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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 benevolent fund is an institution, including a body of trustees, that holds money on trust to alleviate poverty within a defined class of individuals. The connection between members of that class might be: a shared employer (as in Gibson) a common trade or profession membership of a particular members’ club (as in Re Young) an unincorporated association or friendly society (as in Re Buck) a common family member - the ‘poor relations’ cases (as in Re Compton) Most benevolent funds are registered charities. However, a benevolent fund will only be charitable, with all the associated advantages of charitable status (not least in relation to taxation), if it meets the requirements of the Charities Act 2011 ( CA 2011). Benevolent funds can be set up, and accumulate their assets, in a variety of ways, as...
The government brought the Building Safety Bill (the Bill) before Parliament in July 2021, aiming to act on the recommendations and principles set out in Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, and to tackle pressing building safety concerns exposed by the Grenfell Tower fire in July 2017. The government said the Bill would deliver the most significant overhaul of building safety regulation in a generation. The Bill secured Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). BSA 2022 makes fundamental changes to the legal and regulatory framework for building safety, intended to protect people in or around buildings and to raise building standards. Although, by virtue of BSA 2022, s 169(1), the Act extends to England and Wales, the parts of BSA 2022 addressed in this Practice Note do not apply in Wales (see BSA...
Building Safety Act 2022 ( BSA 2022) In July 2021, the government laid the Building Safety Bill before Parliament, aimed at delivering the recommendations and principles from Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, and confronting the urgent safety issues exposed by the Grenfell Tower tragedy of July 2017. Branded as the most significant overhaul of building safety rules in a generation, it obtained Royal Assent on 28 April 2022, becoming the Building Safety Act 2022 ( BSA 2022). BSA 2022 makes sweeping changes to the law and regulation of building safety, with the objective of securing the safety of people in or around buildings and improving the standard of buildings. This Practice Note outlines for construction lawyers the principal elements of BSA 2022, including its reshaping of regulatory regimes and standards for building and fire safety and for...
During the fixed term, the LA may regain possession of the property by serving a notice seeking possession and by showing that a qualifying ground applies in the particular case. The grounds mirror those used when obtaining possession of a secure tenancy. There are 18 in all, overall grouped into three broad bands: Grounds 1–8; Grounds 9–11; Grounds 12–16. Grounds 1–8 These are discretionary grounds, and the court must be persuaded that making a possession order is reasonable in the circumstances. Grounds 9–11 These are mandatory grounds, and the court must be satisfied that suitable alternative accommodation is available to the tenant in question. Grounds 12–16 These are discretionary grounds, and the court must be satisfied both that it is reasonable to make the possession order and that suitable alternative accommodation is available. Ground 15A In Newport City Council v Charles, the deceased tenant’s son concealed the death for three full years. The...
Exclusivity agreement (or lockout agreement) An exclusivity, or lockout, agreement is often put in place when a purchaser wants the owner to stop discussing a sale with anyone else for a specified window of time. The intention is to give the buyer breathing space to move the deal forward without the threat of a competing bidder gazumping them. It does not amount to a promise that a contract for sale will be concluded. Once the exclusivity window closes, either side may freely withdraw, and the seller is thereafter at liberty to dispose of the property to another party. Residential developers commonly adopt exclusivity agreements to grant purchasers a set exclusive period in which to exchange contracts. In exchange, the purchaser pays a non-refundable deposit that can be forfeited if the deadline is not met......
A contractual option to take a lease for a further term is a ‘call’ option It gives the tenant a one-sided entitlement to demand a renewal lease. The tenant is not compelled to use it, yet upon exercise the landlord must honour the bargain. The ability to seek a renewal lease is commonly conditional on satisfaction of conditions precedent (for example, all rent paid and other tenant covenants observed) – for further discussion see Conditions precedent below. A call option is a contract for the sale of an interest in land within the Law of Property ( Miscellaneous Provisions) Act 1989, s 2(1). The option must: be in writing contain or incorporate all of the terms expressly agreed between the parties be signed by or on behalf of each party When the tenant exercises the option by giving notice to the...
The National Planning Policy Framework ( NPPF) The National Planning Policy Framework ( NPPF) provides robust safeguards for the green belt. It explains that the government places significant weight on green belts, and makes clear that the core objective of green belt policy is to stop urban sprawl by ensuring land designated as green belt remains permanently open. Consequently, there is a clear presumption against development that is inappropriate within the green belt, and considerable weight must be afforded to any harm to the green belt when deciding planning applications. The first iteration of the NPPF came into force in 2012 (the 2012 NPPF). It was then updated in 2018, 2019, 2021, September 2023, December 2023 and December 2024. The latest NPPF, issued in December 2024, does not change the essential aim of green belt policy or its five stated purposes. Yet it has...
