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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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This practice note reviews assured and short assured tenancies in Scotland created between 2 January 1989 and 30 November 2017. What is an assured tenancy? The assured tenancy framework formally began in Scotland on 2 January 1989. As a statutory creation in law, the primary starting point for any issues or interpretation relating to such tenancies is therefore the Housing ( Scotland) Act 1988 ( H( S) A 1988). It is important to recognise and remember that, since 1 December 2017, no new assured or short assured tenancies can be brought into existence......
What is an assignment An assignment involves passing a right or interest held by one party (the assignor) to another (the assignee), such as transferring an employer’s rights under a building contract to the buyer of the finished works. In this Practice Note, the party required to perform the contractual obligations is called the 'obligor'. A properly effected assignment allows the assignee to require performance of contractual duties—for instance, to request rectification of defects and/or to commence proceedings. This Practice Note explores the various mechanisms available by which parties may implement an assignment within construction documentation (eg construction contracts, appointments and collateral warranties), together with the consequences of doing so. It also clarifies the practical impact of each method for parties seeking to secure or enforce rights effectively......
Introduction This playbook offers guidance on negotiating the terms of an assignment clause for a lease of part of a larger property, such as an office block or a shopping centre (or another comparable retail setting), with the objective of making those terms more favourable to a tenant (‘tenant‑friendly’ or ‘pro‑tenant’). It sets out preferred clauses, fallback wording, and drafting commentary designed to benefit the prospective tenant throughout. Lawyers acting for prospective tenants, and in‑house counsel, can use it, tailoring it where appropriate to address client‑specific matters and to ensure the client’s interests are fully protected. The risk profile identified in the playbook may vary according to the client. Note that the playbook does not provide drafting for circumstances where the tenant has a significant negotiating advantage (eg where the tenant is an anchor tenant). It forms part of a collection of...
This Practice Note explores the difference between assignation and subletting of commercial leases in Scotland, the requirement for a landlord’s consent, and the respective remedies available to a landlord and a tenant where the other party breaches its obligations under the lease concerning assignation or subletting. It relates exclusively to commercial leases in Scotland and does not deal with residential or social housing tenancy arrangements. Assignation and subletting Assignation and subletting are two avenues a tenant may use to introduce a new tenant into the lease arrangement. The tenant might opt for these avenues because it no longer needs to occupy the premises (or a portion thereof) yet is not entitled under the lease terms to terminate. This Practice Note considers the contentious issues that can arise when a tenant asks its landlord to approve an assignation or a sublease. The principal...
Asset purchase contracts commonly contain seller warranties and indemnities for the buyer’s benefit. Why we need warranties and indemnities From the outset, a buyer in any asset deal is governed by the maxim caveat emptor (let the buyer beware). The buyer will carry out due diligence on the target business to learn as much as possible before entering into the transaction, yet perfect knowledge is not achievable prior to completion. Consequently, the buyer cannot know exactly what is being acquired and must seek protection from the common law position by negotiating suitable contractual provisions in the form of warranties and indemnities. In the absence of warranties or indemnities, and unless the seller has made a misrepresentation during the course of negotiations, the buyer would have no recourse against the seller. Ultimately, warranties operate to allocate risk and liability between the seller and the buyer......
Legal requirements It is legally assumed that any non-domestic premises—and the shared areas of domestic buildings—finished before 2000 contain asbestos, so an asbestos survey is generally required. Under the Control of Asbestos Regulations 2012, SI 2012/632, the dutyholder must undertake a suitable and sufficient assessment to determine whether asbestos is present in non-domestic premises and in the common parts of domestic premises. A suitable and sufficient assessment is also required before any construction, maintenance, demolition, or other activity that could disturb asbestos is undertaken. What is a 'suitable and sufficient assessment'? According to the Approved Code of Practice and Guidance, paragraph 113, ‘everything that can reasonably be done must be done’ to establish the presence of asbestos. This means you should: systematically review all obtainable documentation about the premises carry out, so far as reasonably accessible, a comprehensive inspection of the interior and...
ARCHIVED : This Practice Note has been archived and is not maintained. The Property case tracker brings together notable 2024 judgments we regard as pertinent to property lawyers. Entries appear in reverse chronological sequence. The tracker adopts the following definitions: AST: assured shorthold tenancy CVA: company voluntary arrangement FTT: First-tier Tribunal HMO: house in multiple occupation LPA: local planning authority NPPF: National Planning Policy Framework RRO: rent repayment order RTM: right to manage TCC: Technology and Construction Court UT: Upper Tribunal ( Lands Chamber) VTE: Valuation Tribunal for England See also the Property key future developments tracker, which follows the progress and outcomes of appeal cases, while this document provides a digest of all matters we consider relevant to property lawyers. See further: Property case tracker—2023 [ Archived] Property case...
