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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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The Party Wall etc Act 1996 ( PWA 1996) sets the rules for how a building owner sharing a boundary with an adjoining owner may undertake works. This Practice Note summarises the functions of the PWA 1996; for fuller guidance, see Practice Note: Party Wall works—notices, disputes and awards. Purpose of the Party Wall etc Act 1996 The PWA 1996 applies where a building owner intends to: carry out works to existing party walls or structures erect a new wall or structure on the boundary line with an adjoining property, or excavate within three or six metres of an adjoining building or structure (depending on the depth of the works) The Act grants building owners rights to do works to party walls that would otherwise amount to trespass on neighbouring property, or create a risk of liability for the tort of...
The basic rule at common law is that when the term of a lease expires, any underlease falls away automatically. There are, nonetheless, recognised exceptions. This Practice Note addresses surrender, merger, surrender coupled with the grant of a fresh lease, operation of a break in a lease or headlease, tenant-side considerations, security of tenure, forfeiture of a lease or headlease, and whether a sub-tenant or undertenant can apply for relief from forfeiture. Consensual termination—surrender or merger Statute steps in upon the surrender of a lease. As a consensual ending, the tenant’s estate is treated as transferring to the landlord, but subject to the undertenant’s rights. A merger has the same effect. The underlease continues, and the landlord assumes both the benefits and burdens of the covenants in the underlease. Consensual termination—surrender and grant of new lease The same position applies where the lease is...
Unless an option agreement or contract expressly permits extra time, the deadline must be observed strictly. It cannot be prolonged by reliance on equitable doctrines, and the buyer cannot alter the contract terms unilaterally. Any extension must arise through waiver or an express agreement. Only a clear waiver or explicit agreement will suffice. The seller (or, in uncommon situations where the time limit exists solely for the buyer’s benefit—for example, a condition requiring the seller to secure planning permission by a set date) may waive the right to demand performance by the specified date and grant more time. For further guidance on the necessity of a long-stop date, see Practice Note: Option agreements—land—the need for a long-stop date. Waiver Waiver operates to replace the original deadline with the newly extended period, standing in place of the initial time limit for...
Electronic signatures This Practice Note sets out the legal position on electronic signatures—also called digital signatures, e‑signatures, E‑ Signatures, e Signatures, paperless signing or electronic document signing. It explains the categories of electronic signature and the technology used to generate digital signatures, including public key infrastructure ( PKI). It reviews key UK legislation such as the Electronic Communications Act 2000 ( ECA 2000) and the UK e IDAS Regulation, and outlines best practice for executing documents by electronic means. An electronic signature functions as the digital counterpart to a handwritten signature, connecting an individual with the contents of an electronic document. The Note focuses on the general law in England and Wales for commercial contracts in a business‑to‑business context. Readers should be aware that particular transactions may present distinct issues, for example due to laws applicable to consumers. For practical guidance on signing when one or more...
This Practice Note looks at the way that options and pre-emption agreements over UK land are treated for stamp duty land tax ( SDLT) purposes. Options commonly feature in development contexts, though they also appear in other deals. For additional guidance on indirect taxes within commercial development, see Practice Note: Development of commercial property—indirect tax considerations. From 1 April 2015, SDLT no longer applies to land transactions involving interests in or over land in Scotland; from that date, land and buildings transaction tax ( LBTT) applies, subject to transitional rules. Accordingly, references here to ‘ UK land’ for SDLT purposes exclude interests in or over Scottish land from 1 April 2015. For more information, see the LBTT subtopic. SDLT also ceased to apply to land transactions involving interests in or over land in Wales from 1 April 2018; from then, land...
This Practice Note outlines the journey of a standard real estate finance ( REF) deal, beginning with the term sheet and culminating in execution of the finance documents, addressing conditions precedent and, if a default occurs, enforcement of the lender’s security. At each step, this Practice Note signposts further Practice Notes and Precedents that explore every topic in greater depth. A helpful overview of a typical bilateral finance deal appears in the Loan transaction collection. For targeted guidance on the key issues to weigh up when entering into a real estate finance transaction, see: Real estate finance—checklist. Types of REF transactions Lending against the income stream a property produces is the most prevalent form of real estate finance. In its most straightforward guise, it is a loan to a borrower that is serviced and repaid from the rental income of the borrower’s property. For more...
