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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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A contract race occurs where a seller asks their solicitor to progress matters with two or more distinct would‑be purchasers. In that situation, the seller’s lawyer ought to reveal to the first buyer, or their representative, that other potential purchasers are in play. This Practice Note explains how that obligation arises under the SRA Standards and Regulations, which took effect on 25 November 2019, in situations where a seller’s solicitor acts for a client intending to deal with more than one buyer simultaneously. Sales by auction are not contract races; for further guidance on auctions, consult Practice Notes: Selling property at auction and Buying property at auction. Historic position—the rules under the SRA Code of Conduct 2011 Chapter 11 of the SRA Code of Conduct 2011 (the 2011 Code) addressed a solicitor’s dealings with third parties. Outcome 11.3 of that 2011 Code applied to contract races. It...
This Practice Note distils the law, guidance and practical approach to varying contracts and deeds. It outlines how a contract or deed can be changed in writing, orally or by conduct, and also addresses unilateral variation, waiver and sustained minor breach. It offers practical and drafting pointers, flags issues when adjusting business-to-consumer contracts, public contracts and third party guarantees, and considers third party rights on variation. For a step-by-step guide to contract variation with full resources, see Practice Note: How to vary a contract. Where a variation stems from renegotiation after difficulties during performance, see also Practice Note: Managing difficulties in commercial contracts for further guidance. When is a contract variation appropriate? In commercial life, parties rarely operate only through isolated, stand-alone agreements; rather, relationships evolve over time, which may necessitate changes to existing contracts. Variations may arise and be proposed for many reasons,...
Constructive trusts This Practice Note considers constructive trusts, one of three trusts that do not need to be declared or evidenced in writing—the others being resulting trusts and implied trusts, though it is doubtful that any implied trust is not in truth either constructive or resulting. It looks at what amounts to a constructive trust, when such a trust may arise or be imposed, how unauthorised gains made by a fiduciary are dealt with, and the exposure of third parties. In Paragon Finance v D B Thakerar & Co ( Court of Appeal), Millett LJ split constructive trusts into two classes, distinguishing between: the constructive trust proper, where equity intervenes to stop the legal owner unconscionably denying another’s beneficial interest (the institutional constructive trust) the so‑called constructive trust, where equity grants relief for fraud by requiring those involved to account as if they were...
Consecrated land: Church of England For this part of the Practice Note, ‘consecrated land’ refers to any site or structure that has undergone a service—and the subsequent sentence—of consecration under the rites of the Church of England, and lies outside the territory governed by the Welsh Church Acts (a collective reference to the Welsh Church Act 1914, the Welsh Church ( Temporalities) Act 1919 and the Welsh Church ( Burial Grounds) Act 1945). It excludes land consecrated by any other Church (for example, the Roman Catholic Church or the Church in Wales), and does not cover land merely blessed during a funeral. Where some very old churches and churchyards are concerned, consecration must be assumed in the absence of formal documentation; however, the Diocesan Registrar will normally hold records of all consecrations (and deconsecrations) within the...
What is a community interest company? A community interest company ( CIC) is a form of limited liability company created to carry on business for social aims or to benefit a community. CICs must meet ordinary UK company law obligations and are also overseen by additional rules to ensure their assets, income and profits are applied for the community they are set up to serve. A CIC is a social, profit-making enterprise. It is not a ‘not-for-profit’ organisation; it must generate profit to remain solvent, but those profits are committed to its community purpose rather than private gain. Legal framework The principal legislation governing CICs comprises: the Companies Act 2006 ( CA 2006) and subordinate legislation the Companies ( Audit, Investigations and Community Enterprise) Act 2004, Part 2 and Schedules 3 to 7 ( C( AICE) A 2004) the Community Interest Company...
Introduction A charging order affecting land needs safeguarding by registration at each step in obtaining it, to preserve its precedence over rival interests and, crucially, to avoid it being ineffective against a purchaser for value. That said, the appropriate method of protection—and, on one occasion, whether any protection is possible—depends on the nature of the charged land interest. For registration, the critical divide is between an order attaching to the legal estate and one securing a beneficial interest under a trust of land. The importance of this difference is addressed under Protecting the charging order below... Protecting an application for a charging order Registered land Under the Land Registration Act 2002 ( LRA 2002), a pending land action takes its meaning from section 17 of the Land Charges Act 1972 ( LCA 1972), namely ‘any action or proceeding pending in court relating to land or any...
Certificate of title A certificate of title (sometimes referred to as a certificate on title) is a distinct form of report on title. When solicitors are engaged to examine the title to land—for example, where land is being acquired or offered as security—they prepare a report on title for their client, setting out the results of that investigation. Details of rights benefiting the land Any charges, easements, or other third-party interests or potential interests that burden the land The process of investigating title is also known as legal due diligence. See Real estate in corporate transactions—overview for further information. Sometimes, a client will instruct its solicitors to produce a report on title for someone other than the client, for instance a mortgage lender or a purchaser of shares in a company owning the land, or in relation to a company flotation or a tender...
