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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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This Practice Note examines the issues to be considered in relation to medical evidence in disability discrimination claims in the employment tribunal, ie prohibited conduct claims under Equality Act 2010 ( Eq A 2010). It clarifies that deciding whether a claimant is disabled is the employment tribunal’s function, not the province of a medical expert. The Practice Note considers if the tribunal may take account of material other than clinical opinion, describes what a medical report will ordinarily address, places the burden on the claimant to supply medical evidence, explores when the tribunal may decline to accept such evidence, and sets out how statements from GPs about depressive conditions ought to be treated. It further records that, in general, a single, jointly-instructed medical expert should provide the evidence, and outlines the principles the tribunal should follow where a party seeks to instruct an...
For any dispute resolution lawyer scrutinising a contract during a dispute, two central questions arise: what does the contract signify? what rights and obligations do the parties hold under it? This Practice Note explains the five interpretative principles the courts employ to address those questions, first articulated by Lord Hoffmann in 1998 in the leading case Investors Compensation Scheme v West Bromwich Building Society ( ICS), with additional guidance from later Supreme Court authorities: Rainy Sky v Kookmin (2011), Arnold v Britton (2015) and Wood v Capita (2017), as outlined further below. Read this alongside Practice Note: Contract interpretation—rules of contract interpretation. Depending on the forum in which your case is heard, you should also consider any extra requirements—see below: Court specific guidance. ICS v West Bromwich Building Society— Lord Hoffman's guiding principles In 1998, in Investors Compensation Scheme v West Bromwich Building Society, Lord...
When a public body undertakes consultation on a prospective decision, it should do so while the plans are still genuinely provisional, provide sufficient material, and allow enough time for a meaningful, informed reply, so that feedback is considered with an open mind, and to ensure decision-makers approach the feedback without predetermination. The legal requirements for consultation, first articulated in R v Brent London Borough Council ex parte Gunning, were firmly endorsed by the Supreme Court in Moseley, within the context of a statutory obligation on a local authority to consult. How and when does the duty to consult arise? No general, universal obligation compels public authorities to consult those impacted by their choices; the requirement may be imposed by statute, or may arise in public law either from the duty to act fairly, or because a legitimate expectation has been created. Simply...
A concession is a form of public private partnership ( PPP) A concession constitutes a type of public–private partnership. It is a long-term contractual arrangement between a government (or another public sector body) and a private sector operator that has been granted the concession. See Practice Note: Forms of Public Private Partnerships. For the purposes of this note, references to “public authority” include contracting authorities and utilities within the meaning of the relevant procurement legislation. Under a concession agreement, the state grants a private entity—the concessionaire—exclusive rights to create an asset and to run and maintain it for the agreed concession term. At times, a concession relates only to the operation and maintenance of an existing asset, though it is frequently for delivering a new asset, followed by its operation and upkeep. Alternatively, it may encompass both new and existing assets. The duration of a...
STOP PRESS: From 24 February 2025, the key provisions of the Procurement Act 2023 ( PA 2023) take effect. Any procurement launched on or after this date must comply with PA 2023, while procedures started under earlier regimes—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen under those rules. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law: PCR 2015 are EU‑derived domestic legislation and therefore constitute assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and interpretation of assimilated law, see Practice Note: Assimilated law. This Practice Note offers a concise primer on legal issues arising when public bodies...
ARCHIVED : This Practice Note is archived and is not being updated. Public Private Partnership ( PPP) structures are widely used by governments to draw on private investment, expertise and risk in procuring infrastructure, with the prospect of delivering a project more efficiently and at lower cost. Among the most prevalent PPP approaches for procuring infrastructure projects is Build Operate Transfer ( BOT). The particulars of a BOT arrangement vary according to the type and features of the project......
STOP PRESS: As of 24 February 2025, the principal provisions of the Procurement Act 2023 ( PA 2023) are in effect. Procurements initiated on or after that date must proceed under PA 2023, while those started under the earlier regime—the Public Contracts Regulations 2015 ( PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be run and overseen in accordance with that legislation. See Practice Note: Introduction to the Procurement Act 2023— PA 2023. PCR 2015 as assimilated law PCR 2015 are EU-derived domestic legislation and therefore fall within assimilated law under sections 2 and 6 of the European Union ( Withdrawal) Act 2018. For practical guidance on the status and construction of assimilated law, see Practice Note: Assimilated law. Investigating abnormally low...
