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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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In-house lawyer—new to role Well done on landing your first in-house position! You’ve already made the big decision to pursue an in-house career, and you’ve chosen an employer you admire and a post that fits, so the next step is mapping out how you’ll create real impact and thrive. This Practice Note sits within the subtopic: In-house lawyer—new to role, designed to support you in swiftly becoming an effective and integrated part of your organisation at pace......
The leader as business partner This guide tackles the day-to-day realities of leading. If you have stepped into leadership for the first time, it offers practical pointers to help you begin. If you are already seasoned, you’ll find revitalising angles. The themes set out here present a down-to-earth perspective on leadership and on growing leaders, concentrating on the genuine challenges and possibilities they encounter. Created in collaboration with Cranfield School of Management. This section explores the task facing a leader in grasping the business landscape in which the organisation operates. Numerous well-established strategic analysis tools can support a leader in shaping their understanding of the organisation’s position and wider context. We will consider three. The first, SWOT analysis, provides a high-level picture of the business. The second, the value chain, reveals where processes add value in delivering for the customer. Finally, the cultural web offers...
The mix of participants on an infrastructure scheme hinges on the project type and the way it is procured and funded. Set out below is a typical party involved in such projects. Employer The employer is the party seeking delivery of the infrastructure asset and overseeing the procurement. Examples of employers include: government bodies commissioning roads, rail networks, pipelines, schools, prisons, hospitals or energy schemes private companies commissioning mining developments, oil and gas exploitation, energy schemes or processing plants Ordinarily, the employer prepares a project brief defining the asset’s required function and performance, then invites contractors to tender. Once a preferred bidder is chosen, the employer appoints a contractor (or several) to design and build the asset. The employer typically provides the finance and pays the contractor. Often—though not invariably—the employer also owns the site where the asset will be...
Global demand for public infrastructure is high at a moment when public finances are constrained and banks are less inclined to extend credit, prompting fresh and varied approaches to financing infrastructure development. The following provides a brief outline of the standard funding sources and models used for infrastructure projects. A comprehensive examination of the financial structures and products available for infrastructure funding falls outside the scope of this practice note. Factors influencing source of funding The source of finance for a particular infrastructure scheme will turn on: the procuring party or parties—is it a governmental authority, a private firm or a consortium? Do they have a solid track record? Are the parties or their sponsors investment grade? the procurer’s financial position—do they hold sufficient funds or must they raise external finance? the security package—if finance is required, which entities, assets and documents will form part of the...
This Practice Note reviews the key agreements typically used in an infrastructure project. The documents outlined below will not be applicable to every scheme—the project structure, procurement route, financing approach, and the nature of the project and its participants will dictate what is required. For further detail on the parties mentioned here, see Practice Note: Infrastructure projects—parties. Note that the party called the ‘employer’ in this Practice Note would, in a project finance-structured infrastructure project, usually be the ‘ Project Co’. Construction contract The construction contract is the arrangement between the employer and the contractor for the design (to varying degrees) and the construction of the infrastructure asset. Depending on the procurement route, there may be a single contract covering the entire project (for example, an EPC/ Turnkey contract) or several contracts with different contractors for separate work packages (as under EPCM...
Infrastructure procurement describes how a facility’s delivery is organised. This Practice Note concentrates on arranging the design, engineering and construction of a facility. For information on funding models, see Practice Note: Funding models for infrastructure. A variety of factors will shape the decision on the most suitable way to procure an infrastructure facility. Factors influencing the procurement method Factors significant when deciding on the form of procurement for an infrastructure project include: the nature of the infrastructure project—eg mining, road, port, energy project the project’s complexity—does it involve process technology or multiple facilities? who the owner is—eg a public body using PPP or a Regulated Asset Base ( RAB) model, or a private company experienced in managing works? how the project is funded—by public money, debt or private investment? Lenders may require a particular procurement route the allocation of risk between the parties—is single-point...
Infrastructure spans an extensive spectrum of assets, covering everything from schools, hospitals, highways and rail routes to wind power, electricity, waste and water schemes, as well as oil and gas installations, pipelines and processing facilities. Contractors are increasingly sharpening specialist skills and delivering infrastructure schemes across borders. Consequently, the construction contract forms in play are becoming more internationally standardised. Although infrastructure contracts share core clauses, no single template suits every scheme. Any template must be adapted to reflect the project’s particular issues and subject matter, the parties’ risk allocation, and to comply with the governing law of the contract and the project’s location. In some cases, a bespoke infrastructure construction contract is a better choice than a heavily amended standard form. Choice of contract The contract model adopted for an infrastructure build will depend on the: procurement of the works, for example: ...
