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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 sets out guidance on the tenancy condition that must be met for a tenant to obtain security of tenure under section 79 of the Housing Act 1985 ( HA 1985). It also addresses issues that may arise where security of tenure is threatened. Security of tenure A tenant of a dwelling house, let as a separate dwelling, will have security of tenure as a secure tenant under HA 1985, s 79 at any time when the ‘landlord condition’ and the ‘tenant condition’ are met. The ‘landlord condition’ is that the landlord’s interest belongs to one of several prescribed authorities or bodies; in practice, this will usually be a local authority. The ‘tenant condition’ is that the tenant is an individual who occupies the dwelling house as his or her only or principal home (or, for a joint tenancy, that at least one of them...
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL DEFINED BENEFIT PENSION SCHEMES THAT ARE SUBJECT TO THE EMPLOYER DEBT REQUIREMENTS Corporate reorganisations frequently lead to an employment cessation event, for instance when employees move between group companies or when redundancies occur as part of the exercise. An employer debt under section 75 of the Pensions Act 1995 can accordingly be triggered, potentially frustrating the objective of the group reorganisation (usually to reduce expenditure for the group and/or strengthen its financial sustainability). For further information on ‘employment cessation events’, see Practice Note: When is a section 75 debt triggered? — An employment cessation event occurs in a multi-employer scheme. Two easements to the employer debt regime were introduced in April 2010 under the Occupational Pension Schemes ( Employer Debt and Miscellaneous Amendments) Regulations 2010, SI 2010/725: the general easement the de minimis...
STOP PRESS: The Planning and Infrastructure Act 2025 received Royal Assent on 18 December 2025. This content is presently being reviewed in line with the Act. What is section 36 of the Electricity Act 1989? Section 36 of the Electricity Act 1989 ( EA 1989) places a statutory obligation on anyone proposing to construct, expand or operate an electricity generating station to secure consent from the ‘appropriate authority’—that is, the Secretary of State ( So S), Scottish Ministers or Welsh Ministers, depending on the location—unless an exemption applies. Exemptions exist for particular capacities and types of generating stations, for example onshore wind stations in England and Wales, and projects authorised under other legislative consents such as the Planning Act 2008 ( PA 2008). With the advent of the development consent regime under PA 2008, the need to seek consent under EA 1989, s 36 has been...
This collection of training resources comprises template Power Point slides that can act as the foundation for one or several training sessions concerning secondary equity offerings as needed. The materials will help legal advisers, company secretaries, members and directors to develop an understanding of the applicable law and regulation around securing further equity investment, and include a link to other materials and guidance for their use. It is expected that trainers will adopt these slides as a useful springboard for their talks, then tailor and update them as appropriate to suit their own specific circumstances. In particular, the principal considerations and......
This Practice Note summarises illustrative cases relevant to search and/or imaging orders dated from 6 April 2025 onwards This note outlines representative authorities concerning search and imaging orders from 6 April 2025. For significant and illustrative rulings predating 2025, consult Practice Note: Search orders—key and illustrative decisions (pre- April 2025) [ Archived]. Be aware that the CPR provisions concerning interim injunctive relief, covering search and imaging orders, were updated with effect from 6 April 2025. CPR 25 was substantially revised and the related Practice Directions were revoked on that date, including the specimen draft search order in Annex A of Practice Direction 25A and the example imaging order that had been added to Annex B of Practice Direction 25A on 6 April 2022. These were replaced on 6 April 2025 by a new model search and imaging order (the ‘model search and imaging...
FORTHCOMING CHANGE relating to a new SDRT exemption: As set out at Budget 2025, Finance Bill 2026 will create a new relief from the principal (but not the higher rate) SDRT charge, known as the UK listing relief. It will apply to contracts to transfer any chargeable securities in a company during the three years following the company’s initial admission of its shares (or depositary interests in shares) to trading on a UK regulated market, provided that first UK listing takes place on or after 27 November 2025. For further detail, see Practice Note: UK listing relief from principal charge to SDRT and News Analyses: Finance Bill 2026— UK listing relief— Stamp duty reserve tax holiday for new listings and Budget 2025— Tax analysis— Stamp and transfer taxes. FORTHCOMING CHANGE relating to the modernisation of stamp taxes on shares...
