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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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Subject to contract If a party who has reached a provisional deal wants to make plain that no binding agreement will arise until a formal contract is exchanged, they should expressly state that the arrangement is subject to contract. The safest and most common practice is to place those words prominently on all correspondence connected with the matter, so the position is obvious at every stage and plainly understood. This remains advisable even though section 2 of the Law of Property ( Miscellaneous Provisions) Act 1989 requires particular formalities before a valid contract for the sale of land, or any interest in land, can be created. A further advantage is that estoppel is most unlikely to be established to enforce an agreement where the claimant and defendant are negotiating on a subject to contract or without prejudice basis, or have only made an oral...
The Standard Conditions of Sale ( Fifth Edition—2018 Revision) ( SCS) comprise the core conditions underpinning most contracts for buying and selling residential property in England and Wales. Where a deal concerns commercial or mixed‑use premises, the Standard Commercial Property Conditions ( Third Edition—2018 Revision) ( SCPC) are the better fit. First issued on 1 April 2011, the SCS appeared alongside the Law Society’s Conveyancing Protocol (the Protocol). When the Protocol is used for a given conveyancing matter, the parties must adopt the current SCS, and step 13 of the Protocol provides that special conditions should be added only where strictly required for that transaction. Protocol use is compulsory for solicitors accredited under the Conveyancing Quality Scheme. For more detail on the Protocol, see Practice Note: The Law Society’s Conveyancing Protocol. The 2018 update to the SCS took effect in March...
This Practice Note examines how service charges are typically imposed on occupiers of multi-let buildings by commercial landlords in Scotland. It does not address disagreements about service charges or common parts; for that, see Practice Note: Service charge disputes relating to commercial property— Scotland. Service charge A service charge is a sum a tenant may have to pay under a commercial lease in exchange for the landlord undertaking works to shared areas of the property and, in some instances, supplying services. The lease must expressly provide for any service charge. It should also explain the basis for calculating each tenant’s contribution within the building and the timing of payments. There are several ways to divide service charge liabilities between tenants, with the most suitable approach depending on the circumstances. Common methods include: Floor area—the method most frequently adopted Fixed percentage Rateable...
STOP PRESS : The Energy Performance of Buildings ( Scotland) Regulations 2025, SSI 2025/417 ( EPC Regs 2025) supersede and replace the Energy Performance of Buildings ( Scotland) Regulations 2008, SSI 2008/309 ( EPC Regs 2008), renewing Scotland’s energy performance regime for every building. Under EPC Regs 2025, regulations 11 and 12 take effect from 1 January 2026 to permit the approval of organisations and accreditation schemes, with the balance of provisions commencing on 31 October 2026. Owners of non-domestic properties must present valid Energy Performance Certificates ( EPCs) and Property Reports on sale or letting, and include EPC ratings in adverts. Developers must provide EPCs and reports to owners within seven days of completion. EPCs must be displayed in qualifying public buildings. A new national energy performance register, updated assessment methods, and local authority enforcement powers (including penalties up to £1,000) will be introduced to improve...
This Practice Note outlines two of Scotland’s existing community rights to buy: the community right to buy land under Part 2 of the Land Reform ( Scotland) Act 2003 ( LR( S) A 2003) asset transfer requests under the Community Empowerment ( Scotland) Act 2015 ( CE( S) A 2015) The Scottish Government is conducting a comprehensive review of the various community rights to buy, aiming to propose improvements—whether legislative or procedural—to the current Community Right to Buy processes, supporting growth in community ownership. The suggested timetable for the review is: phase 1—initial gathering of evidence and opinions—was completed in Autumn 2024 phase 2—assessment and development of proposals—was completed in Spring 2025 phase 3—formal consultation—to be completed Autumn 2025 phase 4—development of proposals—was completed December 2025, with a view to any required legislation being ready to be...
This Practice Note examines how sale and leaseback arrangements are structured, the reasons for adopting them, and the principal points to negotiate in the leaseback documentation... What is a sale and leaseback? A sale and leaseback enables a real estate owner to release capital whilst retaining occupation and use of the property. the disposal by a business of part or all of its property interests in exchange for a cash lump sum; and the concurrent grant back to that business of leases of those properties it still needs to run its operations Sale and leaseback is also commonly used to place property into a self‑invested personal pension or a small self‑administered scheme, which falls outside the scope of this note. See Practice Note: Buying property from a SIPP or SSAS. Certain Islamic finance structures operate in a closely comparable manner to sale and...
Prior to the coming into force of the Landlord and Tenant Act 1987, Part II ( LTA 1987), the court retained a wide-ranging jurisdiction to appoint a receiver to assume control of the management of any property (including a block of flats) whenever it was considered just and convenient to do so. Nonetheless, that power was seldom exercised in practice in relation to blocks of flats, likely owing to the expense and the frequent requirement, in most cases, and, where applicable, to evidence default by the landlord or managing agents regarding the performance of the landlord’s repairing, maintenance or insurance obligations under the lease. Part II of the LTA 1987 offers an alternative remedy by vesting power in (what are now) the First-tier Tribunal ( Property Chamber) in England and the leasehold valuation tribunal in Wales to appoint a manager to take over the...
