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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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FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) secured Royal Assent on 24 February 2022. As detailed in the Charities Act 2022: implementation plan, its provisions are intended to take effect in three defined tranches over three stages: on 31 October 2022, on 14 June 2023, and in early 2024. For a digest of the CA 2022 measures already commenced, see Charities Act 2022: information about the changes being introduced. CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a summary (as at 9 April 2021) of the recommendations that have been accepted, see News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. A school within the maintained sector can move to independent academy status under the Academies Act 2010. Conversion takes place once the...
A turnover rent, sometimes called ‘percentage rent’, is a rental sum that rises or falls with the level of trade achieved at the let premises. Such arrangements are most commonly used by landlords of shopping centres, outlet destinations and comparable multi-occupied retail settings, chiefly because these locations create environments landlords can more readily manage and influence. Types of turnover rent There are several variants of turnover rent, and the choice will depend on a range of factors. The ‘100%’ turnover rent The tenant’s rent is calculated solely as a percentage of its turnover. Service charge and insurance rent are usually payable on top of the turnover rent. This model is often used as an incentive to encourage a tenant to take vacant space, for example on a ‘pop-up’ or ‘meanwhile’ basis. The ‘top-up’ turnover rent The rent is set as the greater of a fixed percentage of turnover or a...
ARCHIVED: This Practice Note is archived and not maintained The Property case tracker is a compilation of significant judgments from 2020 that we regard as pertinent to property lawyers, presented with the latest first. This tracker uses the following definitions: AST: assured shorthold tenancy FTT: First-tier Tribunal HMO: house in multiple occupation 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, whereas this document provides a summary of all cases we consider relevant to property lawyers. See further: Property case tracker—2021. December 2020 Case: R (on the application of Day) v Shropshire Council and another [2020] EWCA Civ...
Property key future developments tracker The Property key future developments tracker monitors forthcoming matters relevant to property lawyers. After a development materialises, it is transferred to the archive for the appropriate year. This page stores items that took place in 2018... Appeal cases Rectification of a registered title—mistake Antoine ( Administrator of the estate of Joseph Antoine deceased) v Barclays Bank plc and others [2018] EWCA Civ 2846, [2019] All ER ( D) 09 ( Jan) What happened? The Court of Appeal delivered judgment and dismissed the appeal. It upheld that entering a proprietor on the register pursuant to a court order secured by reference to forged documents was not a ‘mistake’ justifying rectification. Registration grounded on a valid court order was treated as comparable to a voidable transaction, rather than a void one. When? 20 December 2018. Find out more: See News...
The Property key future developments tracker monitors significant forthcoming developments of interest to property lawyers. Once a development takes place, it is moved into the archive for the appropriate year. This is the archive for events that occurred in 2017. Appeal cases What happened? When? Find out more Possession proceedings - mesne profits Farrar v Leongreen Ltd [2017] EWCA Civ 2211, [2018] All ER ( D) 13 ( Jan). The Court of Appeal delivered judgment on 21 December 2017. In Farrar v Leongreen Ltd, the Court of Appeal concluded that a landlord who had obtained possession against a former tenant was not, by virtue of res judicata, prevented from issuing a fresh claim to recover mesne profits from that former tenant. The second suit proceeded on causes of action that were distinct from those relied upon in the earlier possession proceedings. The outcome was the same as if the...
Receiver’s duty to take reasonable care to obtain the best price reasonably obtainable This Practice Note examines the receiver’s obligation to exercise reasonable care to secure the best price that can reasonably be achieved. We explain how this operates in practice, covering the use of selling agents, when to bring the asset to market, enhancements to the property, and the measures a receiver ought to adopt during the disposal process. This Practice Note does not address the wider array of obligations that receivers may owe. For guidance on a receiver’s duties generally, see Practice Note: Roles, powers, functions and duties of an LPA or fixed charge receiver......
On 27 April 2017, the third edition of the Standard Commercial Property Conditions was released and subsequently revised...
