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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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ARCHIVED: This Practice Note was archived and is not maintained. Unlike familiar hazards such as fire or flood, a viral outbreak cannot be neatly tied to a specific place or moment in time. The 2020 coronavirus ( COVID-19) outbreak and the resulting government measures therefore confronted insurers with a novel loss landscape, where the factual intricacies were compounded by a shortage of clear judicial authority on key questions arising in business interruption claims, including: the interpretation of composite insured perils in non-damage business interruption policies (ie, the so-called ‘disease’, ‘prevention of access’ and ‘hybrid’ clauses) the appropriate approach to causation for ‘wide-area’ perils, which tend to cause loss not only to the insured premises but also across the surrounding area identifying the proximate cause of loss amid multiple competing causes, some insured and some not the...
This Practice Note covers structures and buildings allowances ( SBAs), being allowances for capital outlay on non-residential structures and buildings that are constructed, refurbished or converted on or after 29 October 2018. SBAs may apply where plant and machinery allowances do not. In the Corporate Tax Roadmap issued alongside the Autumn Budget 2024 on 30 October 2024, the government confirmed it would preserve the structures and buildings allowance for the remainder of this Parliament. There are specific provisions for SBAs in freeports—see Practice Note: Freeports in England—tax features—as well as for SBAs in investment zones. Qualifying expenditure SBAs are available for capital expenditure incurred on or after 29 October 2018 on: the construction of a non-residential building or structure, provided construction activity commenced on or after 29 October 2018 and no contract for works to be undertaken in the course of...
Rationale Securitisation is the transfer of sizeable portfolios of income‑generating assets to a special purpose vehicle ( SPV). The SPV finances the purchase price by issuing interest‑bearing securities—commonly termed ‘bonds’ or ‘notes’—into the capital markets. These securities benefit from security over the assets and/or the cashflows they produce (the ‘receivables’). Cashflows from the receivables are applied to pay interest and to repay principal on the securities. Types of receivables that can be securitised include: mortgage payments bank loan repayments lease/rental payments credit card repayments insurance premium payments Benefits of securitisation include: cheaper borrowing—the SPV may achieve a higher credit rating than the debtor company (originator). Either the obligors for the receivables carry a stronger rating than the originator, or credit rating agencies may find it simpler to rate a single asset (the receivables) rather than the...
This Practice Note offers a concise overview of the retail trading environment and signposts principal legal and practical challenges for office-holders appointed to a retail business. It also explores factors relevant to different restructuring routes, including ‘light touch’ administrations, company voluntary arrangements, and restructuring plans under Part 26A of the Companies Act 2006. For present purposes, it is assumed that any substantial retail insolvency will proceed by way of administration. By contrast, liquidation typically entails a close down with little or no ongoing trade, though several points below still apply and should be weighed when shaping appropriate strategies. Overview of the retail insolvency landscape Analysis of Companies House accounts undertaken by FRP in December 2024 identified more than 13,000 UK retail companies exhibiting signs of financial distress. This mirrors a prolonged spell of difficult operating conditions for retailers, intensified by—but...
Practice Note This Practice Note explores the tax position of UK real estate investment trusts ( REITs—and, in tax legislation, UK REITs) alongside their shareholders. The purpose of the UK REIT regime is to deliver a tax‑efficient structure that facilitates investment into the UK real estate sector by a broad spectrum of investors. A core feature of the regime is the shift of the tax point away from the investment entity, with the incidence of tax instead placed on its shareholders, so that liability arises at investor level rather than within the vehicle......
UK real estate investment trusts ( UK REITs) The UK regime for real estate investment trusts ( REITs, termed UK REITs in statute) took effect on 1 January 2007. There are now in excess of 150 REITs, several of which moved into the structure when the framework first commenced. Those early adopters have since been joined by many more participants owing to revisions to the entry criteria, in particular the following: the removal of the entry charge; permission for REITs to invest in other REITs; and a relaxation of the listing condition so that companies without a formal listing, but admitted to trading and actually traded on a recognised stock exchange (for example on markets such as AIM), can also qualify. Further amendments have been introduced to the REIT rules in recent years with the stated intention of making the regime more...
The register of overseas entities The register of overseas entities took effect on 1 August 2022. Overseas entities wishing to buy, sell or transfer land or property in the UK were required to sign up with Companies House and state their registrable beneficial owners or managing officers by 31 January 2023. Corporate transparency is now regarded as a critical component of any plan to curb or eradicate corruption, tax evasion, terrorist financing and money laundering. In the aftermath of Russia’s invasion of Ukraine, HM Government fast‑tracked the Economic Crime ( Transparency and Enforcement) Act 2022 ( EC( TE) A 2022). Under EC( TE) A 2022, an overseas entity must register with, and supply details of its beneficial owners to, UK Companies House before it can be recorded as the legal owner of UK land. EC( TE) A 2022 is, in large part, derived from the...