A family intervention tenancy ( FIT) is a form of tenancy of a dwelling-house offered in place of an assured or secure tenancy to a renter who has been, or might have been, subject to a possession order because of anti-social behaviour. FITs only apply to lettings that commenced on or after 1 January 2009. Their use is guided by non-statutory government guidance. Criteria to use a family intervention tenancy A FIT can be offered only when behavioural support services are provided to a tenant against whom a possession order for anti-social behaviour: has been made under Ground 2 or 2A of Schedule 2 to the Housing Act 1985 ( HA 1985), or Ground 14 or 14A of Schedule 2 to the Housing Act 1988 ( HA 1988) could, in the landlord’s opinion, have been so made could have been so made if the...
Demotion A secure tenancy may be reduced to a 12-month probationary tenancy where the tenant has engaged in housing-related anti-social behaviour or has used the home for unlawful purposes. Where a demotion order is made and the tenant stays in occupation, the secure tenancy ends on the date specified and a demoted tenancy begins. Comparable powers apply to registered housing providers for assured tenants under the Housing Act 1988 ( HA 1988). Conduct ' Housing-related anti-social conduct' means behaviour that: is capable of causing nuisance or annoyance to another person; and directly or indirectly relates to, or impacts, the landlord's housing functions Such conduct includes: causing a nuisance to neighbours vandalism and graffiti noise ' Use of property for unlawful purposes' covers conduct that consists of, or involves, using or threatening to use housing accommodation for an unlawful...
FORTHCOMING CHANGE The Renters’ Rights Act 2025 obtained Royal Assent on 27 October 2025. For guidance on the Act’s effect on residential tenancies in Wales, refer to Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note considers when an occupation contract under the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016) constitutes a secure contract. It addresses the definition of a community landlord and assesses when a community landlord may use a standard contract (for example, an introductory standard contract or a prohibited conduct standard contract). It should be read together with Practice Note: Renting Homes ( Wales) Act 2016—terms of secure contracts, which covers: variation of secure contracts, the withdrawal of a joint contract-holder, dealing with a secure contract by transferring it to other secure contract-holders or potential successors, and the termination of secure...
Excluded tenancies A tenancy or licence will not be secure if it falls into any of these exceptions: long tenancies introductory tenancies, including those that have ceased to be introductory demoted tenancies property occupied in connection with employment land acquired for development accommodation for people who are homeless family intervention tenancies accommodation for asylum seekers temporary accommodation for individuals taking up employment private sector leasing temporary accommodation during works agricultural holdings licensed premises student lettings business tenancies to which the Landlord and Tenant Act 1954 ( LTA 1954) applies almshouses Long tenancies A long tenancy is one granted: for a term exceeding 21 years, whether or not it is (or may become) terminable before that term ends for a term fixed by law under a grant carrying a...
The Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991) requires that every tenancy created under it (1991 Act Tenancies) contains specified maintenance obligations. Similar—though not identical—provisions appear in the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003) for short limited duration tenancies ( SLDTs) of up to five years, limited duration tenancies ( LDTs) of at least ten years, and modern limited duration tenancies ( MLDTs) running for ten years or more. These are collectively termed 2003 Act Tenancies. See Practice Note: Agricultural holdings in Scotland—snapshot. Definition of fixed equipment Section 85 of AH( S) A 1991 defines ‘fixed equipment’ to include: all man-made works on the land—such as drains, bridges, fences and tracks—together with buildings and any installed machinery of whatever kind anything cultivated on the land for a purpose other than use after...
Statutory basis of residential service charge code— LRHUDA 1993, s 87 To encourage sound practice in relation to the management of ‘residential property’, the Secretary of State (in England) and the National Assembly for Wales (in Wales) are empowered to approve, from time to time, codes of practice, including those that relate to the management of residential service charges by ‘relevant persons’ (each being a Code). For these purposes, a ‘relevant person’ is any landlord of residential property, or any individual or body that undertakes management functions with respect to the provision of services, or the repair, maintenance, improvement or insurance of such residential property......
This tracker highlights forthcoming developments for Scottish property practitioners, covering appeals, commencement of major statutes, Bills, consultations, evidence calls and publications. For 2026 property matters, see: Scottish property cases tracker—2026. Appeal cases Forthwell Limited v Pontegadea UK Limited Landlord and tenant ( Glasgow ‘ Rogano’). Question: can damages extend to a subsidiary’s losses (transferred loss)? [2024] CSIH 38, 2025 SC 127, 2024 Scot ( D) 2/11 The Supreme Court has fixed a hearing for 20 May 2026. The dispute stems from a lease of the Rogano restaurant premises in Glasgow. Forthwell, the tenant, granted a sub-licence to its wholly owned subsidiary, which ran the restaurant. In late 2020 and early 2021, flooding and an electrical fire rendered the premises unusable. Under the lease, the landlord, Pontegadea, was required to insure and reinstate following insured risks, including flooding. The issue is whether the tenant may recover...