Types of security Under Scots law, the range of security interests is narrower than those available in English law. The form of protection depends on the particular class of asset being charged. This Practice Note reviews the securities obtainable over particular asset types before addressing the floating charge, a form of security that may be created by Scottish companies or limited liability partnerships. Fixed security Land and buildings The recognised fixed security over real estate assets in Scotland, available to both individuals and companies, is the standard security. A standard security may be granted over an interest in land that is recorded or registered in the General Register of Sasines or the Land Register of Scotland. Note the General Register of Sasines ceased to accept, among other matters, recording of new standard securities from 1 April 2016. From that day, a borrower granting security over a...
From the mid-nineteenth century, Parliament promoted gifts of land by individuals for charitable and/or other benevolent ends (especially concerning education and religion) by permitting the land concerned to return back to the original owner, or their heirs, if the land stopped being used, whether indefinitely or for a stated period of time, for the very purpose for which it had first been originally bestowed when granted......
Lenders commonly take security to support a borrower’s duties under a loan. Granting security gives them specified rights over the secured assets if the borrower does not repay. Under English law, four forms of security interest are recognised: mortgages charges pledges liens For an overview of each, see Practice Note: Types of security; for mortgages, see Practice Note: Mortgages; for charges, see Practice Note: Fixed and floating charges; and for pledges, see Practice Note: Pledges. This Practice Note covers: the distinction between legal and equitable security interests which security types can be legal and which can be equitable (or both) the principal advantages of legal security the principal advantages of equitable security Legal or equitable security? The security interest granted to the secured party will be legal or equitable. Certain forms of security can assume either character; some are always legal while...
This Practice Note addresses identifying a fiduciary, fiduciary duties and obligations, the no conflict rule, the no profit rule, a fiduciary's duty of confidence, and the remedies available for breach of fiduciary duty. Who is a fiduciary? There is no definitive catalogue of relationships that give rise to fiduciary obligations at common law in every situation universally. Certain relationships are inherently fiduciary, eg trustee and beneficiary, solicitor and client, principal and agent, business partner and co-partners, together with mortgagor and mortgagee. The obligations of some fiduciaries have been set out in statute; for instance, trustees owe a statutory duty of skill and care under section 1 of the Trustee Act 2000 ( Tr A 2000), and directors' relationships with their companies are addressed in the Companies Act 2006 too. For guidance on directors' fiduciary duties, see Practice Note: of directors for further detailed...
Nature of the condition It is standard for commercial property sale contracts to state that completion depends on one party—most often the purchaser—securing planning consent. The price is generally calculated on the assumption that the property will benefit from the consent that party intends to seek. The agreement must identify who bears the duty to discharge the condition, specify precisely what is required (eg outline or full consent for a defined use or scheme), and set out the level of efforts (ie ‘endeavours’) to be employed to achieve it (see Endeavours obligations below). This Practice Note proceeds on the basis that the purchaser has that duty. Planning-conditional contracts frequently stipulate that the planning consent must be ‘satisfactory’ to the purchaser, as they will not proceed to complete if the permission will not enable development of their proposed scheme on the property. ‘...
This Practice Note centres on a ‘single landowner’ model, either where a fresh lease is granted for a stand-alone scheme, or where an existing lease remains and the battery storage plant is added alongside on land already leased by the developer. A number of land rights considerations must be addressed at the outset of project decision-making; these will matter both to promoters of potential battery locations and to those exploring new opportunities on operational sites. The principal points are outlined below. For a summary of the main construction aspects in battery storage schemes, see Practice Note: Energy storage—construction issues. For detail on regulatory hurdles and prospects for energy storage, see also textbook: Energy Storage: Legal and Regulatory Challenges and Opportunities. What property rights are typically sought for a battery storage...
Property joint ventures are commonly set up in three formats: contractual agreement partnership limited liability company Contractual agreement As the most straightforward variety of joint venture, a basic project management agreement, development management agreement, or collaboration agreement can often be the suitable path. Typically, one party provides a service in return for a pre-agreed share of any eventual profit. Common forms of collaboration agreement include asset, property, or investment management agreements......
