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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 set-off provisions in leases and whether, following an assignment, a tenant may rely on a claim against an incoming landlord. A tenant may, at law, set off liquidated damages and, in equity, unliquidated damages for the landlord’s breach of covenant against rent falling due under the lease. In most leases, this ability to set off or make deductions is excluded by clear express terms. The Practice Note also examines whether a tenant can withhold rent or service charge where the landlord is in breach of the lease. A tenant is entitled: in certain circumstances at law, to set off liquidated sums; and in equity, to set off, including unliquidated damages for breach of covenant by the landlord, against rent accruing under the lease. However, the right to set off is commonly removed by express language. It is...
Bona vacantia denotes ‘ownerless goods’. Under section 1012 of the Companies Act 2006 ( CA 2006), any assets not otherwise disposed of and still held by a company at the time of a company’s dissolution pass to the Crown as bona vacantia. This Practice Note examines the enforcement of security—whether by a mortgagee’s sale or by appointing a receiver—over property that has vested in the Crown bona vacantia, following dissolution. It addresses bona vacantia property, disclaimer, escheat, the role of the Crown/ Government Legal Department and the HM Land Registry’s guidance. It looks at these matters collectively and in an overview. How is a company struck off? Broadly, a company can be struck off the register of companies in two ways: voluntarily, on an application by the directors by the Registrar of Companies—the Registrar may strike off and dissolve companies the Registrar considers are not carrying on...
Agreements entered into under section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) (previously section 52 agreements), often called ‘planning obligations’ or ‘s 106 agreements’, are pacts between developers/landowners and local planning authorities ( LPAs) requiring developers to contribute to a range of infrastructure and services, such as community facilities, public open space, transport improvements and/or affordable housing, to mitigate the impacts of their development. They run with land and are enforceable against successors in title. See Practice Note: Planning obligations—key points and Checklist for drafting a section 106 agreement. Standard form planning obligations/section 106 agreement LPAs usually provide the first draft of the s 106 agreement, based on their standard agreements or model clauses. The developer then amends it and negotiations are undertaken to come to an agreed form. Although each s 106 agreement will be unique and respond to the...
Relief under the stamp duty rules was recognised for a person who had entered into a contract to acquire an interest in land but, before completion, entered into a further contract to sell or assign the rights under that agreement to someone else. That principle was then carried over into the stamp duty land tax ( SDLT) regime by section 45 of the Finance Act 2003 ( FA 2003) in its original enactment. In effect, the section averted a charge that would otherwise have arisen where a chargeable interest was acquired at the same time as the same interest was disposed of to another person. It was mainly relied upon for sub-sales, yet because the original text spoke of a ‘transfer of rights’, it also extended to other dealings, including the assignment of rights. Nonetheless, the section was used within a range of SDLT...
This Practice Note This Practice Note sets out the special stamp duty land tax ( SDLT) provisions that apply where an interest in land is transferred from a partnership to a partner, or to a person connected with a partner, including dealings on the dissolution of a partnership. Special SDLT rules apply in the following circumstances: where a chargeable interest is transferred to a partnership from one or more partners, or persons connected with one or more partners, including transfers on the partnership’s formation where value is withdrawn from a partnership by certain parties within three years following such a transfer, as referenced in the preceding bullet where a chargeable interest is transferred from a partnership to one or more partners, or persons connected with one or more partners, including transfers associated with the partnership’s dissolution where a chargeable interest is transferred from one partnership to another and there are...
Chargeable consideration SDLT due on a chargeable transaction is assessed by reference to the transaction’s ‘chargeable consideration’. This Practice Note explains the general meaning of that term for lease transactions, covering how SDLT is worked out on rent, lease premiums and deposits. For how SDLT is calculated on particular lease scenarios—such as linked leases, surrender and re-grant, and variations—see Practice Note: SDLT—common lease transactions. From 1 April 2015, SDLT no longer applies to any land transaction involving interests in or over land in Scotland. From that date, land and buildings transaction tax ( LBTT) applies to such transactions, subject to transitional provisions. Therefore, any references in this Practice Note to ‘ UK land’ or similar expressions, when discussing the application of SDLT, should be interpreted as excluding interests in or over land in Scotland from 1 April 2015. For further details, see the LBTT...
This Practice Note provides an overview of the stamp duty land tax ( SDLT) treatment of the following common lease transactions: grant of a lease linked leases surrender and re-grant of a lease agreement for lease assignment of an agreement for lease reverse premium assignment of a lease variation of a lease surrender of a lease lease to a bare trustee or nominee reversionary lease For general guidance on when SDLT is in point, refer to Practice Note: SDLT—land transactions, chargeable interests and chargeable transactions; and for the method of computing SDLT due on lease arrangements, see Practice Note: SDLT chargeable consideration—leases. This Practice Note excludes leases and holding over. For additional detail on that area, consult Practice Note: SDLT—holding over. From 1 April 2015, SDLT no longer applies to any land...
