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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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What are mines and minerals? Mines There is no single settled definition of the term ‘mine’. It is a protean expression (ie one that derives its sense from the context in which, or—as Lord Halsbury put it in Glasgow v Farie—the intention with which, it is employed). Particular statutes (eg the Mines and Quarries Act 1954, the Coal Industry Act 1994 ( CIA 1994), the Town and Country Planning ( General Permitted Development) Order 1995, SI 1995/418, and the Town and Country Planning ( General Permitted Development) Order 1995, SI 2015/596) may attribute ‘mine’ a specific meaning for the purposes of that enactment. Likewise, albeit infrequently, an instrument may define ‘mine’ for that instrument’s purposes. Where there is no express definition, the term ‘mine’ takes its sense from the accompanying words used in the relevant statute or document, and from the factual...
This Practice Note examines how additional clauses—also referred to as special conditions—are used alongside the Standard Conditions of Sale ( Fifth Edition—2018 Revision) ( SCS) in residential conveyancing matters. Using the Standard Conditions of Sale ( Fifth Edition—2018 Revision) The SCS comprise a set of standard conditions forming the foundation of most contracts for buying and selling residential property in England and Wales. They prescribe the general terms on which the property is conveyed and deal with deposit payment, deduction of title, matters to which the property is sold, completion, late completion, and contractual remedies for breach. Where the Law Society’s Conveyancing Protocol ( Protocol) is adopted for a particular conveyancing transaction, the contract must incorporate the latest edition of the SCS. Using special conditions Step 13 of the Protocol provides that additional conditions should be inserted only where they are strictly necessary for the purposes of the...
This Practice Note outlines the legal position if a buyer or seller of residential property in question dies after exchange of contracts but before completion. It identifies the steps that should be taken, and what occurs where the buyer/seller comprises two or more persons and only one of them dies. It proceeds on the assumption that the contract for sale incorporates the Standard Conditions of Sale ( Fifth Edition—2018 Revision) ( SCS). See Practice Note: Standard Conditions of Sale ( Fifth Edition—2018 Revision)—a guide to the main provisions. It addresses scenarios where the parties are co-owners acting for themselves when buying or selling, but it does not address the position for other trusts of land. For guidance on trusts of land, see: Trusts of land for property...
Nature and purpose of a deposit Although this Practice Note focuses on commercial property, it also notes certain residential aspects. There is no common law duty on a buyer to pay, or on a seller to require, a deposit; a deposit must be expressly provided for within the contract. the seller’s security for the buyer’s fulfilment of the contract part payment of the purchase price on completion A deposit reassures the seller that the buyer will meet its contractual obligations. Unless the contract, read as a whole, evidences an intention to exclude forfeiture, the seller may forfeit the deposit if completion fails due to the buyer’s default. This holds true even where the contract does not expressly mention forfeiture. The law treats a deposit as money paid to guarantee performance of the agreement. In Samarenko v Dawn Hill House [2011] EWCA Civ 1445, the Court of Appeal...
This Practice Note Sets out the legal position that applies where a party disposing of a land interest (the seller) is not recorded as proprietor at HM Land Registry and has either: already submitted an application to be entered as the proprietor; or not yet submitted such an application, but compulsory registration has nevertheless been triggered (whether by the transfer (or grant) to the seller, or by an earlier dealing). It also offers practical, procedural guidance on conducting due diligence for the acquiring party in these circumstances. The matters highlighted are of particular significance for any party acquiring a registrable interest in land, as they must ensure their interest can be registered at HM Land Registry without delay following completion (and, where relevant, within the applicable priority period). This Practice Note does not address investigating title to unregistered land—see instead the following Practice Notes:...
Agricultural tenants’ right to buy An agricultural tenant’s entitlement to purchase was established in Scotland by the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003). It is a pre-emptive, rather than an absolute, right to buy, because a tenant may exercise it only when the owner proposes to sell the tenanted land concerned. This Practice Note explains the right to buy as it was enacted in AH( S) A 2003. A statutory right to buy under AH( S) A 2003 applies solely to tenants whose agreements are regulated by the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991), commonly referred to as 1991 Act tenancies (see Practice Note: Agricultural holdings in Scotland—snapshot—1991 Act Tenancies). The practical background and context behind introducing the right to buy is that: 1991 Act tenancies may continue indefinitely, and a 1991 Act tenancy markedly...