A covenant operates as a type of contract. Under the doctrine of privity, contractual rights and obligations attach only to the contracting parties, excluding third persons. Yet, with land-related covenants, property law can permit enforcement by, and sometimes against, individuals beyond the original parties. The applicable principles are: in the majority of instances, the benefit of both restrictive and positive covenants passes to successors in title, as it ‘runs with the land’ at common law and in equity subject to specific conditions, the burden of a restrictive covenant runs with the land in equity alone (and so can be enforced against successors in title), whereas the burden of a positive covenant does not run with the land (but see Statutory exceptions below) This inability of positive covenant burdens to run with the land is widely viewed as a significant shortcoming in English property law. One cannot compel...
What is the difference between a sub-sale and an assignment? Sub-sale A sub-sale arises where A agrees to sell a property to B, but before B completes with A, B enters a separate contract to sell that same property on to C. Thus, there are two sale contracts concerning the single property ( A– B and B– C). Completion can be achieved by: a single transfer from A straight to C, at B’s direction; or two transfers, first A to B, then B to C. Assignment An assignment occurs where A contracts to sell to B, and B assigns to C the benefit of that contract (but not its burdens). Completion then proceeds by one transfer only, from A to C. Assignment should be distinguished from novation. With a novation, A contracts with B, who then transfers (novates) both rights and obligations to C. This requires A’s consent. The effect is that C...
Cash is commonly offered as security for a loan In commercial lending, cash is frequently taken as collateral in a range of scenarios: as part of a comprehensive security package covering the entirety of a company's assets where the borrower is required to ring-fence specified sums for defined purposes (eg a mandatory prepayment account in acquisition finance, a rent account in real estate finance, or a blocked collection account in receivables finance transactions) in transactions involving a special purpose company where the lender wishes to control the cash flow through the business (eg in project finance) in derivatives transactions, cash posted to central counterparties as financial collateral to cover exposures to their members and/or as cash cover for a bank guarantee or as collateral for a letter of credit This Practice Note outlines the principal issues that arise when taking security over cash deposits held in a bank account. The bank...
This Practice Note addresses matters arising where a tenant is insolvent, including surrender, sureties, subtenants, charges, access to the premises, goods the tenant has left behind and HM Land Registry’s requirements. Agreeing a surrender is often the swiftest route for a landlord to recover possession of the premises from an insolvent tenant. It serves to avoid the additional preconditions that must be satisfied before forfeiture can take place (eg the need for a court order or the administrator’s consent where the tenant is in administration). For more on the various forms of insolvency, see Practice Note: Quick guide to property insolvency. Landlords will typically be under pressure to complete any surrender swiftly. To avert difficulties arising at a later date, however, the following issues ought to be considered. How surrender operates There are two ways a surrender may arise: express and implied. For the...
This Practice Note explains how a surrender by operation of law (implied surrender) can arise, the impact of a landlord accepting keys, and situations that may prompt surrender... Main principles An implied surrender occurs where the parties’ unequivocal conduct is incompatible with the tenancy continuing. It is evidenced by the tenant yielding up possession and the landlord accepting it. A tenant cannot end its lease obligations unilaterally. The central question is whether the landlord’s behaviour is so inconsistent with the tenancy’s survival that it can only be justified on the footing that possession has been retaken. Their actions are assessed objectively, considering the totality of their conduct... In Artworld v Safaryan, the Court of Appeal upheld a finding of surrender by operation of law where the cumulative effect of the landlord’s conduct showed an intention to assume control of the premises and treat them as its own, even...
This Practice Note sets out the various classes of title that HM Land Registry may confer, the situations in which each of the four classes (absolute, qualified, possessory or good leasehold) is granted, the legal effect of being registered with a particular class, and the circumstances in which HM Land Registry may approve an upgrade of class. Upon first registration of an estate in land, HM Land Registry will determine the class capable of being granted by reference to the overall quality of the title, as revealed through examination of the title deeds together with any accompanying evidence filed at the point of first registration. The class that is granted is subsequently entered on the proprietorship register. Both freehold and leasehold estates can be registered with either of the following: absolute title qualified title possessory title Leasehold estates can also be registered with: good leasehold...
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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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