Stamp Duty Land Tax ( SDLT) is payable on chargeable land transactions, namely the acquisition of a chargeable interest. For additional guidance on how SDLT works in practice and its basic principles, see Practice Note: Land transactions, chargeable interests and chargeable transactions. In Scotland, with effect from 1 April 2015, SDLT was replaced by Land and Buildings Transaction Tax ( LBTT). See Practice Note: Scotland: Land and buildings transaction tax ( LBTT)—the basics. In Wales, with effect from 1 April 2018, Land Transaction Tax ( LTT) superseded SDLT. See Practice Note: Wales: Land transaction tax ( LTT)—the basics. Accordingly, references in this Practice Note to land, property, or similar terminology in the context of SDLT should be read and understood as excluding any interest in or over land located in Scotland (from 1 April 2015) and Wales (from 1 April 2018). The first...
Civil justice reform See our Practice Note, Civil justice reform in Scotland—virtual hearings and electronic submission of documents, for guidance on the current rules and practice in the Scottish civil courts concerning virtual hearings and the electronic signing, transmission and lodging of documents. This Practice Note also explains special procedures in civil appeals in the Scottish Sheriff Appeal Court, including devolution matters, human rights interventions, taking proof or further proof, and remitting the appeal to the Court of Session. For guidance on other aspects of civil appeals to and within the Scottish Sheriff Appeal Court, see these Practice Notes: Introduction to the Scottish Sheriff Appeal Court — which considers the Sheriff Appeal Court’s jurisdiction, the types of cases it can hear, and whether permission to appeal is required Starting an appeal in the Scottish Sheriff Appeal Court — which provides guidance on...
Practice Note on pursuers’ offers in Scottish civil litigation This Practice Note focuses on pursuers’ offers within Scottish civil proceedings, preserving the core guidance and context provided... Further guidance Judicial tenders: see Practice Notes— Tenders in Scottish civil litigation—nature, purpose and expenses implications; Making and responding to judicial tenders in Scottish civil litigation; and Tenders in multi-party Scottish civil litigation Expenses and taxation: see Practice Note— Judicial expenses and taxation in Scottish civil litigation ADR: see Practice Note— Alternative dispute resolution in Scotland Other key areas of Scottish law and procedure: see our Scotland collection Closest equivalent in England and Wales: see Part 36 offers—overview, which links to detailed guidance on various aspects, including Precedents, on Part 36 Key RCS— Rules of the Court of Session 1994 OCR— Sheriff Court Ordinary Cause Rules...
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...
What is a Bankruptcy Restriction Order? When a person is made bankrupt (sequestrated), they are bound by restrictions under the Bankruptcy ( Scotland) Act 2016 ( Ba( S) A 2016) and other related legislation. Ordinarily, twelve months from the start of sequestration, the debtor is discharged and the limitations that apply to undischarged bankrupts no longer apply. A Bankruptcy Restriction Order ( BRO) can be imposed on a debtor following an application to the Accountant in Bankruptcy ( Ai B) (see Practice Note: Scotland: the Accountant in Bankruptcy) or to the Sheriff, and it maintains restrictions after discharge from sequestration. For commonly used Scottish insolvency terminology, see Practice Note: Glossary of Scottish insolvency words and expressions. Effects of a BRO A BRO places ongoing restrictions on the debtor for the period stipulated in the order. The Ba( S) A 2016 does not provide a...
FORTHCOMING CHANGE : On 30 January 2024, the Trusts and Succession ( Scotland) Act 2024 obtained Royal Assent, representing the first significant review of trusts law in Scotland in more than a century since the principal Trusts ( Scotland) Act 1921. Provisions concerning trusts will commence only when Scottish Ministers introduce the necessary secondary legislation, whereas certain succession provisions came into force on 30 April 2024. The main reforms aimed at modernising the law are outlined in News Analysis: Trusts and Succession ( Scotland) Bill passed. Practice Notes covering aspects of Scottish trusts and succession law will be further updated to align with this new legislation. At the outset, note that powers authorise trustees to act and advance the trust purposes, while duties oblige trustees to discharge an obligation. Source of trustees’ powers Trustees derive their authority from both the prevailing law and the relevant deed of...
