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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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What is principal private residence relief? Principal private residence ( PPR) relief is a relief from capital gains tax ( CGT). It may apply to the gain arising on the disposal of a dwelling house, or land occupied and enjoyed with it, where the property is, or has at any time during ownership been, the owner’s only or main residence. The residence can be in the UK or overseas, subject to specific conditions linked to the taxpayer’s residence status. If the property has not been the only or main residence for the full period of ownership (subject to certain permitted absences), or if the owner has not been resident in the same territory as the property for part of that time, the relief will only reduce a corresponding part of the gain. The relief applies to disposals by individuals, trustees and personal...
This Practice Note explains what occurs to a lease when it is disclaimed, and considers the consequences for landlords, tenants, sub-tenants, former tenants and guarantors, together with the effect of a vesting order... Effect of disclaimer A liquidator or trustee in bankruptcy may disclaim onerous property and contracts. Where a tenant is insolvent, a lease of trading premises will typically be onerous, with unpaid rent forming part of the tenant’s debts and duties... For the steps involved in a disclaimer, refer to the Practice Note on the process by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986... When a liquidator or trustee disclaims, the tenant’s rights, interests and liabilities under the lease cease from the date of disclaimer. If the tenant alone holds any interest or bears liability in relation to the lease, it ends entirely for all...
Immediately after the trustee in bankruptcy (trustee) is appointed, the bankrupt’s estate passes to them, and the bankrupt’s assets—often led by their home—typically represent the most significant part of the estate. On taking office, the trustee’s overriding objective is to protect and realise the value of the bankrupt’s share in any property so that bankruptcy creditors receive the proceeds in the bankruptcy estate......
Types of option agreement People frequently refer to 'put' and 'call' option arrangements. A call option gives the buyer the right to require the seller to dispose of a property (or a defined part) to the buyer. A put option allows the landowner to require the buyer to acquire the property. Under a pure call option, the buyer may at any point within the agreed option window compel the landowner to transfer the property to it. A put option is the reverse position and is encountered far less often. A hybrid can be created, often described as a 'put and call' or cross option, so either party may oblige the other to buy or sell on the terms specified in the option agreement. Many option arrangements carry numerous conditions (for example, planning or other consents to be secured) so that, rather than being truly 'pure'...
Occupiers' Liability Act 1957 Under the Occupiers' Liability Act 1957 ( OLA 1957), an occupier of premises owes a common law duty of care to all their visitors for risks arising from the state of the premises, and from things done or left undone upon them. In every case, the occupier must exercise such care as is reasonable in the circumstances. The test for liability under OLA 1957 is: the claimant must be a visitor at the material time the defendants must be occupiers the defendant must have breached the statutory duty to take such care as, in all the circumstances, was reasonable to see that the claimant was reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupiers to be there the breach must have caused the claimant...
Ready, willing and able This Practice Note explains the meaning of ready, willing and able and highlights the upshot of serving an invalid notice. Where a party is ready, willing and able to complete, it may serve a notice to complete, thereby making time of the essence and enabling rescission of the contract. The Standard Conditions ( SCs) and the Standard Commercial Property Conditions ( SCPCs) prescribe how such a notice must be served. Although the focus is on commercial property transactions, it also briefly addresses residential aspects. Ordinarily, time is not of the essence for completing a land sale contract. If either seller or buyer postpones completion, the party in default is answerable in damages (and for compensation under the standard conditions) but cannot rescind unless and until time is made of the essence. It falls to the party who is ready, willing and able to...
This Practice Note is an introductory new starter guide that sets out the principal considerations, terms and stages involved in granting a new business lease from the outset. The guide offers an overview and toolkit for entering into commercial leases and serves as a useful starting point for trainee solicitors and those new to Property as a practice area. It concentrates on the key issues that commonly arise and briefly refers to other sources and materials that provide more in-depth information on the topics covered. What is a commercial lease? A commercial lease usually means a written agreement that not only creates a tenancy of business premises, but also sets out the often detailed and extensive provisions that will regulate the relationship between the landlord and the tenant. This Practice Note identifies some of the matters to consider when advising on a new...