What is BREEAM? The Building Research Establishment’s Environmental Assessment Methodology ( BREEAM) provides a framework for assessing and certifying the environmental performance of a building’s design, construction and operation. Certified buildings are given a BREEAM score and rating, allowing the environmental impacts of their design and construction to be measured and benchmarked against other certified buildings. BREEAM is owned, maintained and managed by BRE Global Ltd. BRE Global Ltd issues licences to independent, trained and qualified BREEAM Assessors who carry out assessments. Completed BREEAM assessments are then submitted to BRE for independent review and certification. Drivers of BREEAM While BREEAM is a voluntary standard, there are several drivers for undertaking a BREEAM assessment, including: Local development frameworks, via planning authorities, specify BREEAM ratings to be achieved to demonstrate the sustainability of developments. For example, in Wales, all new non-residential developments (over 250m 2) promoted or...
One important way to classify loans is by how many lenders are involved. A facility with a single lender is a ‘bilateral loan’. Where more than one lender participates, it may be a ‘syndicated loan’ or a ‘club loan’. Multiple lenders can also participate indirectly through sub-participation. This Practice Note sets out the key features of bilateral loans, syndicated loans and club loans. Bilateral loans A bilateral loan involves just one lender. There may be a sole borrower or several obligors, that is, the borrower plus other group companies acting as guarantors and/or providing security. Such loans are commonly used for relatively small amounts and for simpler financing needs, for example a straightforward overdraft or a term loan. If a borrower seeks a larger sum, a single lender may be unable or unwilling to advance the full amount. In that situation, a...
Where two or more people co-own land, they do so under a trust of land. In such a trust, the legal estate and equitable estate are distinct. The legal estate must be held by the co-owners as joint tenants. The beneficial interest may, however, be held by the co-owners either as: joint tenants, or tenants in common If they are joint tenants, each holds an indivisible interest: each owns the whole rather than a defined share. The right of survivorship applies, so on the death of one joint tenant, that person’s interest passes automatically to the other(s). If the beneficial interest is held as tenants in common, shares can be unequal, and a person’s share does not pass to the survivor but forms part of the deceased’s estate. A tenancy in common may arise on the original transfer or conveyance by an express...
The Land Charges Act 1972 ( LCA 1972) requires HM Land Registry to keep distinct public records, namely: a register of land charges a register of pending land actions and pending bankruptcy actions a register of writs and orders affecting land, and of writs and orders in bankruptcy These sit entirely apart from the substantive title register and are administered by the Land Charges Department of HM Land Registry at its Plymouth office. This Practice Note explains when to carry out a bankruptcy search in those registers in relation to an individual or individuals. It does not cover enquiries aimed at assessing a company’s solvency; see the separate Practice Notes: Pre-contract searches, Pre-completion searches, and Quick guide to property insolvency. For guidance on land charges and the land charges register, refer to Practice Note: Land charges under the Land Charges Act...
This Practice Note centres on the assignment of collateral warranties (see Practice Note: What are collateral warranties?). For wider guidance on assignment generally, refer to Practice Notes: Assignment in construction contracts and Legal and equitable assignment in construction contracts. Although this Practice Note discusses collateral warranties, the same principles apply where third party rights are used instead; see Contracts ( Rights of Third Parties) Act 1999 in construction—overview. Assignment provisions in collateral warranties The default position is that, if a contract says nothing about assignment, the benefit of that contract can be assigned without limit and without any need for consent, as allowed by section 136(1) of the Law of Property Act 1925 ( LPA 1925); there is no requirement to obtain the obligor’s approval to any intended assignment. See Practice Note: Restrictions on the assignment of rights in construction...
Legislative framework This Practice Note explores the transfer of IP rights. It sets out the statutory rules on the formal requirements for effecting legal assignments of patents, trade marks, copyright and designs, as contained in the Patents Act 1977 ( PA 1977), the Trade Marks Act 1994 ( TMA 1994), the Copyright, Designs and Patents Act 1988 ( CDPA 1988), the Registered Designs Act 1949 ( RDA 1949) and Assimilated Regulation ( EU) 6/2002, and addresses the possibility of partial assignments. It also addresses equitable assignments of IP rights. Alongside the shared principles applicable to patents, trade marks, copyright and designs, it identifies the specific issues to be considered when transferring each distinct right. The Note additionally deals with the assignment of rights that may arise in future, and with assignments of comparable trade marks and re-registered designs. It explains how to...
