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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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Introduction to flood risk The UK carries a legacy of building in places vulnerable to flooding from rivers, surface run-off and groundwater. Ongoing expansion into rural and low-lying districts has resulted in around six million homes and properties being at risk of inundation today. This stems in particular from exposure to riverine, coastal and surface-water sources and supports a policy focus on risk-led spatial planning. Assessing flood risk is essential as property, legal and financial markets grow more sensitive to flood exposure and the rising costs of flood damage over time. Because flood risk management is now central to all new schemes and to property conveyancing, a variety of products and assessments are widely available in the market place offering differing scope and depth—see Practice Notes: Flood insurance and Flooding—flood searches. History of planning policy on flood risk Planning Policy Guidance 25:...
Flooding—issues in corporate (private M& A) transactions Introduction Flood-related considerations can emerge in private company merger and acquisition ( M& A) deals that involve acquiring land. It is prudent to determine at an early stage whether flooding is relevant and, if so, to appoint suitable environmental and hydrology experts to identify, evaluate, assess and quantify the attendant risks. Those risks should be expressly allocated and controlled in the deal documentation, ensuring the client clearly grasps both their scope and magnitude, together with the possible effect on valuation, liabilities and activities after completion. Potential risks for buyers Share and asset purchase Flood matters may affect whether the deal proceeds as a share purchase or an asset purchase. On a share purchase, the buyer inherits all liabilities (including environmental or regulatory) of the target company. Examples of liabilities that might arise include: Regulatory...
This year’s annual round-up surveys key developments from 2017 and looks ahead to what 2018 may bring. Highlights include the release of the Third Edition of the Standard Commercial Property Conditions, conclusion of the EMI appeal on whether tenants can assign to guarantors, the Vivienne Westwood decision on penalties in side letters, the Newbigin ruling on business rates, new minimum energy efficiency standards, the upcoming 4th Edition of the RICS code of practice on commercial service charges, and shifts within the residential sector. It also covers updates to Lexis Nexis® content, sharing notable advances from the past year and what is planned for the next 12 months Transferring property/ Contracts What happened? The Third Edition of the Standard Commercial Property Conditions (the 3rd Edition) was issued on 27 April 2017 What are the practical implications? These conditions refresh the Standard Commercial Property Conditions ( Second Edition) (the 2nd...
FORTHCOMING CHANGE : The Scottish government has begun a review of LBTT, starting in spring 2025. Priority topics include whether non-residential bands should apply to 'mixed' deals, multiple dwellings relief, the 6+ exclusion from the additional dwellings supplement, first time buyer relief, the triennial lease review return cycle, and options for aligning LBTT rates with net zero objectives. Amendments are not anticipated until after the Scottish Parliament elections, which must occur by 7 May 2026. This Practice Note forms part of a suite on Scotland’s land and buildings transaction tax ( LBTT): Scotland: Land and buildings transaction tax ( LBTT)—the basics Scotland: Land and buildings transaction tax ( LBTT)—chargeable consideration and rates of LBTT Scotland: Land and buildings transaction tax ( LBTT)—particular transactions and taxpayers, and Scotland: Land and buildings transaction tax ( LBTT) on...
This Practice Note examines what a headline rent is and how it relates to an open market rent review. For more on rent review, see Practice Notes: Negotiation guide—rent review clauses—commercial leases and A guide to rent review for property lawyers. What is a headline rent? When the market is declining, landlords often provide financial incentives to persuade tenants to enter into a lease while preserving the rent shown on the face of the lease. Such incentives may include: a reduced rent for a defined period a capital sum towards fitting-out costs a rent-free period offered purely as an incentive, not for fitting-out The headline rent is the higher nominal figure a tenant agrees to pay once the value of the incentive has been taken into account......
Lenders commonly take security to back a borrower’s duties under a loan. Granting security gives them specific rights over the secured property if the borrower does not repay. A mortgage is one of the four categories of security recognised by English law; for further detail, see Practice Note: Types of security. This Practice Note explains: what a mortgage is how a mortgage differs from a charge the distinctions between a legal mortgage and an equitable mortgage which assets can be mortgaged how assignments by way of security interact with mortgages Practice Note: Introductory guide to security in a lending transaction provides broader information on security in loan transactions. It covers what security is and why lenders take security, who can provide security and over what kinds of assets, the types of security available under English law, why and how security is perfected, and the steps lenders can take to...
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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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