Assimilated law and retained EU law are concepts created by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), as amended, arising from Brexit, and denoting a new class of domestic legislation. They are umbrella labels used, at two junctures in the UK legal system’s engagement with Brexit, for the corpus of EU‑derived rules kept within domestic law following the transition period (termed IP completion day in the EU( W) A 2018 and associated legislation). For initial background reading, see Practice Note: Retained EU law and assimilated law. Assimilated law versus retained EU law: what’s the difference? Both expressions describe the residual body of domestic rules originally deriving from the UK’s membership of the EU. The pair marks two phases in the legal system’s adaptation to Brexit: retained EU law was the label for that body as it was...
This Practice Note This Practice Note examines force majeure within the context of English law and the circumstances in which a force majeure event may bring a contract to an end, addressing the burden of proof, construction of force majeure clauses (including the operative verb), procedural obligations, and how to challenge the validity of a force majeure clause. See also Practice Notes: Force majeure clause analysis—a practical guide Force majeure—key and illustrative decisions For assistance when giving notice of a force majeure event, see Precedent: Force majeure notice. Force majeure clauses came under intense scrutiny in light of ‘world events’, such as the coronavirus ( COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022, on which see: Force majeure and current world events below......
Liability Liability means the total deprivation of liberty without any lawful foundation. Such claims are commonly brought against public authorities wielding powers of detention—typically a local police force, the Secretary of State for the Home Department, or the Secretary of State for Justice. The confinement may arise through policing, immigration control, or imprisonment (including where a sentence or parole period has been miscalculated, leading to detention that is unlawful). As Lord Bridge explained in R v Deputy Governor of Parkhurst Prison, Ex p Hague, false imprisonment comprises two elements: actual confinement and the lack of lawful authority to justify it. In Jalloh, the Supreme Court adopted a broad conception of ‘imprisonment’: being compelled by a particular person to remain in a specific place, whether by physical barriers, guards, or threats of force or legal process. In that case, curfew conditions imposed on a person facing...
Facilitating the performance of a duty by public officials Facilitation payments, sometimes termed ‘grease’ or ‘facilitating’ payments, are typically modest sums made to public officials or third parties in order to secure the carrying out of their functions, either more swiftly or even to ensure it occurs at all. This may extend to the giving of ‘gifts’, such as cigarettes or alcohol. In certain jurisdictions, these payments are routine and lawful (eg permitted in some situations under the US Foreign Corrupt Practices Act 1977 ( FCPA 1977); see Practice Note: The US Foreign Corrupt Practices Act 1977 ( FCPA 1977) and Bribery Act 2010 ( BA 2010) comparison table). Are facilitation payments illegal under BA 2010? Such payments amount to the offering, promising or providing of a financial advantage and therefore constitute bribery, as the Bribery Act 2010 ( BA 2010) provides no...
Purpose An environmental impact assessment ( EIA) evaluates a project’s likely significant environmental effects. It ensures the environmental implications of a development proposal are given appropriate weight, alongside economic and social considerations, when planning applications are determined, and creates opportunities to lessen those impacts. It also allows the public and other consultees to participate in the decision-making procedures. Legislation and guidance In relation to town and country planning, EIA is governed by: The Town and Country Planning ( Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the English EIA Regulations) in England; and The Town and Country Planning ( Environmental Impact Assessment) ( Wales) Regulations 2017, SI 2017/567 (the Welsh EIA Regulations) in Wales Together, the ‘ EIA Regulations’. The EIA Regulations transpose into English and Welsh law the changes introduced by Archived Directive 2014/52/ EU to Archived Directive 2011/92/ EU on assessing the effects of certain public and private...
This practical guidance relates to the pre- Procurement Act 2023 regime This Practice Note offers guidance for public procurement exercises launched before the Procurement Act 2023 ( PA 2023) took effect on 24 February 2025. Procurements within scope that start on or after that date are subject to PA 2023. Under PA 2023’s transitional and savings provisions, the former public procurement regimes persist as needed so contracting authorities can conclude and administer procedures begun before PA 2023 commenced (ie ongoing procurements). This Practice Note should be interpreted on that basis. For background, see Practice Note: Introduction to the Procurement Act 2023— PA 2023. Further practical material on PA 2023 sits in a separate subtopic: Procurement Act 2023—overview. It is intended to be read alongside those materials for context and background. Remedies for breach of PCR 2015 The Public Contracts Regulations 2015 ( PCR 2015), SI...