Under section 101(1)(iii) of the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint a receiver (an LPA receiver) if the mortgage takes effect by deed. The scope of an LPA receiver’s authority is prescribed by section 109(3) LPA 1925 and is confined to calling in income (such as rent) from the charged property. It is essentially a right to receive monies that the property yields. An LPA receiver lacks any authority to dispose of the property by sale. Because the statutory powers are narrow, security instruments typically add express terms allowing the secured party to appoint a receiver in stated events, and to confer wider powers than those available under the LPA 1925. These frequently include a power to sell the asset by that receiver. Authority to effect a sale will ordinarily be sourced from the...
How are works completed if access to neighbouring land is necessary? Does a landowner have the ability to lawfully go onto adjacent land, such as the garden next door, where vital works cannot be undertaken without stepping onto that adjoining property? This Practice Note explains when entry is permitted at common law, and sets out the Access to Neighbouring Land Act 1992, access orders, related enforcement and the position of third parties. Frequently, repairs or improvements are, in practice, impracticable unless one crosses onto someone else’s land (for example, where the building line lies very close to the boundary). At common law, there is ordinarily no entitlement to enter without: an easement affecting the neighbouring land, or the adjoining owner’s consent Unauthorised entry amounts to trespass and accordingly can be restrained by injunction, even where the person seeking to enter the...
STOP PRESS: On 17 June 2025, the European Commission unveiled its long‑anticipated review of the EU Securitisation Framework, alongside a wide‑ranging legislative proposal to amend the EU Securitisation Regulation ( Regulation ( EU) 2017/2402), the EU Capital Requirements Regulation ( Regulation ( EU) No 575/2013), the EU Solvency II Delegated Regulation ( Commission Delegated Regulation ( EU) 2015/35) and the EU Liquidity Coverage Requirement Delegated Regulation ( Commission Delegated Regulation ( EU) 2015/61). Changes to the EU Securitisation Regulation span, among other points, risk retention, disclosure, STS on‑balance sheet securitisations and the definitions of public and private securitisation. Revisions to the Capital Requirements Regulation concern, among other matters, risk‑sensitive capital requirements, resilient securitisation positions and significant risk transfer tests. Further consultations and amendments are expected as the EU legislative process...
What is a debenture and when do you use one? Debentures feature widely in financing where the intention is to secure claims over the entirety of a company’s assets. They operate as an overarching instrument, bundling multiple forms of security across a wide spectrum of asset classes. What is a debenture? Within secured lending, a debenture is a security agreement granting interests over a broad array of the chargor’s assets as collateral, supporting either the chargor’s own liabilities or those of a third party. The term can also describe a document that creates or acknowledges indebtedness. This Practice Note examines debentures as security in the secured lending context. In particular, it addresses: the requisite formalities for a debenture the applicable legal principles the typical fixed security included in a debenture the floating security provided under a debenture how the security is...
For a solicitor representing clients who acquire and exploit minerals, the priority in law is who owns those minerals and the liberty to extract them. From the standpoint of a general property practitioner, the central concerns are whether distinct ownership of minerals might compromise support for the ground and any buildings above, and whether recompense is due for any resulting damage in respect of the operations involved in working them and extraction. What are mines and minerals?......
This Practice Note reviews the Commercial Property Standard Enquiries ( CPSEs) and the Solicitor’s Completion Requirements ( SCRs), and sets them in context. It covers: direct links to the CPSEs and the SCRs themselves a concise overview of how and when CPSEs are used in a transaction links to template replies to CPSE 1 to CPSE 7, and a draft covering letter to the seller enclosing those replies guidance on the principal issues arising under CPSE 1, with links to related materials It also signposts related content. For guidance on the standard residential pre-contract enquiries, see Practice Note: Residential property—enquiries before contract. Background to the CPSEs and SCRs The CPSEs and the SCRs are a set of documents produced by members of the Property Support Lawyers Group and endorsed by the British Property Federation. The CPSEs provide enquiries before contract for common transactions, alongside the SCRs. They are the...
The framework for execution of documents under Scots law is set out in the Requirements of Writing ( Scotland) Act 1995 ( RW( S) A 1995) and the Legal Writings ( Counterparts and Delivery) ( Scotland) Act 2015 ( LW( CD)( S) A 2015). This Practice Note reviews both the traditional approach to execution and execution by counterpart under Scots law. Contracts or obligations that must be in writing In Scotland, the default position is that a contract, a unilateral obligation, or a trust can be constituted without writing. Writing is, however, necessary for the following exceptions to that rule: contracts, or unilateral undertakings, to create, transfer, vary or extinguish a real right in land (excluding tenancies or rights of occupation for less than a year and private residential tenancies) the creation, transfer, variation or termination of a real right in land an agreement between...
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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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