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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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Farm business tenancy — compulsory acquisition of tenant’s interest Where land is: used for agriculture (within the meaning of the Agricultural Tenancies Act 1995 ( ATA 1995)) in the course of a trade or business, or included in a farm business tenancy (within the meaning of ATA 1995) and used for a trade or business, and the tenant (the person conducting that trade or business) is required to vacate because an interest in the land is either taken compulsorily or disposed of by agreement to an authority holding compulsory purchase powers, the acquiring authority may pay such reasonable allowance as it considers appropriate towards the tenant’s removal costs and the loss which, in its view, the tenant will incur owing to disruption of the tenant’s trade or business. When assessing the tenant’s loss, the acquiring authority must take into account the period for which the land...
This Practice Note examines how flat tenants may compel the purchase of a landlord’s interest under the Landlord and Tenant Act 1987 ( LTA 1987), and reviews the qualifying buildings and leaseholders, together with the mechanism and criteria of the acquisition order process. Compulsory acquisition of landlord's interest Under Part III of the LTA 1987, an acquisition order permits eligible long leaseholders of flats to force the purchase of the landlord’s estate in the block via a ‘nominated person’ where either: the landlord has breached duties to repair, maintain, insure, or manage the property; or the property has, for a minimum of two years, been run by a manager appointed under Part II of the LTA 1987. In all scenarios, the court may only grant the order if it considers it appropriate in the...
This Practice Note provides links to Q& As covering many of the most common property enquiries. The answers are not updated and therefore reflect the law as at the date they were issued. For the latest guidance and additional detail, follow the links in each answer. Building Safety Act 2022 For practical guidance on the Building Safety Act 2022, see: Building Safety Act 2022 property and property disputes collection. Under the Building Safety Act 2022 ( BSA 2022), leases completed before 14 February 2022 are qualifying leases (subject to all other criteria), so a leaseholder/landlord certificate is required. For relevant buildings constructed or converted after 1 October 2023, the new Building Regulations apply; a final BR certificate would evidence compliance with the BSA 2022. What documents should a buyer expect in relation to the BSA 2022 where a developer acquired a...
FORTHCOMING CHANGE: The Renters’ Rights Act 2025 The Renters’ Rights Act 2025 obtained Royal Assent on 27 October 2025. For guidance on the Act’s effect on residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions... A Absolute title A category of title available for registered land. Absolute title is the strongest class that can be granted; it denotes that, apart from matters on the register and any overriding interests, nothing affects the registered proprietor’s freedom to deal with the land... Abstract (of title) A certified summary, prepared by a lawyer, setting out the contents of the title deeds for a particular property... Acquiring authority See Compulsory purchase... Act of Parliament Legislation passed by both Houses of Parliament in the form of a written Bill and given Royal Assent. Sometimes called primary legislation. See also Secondary...
Contracts for commercial property frequently adopt the Standard Commercial Property Conditions ( Third Edition—2018 Revision) ( SCPC). SCPC 9 governs the handling of completion monies. For an overview of completion generally, see the Practice Note: How does completion happen? How much is payable? On completion, the buyer must pay the balance comprising the purchase price plus the chattels price, less any deposit already paid to the seller or their agent, and then adjusted to reflect: Apportionments made under SCPC 9.3 Any compensation payable or allowable under SCPC 10.3 Where the contract requires the seller to insure until completion, specified insurance sums or premiums in the circumstances set out in SCPCs 8.2.2 and 8.2.3 Ensure that VAT is included as appropriate (including VAT on apportionments) in accordance with SCPC 2, and that any accrued interest (as defined in SCPC 1.1.1(a)) is brought into account on...
This Practice Note sets out, in table form, the key distinctions between secure, introductory and flexible tenancies in England, addressing the tenancy’s term and status, the nature of the landlord, and the right to buy. From 1 December 2022, tenancies and licences of dwellings in Wales are regulated by the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016), subject to certain exceptions. The terms of both existing and new tenancies must be reviewed against RH( W) A 2016 to decide whether they are occupation contracts for the purposes of that Act and, if so, which category of occupation contract applies. Any tenancy or licence that is an occupation contract must comply with the Act’s comprehensive regime, which includes, among other requirements, providing a written statement setting out the contract terms. For further information, see Practice Notes: Renting Homes ( Wales) Act 2016—a summary of the key...
What is a CVA? A company voluntary arrangement ( CVA) is an agreement between a company and its creditors, overseen by an insolvency practitioner. That practitioner is initially the ‘nominee’, becoming the ‘supervisor’ once the arrangement takes effect. A CVA is typically put forward by the company’s directors, although an administrator or liquidator can also make the proposal. Its objective is to compromise the company’s debts or to set out a scheme for managing its affairs. The principal legislative sources are sections 1–7B of the Insolvency Act 1986 ( IA 1986) and Part 2 of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024. For further reading on CVAs, the steps to implement them and their effect, see the following Practice Notes: Company voluntary arrangements—an introductory guide In what circumstances can a CVA be proposed and by whom? The CVA...