Rent Rent is the amount payable by a tenant to the landlord for occupying or using the premises. The rent figure must be capable of being worked out from the lease; it need not be fixed for the whole term, but the starting rent must be identified together with a method—typically a rent review clause—to determine later rents. Rent is usually expressed as exclusive of VAT, payable without deduction and without the need for demand. See Practice Note: Rent and rent review in commercial leases in Scotland. Commercial rent is ordinarily paid in advance by equal instalments on the quarter days, namely: 28 February, May, August and November or, where English parties prefer, 25 December, 25 March, 24 June and 29 September Monthly payment is increasingly common. Where rent is payable quarterly in advance, the entire instalment falls due on the quarter day. This can be...
Collateral warranties sit at the heart of the suite of development documents in real estate development facilities. They are usually issued by the project team (e.g. the building contractor, architect, engineers and other consultants, and key sub-contractors to the building contractor) in favour of both lender and borrower. A lender commonly takes security over the borrower’s rights under key development contracts, including any collateral warranties given to the borrower, alongside taking collateral warranties addressed directly to the lender. This Practice Note concentrates on the collateral warranties delivered to the borrower and the ways a lender can secure the borrower’s rights under them. It explains: what a collateral warranty is which collateral warranties the lender should take security over methods for taking security over the borrower’s rights under collateral warranties: assignment by way of security, or charge how to address...
This Practice Note considers the principal participants in real estate finance where property is being developed. It does not address the lender or other finance parties (see Practice Note: The finance parties) Borrower The borrower will commonly be acquiring the site for development, or may already own it. In construction documentation, the borrower is typically identified as the employer, client or developer SPV or trading entity? In real estate finance, the borrower is often a special purpose vehicle ( SPV), also referred to as a special purpose company ( SPC). The borrower entity is created or bought ‘off the shelf’ solely for the proposed deal (ie acquiring, holding, developing and operating the property). Where an SPV is used, the borrower’s activities—and therefore its assets and liabilities—are confined to matters linked to that transaction......
Unless a lease contains an express term (which is uncommon), a landlord enjoys an unfettered right to withhold approval for changes the tenant proposes beyond the demise. Definition of demised premises When setting out the demise, minimise ambiguity by clearly identifying any excluded parts, for example, airspace or structural elements. Case law on airspace In H Waites, the High Court summarised the authorities on demised premises and airspace. Nevertheless, the safest course is to describe in the lease, as precisely as possible, what falls within and what lies outside the demise, thereby reducing the risk of later dispute and litigation. In Kelsen, the landlord demised a single-storey shop for a term of seven years. The parcels clause described the demised premises as ‘ All that shop with the rooms and cellars (if any) attached’. The tenant contended that the demise extended to the airspace above the...
This Practice Note examines the winding-up of an insolvent partnership treated as an unregistered company under the Insolvency Partnerships Order 1994 ( IPO 1994), SI 1994/2421, arts 7 and 9, on the petition of a creditor, member, responsible insolvency practitioner ( IP) or the Secretary of State, provided no simultaneous petition is issued against a member or members. IPO 1994, Sch 3, and Sch 5 (for a member’s petition) adjust elements of Part V of the Insolvency Act 1986 ( IA 1986), which addresses the winding-up of an unregistered company. Note: there is no provision for the voluntary winding-up of a partnership ( IA 1986, s 221(4), as modified by IPO 1994, SI 1994/2421, Sch 3 Pt I, para 3). Background General partnerships, unlike limited liability partnerships ( LLPs), do not possess separate legal personality, so partners remain jointly and severally liable for...
Practice Note This note sets out a range of obligations placed on private sector landlords in Wales, intended to enhance overall safety standards within private sector tenancies. It summarises the key requirements of: Gas Safety ( Installation and Use) Regulations 1998, SI 1998/2451 (as amended by the Gas Safety ( Installation and Use) ( Amendment) Regulations 2018, SI 2018/139) ( GSR 1998) Renting Homes ( Fitness for Human Habitation) ( Wales) Regulations 2022, SI 2022/6 ( RHW 2022), made under the Renting Homes ( Wales) Act 2016 ( RH( W) A 2016) For broader guidance on fire safety requirements, see Practice Note: Fire safety in commercial and mixed-use buildings......