Which sums are apportioned at completion? When a property is sold, the parties must set out clearly in the contract how income and outgoings are to be treated at the point of completion. The contract ought to address the apportionment of occupational lease yearly rents and, where the property is leasehold, any sums due under the headlease. In this note we proceed on the footing that rents are paid in advance (as is customary) rather than in arrears. If rents are instead paid in arrears, the buyer’s only obligation is to account to the seller once the rent is received on the quarter day immediately after the completion date, and the contract should include a specific clause to record that arrangement. Which sums are not apportioned? The following are not generally included within the apportionment...
Original trustees Trustees are ordinarily designated by the document that establishes the trust. That instrument should also allow for any further appointments that might be required whilst the trust continues over time. The Trustee Act 1925 ( TA 1925) contains provisions for making additional appointments, though its operation can be expressly excluded by the terms of the instrument. The settlor will typically identify those they wish to serve as trustees and, where the settlement is created during the settlor’s lifetime, the trustees will usually be parties to the trust deed itself. If the settlor simply states an intention to hold some of their property on trust going forwards, they will act as the sole trustee. Alternatively, they may choose to appoint additional trustees and take the necessary steps to vest the property jointly in themselves and their co-trustees. Where a trust arises under a Will, it is...
What is the annual tax on enveloped dwellings? The annual tax on enveloped dwellings ( ATED) was brought in as part of a wider set of rules intended to reduce the appeal of holding high-value UK homes indirectly, for example through a company, so as to avoid or lessen liabilities such as stamp duty land tax ( SDLT) on a later disposal of the property, and thereby discourage such arrangements. It forms part of an anti-avoidance package. Further measures within this anti-avoidance suite for high-value UK residential property, introduced alongside ATED, include: the single higher SDLT rate on purchases of high-value UK residential property by non-natural persons ( NNPs) (for further details, see Practice Notes: Rates of SDLT and Single higher rate of SDLT for high-value residential property transactions), and prior to 6 April 2019, a capital gains tax ( CGT) charge on...
The core ATED charge is outlined in Practice Note: ATED—the basics. That Practice Note summarises how ATED is administered and the actions taxpayers must take in relation to paying ATED. It uses terminology and concepts drawn from the ATED legislation, with fuller explanations given in Practice Note: ATED—the basics— General defined terms. ATED is a self‑assessed tax, placing responsibility on the chargeable person (as defined for ATED) to decide whether a property interest is in scope and to file the appropriate returns, together with payment of any ATED due to HMRC, within the relevant time limits. What returns need to be submitted to HMRC? ATED return Where the ATED conditions are met, the chargeable person must submit an ATED return to HMRC. For guidance on completing an ATED return, see below: Completing an ATED return. HMRC has no statutory duty to issue a notice to a...
Trespass Trespass describes the unauthorised presence of a person upon land in another’s possession. Ownership of land extends to the airspace above it, so any incursion into that airspace will, in principle, amount to a trespass. In Baron Bernstein, an aeroplane passing overhead to take photographs was held not to trespass, on the footing that the landowner’s rights over airspace reach only the height needed for the ordinary use and enjoyment of the land and its structures. However, in Kelsen, a sign projecting just eight inches into the airspace above the land was found to be a trespass. In Anchor Brewhouse, the High Court confirmed that the problems created by aircraft, etc., are wholly distinct from an invasion of airspace by a structure erected on adjoining land, where the legal position is more certain and settled. The latter is a trespass in...
Where do the requirements for air conditioning inspections come from? Section 2 of the Building ( Scotland) Act 2003 ( Bu( S) A 2003) and Regulation 17 of the Building ( Scotland) Regulations 2004 (the Building Regs 2004), SSI 2004/406, set out the obligation to have an air conditioning system ( ACS) assessed by an accredited air conditioning energy assessor... Why are air conditioning inspections required? These inspections aim to support the efficient operation of systems and boost a building’s energy efficiency, in accordance with the European Directive on Energy Performance of Buildings, implemented through the Building Regs 2004, SSI 2004/406... When are inspections required? Under the Building Regs 2004, SSI 2004/406, every ACS with an effective rated output exceeding 12 k W must be periodically inspected by an energy assessor. Only organisations that have entered into a protocol with the Scottish Government are authorised to...