STOP PRESS: The English Devolution and Community Empowerment Bill gained Royal Assent on 29 April. This material is being reviewed to align with the Act. Introduction The Community Infrastructure Levy ( CIL) is a charge applied to development. Its statutory basis is Part 11 of the Planning Act 2008 ( PA 2008), empowering the Secretary of State to make regulations to impose CIL. Those regulations are the Community Infrastructure Levy Regulations 2010 (the CIL Regulations), SI 2010/948. CIL applies in England and Wales. Who charges and collects CIL? CIL is set by ‘charging authorities’ for development within their area. Under PA 2008, s 206, the local planning authority ( LPA) is the charging authority. However: within Greater London, the Mayor of London is also a charging authority alongside the Borough Councils across the Broads, the Broads Authority is the sole charging authority on the Isles of...
Context Community Infrastructure Levy The Community Infrastructure Levy ( CIL) is a developer contribution that local planning authorities—acting as charging authorities under Part 11 of the Planning Act 2008—may impose on development within their jurisdiction. For a summary of the CIL framework, refer to Practice Note: Community Infrastructure Levy ( CIL)—who administers CIL, when CIL is triggered, and when and by whom CIL must be paid. Once an authority chooses to levy CIL, it must bring forward a charging schedule that specifies the rates at which the charge will be applied. From the date that schedule is adopted, any planning permission granted, or treated as granted under general permitted development rights, becomes liable for CIL, save where one of several exemptions or reliefs is available. This Practice Note focuses solely on relief available to charities or for charitable purposes. For alternative reliefs and...
The Commonhold and Leasehold Reform Act 2002 ( CLRA 2002) permits developers of new residential schemes to provide a freehold option to prospective flat purchasers. This Practice Note examines the pros and cons of owning a freehold unit within a commonhold, as contrasted with a leasehold interest. Background Before 27 September 2004, when Pt 1 of CLRA 2002 commenced, leasehold tenure was the only realistic structure a developer could offer to would-be flat buyers. The burden of a positive covenant (for example, to pay service charge, insurance rent, and the like) can run with a leasehold estate only, not a freehold. Although this flaw could be overcome on a freehold disposal of a flat by imposing an estate rentcharge under the Rentcharges Act 1977 ( Rc A 1977), the practical position is that many mortgage lenders will not advance funds on the security of a...
A commonhold association takes the form of a private company limited by guarantee. Membership is restricted to unit-holders, who, through their voting rights, direct how the commonhold is administered. The commonhold association: is the registered proprietor of the common parts of the property, and has overall responsibility for managing the development (including the power to terminate the commonhold via a voluntary wind-up) Commonhold assessment Under the Commonhold Community Statement ( CCS), the association may set a commonhold assessment, i.e. an estimate of the costs of managing, maintaining, insuring, and repairing the building. The association then seeks payment from each unit-holder in proportion to the percentage attributed to their unit in the CCS......
Repair and improvements Tenants are ordinarily not required to fund a landlord’s upgrades or enhancements to the property, as distinct from repairing it. The term of a tenant’s lease influences what it is reasonable for the tenant to contribute, even where service charge clauses are cast in broad terms. However, a covenant to provide services is wider and potentially more burdensome than a covenant to repair, and may permit a landlord to recover expenditure on works that extend beyond mere repair. In those circumstances, the recoverable service charge is the cost of delivering the service, and the repair versus improvement distinction is unlikely to matter. See News Analysis: Covenant to provide services goes beyond covenant to repair ( Southwark London Borough v Baharier). Where a lease obliges the landlord to consult tenants before embarking on major works, sums spent without that...
A landlord of commercial premises may carry express or implied obligations to supply services for the benefit of the tenant or tenants. Express covenants A promise to deliver a service creates a broader and potentially more burdensome obligation than a mere covenant to repair, and may, consistent with the tenant’s liability to pay the service charge, allow a landlord to recover the expense of works that go beyond repair. In such situations, it is the cost of delivering the service that makes up the service charge, and the line between repair and improvement is unlikely to matter: see News Analysis: Covenant to provide services goes beyond covenant to repair ( Southwark London Borough v Baharier). If a landlord does not act in a timely manner, it may ultimately be unable to recover the entire cost of repairs......