This Practice Note outlines a straightforward five-step efficiency framework and shows how it works through a case study involving internal complaints about the in-house legal team. It also highlights related guidance and tools available to support each stage of the framework. The five steps framework The five steps in this improving efficiency framework are: define measure analyse improve control Management consultants often refer to this as the DMAIC framework. It is an excellent framework to follow when you are seeking to improve an existing process or resolve an issue or problem. It takes you through each element in turn and ensures you have viewed the process from every angle. What does each step involve? The table below sets out each of the five steps and illustrates them by reference to a hypothetical scenario—the legal team receives too many complaints. It also contains links to related guidance for each step in this...
There are five essential stages to boosting efficiency: Identify (define) which process requires improvement (see Practice Note: Improving efficiency: Step 1—identify and define the problem) Measure the problem (see Practice Note: Improving efficiency: Step 2—measure the problem) Analyse the information (see Practice Note: Improving efficiency: Step 3—analyse what's causing the problem) Improve the process (covered in this Practice Note) Control, ie embed the new process so it becomes business as usual (see Practice Note: Improving efficiency: Step 5—embedding changes) Advisers often describe this as the ‘ DMAIC framework’. This Practice Note leads you through Step 4—improving the issue identified in Practice Note: Improving efficiency: Step 1—identify and define the problem, measured in Practice Note: Improving efficiency: Step 2—measure the problem, and analysed in Practice Note: Improving efficiency: Step 3—analyse what's causing the problem. It also builds on the earlier case...
What does effective governance mean in the public sector? In the public sphere, governance ensures that teams within an organisation, or those working in partnership, deliver their overarching purpose, realise intended results for citizens and service users, and conduct operations in a manner that is effective, efficient and ethical. Effective governance is the dependable process through which an organisation affirms its identity and role, and translates its core mission, strategic plans and values into conduct and practice throughout the organisation or partnership. It also makes certain that everyone understands their roles, responsibilities and lines of accountability. Governance is multifaceted and interpreted differently across contexts, yet most viewpoints converge on three central questions: Who holds authority? How should decisions be taken? Where does ultimate accountability sit? This Practice Note summarises the principal building blocks for putting in place and sustaining effective governance across the public...
Overview of the illegality ground Illegality stands as the first ground of judicial review identified by Lord Diplock in his well-known analysis in Council of Civil Service Unions v Minister for the Civil Service. He described three categories for controlling administrative action by judicial review, the initial category being “illegality”, by which he meant that a decision-maker must correctly apprehend the law governing the scope of his power and act in conformity with it. A challenge on the illegality ground alleges that a public law decision-maker has acted unlawfully by exceeding its powers, or by misunderstanding them, or by otherwise misusing them. Lord Diplock’s term ‘illegality’ is helpful as a label for this ground because such a claim essentially maintains that a decision is unlawful for want of a proper legal foundation, or because its legal basis is inadequate or defective, or is in some other way...
October 2022 saw the Information Commissioner’s Office ( ICO) unveil ICO25, a three-year strategy running to October 2025, intended to drive openness and, in turn, bolster legal and regulatory clarity for organisations, especially those with a commercial stake in processing personal data and innovating in this field. This Practice Note offers a pragmatic digest of that mission, and sets out how advisers can support those they counsel to plan and prepare, based on what is currently known about forthcoming themes. It highlights practical steps professionals can take to align plans with the anticipated direction of travel during the period. It assumes readers are conversant with all facets of data protection law, including the regulator’s role and the scope of the supervisory authority too. Those less familiar may wish to begin with Practice Note: The Information Commissioner’s Office ( ICO). The UK data protection law...
STOP PRESS From 24 February 2025, the core provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements launched on or after that date must proceed under PA 2023, while those initiated under earlier regimes must continue to be run and managed under those rules, including: Public Contracts Regulations 2015 Utilities Contracts Regulations 2016 Concession Contracts Regulations 2016 Defence and Security Public Contracts Regulations 2011 The Cabinet Office has also refreshed its standard contract document suites, templates and guidance for the government’s Model Services Contract, Mid‑ Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go‑live’ on 24 February 2025. This Practice Note will be updated shortly to reflect these changes. In the meantime, see: News Analysis: Procurement Act 2023 ‘go live’—what happens next? Government model contracts updated for...
