the Law of Property Act 1925 ( LPA 1925), a mortgagor has limited statutory authority to grant leases and to take surrenders. Those powers can be excluded or varied, save for certain agricultural tenancies and business tenancies made pursuant to a court order under the Landlord and Tenant Act 1954... Mortgage covenants and conditions The mortgagor’s statutory powers operate only to the extent no contrary intention is...
Statutory rights of succession in relation to an agricultural tenancy Statutory succession applies to an agricultural tenancy only where the Agricultural Holdings Act 1986 ( AHA 1986) governs that tenancy. No succession rights attach to farm business tenancies, i.e. tenancies granted under the Agricultural Tenancies Act 1995 ( ATA 1995)......
This Practice Note sets out: what a concurrent lease is when it is typically used who may enforce (and benefit from) covenants in the existing lease(s) principal distinctions between a concurrent lease and a headlease from which underleases are derived It also considers essential provisions to include when preparing a concurrent lease, and how a concurrent lease interacts with: tenants’ rights of first refusal under the Landlord and Tenant Act 1987 ( LTA 1987) operators’ rights under the Electronic Communications Code In this Practice Note, the following definitions are used: L: the landlord under the original lease T1: the tenant (or tenants) under the original lease(s) CT: the tenant under the concurrent lease What is a concurrent lease? ......
For advice on the standard covenants restricting assignment and underletting, and on when withholding consent is reasonable in practice, refer to Practice Note: Landlord’s consent to assign or underlet. Where there is a breach, a landlord typically has the following remedies available. Forfeiture Where consent is required, any assignment or underletting carried out without it constitutes a breach that, under typical lease provisions, entitles the landlord to forfeit the lease. The tenant can apply for relief from forfeiture through the standard and recognised route. Absent such an application, forfeiture terminates the lease and, in such circumstances, extinguishes any sublease derived from it. For further and fuller detail on forfeiture, see Practice Note: Forfeiture of a lease. Injunction In a declining or soft market, a landlord may prefer not to forfeit, particularly where they consider the tenant unlikely to seek relief......
Express lifetime declarations Where an express lifetime declaration creates a trust, the settlor simply states that they hold the trust property on trust absolutely for the specified person or object. The declaration must be unequivocal, and the settlor should communicate the trust’s terms to the beneficiaries. The following must be satisfied: there is property capable of being made subject to a trust the trust complies with any formal validity requirements the terms are sufficiently certain (essential validity) the trust’s purpose is not unlawful Evidential requirements—personalty Provided the conditions for essential validity are met, a declaration of trust concerning personalty (other than an equitable interest) may be made: in writing orally or, in exceptional circumstances, by conduct There are no legal rules prescribing a particular form for a declaration of trust over personalty. Nevertheless, it is prudent practice to record all terms in a...
There are several different ways an easement may terminate, and this Practice Note concentrates mainly on unity of seisin, also referred to as unity of ownership, for the purposes of this discussion. For other circumstances in which an easement might be extinguished, consider: abandonment—please see Practice Note: Easements lost by abandonment express agreement—for example, please see Precedent: Deed of release of easement statute—for example, please see Practice Note: Section 203 powers—interference with rights for development purposes the carrying out of works required by a statutory order that further render the easement incapable of exercise, or the lawful removal of the structure over which the easement is enjoyed See further guidance: General: Encyclopaedia of Forms and Precedents [1190]. Unity of seisin Unity of ownership Unity of seisin (in modern terms, unity of ownership) is where the ownership of the freehold interest in both the...
This Practice Note considers the law and policy surrounding flooding in Scotland: offering a synopsis of legislation, policy, and the Flood Risk Management ( Scotland) Act 2009 ( FRM( S) A 2009) setting out how flood risk is managed and the responsibilities of various statutory bodies signposting guidance for developers on instances where flood impacts must be evaluated as part of due diligence exploring potential strategies to reduce flooding, alongside wider mitigation examining controlled activity licences Flooding can inflict severe harm on people and enterprises. The Scottish government has recognised the growing dangers and consequences of flooding across Scotland due to climate change, and has produced national policy and devolved law to address the effects of heightened flood risk in Scotland. These policies and legislation embrace catchment-scale, precautionary methods for managing flood risk and emphasise the need for flood management to regulate new development that could be...