If a certificate is required to determine the service charge, Urban Splash Work Ltd v Ridgway and another [2018] UKUT 32 ( LC) confirms there is no overarching rule that providing certified accounts is, or is not, a condition precedent to liability for service charges (rather than simply part of the payment ‘machinery’)—the outcome depends on the exact lease wording and there is no generally applicable principle. Landlords should take care not to draft around circumstances personal to them, which could render the certification procedure unworkable once the reversion is assigned. In that event they would need to sue to recover the service charge because there would be no contractual route to obtain it (and, depending on the drafting and the circumstances, recovery might not be possible at all). There must be an express clause creating a duty to pay on account, as such an...
Flexible loan structures In the wake of the financial crisis, mainstream bank lending pulled back, creating space for non-bank lenders ( NBLs) such as insurers and real estate debt funds. Through 2012 and 2013, this gap allowed NBLs to consolidate their position and become established market participants. With confidence returning to the real estate investment market and banks re-entering from 2014, some NBLs, especially real estate debt funds, shifted up the risk spectrum away from the senior debt arena. This has produced a competitive environment for real estate debt across the capital stack. Banks, insurers and debt funds adopt different approaches, each targeting an optimum deal size, asset class and loan purpose. Four often-used flexible loan structures are: flexible senior loans stretched senior loans mezzanine loans preferred equity loans Flexible senior loans Banks are particularly active in this space alongside some...
This Practice Note forms part of a suite that explores commercial property contract clauses from a purchaser’s viewpoint, identifying practical amendments and matters to look out for in practice—see: Buyer’s practical contract negotiation collection. It concentrates on standard provisions, in particular those addressing arrears in a contract for sale that is subject to leases. In this setting, arrears are sums owed by tenants that have not been remitted to the seller as at completion (including any VAT in respect of those sums). This Practice Note reviews issues emerging from the buyer’s due diligence on arrears, the position under the Standard Commercial Property Conditions ( Third Edition—2018 Revision), how arrears are typically managed in day‑to‑day practice, and it offers pragmatic due diligence and drafting suggestions for buyers. It does not address arrears where a headlease is in play—see instead: Due...
This Practice Note This Practice Note outlines the steps involved in transferring a commercial property. It proceeds on the basis that the asset is a registered freehold or leasehold, is being disposed of with vacant possession or subject to existing lease(s), and is being bought either as an investment or for the purchaser’s own occupation. It sets out the principal sections that map the usual stages of a sale and purchase, with each section signposting Lexis+ UK resources offering fuller guidance on the subjects covered: Preliminary matters Pre-exchange—the due diligence process The contract and exchange Between exchange and completion Completing the transaction Post completion The guidance here is not exhaustive and will not address every eventuality for every transaction. See also: Structure of real estate finance—overview Real estate in corporate...
This checklist supports a buyer’s solicitor in conducting an early read-through of the first draft of a contract for the purchase of commercial property issued by the seller, spotlighting the headline matters to verify. At times, the seller’s solicitor may prepare the agreement without fully grasping every point that must be addressed; accordingly, the buyer should stay alert to any omissions from the outset and raise probable issues or contractual needs at the earliest opportunity (even if only noted as a placeholder in the document while awaiting instructions or further detail). Identification of seller and buyer Heads of terms may not capture the parties precisely: Companies House: where the seller is a company, the buyer’s solicitor must confirm via Companies House that the named party and company number in the heads of terms are correct and match the details shown in the title...
Who insures? Joint insurance From a tenant’s standpoint, the preferred arrangement is for the premises to be insured in the joint names of the landlord and the tenant. For the tenant, the key advantages are: both parties are alerted before the policy comes up for renewal or lapses any insurance proceeds are payable jointly to landlord and tenant, giving the tenant influence over how the funds are applied (and therefore over the reinstatement of the premises) there are no detrimental effects if the landlord enters liquidation before reinstatement is carried out the insurers cannot rely on their right of ‘subrogation’ (see Subrogation below) against the tenant for damage the tenant caused or contributed to Nevertheless, in many cases arranging insurance in joint names will not be practical......
Practice Note overview This Practice Note reviews the stages in negotiating commercial leases in England and Wales compared with Scotland, spanning pre-contract, contract, post-contract, completion and settlement, and post-completion and settlement... England and Wales / Scotland Pre-contract The tenant submits pre-contract enquiries to the landlord. The tenant undertakes due diligence, ordering required material such as official copies of the landlord’s title, land charges searches, coal mining reports and local authority enquiries. The landlord circulates a draft agreement for lease (incorporating standard conditions of sale), the draft lease and any other necessary drafts, for example a licence for fitting-out works. The parties negotiate the draft documents. The landlord secures any third-party consents needed for the lease, e.g. head landlord’s approval or a bank’s consent where there is a legal charge over the property. Once the paperwork is agreed, if...
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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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