Many of the covenants commonly found in a standard syndicated loan facility will, in one guise or another, be relevant to a real estate finance development deal. For background on those undertakings—what they are and why lenders require them—see Practice Note: Covenants. In a development facility, the borrower draws funds not only to acquire the site but also to carry out the build. Consequently, the bulk of covenants used in a real estate finance investment facility are equally applicable to a development facility, albeit with variations and further undertakings to address the development aspects of the transaction. For further discussion of covenants in investment facilities, see Practice Note: Real estate finance—covenants in investment facilities. This Practice Note focuses on the particular undertakings that are typically seen in a real estate finance development...
This Practice Note provides an overview of the aims, character and breadth of the structured due diligence process that a potential buyer customarily undertakes in connection with the acquisition of shares in a private limited company, or the purchase of a business together with its assets (the target)... Purpose and initial considerations for the buyer Purpose of due diligence For any share or asset deal, the buyer begins, at the outset, from the long‑standing principle of caveat emptor (let the buyer beware)... As the seller is not obliged to reveal defects in, or liabilities attaching to, the target, the buyer must carry out its own independent enquiries and verification... Accordingly, it will appoint advisers to perform thorough commercial, legal, tax, financial or other due diligence and to produce reports identifying material issues arising from their review... From the buyer’s standpoint, the core purpose of due diligence is the...
FORTHCOMING CHANGES: At Budget 2025, the government set out measures to be legislated in Finance Bill 2026. From 1 April 2026 for corporation tax and 6 April 2026 for income tax, the main pool writing-down allowance will drop from 18% to 14%. This affects companies and unincorporated businesses with main rate expenditure, including items that do not qualify for, or pre-date, FYAs such as the super-deduction and full expensing. A new 40% first-year allowance will apply to qualifying main rate expenditure incurred from 1 January 2026. With fewer restrictions than other FYAs, it is expected to assist spend not otherwise eligible for the £1m AIA or existing FYAs (such as full expensing). It will be available to all businesses, will cover assets used for leasing (but not overseas leasing), and will exclude cars and second-hand assets. The 100% green...
Scope of the regime ( NSIA 2021) took full effect on 4 January 2022. From that point, the UK Government gained powers to scrutinise and intervene in a broad array of investments in entities operating in the UK, and in purchases of related assets, with the goal of stopping deals that might threaten the UK’s national security. The regime is run by the Investment Security Unit ( ISU) within the Cabinet Office, while the formal decision‑maker is the Chancellor of the Duchy of Lancaster (described in the Act, and here, as the ‘ Secretary of State’). Beyond handling notifications and associated proceedings, the ISU may issue guidance on the regime and how it applies to particular transactions. Under NSIA 2021, certain investments in business entities active across 17 specified UK sectors must be notified to the ISU by the investor and cleared by the...
This Practice Note outlines the principal provisions of the National Security and Investment Act 2021 ( NSIA 2021) before addressing the consequences of the Act for finance transactions. The NSIA 2021 requires, in specified circumstances, a mandatory notification to the Secretary of State ahead of acquiring control of an entity, and grants the government powers to review proposed or completed acquisitions where national security issues may arise (the call-in power). The regime’s impact should be assessed on certain finance transactions, particularly when financing a purchase or taking security over assets or shares in certain sectors—see Mandatory notification below—or where the asset or entity may present national security sensitivities. The substantive provisions of the Act commenced on 4 January 2022. Note that the call-in power has retrospective effect—see What is the call-in power? below. Also note that the NSIA 2021 extends to, and applies...
FORTHCOMING CHANGES: At Budget 2025, the government set out measures to be legislated in Finance Bill 2026: Cutting the writing-down allowance rate for main pool plant and machinery from 18% to 14%, effective 1 April 2026 for corporation tax and 6 April 2026 for income tax. This impacts companies and unincorporated businesses with main rate pools, for example where spend does not qualify for, or predates, first-year allowances ( FYAs) such as the super-deduction and full expensing. Introducing a new 40% FYA for qualifying main rate expenditure incurred from 1 January 2026, with fewer restrictions than other FYAs. It is expected to help chiefly where spend is not covered by the £1m annual investment allowance ( AIA) or existing FYAs (including full expensing). The 40% FYA will be available to all businesses (not just companies) and will include assets used for leasing (excluding overseas...