Similarities between Freedom of Information Act and Environmental Information Regulations At their core, the Freedom of Information Act 2000 ( FIA 2000) and the Environmental Information Regulations 2004 ( EIR 2004), SI 2004/3391, share a common purpose: enabling access to information kept by public authorities. For further detail, see Practice Notes: Environmental Information Regulations 2004—what is environmental information? and Introduction to freedom of information. More specific similarities include: time limits—under each framework, where the information is held and no exemption applies, public authorities must respond within 20 working days duty to advise and assist—both FIA 2000 and EIR 2004 set expectations for handling requests, requiring authorities to offer a reasonable level of advice and assistance to requestors and potential requestors appeals—identical appeal routes are available For more information, see Practice Notes: Environmental Information Regulations...
Introduction The police force is a pure public authority, carrying out only public functions. Consequently, proceedings can be brought against it under the Human Rights Act 1998 ( HRA 1998) and for misfeasance in public office. For further detail, refer to the Practice Notes: Personal injury claims under the Human Rights Act 1998 and Misfeasance in public office. Nevertheless, negligence actions remain by far the most common claims made against the police. This Practice Note considers: negligence claims by members of the public negligence claims by members of the police force negligence claims involving self-harm claims under HRA 1998 Vicarious liability and the correct defendant: technically, police officers are office-holders rather than employees......
Article 6 Article 6 of the European Convention on Human Rights (the ‘ ECHR’) provides that: When a person’s civil rights and obligations are being decided, or any criminal charge against them is considered, every person is entitled to a fair and public hearing within a reasonable time by a tribunal established by law that is independent and impartial. Judgment must be given publicly, but the press and public can be excluded from all or part of the hearing in a democratic society in the interests of morals, public order or national security, where the interests of juveniles or safeguarding the parties’ private life so require, or, in the court’s opinion, to the strictly necessary extent in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence is presumed innocent until proved guilty according to law. 3......
The Investigatory Powers Act 2016 ( IPA 2016), which secured Royal Assent on 29 November 2016, reshaped the statutory regime for covert surveillance by public authorities. Much of the earlier structure had been provided—though not entirely—by the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). See Practice Note: The regulation of intelligence gathering—an introductory guide... FCA powers of surveillance The Financial Conduct Authority ( FCA) is authorised to undertake surveillance to obtain information for the prevention and detection of crime. Its powers include: Acquiring communications data (see Practice Note: Acquisition, retention and disclosure of communications data under the Investigatory Powers Act 2016) Conducting covert surveillance, which may be recorded (see Practice Note: Covert intelligence sources) Using informants—covert intelligence sources or covert human intelligence sources ( CHIS) (see Practice Note: Covert intelligence sources) Compelling the provision of encryption keys or...
Form of commercial contracts This Practice Note sets out the structure and format of a business‑to‑business commercial contract or agreement. It summarises the usual layout of commercial agreements and identifies the details to include in the contract document, covering the parties, background (recitals), the main body, schedules, and the attestation provisions. How a contract is formed A contract is a legally enforceable arrangement that gives rights and imposes duties between two or more parties. For a contract to exist, contract law requires four core elements: offer (see Practice Note: Forming enforceable contracts—offer) acceptance (see Practice Note: Forming enforceable contracts—acceptance) consideration (see Practice Note: Forming enforceable contracts—consideration) an intention to create legal relations (see Practice Note: Forming enforceable contracts—intention to create legal relations) Simple contracts v deeds Simple contracts may arise orally, by conduct, or in writing. Certain categories of simple contract, however, must be in...
Where a UK court or tribunal is confronted with an issue engaging a Convention right, it must take into account any judgment or decision of the European Court of Human Rights. In reality, the prevailing judicial approach has been to regard final decisions of the Strasbourg Court as effectively binding unless there is a sound reason to depart. This Practice Note accordingly summarises the core principles governing the standing of Strasbourg jurisprudence in the UK courts. Background to HRA 1998, s 2 The UK was the first state to ratify the European Convention on Human Rights in March 1951. Until the Human Rights Act 1998, however, the Convention was not part of domestic law, so UK courts lacked authority to give effect to Convention rights (see: R v Secretary of State for the Home Department ex parte Brind). Even so, courts paid regard to...
Overview Section 31 of the Senior Courts Act 1981 ( SCA 1981) sets out the remedies available on an application for judicial review which a court may grant. The list includes the following: quashing orders mandatory orders prohibiting orders declarations damages (including restitution or recovery of a sum due) injunctions/interim remedies Under CPR 54.6, the claimant is required to state, in the claim form, any remedy being sought. By virtue of SCA 1981, s 31(1), the remedies can be claimed in the alternative, or as cumulative options in addition to each other. For further information and discussion, see: Combining prerogative orders: Supperstone, Goudie and Walker on Judicial Review [16.2]. In this context, a conclusion that a judicial review has succeeded is not, as a general rule, sufficient finally to dispose of a claim (see R ( LND1) v The...
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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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