Property investment partnerships ( PIPs) This Practice Note outlines the particular stamp duty land tax ( SDLT) regime relevant to property investment partnerships ( PIPs). It clarifies what the term covers and how PIP classification impacts the SDLT liabilities of the partnership itself and the partners. In essence, a partnership counts as a PIP where its main business is investing in or dealing with—meaning holding or exploiting—chargeable interests. The overarching outcome of the rules is that buying an interest in a PIP is treated as though a comparable interest were acquired in specified property held by the PIP. Only certain property is brought into this calculation, so every transaction must be considered against the detailed provisions. Transfers of interests in partnerships that are not PIPs trigger SDLT only in exceptional situations. By contrast, the transfer of an interest in a PIP is treated as a...
Missives In Scotland, property deals are most often documented by missives of sale; see, for instance, the Property Standardisation ( PSG) PSG— Offers. A binding bargain emerges through an exchange of written offer and acceptance between the parties (frequently via their agents), and together these letters make up the missives. Often several formal communications pass between the parties before a final, unqualified acceptance is delivered, which brings the bargain to a close; see further: Formal requirements: Stair Memorial Encyclopaedia [7]. Once missives are concluded, a legally enforceable contract exists. The contract may equally be created by a sale and purchase agreement between the parties. If one party then fails to fulfil its obligations, that failure may amount to breach of contract and entitle the other to a legal remedy. For more detail, see: Conclusion of missives: Stair Memorial...
This Practice Note examines property disputes in Scotland arising: in delict under the Occupiers’ Liability ( Scotland) Act 1960 ( OL( S) A 1960) under consumer rights legislation concerning defective premises and the time limits for claims under the Prescription and Limitation ( Scotland) Act 1973 ( PL( S) A 1973) It does not address statutory repair duties for agricultural or residential tenancies. Broadly, obligations connected to property may arise: by force of law (statutory—see further: Obligations arising by force of law: Stair Memorial Encyclopaedia [2]) from a wrongful act (delictual—see further: Obligations arising from a wrongful act: Stair Memorial Encyclopaedia [3]) voluntarily (eg unilateral and contractual undertakings—see further: Voluntary obligations: Stair Memorial Encyclopaedia [4]) Delictual obligations arising from a wrongful act Delict governs legal wrongs. It is the counterpart of ‘ Tort law’ in England; see: Differences between Scots and English law: Stair Memorial Encyclopaedia [166] and Practice Note: What is a tort? In...
STOP PRESS The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) obtained Royal Assent on 26 October 2023. Part 1 of ECCTA 2023 comprises a significant suite of measures that bolster the function of Companies House and increase the transparency of UK corporate entities, furthering the openness of UK corporate bodies. The ECCTA 2023’s provisions will be introduced gradually over time, over an extended period. Numerous elements of the statute depend on detailed secondary legislation and guidance, alongside the development of fresh technical systems and tools to deliver the changes. For further details, see Practice Notes: The Economic Crime and Corporate Transparency Act 2023—what Banking & Finance lawyers need to know and The Economic Crime and Corporate Transparency Act 2023—tracker. This Practice Note draws out the practical distinctions between legal entities in Scotland and those in England and Wales. It also addresses the legal...
Resulting trusts represent one of the three species of trust that do not need to be declared or evidenced in writing at all. The others are constructive and implied trusts, though it is arguably doubtful whether any implied trust exists that is not in reality either a resulting trust or a constructive trust (‘implied’ in this setting often being used simply as a synonym for ‘resulting’ or ‘constructive’). Categorisation of resulting trusts Resulting trusts are either presumed or automatic. A presumed resulting trust arises where: there is a voluntary transfer of property by one person to another; or title to property is placed in the name of someone other than the person who provided the purchase money or other consideration for the acquisition An automatic resulting trust arises where the disposing party has failed to dispose of the entirety of their legal and...
Covenants restricting the use of land imposed by a seller may be divided into three classes: covenants created for the seller’s own personal advantage covenants imposed in the seller’s capacity as owner of other retained land, of which the land sold once formed part, intended to protect or benefit the land kept back covenants on the sale of land to multiple purchasers who, together with their respective successors in title, are meant mutually to enjoy the benefit of, and be bound by, those covenants The first class is enforceable only by the seller, unless it is expressly assigned to a third party. For instance, in Cosmichome, a covenant requiring the buyer to occupy the property solely for a specified purpose, capable of being lifted on payment of overage, was held not to be aimed at protecting or benefiting the seller’s land, but to be purely personal to the...