Licensing IP rights—introduction Preparing IP licences often throws up intricate commercial and legal considerations, typically demanding extensive bargaining. This Practice Note highlights the principal, practical matters to weigh up before you draft and while you negotiate an IP licence, seen from both licensor and licensee viewpoints. At its core, an IP licence is the licensor’s consent allowing the licensee to use IP that it would otherwise be barred from exploiting. Owners may exploit and commercialise IP as either a carrot or a stick. Parties might agree terms for a mutually advantageous licence to create new offerings or reach fresh markets. Equally, an owner may take a defensive stance, pressing for settlement licences and recovering settlement payments from those already using its IP without permission. Accordingly, the initial position and broader commercial context will heavily influence both the negotiations and the eventual licence terms......
Practice note This Practice Note examines where responsibility lies after an assignment of a lease term or the reversionary interest. It reviews how liabilities vary for tenants, landlords and guarantors in respect of both ‘old tenancies’ and ‘new tenancies’. Although it does not directly analyse liability between assignor and assignee (eg the seller and buyer), the principles set out in this Practice Note underpin the drafting of any property sale contract involving leases and guide how the parties should tackle drafting and negotiation of key issues, including apportionment of rents (such as service charge), rent arrears and unresolved rent reviews—see: Buyer’s practical contract negotiation collection......
This Practice Note considers: the core rule on priority under the Land Registration Act 2002 ( LRA 2002), s 28 the exceptions to that rule set out in LRA 2002, ss 29 and 30 how recording an agreed notice or a unilateral notice can safeguard the priority of an interest in registered land (with practical examples) which interests are capable of protection by an agreed or unilateral notice, and the steps for entering and cancelling an agreed notice or a unilateral notice It also briefly touches on registrar’s notices. This Practice Note does not examine official searches with priority in detail—see instead Practice Note: Pre-completion searches......
Scots contract law Although they have separate origins, Scots contract law has, in many respects, drawn closer to the English position. English-law notions such as undue influence and anticipatory breach have been taken into Scots contract law, and some leading authorities coincide across both systems. Nonetheless, there remain important differences that it is sensible to keep in view. The aim of this Practice Note is to point out some of the key differences between Scots and English contract law in these areas......
Where a landlord grants a lease in return for the tenant constructing a new building or undertaking works to an existing structure, it is often described as a ‘building lease’. If such a building lease engages section 19(1)(b) of the Landlord and Tenant Act 1927 ( LTA 1927), then, in defined situations, the legislation steps in to displace the lease’s express alienation restrictions. This Practice Note examines the reach and impact of LTA 1927, s 19(1)(b). For general guidance on assignment and underletting, see: Assignment and underletting—overview. Building leases within LTA 1927, s 19(1)(b) LTA 1927, s 19(1)(b) applies to leases granted: for a term exceeding 40 years where consideration consists wholly or in part of erecting, or substantially improving, adding to or altering buildings where the landlord is neither a government department, a local or public authority, nor a statutory or public utility company; and the demise is not an...
Where a lease is assigned, the landlord may insist that the transferor tenant enters into an authorised guarantee agreement ( AGA) pursuant to section 16 of the Landlord and Tenant ( Covenants) Act 1995 ( LT( C) A 1995). This Practice Note examines what amounts to an AGA and explains how it functions to allow the outgoing tenant to underwrite some or all of the incoming tenant’s duties under the lease. It addresses the appropriate (and inappropriate) contents of an AGA, the status of the outgoing tenant’s guarantor on assignment (including guarantees of an AGA, often referred to as a GAGA), excluded assignments, and the release of the former tenant and its guarantor. What is an authorised guarantee agreement ( AGA)? An AGA is a guarantee provided by the assigning tenant which satisfies the requirements of LT( C) A 1995, s 16. Upon a lease...
Assignments by way of security can take various forms, and it is important to understand how they are created and their effect. Security over choses in action, such as debts and other contractual rights, is often taken by means of an equitable or statutory assignment used as security. This Practice Note explains the following: what assignments by way of security are which categories of assets they are typically used for whether they take legal, statutory or equitable form and the advantages of the statutory form why serving notice of an assignment by way of security matters What is an assignment by way of security? Assignments by way of security are a form of mortgage. They typically involve: an assignment (ie transfer) of rights by the assignor to the assignee, subject to an obligation to reassign those rights back to the assignor upon the discharge of the obligations that have been...