This Practice Note explains the powers, processes and procedures for stopping up and diverting footpaths under sections 118 and 119 of the Highways Act 1980 ( Hi A 1980). Please note that there are alternative mechanisms for stopping up/extinguishing and re-routing rights of way. For an overview and comparison of the tools available to stop up or divert rights of way, see Practice Note: Powers to stop up and divert highways and footpaths. Stopping up of footpaths, bridleways and restricted byways under Hi A 1980, s 118 Section 118 of the Hi A 1980 confers a discretion on highway authorities to extinguish a footpath, bridleway or restricted byway where the route is unnecessary for public use. Orders made under section 118 are termed 'public path extinguishment orders'. Although a public path extinguishment order under section 118 must be made by the highway...
Planning permission is required for the development of land Consent is required for development of land. “ Development”, as set out in section 55 of the Town and Country Planning Act 1990 ( TCPA 1990), comprises: operations affecting land, and changes of use of land Operational development includes building, engineering and mining operations, and other works (see Practice Note: Operational development). A change of use needs permission only where the change is material (see Practice Note: Material change of use). The Town and Country Planning ( General Permitted Development) Order 1995 ( GDPO 1995), SI 1995/418 allows certain development without applying for permission. GPDO 1995, SI 1995/418, Sch 2 grants permission for “permitted development”, such as: development within the curtilage of a dwelling house minor operations changes of use temporary buildings and uses (see below Temporary buildings and uses) certain caravan sites agricultural and forestry buildings and...
Development of the First Tier Tribunal for Scotland The Scottish Government’s Access to Justice Policy, prepared by the Cabinet Secretary for Justice within the Justice Directorate, seeks to: support individuals to settle disputes outwith court deliver a modern, up-to-date justice system broaden access to justice, and make the Tribunals system user-friendly (see the First-tier Tribunal for Scotland Housing and Property Chamber procedures consultation) As set out in the Housing ( Scotland) Bill, the intention is to create a forum that is less adversarial than the courts and could remove the necessity for legal representation. There is, crucially, a recognised need for more efficient, specialist routes into the justice system for both tenants and landlords. To achieve this, proposals recommended simplifying the tribunal landscape by bringing Scotland’s various tribunals under a single umbrella, safeguarding their independence from the Scottish Government, and embedding consistent practices and procedures (see: Access to Justice...
Wayleave and the Electronic Communications Code Over the past ten years, the telecommunications sector has expanded at a remarkable rate, driven by the pressure to deliver reliable, far-reaching communications networks. Operators such as BT, Vodafone and Sky cannot roll out these networks without access to install equipment on privately owned sites. They also need the freedom to modernise apparatus to match rapid technological progress, and to share kit so they can satisfy rising demand and preserve consumer choice. While enabling operators to work efficiently is essential, site providers will equally want robust safeguards for their own interests. This Practice Note highlights provisions that can be built into a telecommunications wayleave to strengthen the site provider’s position... A telecommunications wayleave agreement A wayleave is a consent or licence through which a person with an interest in land permits another party to exercise a right over that land. It is...
Practice Note This Practice Note summarises jurisdiction in Scotland, addressing the evaluation of whether a dispute is appropriate to be determined and resolved within Scotland......
Why is it necessary to perfect security? When a creditor takes security, it will be concerned with three issues: whether the security binds the security provider (ie whether it has been validly created)—see: Taking security—overview whether the security is enforceable against third parties whether the security has the intended priority over other creditors with competing interests in the same asset(s)—see: Priority of security—overview ‘ Perfecting security’ refers to the actions taken after the security is created to ensure it is enforceable against third parties such as creditors, liquidators and administrators. The expression is also used in a wider sense to cover steps that enhance or protect the creditor’s position, for example by obtaining a legal interest or ensuring the priority of its security......
Introduction This Introductory Guide forms part of the Lexis Nexis series of Introductory Guides to Property. The aim of these Guides is to give apprentices, paralegals and others a clear grasp of both the transactions commonly carried out by a property lawyer and the legal framework within which those dealings take place. This Guide concentrates on Land Law. The companion titles in the series are: Introductory Guide to Commercial Property Introductory Guide to Property Development Introductory Guide to Property Finance Introductory Guide to Property Taxes Introductory Guide to Residential Property Each Guide is supported by a Glossary of Property Terms. It supplies definitions and, where suitable, explanations of many expressions that make up the everyday vocabulary used by property practitioners. Terms shown in bold within this Guide are explained in the...