Registers of Scotland ( Ro S) Registers of Scotland ( Ro S) is the national authority charged with maintaining various registers, chief among them the Register of Sasines (the Sasine Register) and the Land Register of Scotland (the Land Register), each concerning land interests and rights. The organisation is led by the Keeper of the Registers of Scotland; for the Keeper’s remit, see Functions of the Keeper of the Registers of Scotland: Stair Memorial Encyclopaedia [17]. Ro S looks after these records on behalf of the public. Sasine Register Created by the Registration Act 1617, the Sasine Register dates from 1617 and serves as a public ledger of deeds connected to land throughout Scotland. Its role was to safeguard rights in land by enabling those rights to be placed on public record. Administration is carried out regionally, with deeds concerning property rights entered in the...
Appointing a receiver offers creditors and certain other parties a means to safeguard their interests in a company’s assets. This note outlines the available forms of receivership and the key consequences of a receiver being appointed. For access to materials within the Receivership subtopic, refer to: Receiverships—overview. The following features apply across all receivership types: A company does not have to be insolvent to enter receivership Other creditors may still pursue claims despite a receiver being appointed During the receivership, the company’s dealings with property covered by the appointment are curtailed Receivership does not automatically lead to liquidation (the winding up of its affairs) Further points specific to particular receivership forms are outlined below. Law of Property Act ( LPA)/fixed charge receiver Under the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint an LPA...
Introduction In simple terms, a drain serves a single premises, while a sewer serves multiple properties. In the context of development, there are two distinct drainage systems to consider: Foul water: pipework that removes used foul water from buildings. Above ground this is known as sanitary pipework; below ground the pipes are called foul drains and foul sewers. Surface water: arrangements that convey rainwater from hard surfaces. The below-ground conduits are termed surface water drains and surface water sewers. Public sewers are in the ownership of the sewerage undertaker. Private sewers—now relatively rare due to legislative change—belong to the properties they serve. Any building operations on or near a sewer require the owner’s approval. Constructing over, or within 3 metres of, a public sewer demands written consent from the relevant sewerage undertaker. A sewer may need to be diverted, relocated, or...
What is a pre-pack administration sale? A pre-pack administration sale is an arrangement where the disposal of some or all of a company’s business and assets is agreed with a buyer before an administrator is appointed, and the administrator completes the deal immediately upon, or soon after, taking office, following their formal appointment. The transaction concludes before any creditors’ meeting and without the court’s sanction, and it is implemented by the administrator. While confirmed as lawful in practice, pre-packs attract mounting and increasingly vocal criticism over opacity and insufficient attention to creditors’ interests, especially when the acquirer is the incumbent management team. The Statement of Insolvency Practice 16 ( SIP 16), issued by the Joint Insolvency Committee, regulates pre-packs to answer these concerns and criticisms. It imposes obligations on the administrator in connection with the pre-pack sale, including broader external marketing...
The core rule in property deals is caveat emptor—let the buyer beware. Put simply, the onus lies with the purchaser to ensure the asset they are buying matches what they intend to obtain, and that the consideration reflects fair value for what is on offer. Accordingly, the buyer must carry out as much investigation as possible before becoming bound to proceed... Searches deliver independent, third-party information about the property, supplementing or verifying details already identified from reviewing the title deeds or responses to enquiries. See also Practice Notes: Transferring commercial property—a practical guide— Pre-exchange—the due diligence process and Property—enquiries before contract and Due diligence—reviewing a registered title—checklist. This Practice Note examines the pre-contract searches that must, or are recommended to, be undertaken as part of title due diligence and are most frequently encountered in day-to-day practice. The list is not...
This Practice Note explores the function of enquiries within the due diligence process and how to deal with preliminary enquiries in commercial property transactions. What are enquiries before contract? Enquiries before contract (also known as pre-contract enquiries, preliminary enquiries or standard enquiries) feature in a range of situations, for example: a buyer investigating the purchase of freehold or leasehold land; a tenant making checks before a new lease is granted; a mortgagee conducting checks before taking a charge over land; a landlord considering acceptance of a lease surrender. For ease, references here to ‘seller’ and ‘buyer’ are used, which should be read as including landlord and tenant, or mortgagor and mortgagee where appropriate. These enquiries take the form of the buyer’s questions to the seller, almost always channelled through their respective legal advisers acting as...
This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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