This Practice Note explains the nature of chancel repair liability, how it affects a property, the difficulties it presents and the approaches to dealing with the risk of liability, including the option of chancel repair liability insurance. It also looks at chancel repair liability as a former overriding interest and the potential for reform in the future. In short, it sets out what chancel repair liability is and how to address it. What is chancel repair liability? Chancel repair liability is a historic burden which may benefit pre- Reformation churches in England and Wales. It permits parochial church councils to require proprietors of former rectorial land to fund repairs to the chancel (the space around the altar at the east end of the building) of their local church. The duty exists because, historically, the rector of a church was responsible for chancel repairs and met the cost...
ARCHIVED: This Practice Note has been archived and is no longer maintained or updated. The Construction ( Design and Management) Regulations 2015, SI 2015/51 ( CDM 2015) set the framework for the management of health, safety and welfare on construction projects in the UK. They supersede the Construction ( Design and Management) Regulations 2007, SI 2007/320 ( CDM 2007). CDM 2015 took effect on 6 April 2015. From that date onwards, CDM 2007 and its associated Approved Code of Practice were no longer in force. On coming into force, CDM 2015 applied to both new and pre-existing projects. However, from 6 April 2015 until 6 October 2015, transitional measures were in place and applied to particular projects already under way; see Practice Note: CDM 2015—transitional provisions [ Archived]. This Practice Note considers in detail how CDM 2015 compares with CDM 2007. For a summary of the...
Following the Grenfell Tower tragedy in June 2017, Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety concluded that a profound change in mindset and practice was required across building safety. In her final report, issued in May 2018, she underlined that the entire system demands a radical overhaul and clarity about how it should operate; the challenge is far more than cladding specifications alone, pointing instead to a sector that has failed to self-scrutinise, learn for itself, or take guidance from other industries. The building safety enquiry culminated in the widely discussed and long-awaited Building Safety Act 2022 ( BSA 2022), which obtained Royal Assent on 28 April 2022. BSA 2022 embodies the step-change in how building safety is addressed and how higher-risk buildings ( HRBs) in England are regulated, answering the call Dame Judith Hackitt set out. At the centre of this...
BSA 2022, Pt 4 The Building Safety Act 2022 ( BSA 2022) delivered far-reaching reforms to the legal framework and regulation of building safety, intended to ‘secure the safety of people in or about buildings and improve the standard of buildings’. Parts 3 and 4 of BSA 2022 establish the architecture for a new regulatory system governing ‘higher-risk buildings’ ( HRBs). Under Pt 3, a strict building control regime was introduced for the design and construction stages of HRBs. Pt 4 imposes duties on those responsible for occupied HRBs, covering risk management and reporting. Collectively, these requirements are known as the ‘ HRB regime’. This Practice Note examines BSA 2022, Pt 4, which sets out the arrangements for managing building safety risks in occupied HRBs in England. BSA 2022, Pt 4 does not extend to HRBs in Wales. For analysis of the Welsh...
Tenants often undertake fit-out works at, or even before, the commencement of a lease. They might also complete refurbishment or additional fit-outs during the term. Fit-outs are usually internal and non-structural, while refurbishments can be more extensive. On occasion, tenants may wish to carry out major structural alterations, such as: combining units by removing internal walls installing staircases/escalators between floors adding roof canopies constructing extensions Whatever the nature of the tenant’s works, both landlord and tenant must consider the insurance implications. The landlord’s insurance position During works Typically, a landlord’s policy will only insure the works once finished, and even then often only where they become part of the insured property (for example, structural elements) rather than interior fittings. Accordingly, the landlord should require the tenant to insure the works during construction. This obligation should appear in the licence for...
Where do the requirements for air conditioning inspections come from? Part 4 (regs 17–21) of the Energy Performance of Buildings ( England and Wales) Regulations 2012, SI 2012/3118 ( EPC Regulations 2012) specifies the duty to have an air conditioning system inspected by an accredited air conditioning energy assessor. The EPC Regulations 2012 gave effect to the requirements contained in the recast Energy Performance of Buildings Directive 2010/31/ EU (the recast EPBD directive). Before the EPC Regulations 2012, the Energy Performance of Buildings ( Certificates and Inspections) ( England and Wales) Regulations 2007, SI 2007/991 implemented the original Energy Performance of Buildings Directive 2002/91/ EC (the original EPBD directive). The recast EPBD directive was prepared after the European Council determined that clearer, more targeted measures were needed to achieve energy savings in buildings across all Member States; see Practice Note: EU Energy...