Declaratory judgment A declaratory judgment states the rights, responsibilities or obligations of parties in a dispute. It is legally binding but does not compel any party to act. A court may grant it on its own or alongside other remedies, such as an injunction, and it can be made on an application for judicial review. A key benefit is the considerable saving of costs by resolving a specific issue as a preliminary matter, avoiding further argument or helping to achieve a settlement. Declaratory relief may be sought within, or in place of, applications for the judicial review of decisions by tribunals or public bodies, including local planning authorities ( LPAs). It can provide a straightforward, cost-effective and flexible means to interpret legislation and promote good administration, without needing to overturn earlier determinations where that would be impracticable or...
FORTHCOMING CHANGE: This Practice Note sets out the law as it currently stands, though elements could be affected by the Digital Omnibus proposals released on 19 November 2025 under the European Commission’s ‘simplification’ agenda. For details, see Practice Note: EU Digital Omnibus—tracker. It introduces the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), and the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR). The UK data protection law collection and the EU data protection law collection compile further core guidance on these regimes and are recommended starting points for research. In brief, data protection law across the EEA (the EU together with Iceland, Norway and Liechtenstein) and the UK aims to ensure that information about living individuals (‘personal data’) is treated fairly and responsibly. To that end, both EEA and UK data protection laws impose...
The Leasehold Reform Act 1967 ( LRA 1967) and the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993) confer on long leasehold tenants, respectively, individual and collective rights to acquire the freehold of their house or a block of flats. Alongside introducing the collective enfranchisement right, LRHUDA 1993 also expanded the range of houses eligible for individual enfranchisement. If the relevant house or block were the landlord’s sole asset, this would cause little difficulty. However, significant estate management concerns may emerge if, under either statute, a landlord is required to make involuntary and piecemeal disposals across its portfolio. Both the LRA 1967 and LRHUDA 1993 allow a landlord to implement a management scheme covering a neighbourhood. These schemes, which endure following enfranchisement, enable the landlord to retain management powers and enforce rights over any property transferred under either Act, to...
This Practice Note sets out how building energy performance is controlled via Energy Performance Certificates ( EPCs), the circumstances in which EPCs are required, and the obligations under the principal EPC legislation—the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regs 2012), and the Building Regulations 2010, SI 2010/2214 ( Building Regs 2010)—which give effect to the recast Energy Performance of Buildings Directive 2010/31/ EU (recast EPBD directive). It forms part of a suite of notes on EPCs and the minimum energy efficiency requirements ( MEES). What is an Energy Performance Certificate ( EPC)? Buildings account for nearly 40% of the UK's energy use and carbon output, so knowing how to curb and manage that consumption is vital for meeting carbon reduction goals and cutting a building's operating costs. EPCs are designed to drive better energy...
Why is environmental insurance relevant? Environmental insurance exists to protect the insured against pollution and environmental harm. Although a standard Public Liability ( PL) policy offers limited protection, it typically applies only to ‘sudden and accidental’ incidents. The challenge is that: pollution can occur continuously, often gradually and even intentionally (for example, discharging pollution into a drain); and as decided in the Bartoline case, PL wordings confined to ‘damages’ do not include liabilities for remediation costs required by statutory remediation notices. Therefore, major pollution exposures are not covered by usual insurance arrangements, but can be addressed through specialist environmental policies. For guidance on when environmental insurance is appropriate and its pros and cons, see the Practice Notes: Environmental insurance—when is it needed? and Environmental insurance—advantages and disadvantages. Types of environmental insurance The three core categories of environmental cover focus on: property ...