The Human Rights Act 1998 ( HRA 1998) The Human Rights Act 1998 ( HRA 1998) brings the rights set out in the European Convention on Human Rights ( ECHR) into English law. A claimant may pursue proceedings under HRA 1998 against a public authority for infringing their Convention rights. There are situations where the common law offers no solution yet a claim under HRA 1998 can be made, or where HRA 1998 enhances the remedies open to a claimant. Where the Act provides an additional remedy, any damages awarded under it are not set off against sums recovered in a common law action, and vice versa. The same applies where damages in an HRA 1998 claim are recovered in addition to compensation paid by the Criminal Injuries Compensation Authority ( CICA). For guidance on the possible effects of overlap between losses in a civil...
ARCHIVED : This Practice Note has been archived and is not maintained. Scope of exemption Disclosure of personal data under freedom of information ( FOI) will be exempt where releasing it would breach the data protection principles or a notice under section 40(3) of the Data Protection Act 1998 ( DPA 1998), or where the material falls within DPA 1998, s 40(4) (enforcement notice). In most situations, reliance is placed on the breach of principles exemption. Although absolute, the public authority must still consider what is fair. Disclosure is allowed if the data subject has consented. Yet the mere absence or refusal of consent is not conclusive. The authority is required to weigh fairness, by reference to the above factors, when deciding whether to disclose despite a refusal, or where consent has neither been given nor refused. When is consent needed? Data counts as personal data only if it...
The freedom of information ( FOI) case tracker collates and outlines notable judgments and case law concerning the application of the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391... Background reading Freedom of information—overview Environmental information regulation—overview Courts covered Supreme Court ( SC) Court of Appeal ( CA) Upper Tribunal ( UT) Alongside concise case particulars, where feasible the tracker includes links to news analysis and commentary published in the Freedom of Information Journal, available to Lexis®Library subscribers... Archived decisions [ Archived] Access to environmental information case tracker [ Archived] Supreme Court ( SC) Citation: Department for Business and Trade v Information Commissioner [2025] UKSC 27 Summary: Supreme Court confirms cumulative public interest test under FIA 2000 Abstract: The Supreme Court determined that, under FIA 2000, s 2(2)(b), public...
Design Build Operate ( DBO) Rising demand for public infrastructure during periods of tight public finances, coupled with limited public sector expertise in delivering complex facilities (such as water treatment works and energy plants), has prompted greater private sector involvement in the procurement and operation of public infrastructure. There are numerous possible frameworks for bringing public sector risk and expertise into the procurement of public infrastructure, covering a wide spectrum of structures. One such arrangement is Design Build Operate ( DBO). It is especially popular for water treatment plants. For information on variations of the DBO structure, see Practice Notes: Infrastructure projects—project structure and BOT contracts. Under DBO, a government (often through a government body or local authority) engages a single contractor to: design and construct the infrastructure facility operate the facility for a period (typically between 10–30 years) The government typically funds the...
Introduction The Community Infrastructure Levy ( CIL) is a financial charge applied to development. Its statutory footing sits in Part 11 of the Planning Act 2008 ( PA 2008), which authorises the Secretary of State to create regulations for imposing CIL. Those provisions were brought into effect through the Community Infrastructure Levy Regulations 2010 (the CIL Regulations, SI 2010/948). CIL operates across England and Wales. Levying is undertaken by ‘charging authorities’ on specified development within their jurisdiction, with sums collected by designated ‘collecting authorities’. For detailed guidance on who the charging and collecting authorities are, when liability arises, and the timing and payer of CIL, see Practice Note: Community Infrastructure Levy ( CIL)—who administers CIL, when does CIL arise, and when and by whom must CIL be paid. In defined situations, certain parties may seek a review or bring an appeal against particular decisions made by a...
This Practice Note examines the statutory definitions set out in the Equality Act 2010 ( Eq A 2010) for the protected characteristics of age, gender reassignment, race and sex. Protected characteristics Under Eq A 2010, individuals are shielded from discrimination connected to certain listed characteristics that a person may possess. Certain safeguards apply solely to one such characteristic in particular. Others extend identical protection across all the listed characteristics, which are collectively known as 'the protected characteristics'......
This Practice Note outlines the core principles for recovering damages arising from contractual breach. It addresses the compensatory purpose of damages; categories covering pecuniary and non-pecuniary loss; nominal damages; damages available under the Sale of Goods Act 1979 ( SGA 1979); the operation of default damages clauses; contractual mechanisms for remedying a breach; and the availability of interest. As stated by Baron Parke in Robinson v Harman, the party who suffers loss through breach should, in terms of damages, be placed in the position they would have occupied had the contract been performed... Compensatory function of damages for breach of contract The ordinary role of contractual damages mirrors that in tort: they are compensatory (see, for example, British Westinghouse v Underground Electric Rlys). The purpose is to make good the actual loss sustained by the innocent party and, so far as money can achieve it, to place them in...
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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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