This is one of four Practice Notes on adverse possession. The others are: Establishing adverse possession of land Claiming title by adverse possession under the Limitation Act 1980 or the Land Registration Act 1925 Adverse possession and leases Introduction The Land Registration Act 2002 ( LRA 2002) took effect on 13 October 2003. It repeals the Land Registration Act 1925 ( LRA 1925) in its entirety, albeit with transitional provisions. Those transitional measures retain the previous approach to acquiring title by adverse possession where the case concerns: unregistered land, and registered land where the entitlement to registration arose before 13 October 2003 For details of the earlier regime, see Practice Note: Claiming title by adverse possession under the Limitation Act 1980 or the Land Registration Act 1925. Overview of the new regime under LRA 2002 LRA 2002 introduces a...
This is one of four Practice Notes on adverse possession. The others are: Establishing adverse possession of land Claiming title by adverse possession under the Limitation Act 1980 or the Land Registration Act 1925 Claiming title by adverse possession under the Land Registration Act 2002 Adverse possession of the demised premises by a squatter The tenant’s position A squatter will defeat and extinguish the tenant’s title to the demised premises if they can demonstrate continuous adverse possession for at least twelve years: at any time (if the lease is unregistered), or before 13 October 2003 (if the lease is registered) Consequently, the squatter will be entitled to apply to be registered as the proprietor. For additional guidance, with specific reference to unregistered leases, see HM Land Registry Practice Guide 5, para 7.1. For more detail, see Practice Notes:...
Administration Administration is a process intended to grant an entity breathing space, aiming at either a rescue or a restructuring, or to deliver a better outcome for all creditors than a liquidation. The contemporary statutory administration framework appears in Schedule B1 to the Insolvency Act 1986 ( IA 1986), brought into force on 15 September 2003 by the Enterprise Act 2002. This Practice Note is directed primarily at real estate practitioners. It clearly sets out the core features of administration and examines essential provisions to be included in contracts for the sale of land where the seller is in administration......
Structure Reasons for the developer to form a JV There are several grounds on which a developer may choose to pursue a JV in connection with a development project, such as the following: spreading risk with another party and placing particular specialist risks with the JV participant most suited to manage them, combining specialist knowledge and expertise to marshal resources on a larger scale and for greater returns, gaining access to specific market knowledge from a party with specialist market experience outside the developer’s usual course of business From the developer’s viewpoint, in practice, it should be cautious not to over‑engineer the JV framework if this might fetter the management of the development process—beginning with the acquisition of land at the outset, continuing through the construction phase, and finally when making disposals upon completion. For example, a more...
Why do environmental issues need to be considered at the outset of a corporate transaction? Environmental and health & safety ( EHS) matters should be addressed at the heads of terms stage because: Clean-up costs for legacy contaminated land can represent one of the biggest financial exposures in a deal Environmental audits can take weeks (an intrusive phase 2 often lasts six to eight weeks). A seller may upload its own environmental reports to the data room to bolster negotiations on price and indemnities Where an environmental permit must be transferred, the process may take two to four months, or longer Smaller companies are frequently not compliant with health & safety legislation. The seller may commission an asbestos survey or implement a health & safety policy and manual See Practice Notes: Heads of terms—share and asset purchases Data...
The Renting Homes ( Wales) Act 2016 ( RH( W) A 2016) The RH( W) A 2016 gained Royal Assent on 18 January 2016 and commenced on 1 December 2022. It significantly overhauled the manner in which properties are let in Wales across both public and private sectors. Multiple, complex statutes were consolidated into a single legal framework, intended to simplify the process and enhance flexibility and transparency. Guidance on renting homes has been issued by the Welsh Government and is available here. This Practice Note is chiefly directed at private sector landlords and tenants (who would formerly have entered into assured or assured shorthold tenancies), though many of the RH( W) A 2016 provisions discussed here apply to lettings in both the public and private sectors. For further material on public sector lettings, see the Practice Notes: Renting Homes ( Wales) Act...
The Property case tracker This tracker sets out notable 2023 judgments that we regard as relevant to property lawyers, presented with the newest first. It uses 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 monitors the progress and outcome of appeal cases, while this document summarises all matters we consider relevant to property lawyers. See further: Property case tracker—2022 [ Archived] Property case tracker—2021 [ Archived] Property case tracker—2020 [...
This Practice Note explains the VAT treatment of non-residential service charges. General position Service charges are ordinarily payable to the landlord under a lease or licence, much like rent, and therefore reflect the same VAT treatment as the rent. This is because there is no distinct supply—the rent and service charge together constitute payment for a letting of serviced premises. Certain charges may, however, need alternative treatment: there may be a separate supply, typically where the tenant pays solely according to its own consumption—metered utility charges are an example the amount may be a disbursement, where the landlord settles and recharges a cost that is legally the tenant’s responsibility—business rates are an example, if the tenant is the rateable person These and other specific categories of charge are considered in more detail below. Exceptions to the general position The position differs: if a party other than the landlord, such as a...
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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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