Land contamination liabilities The principal liabilities linked to land contamination and water pollution are outlined below. Regulatory action: Part IIA contaminated land regime under the Environmental Protection Act 1990 ( EPA 1990); Environmental Damage Regulations— EDR ( England) SI 2015/810 and EDR ( Wales) SI 2009/995; anti‑pollution works notices under sections 161–161D of the Water Resources Act 1991 ( WRA 1991); Environmental Permitting Regulations 2016 ( EPR 2016), SI 2016/1154. Third‑party liabilities: Private and public nuisance claims; personal injury claims; negligent professional advice; misrepresentation; lease disputes. Contractual liabilities: Planning obligations and development conditions; agreements for lease disputes; licence to enter indemnity claims; remediation agreements; insurance policy disputes. Other liabilities: Clean‑up, investigation and monitoring costs; landfill tax; loss of property value; delay or aborted transactions; accounting provisions; negative publicity. For more detail, see the Practice Notes on land...
This Practice Note outlines the grounds and scope of irritancy in 1991 Act Tenancies (regulated by the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991)) and 2003 Act Tenancies (regulated by the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003)), namely the following: short limited duration tenancies (‘ SLDTs’) limited duration tenancies (‘ LDTs’), and modern limited duration tenancies (‘ MLDTs’) Legal and conventional irritancy in 1991 Act Tenancies A 1991 Act Tenancy can be terminated prematurely on the ground of legal irritancy or conventional irritancy, where legally relevant. ‘ Legal’ or statutory irritancy provisions AH( S) A 1991, s 20 makes provision for legal (statutory) irritancy in 1991 Act Tenancies. It permits an action to remove the tenant at the next Whitsunday or Martinmas (28 May or 28 November) after the action is duly raised in the...
For many years, virtually every disagreement about agricultural tenancies was sent to arbitration at the outset. The rationale was that questions concerning agricultural holdings often have a strong practical dimension, so arbitration was thought a more suitable forum than the courts. This reflected the earlier assumption that practical considerations predominated in such cases, making a court reference less apt back then. Over time, however, matters of considerable legal intricacy also came before arbitrators. With the enactment of the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003), policy shifted, and the main route for resolving disputes about agricultural tenant issues is now referral to the Scottish Land Court. At the same time, arbitration procedures were streamlined, and alternative processes, eg mediation, were enabled. Although the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991) still sets out distinct...
Relinquishment or assignation of 1991 Act tenancy to ‘new entrant’ or to a ‘person progressing in farming’ Sections 110 and 111 of the Land Reform ( Scotland) Act 2016 took effect on 28 February 2021, inserting Part 3A into the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991). This establishes a mechanism by which a tenant holding a 1991 Act tenancy may relinquish the tenancy to the landlord for compensation, or, if the landlord opts not to buy them out, the 1991 Act tenant may assign the tenancy to a ‘new entrant’ or a ‘person progressing in farming’. The Agricultural Holdings ( Relinquishment and Assignation) ( Scotland) Regulations 2020, SSI 2020/430 ( R& A Regs 2020) apply to an agricultural holding where the lease was entered into in writing: before 27 November 2003; or on or after 27 November 2003 but...
Diversification at common law Diversification, i.e. employing the holding for a non-agricultural end not authorised by the lease, would, at common law, amount to a breach of the lease and, in many instances, could additionally trigger a conventional irritancy, in appropriate circumstances and contexts, by the landlord as well. For more detail, see: Diversification: Stair Memorial Encyclopaedia [107K]. Statutory Diversification Part 3 of the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003) confers on agricultural tenants a right to diversify by putting the land to a non-agricultural use. That right extends to 1991 Act Tenancies and to 2003 Act Tenancies, save for short limited duration tenancies ( SLDTs). Although diversification may, at common law, constitute an inversion of possession and change the character of the lease from that of an agricultural holding (to which the Agricultural Holdings ( Scotland) Acts apply), if—and only if—the...
This Practice Note explains the routes by which a Scottish agricultural tenancy may move from one holder to another, whether through lifetime assignation, or by testate or intestate succession. The steps required depend on the tenancy type—either a 1991 Act Tenancy under the Agricultural Holdings ( Scotland) Act 1991 ( AH( S) A 1991) or a 2003 Act Tenancy under the Agricultural Holdings ( Scotland) Act 2003 ( AH( S) A 2003)—whether assignation or succession is permitted, and, for succession, whether the tenant leaves a bequest in a will or dies intestate. A key rule is that, unless the landlord consents, a tenant cannot transfer an agricultural tenancy to anyone (for example, a company, society, club or firm) other than a single natural person. The Scottish Land Commission provides a helpful guide: Scottish Land Commission— A guide to– Transfer of tenancies by...
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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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