This Practice Note outlines VAT treatment of residential service charges. Service charges payable to landlords Where a lease or licence requires the occupier to pay service charges to the landlord, they are treated in the same way as the rent for VAT purposes. The reason is that there is no distinct supply: rent and service charges together constitute the consideration for granting serviced accommodation. In effect, both elements amount to a single payment for a letting. Consequently, service charges linked to residential property are normally exempt. The tenant therefore bears no VAT, while the landlord cannot reclaim VAT on associated expenditure. By contrast, service charges connected to holiday accommodation will normally be subject to VAT on the same basis as the rent (see Practice Notes: Exclusions from the exemption from VAT for land and buildings— Hotel and similar...
This Practice Note outlines the key criminal offences and civil protections against unlawful eviction affecting certain tenants and licensees. Unlawful eviction and harassment—criminal offences A landlord commits a criminal offence under section 1 of the Protection from Eviction Act 1977 ( PEA 1977) if they: unlawfully exclude a residential tenant or occupier from possession of the premises, or any part of it, or attempt to do so (it is a defence to have believed, with reasonable cause, that the occupier had stopped living in the premises), or carry out acts likely to disturb the peace or comfort of the residential tenant or any member of their household, or persistently cut off or withhold services reasonably required for occupation of the premises as a home. The landlord must either intend to induce the occupier to give up occupation or to refrain from...
This Practice Note sets out the situations in which trustees of a settlement, or the personal representatives ( PRs) of someone who has died, can obtain principal private residence ( PPR) relief from capital gains tax ( CGT) in relation to property comprised in a settlement or within an estate for relevant CGT purposes. For a general explanation of PPR relief and its application to individuals, refer to Practice Note: CGT— PPR relief. Private residence occupied under the terms of a settlement Section 225 of the Taxation of Chargeable Gains Act 1992 ( TCGA 1992) widens the PPR exemption in TCGA 1992, s 222 so that it covers disposals of settled property where, for the trustees’ period of ownership, the dwelling-house has been the only or main residence of a person entitled to live there under the terms of the settlement. A...
Practice Note Under section 305(2) of the Insolvency Act 1986 ( IA 1986), a core duty of the trustee in bankruptcy (trustee) is to collect, realise and distribute the bankruptcy estate. Accordingly, the trustee should act promptly to identify which assets vest, locate them, secure them, and determine the means of realisation. This Practice Note examines the categories of property interests that may pass to the trustee and the rules for assessing the scope of that interest. The focus is on how those principles operate in relation to the bankrupt’s main home. That property is usually the estate’s highest‑value asset and often gives rise to complexities, particularly if the bankrupt lives or has lived there with others. In a matrimonial or family home setting, competing claims may arise from a spouse or civil partner and, in some cases, children or other...
Purpose Highways can be stopped up when a section is no longer required, or where the land is needed to enable a development. When a road is ‘stopped up’, the public’s right to use it is removed. Legislation Powers to stop up and to divert highways are set out in: sections 247, 248, 249, 253 and 257 of the Town and Country Planning Act 1990 ( TCPA 1990) sections 116, 118 and 119 of the Highways Act 1980 ( Hi A 1980) Guidance The Rights of Way Circular (1/09) offers direction to local authorities on recording, managing and maintaining, protecting and amending public rights of way. The government has produced guidance for applicants in England on applying for a stopping up order to close or divert a highway. The Welsh government has issued guidance and services for applicants on the requirements and procedures for stopping up and diversion of...
Specific performance Where a party to a property contract does not honour its obligations, the other side may seek an order compelling performance. Specific performance is an equitable, discretionary remedy that, if granted, requires a party to fulfil a contractual duty. This note outlines when a court will, and will not, make such an order. The remedy is available at the court’s discretion where an award of damages would be inadequate, or where specific performance would achieve ‘more perfect and complete justice’. Given the distinctive character of land, buyers or tenants may prefer this remedy when a seller or landlord fails to complete. As a general rule, agreements granting interests in land are ordinarily susceptible to specific enforcement. Up to completion, the seller holds the property on constructive trust for the buyer. That position is particularly valuable on the seller’s insolvency, as the buyer may assert a...
Undertakers’ powers to lay pipes The powers available to a sewerage undertaker to install sewers, lateral drains and disposal mains are set out in sections 158 and 159 of the Water Industry Act 1991 ( WIA 1991). An undertaker may invoke these powers both within, and beyond, its own area of operation. Those powers apply both inside and outside its area. For the purposes of the WIA 1991, any mention of a pipe—including a main, drain or sewer—also covers a tunnel or conduit that serves, or is intended to serve, as that pipe, together with any fittings or accessories for it. References to laying a pipe extend to building such a tunnel or conduit, to constructing or installing those fittings or accessories, and to forming a connection from one pipe to another. This expressly includes the making of a connection between one pipe and...
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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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