If a tenant gives up some or all of the holding under an agricultural tenancy, whether because the landlord has served a notice to quit or otherwise, each party may have a claim to compensation. The potential level of compensation due from the landlord to the tenant can influence the decision to serve a notice to quit, and its timing. Compensation is primarily governed by statute, under either the Agricultural Holdings Act 1986 ( AHA 1986) or the Agricultural Tenancies Act 1995 ( ATA 1995), though common law and customary entitlements still play a small residual part. The express provisions of the tenancy agreement must also be considered. Claim by Tenant Tenant-right A tenant holding a tenancy protected by AHA 1986 and entered into after 1 March 1948 is entitled to compensation for ‘tenant-right’. Where the Act provides this entitlement, any claim based on custom or on an...
This Practice Note examines how easements are acquired through prescription (long use) at common law, via the doctrine of lost modern grant, and by statute (pursuant to the Prescription Act 1832). It explains how a claimant can satisfy each route, the scope of the right obtained, and further matters to weigh where the dominant or the servient tenement is let on a tenancy at the relevant time by either party. It also briefly addresses the question of whether a long-used easement can be safeguarded by registration at HM Land Registry. Presumed grant An easement can be founded by long use: at common law under the lost modern grant doctrine (a well-known branch of common law prescription) by statute (under the Prescription Act 1832 ( PA 1832)) The law of prescription is a means of proving an easement, not of creating it. It...
This Practice Note explains the circumstances in which the Landlord and Tenant Act 1954 ( LTA 1954) applies to the surrender of a business lease. Parties proposing to enter into a surrender agreement should confirm whether the lease benefits from the LTA 1954 security of tenure protections. If the tenant is protected under Part II and the required statutory procedure is not observed, any surrender agreement will not prevent the tenant from exercising the right to request (and obtain) a new lease under the LTA 1954. This can lead to costly complications and delay for a landlord seeking to take back the premises (for redevelopment, to occupy or to re‑let). For guidance on contracting out of the LTA 1954, see Practice Note: Contracting out of the Landlord and Tenant Act 1954—procedures, timing and pitfalls. When does the Landlord and Tenant Act 1954 apply on the...
From 1 April 2018, land transaction tax ( LTT) replaced stamp duty land tax ( SDLT) in Wales. This Practice Note outlines the principal administrative and compliance aspects of LTT, covering: filing returns and payment management and collection of LTT by the Welsh Revenue Authority ( WRA) amendment and correction of returns enquiries assessments penalties Where appropriate, distinctions between LTT and SDLT are noted. This Practice Note expands on the essentials in Practice Note: Wales: Land transaction tax ( LTT)—the basics. The legislative framework for LTT is the Land Transaction Tax and Anti-avoidance of Devolved Taxes ( Wales) Act 2017 ( LTTADT( W) A 2017). Unless stated otherwise, statutory references are to the LTTADT( W) A 2017. Administration LTT is overseen by the WRA. The WRA is a non-ministerial department of Welsh Government with its own board and staff, and its...
This Practice Note considers how the Energy Efficiency ( Private Rented Property) ( England and Wales) Regulations 2015 ( MEES Regs 2015), SI 2015/962, affect both landlords and tenants of non-domestic private rented property, and sets out the enforcement and compliance powers of the local weights and measures authority. It also outlines the level of financial and publication penalties, the issuing of compliance notices, and a landlord’s rights to seek review and appeal. It forms part of our series of Practice Notes on MEES... MEES Regs 2015, SI 2015/962, reg 27 states that a landlord must not let a substandard non-domestic private rented ( NDPR) property—one with an energy performance certificate ( EPC) rating of ‘ F’ or ‘ G’—unless: ‘relevant energy efficiency improvements’ are carried out ( MEES Regs 2015, SI 2015/962, reg 29), or one of the...
The Third Edition The third edition of the Standard Commercial Property Conditions was released on 27 April 2017. It refreshed the Standard Commercial Property Conditions ( Second Edition) (the Second Edition), which dated from June 2004. The revision sought to capture developments in law and practice affecting commercial property transactions over the intervening period. A modest follow-up arrived in March 2018—the Standard Commercial Property Conditions ( Third Edition—2018 Revision) (the Third Edition). This introduced just one alteration, updating the definition of ‘clearing bank’ in SCPC 1.1.1(c) to align with changes to the Clearing House Automated Payment System... Summary of the main differences between the Second Edition and the Third Edition Value Added Tax ( VAT) Second Edition: SCPC 1.4.1—the seller warrants the sale is not a supply for VAT purposes. Alternatives in SCPC A1 (sale is standard rated) and SCPC A2 (transfer of going...
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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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