Agricultural Holdings Act 1986 Where a tenancy is regulated by the Agricultural Holdings Act 1986 ( AHA 1986), the respective responsibilities of landlord and tenant for the repair, maintenance and insurance of ‘fixed equipment’ (which includes buildings) are determined as follows: in line with the express provisions of the tenancy agreement; or if and to the extent the agreement is silent, by reference to the statutory ‘model clauses’ contained in: with effect from 1 October 2015 for property in England, the Agriculture ( Model Clauses for Fixed Equipment) ( England) Regulations 2015, SI 2015/950 ( AMCFEER 2015) with effect from 1 November 2019 for property in Wales, the Agriculture ( Model Clauses for Fixed Equipment) ( Wales) Regulations 2019, SI 2019/1279 ( AMCFEWR 2019) In each jurisdiction, those instruments replaced, from their respective...
Agricultural Holdings Act 1986 The Agricultural Holdings Act 1986 ( AHA 1986) sets out three forums for deciding disputes concerning tenancies governed by the Act: arbitration or determination by a third party the ‘appropriate tribunal’ the court Under the AHA 1986, certain issues must be sent to arbitration or to the appropriate tribunal, and any contractual provision attempting otherwise has no effect. Selecting the incorrect forum will defeat the claim, although naming the wrong party will not (see Adams v Jones). Arbitration or third party determination Any disagreement between the landlord and tenant of an agricultural holding within the scope of the AHA 1986 arising either: under the Act, or any custom or agreement, or from or in consequence of the termination of the tenancy of the whole or part of the holding must be resolved by arbitration or by a third party in...
Under common law, a tenant’s scope to detach agricultural fixtures and buildings was subject to tighter limits than was the position in relation to trade fixtures and buildings, this reflecting a rigorous application of the common law rule that anything fixed to the freehold accedes to the freehold and, as a consequence, passes to the landlord. The disparity is dealt with by the Agricultural Holdings Act 1986 ( AHA 1986) concerning tenancies of agricultural holdings, and by the Agricultural Tenancies Act 1995 ( ATA 1995) in respect of farm business tenancies......
Overage is a promise or contractual duty on the purchaser to pay the seller an additional sum, over and above the original price, if a defined event takes place. Clients should be made aware that receiving this extra payment is far from guaranteed. For example: the relevant trigger may not occur within the agreed overage period the local authority’s development plan for the site, or other property-related circumstances, may alter over time even if the trigger occurs, the purchaser may simply fail to pay the seller the purchaser could become insolvent in the meantime At the outset At the outset (i.e. when the heads of terms are circulated), assess whether overage is suitable for the transaction. How likely is it that the overage will be activated within the expected period? If activation is virtually certain, a more fitting approach may be to...
A rebuttable presumption exists that the owner of land directly abutting either: a public or private highway a non-tidal river or stream also owns the subsoil of the adjoining highway, or the bed of the adjoining river or stream, extending to the centre line. In consequence, a transfer or lease of that land will be presumed to embrace that part of the highway, river or stream, without the need for any express mention of it. No explicit reference is required. For a highway, this presumption is termed the ‘ad medium filum viae’ rule. It rests on practical convenience—so as to avoid disputes about precise boundaries—and on the supposition that each proprietor contributed a slice of land when the highway was formed. It is a blend of convenience and presumed contribution. For a river or stream, the principle is called the ‘ad medium filum aquae’ rule, which...
Types of environmental liabilities Environmental liabilities arise in relation to land, buildings and fixtures. Under caveat emptor/buyer beware, such liabilities and any capital expenditure needs will generally pass to the buyer as the new owner. Whether the seller remains on the hook depends on the applicable regime and whether the deal is an asset or share sale. For instance, in an asset sale, non-compliance with an environmental permit, or causing or knowingly permitting pollution, can still attach to the seller company or individuals after completion. The principal types are outlined below. Land Contamination, asbestos in soil, water pollution, environmental damage, landfills, fly-tipped waste, flooding, ground subsidence, sinkholes, coal mining, unexploded ordnance, radon, Japanese knotweed, wildlife and habitat protection, riparian ownership, shale gas, energy projects, planning conditions, high speed 2, cross rail, compulsory...
Practice Note This Practice Note sets out a high-level introduction and practical aid for solicitors, pointing to the matters to weigh up when buying or renting licensed premises in Scotland, noting the existence of separate licensing boards and their divisions, with variations in certain policies and application templates. Boards often require particular additional material when licensing applications are submitted. It outlines the core details that must be supplied by practitioners seeking premises or provisional premises licences, as well as variations and transfers of premises licences, including points to be assessed in respect of operating and layout plans. It is not meant to be an exhaustive statement of the law and does not address the full range of requirements of every licensing board in Scotland. It signposts the Licensing ( Scotland) Act 2005 ( L( S) A 2005), its numerous...
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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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