How does the fracking process work? Shale gas extraction, or hydraulic fracturing (‘fracking’), involves pumping water and chemicals into shale at very high pressure to free natural gas, chiefly methane, trapped within the rock. Vertical well bores are drilled thousands of feet into the ground, passing through sediment layers, the water table, and shale formations to reach the gas. The drilling is then diverted horizontally, where a cement casing is installed and functions as a channel for the vast volumes of water, fracking fluid, chemicals and sand required to fracture the rock and shale. These cracks enable the gas to be extracted from the rock formations. Fracking is typically undertaken at considerable depth (1.7km to 3.1km), influencing a wide horizontal area as the geological sequence is utilised. UK’s position on fracking The UK government has, historically, been supportive of fracking. However, following a series of seismic events at the...
Introduction to flood insurance As climate change drives more frequent flooding and the expense of repairs rises, the property, legal and financial sectors are becoming increasingly alert to floods and associated risks. Flood insurance is essential to managing the financial consequences of flood damage. Most commercial lending arrangements insist on fully comprehensive insurance. Flood insurance Cover Flood insurance will usually offer varying elements of cover depending on the policy terms and whether the premises are for domestic or commercial use. Cover is commonly available for the following losses: flood damage/direct loss—protection for losses arising directly from flooding. This may include replacement or financial reimbursement for items damaged or destroyed, such as business stock or belongings. It can also extend to costs for repairing structural damage from floodwater, essential services and restoration, and works to make a property habitable, for example ‘drying out’ ...
Background The coronavirus ( COVID-19) crisis has severely affected businesses worldwide, leaving many at genuine risk of insolvency. In response, some jurisdictions have temporarily amended their insolvency regimes to support companies (and their directors) and individuals, given ongoing uncertainty about how long the crisis will last and what its enduring consequences will be. This Practice Note examines the UK position. For information on reforms in other countries, see: Coronavirus ( COVID-19) Tracker of insolvency reforms globally [ Archived]. Previous proposals for reform On 26 August 2018, the government issued its response to consultations on Insolvency and Corporate Governance, setting out several intended changes to UK insolvency law. The proposals included: a moratorium available to all companies, giving time to develop restructuring proposals without creditor pressure a new ‘restructuring plan’, a formal process enabling companies to cram down dissenting creditors a ban on...
What is land remediation relief? ( LRR) LRR provides corporation tax relief on expenditure incurred in remediating contaminated land or in bringing derelict sites back into use. In 2009, the regime was broadened to address market failure by returning long-term derelict land to use, bringing such sites back into use. An incentive applies where land, whose development has been affected by various kinds of continuing dereliction, is brought back into productive use. The extension was intended to correct market failure by encouraging activity on sites blighted by ongoing dereliction. The relief was at risk of being discontinued after 2012; however, the 2012 Budget confirmed it would continue. The October 2024 HM Treasury Corporate Tax Roadmap, published alongside Autumn Budget 2024, notes the new Labour government’s commitment to a brownfield-first approach, prioritising the development of previously used land wherever possible. Given the time since the last review of LRR, and...
Introduction This Introductory Guide forms part of the Lexis+® UK series of Property Introductory Guides. The series is intended to equip apprentices, paralegals and others with an appreciation of the transactions typically handled by a property lawyer, together with the legal framework in which those transactions are undertaken. This Guide focuses on Commercial Property. Other titles in the series include: Introductory Guide to Land Law Introductory Guide to Property Development Introductory Guide to Property Finance Introductory Guide to Property Taxes Introductory Guide to Residential Property Each Guide is accompanied by a Glossary of Property Terms. This offers definitions and, where appropriate, explanations of many of the words and phrases that make up the everyday terminology used by property practitioners. Terms shown in bold in this Guide are defined in the...
Introduction A charge to capital gains tax ( CGT) arises when a chargeable person makes a chargeable disposal of a chargeable asset, which may lead to a gain or a loss. The principles are outlined in the Practice Note: Introductory guide to CGT. This Practice Note sets out the general rules for deciding whether an individual has made a gain or loss on a chargeable disposal. Basic CGT calculation For disposals from 6 April 2008 onwards, a straightforward cash-based calculation applies. Begin with the sale proceeds ( P) and deduct the incidental costs of sale ( C) to reach a subtotal. From that balance, deduct the costs of acquisition ( A) and add any enhancement expenditure ( E). The resulting figure is the chargeable gain or allowable loss ( G). Allowable deductions from the proceeds Incidental costs of making the disposal are deductible where incurred wholly and...
CGT reliefs most relevant to Private Client Multiple reliefs exist to lessen or defer capital gains tax ( CGT) arising on the disposals of both business and personal interests......
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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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