Purpose of environmental searches and investigations Environmental investigations are undertaken for a range of reasons. The price, depth and scope of any study will shift according to its objective. In general, outputs from desk-based reviews through to intrusive works are intended to deliver qualitative and/or quantitative risk evaluations, considering potential effects on human health, buildings and services, ecological receptors, or controlled waters. Searches and investigations also enable parties to land transactions to proceed fully informed about legal liabilities that may arise from historic or current uses of the land. The breadth of an investigation is shaped by the deal terms, the client’s risk appetite, the budget, and the site’s characteristics and environmental context. Typically, an investigation is commissioned: to clarify liabilities under a range of regimes and laws, including: the...
Buyers and sellers weigh numerous factors when conducting thorough due diligence during a commercial transaction for the purchase or disposal of a business together with its operational sites and plant. Environmental considerations ought to form a key part of any diligence process for the enterprise. ' Caveat emptor'—'let the buyer beware'—is a well-established common law doctrine under which the seller has no legal obligation to reveal material facts to a potential purchaser, so the purchaser must make their own enquiries. Environmental regulations can drive substantial capital spending, and such risks may materially change a company’s overall risk profile. Compliance shortcomings may seriously damage reputation, while enforcement could threaten the long term viability or profitability of the business. Commissioning an environmental consultant Provide your environmental consultant with full and relevant context for the proposed deal when commissioning due diligence, so an appropriate and...
What is an Enterprise Zone? Enterprise Zones ( EZs) are specific land areas offering businesses a suite of advantages, intended to draw in new firms or encourage further investment by those already based there. Their scale differs widely, ranging from single business parks through to entire cities or wider regions. The core policy purpose of EZs is to trigger swift business investment over the short term, generate employment, and spark a surge of activity that typically endures for up to three years. To support this, the government provides targeted measures on business rates, relaxed planning rules, and broadband provision, making it simpler to operate within EZs......
This Practice Note examines the ‘right to rent’ regime applying to residential premises in England. It summarises the ‘right to rent’ scheme and signposts the code of practice on right to rent (which explains how landlords and agents can comply with the regulations) and the landlords’ code of practice (relating to avoiding discrimination), alongside other Government guidance. The focus is on residential premises within England only. It also directs readers to Government guidance relevant to the scheme in this area, as appropriate. Background—the 'right to rent' scheme Brought in by the Immigration Act 2014 ( IA 2014), the ‘right to rent’ framework is designed to prevent persons who are not lawfully present in the UK from securing or remaining in private accommodation in the UK. Under the scheme, a private landlord who permits an adult, disqualified from entering into a residential tenancy agreement because of their...
Archived This Practice Note is archived and is no longer being maintained. 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. Stop press The Housing and Planning Act 2016 received Royal Assent on 12 May 2016. However, the provisions in Part 3 concerning the recovery of possession of abandoned premises have not yet been brought into force. Accordingly, this Practice Note is provided for information only until those measures commence. This Practice Note concerns the recovery of abandoned residential premises let under an assured shorthold tenancy ( AST) by private landlords in England only. Background Part 3 of the Housing and Planning Act 2016 ( HPA 2016) is intended to enable private landlords to regain possession of abandoned residential property with greater ease, with the aim of making more...
Insolvency of private not-for-profit registered providers of social housing The social housing landscape in England is often labelled a ‘no default’ market, reflecting that no English private not-for-profit registered provider of social housing ( NFPRP) of meaningful scale has ever been wound up through insolvency. When providers have encountered financial stress, the regulator of social housing (under its various historic incarnations) (the Regulator) has, thus far, leveraged regulatory intervention and sector-wide influence, including with the principal funder, to broker rescues by ‘white knights’—typically larger NFPRPs operating in the same locality as the faltering body or organisations with the requisite specialist know-how. This approach has to date avoided insolvent winding-up for significant NFPRPs, with takeovers arranged to steady distressed entities by suitable counterparts. The current housing administration framework was created by Part 4, Chapter 5 of the Housing and Planning Act 2016 ( HPA 2016) 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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