FORTHCOMING CHANGE: The Welsh government continues to review the ongoing availability of multiple dwellings relief, with a formal announcement anticipated in Spring 2025. This Practice Note outlines land transaction tax ( LTT), which replaced stamp duty land tax ( SDLT) in Wales with effect from 1 April 2018. Three related companion Practice Notes examine particular aspects of the tax in greater detail, as set out below: Wales: Land transaction tax ( LTT)—chargeable consideration and rates of LTT Wales: Land transaction tax ( LTT)—particular transactions and tax payers, and Land transaction tax ( LTT)—administration and compliance Background The Wales Act 2014 provides for SDLT to be disapplied in Wales with effect from 1 April 2018 and enables the Welsh Government to introduce its own tax on transactions in land in Wales. The legislative framework for LTT is set out in the Land...
From 1 April 2018, land transaction tax ( LTT) took the place of stamp duty land tax ( SDLT) in Wales. This Practice Note outlines how LTT applies to specific scenarios where its treatment diverges from SDLT, including the following: Residential leases Mixed use claims—garden and grounds Leases held over beyond their contractual end date Multiple dwellings relief ( MDR) Cross border transactions, including cross title properties Anti-avoidance, covering the LTT targeted anti-avoidance rule ( TAAR) and the general anti-avoidance rule ( GAAR) Property authorised investment funds ( PAIFs) and co-ownership authorised contractual schemes ( Co ACS) Partnerships Brexit Where appropriate, it contrasts LTT with SDLT. It also builds on the fundamentals in the Practice Note: Wales: Land transaction tax ( LTT)—the basics. LTT is legislated for in the Land Transaction Tax and...
Land transaction tax ( LTT) superseded stamp duty land tax ( SDLT) in Wales with effect from 1 April 2018. This Practice Note considers how LTT is worked out, the meaning of chargeable consideration for LTT purposes and the applicable rates. Where relevant, comparisons with SDLT are noted. The Practice Note builds on the basics in Practice Note: Wales: Land transaction tax ( LTT)—the basics. LTT is contained in the Land Transaction Tax and Anti-avoidance of Devolved Taxes ( Wales) Act 2017 ( LTTADT( W) A 2017). Statutory references are to LTTADT( W) A 2017 unless stated otherwise. How is LTT calculated? LTT is charged on the acquisition and disposal of an interest in freehold or leasehold land. It applies not only to the purchase of freehold land or the grant of a lease (the creation of an interest) but also to the release of an...
This Practice Note offers practical direction on correctly executing documents when one or more parties to a contract are not physically together, often referred to as virtual signing or a virtual closing. The Law Society has brought together established materials covering: execution of documents by virtual means, use of electronic signatures, its ‘ Tips on how to operate in practice’ concerning virtual execution and the use of e‑signatures, and Q& A on using electronic signatures and completing virtual executions, including ‘ Our position on the use of virtual execution and e‑signature during the coronavirus ( COVID‑19) pandemic’. We have assembled a comprehensive, interactive collection to help users identify and navigate the concepts and common issues involved in executing documents, including by virtual means. Each section or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For more...
This Practice Note addresses the VAT treatment of partnerships, joint ventures and other vehicles in the context of property development and investment. It considers: companies, general partnerships, limited partnerships, limited liability partnerships ( LLPs), real estate investment trusts ( REITs), co-owners and joint ventures which entity must be VAT registered which entity should opt to tax the treatment of dealings between the parties contributions and distributions dealings with third parties Why does this matter? It is often not obvious how collaborative arrangements should be treated for VAT purposes, or who ought to charge VAT to whom. In some situations the position is genuinely uncertain, and the VAT supplies may fail to mirror commercial reality. It is therefore vital that contracts address the position...
VAT issues that arise in residential developments This Practice Note examines VAT matters encountered in residential development projects. It addresses, among other points, the following areas: different and varying forms of development the potential consequences of granting short-term leases relevant planning obligations and local infrastructure various incentives available to buyers disposals of surplus land and incomplete developments, matters arising from subsequent grants of overriding leases and sales of reversions For VAT considerations in commercial schemes, see the separate Practice Note: Commercial development— VAT issues. This Practice Note also includes references to case law from the EU Court of Justice. For further guidance on whether rulings of the Court of Justice bind the UK courts, see Practice Note: Assimilated law— Assimilated case law. For commentary on assimilated law (previously retained EU law) and tax more broadly, including the bespoke approach now applied in VAT law, see...
Variation of trusts As a general principle, trustees must give effect to the settlor’s intentions as expressed in the trust instrument. Nonetheless, situations can develop in which an alteration is advisable, for example in the interests of efficient administration. Where that occurs, the trustees will initially assess whether a change can be achieved without recourse to the court. Express powers The trust deed may have been composed to grant the trustees authority broader than that contemplated by the general law. Contemporary trust documents are typically designed to vest the trustees with considerable discretionary powers and flexibility. Acting under express powers contained in the deed does not amount to departing from the trust terms, since those powers are themselves part of the trust’s provisions. Powers of appointment A power of appointment is an authority vested by one person in another to decide how the property is to be held. There are...
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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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