Introduction In practice, the expression ‘set off’ in Scotland is used as a catch‑all for mechanisms that permit a debtor to resist, in whole or in part, a payment claim by relying on obligations due to them from the creditor. The debtor may invoke three principles to their advantage: compensation retention balancing of accounts in bankruptcy Compensation Compensation denotes the rule that where each party owes the other liquid sums, the larger debt operates to extinguish the smaller, leaving the surplus payable to the holder of the larger claim. The rule is set out in the Compensation Act 1592. The Act excludes illiquid debts and contingent claims, and confines set‑off to debts that are (a) liquid, (b) immediately verifiable by writ or by oath, and (c) pleaded before judgement is pronounced. As a result, concursus debiti et crediti is required: the parties must act in the same...
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...
Introduction and background The Bankruptcy ( Scotland) Act 1985 ( B( S) A 1985) took effect in 1986 and laid out, in detail, the processes for managing sequestration ( Scottish bankruptcy). When the Insolvency ( Scotland) Rules 1986, SI 1986/1915, were issued shortly afterwards for corporate insolvency in Scotland, they drew upon the newly enacted B( S) A 1985 provisions and tailored them for liquidation, particularly for adjudication of claims, accounting periods, and approval of the liquidator’s remuneration. Accordingly, the 1986 liquidation rules directed readers to the relevant parts of B( S) A 1985, with instructions to read ‘liquidation’ for ‘sequestration’ and ‘liquidator’ for ‘trustee’. With the advent of the ‘new’ administration regime in 2003 under the Enterprise Act 2002, the administration rules covering adjudication of claims, accounting periods and approval of the administrator’s remuneration simply...
For guidance on how Brexit affects Scottish procedure, refer to Practice Note: Table showing impact of Brexit on jurisdiction to commence insolvency/restructuring proceedings and obtain recognition in other EU Member States... The Insolvency ( Scotland) ( Company Voluntary Arrangements and Administration) Rules 2018, SI 2018/1082, alongside the Insolvency ( Scotland) ( Receivership and Winding up) Rules 2018 ( ISRWUP Rules 2018), SSI 2018/347, came into effect on 6 April 2019. This Practice Note is drafted by reference to those provisions (with the ISRWUP Rules 2018, SSI 2018/347 being the ones particularly pertinent here). It does not consider transitional provisions, on the basis that only a small number of cases are expected to remain where such measures would still apply... As in England, the appointment of a provisional liquidator is regulated by section 135 of the Insolvency Act 1986 ( IA 1986) and is pursued while the court...
This Practice Note addresses insolvent partnerships and limited partnerships in Scotland, by which is meant—for the purposes of this Practice Note— Scottish Partnerships comprising: ordinary partnerships with their main place of business in Scotland; and limited partnerships entered on the Companies House register in Scotland as a Scottish LP ( SLP). This Practice Note does not extend to limited liability partnerships ( LLPs) registered in Scotland, which are dealt with in the same manner as companies for corporate insolvency purposes. However, insolvencies of Scottish LLPs continue to be governed by the Insolvency ( Scotland) Rules 1986, SI 1986/1915. Consequently, the relevant 1986 prescribed forms still apply when handling Scottish LLPs, rather than prescribed content under the applicable 2018 Scottish rules used for corporate insolvencies (for more information, see Practice Notes on Scottish compulsory liquidation: Scotland: compulsory liquidation, Scottish creditors' voluntary...
The Corporate Insolvency and Governance Act 2020 ( CIGA 2020), effective from 26 June 2020, removes the small-company moratorium under Schedule A1 to the Insolvency Act 1986 ( IA 1986), replacing it with a new standalone moratorium. For more detail, see Practice Note: Corporate Insolvency and Governance Act 2020—moratorium and News Analysis: Corporate Insolvency and Governance Act 2020—company moratorium ( Scotland). The Insolvency ( Scotland) ( Company Voluntary Arrangement and Administration) Rules 2018 ( ISCVAAR 2018), SI 2018/1082, were laid before the UK Parliament on 15 October 2018 and came into force on 6 April 2019. The Insolvency ( Scotland) ( Receivership and Winding Up) Rules 2018 ( ISRWR 2018), SSI 2018/347, were laid before the Scottish Parliament on 14 November 2018 and likewise commenced on 6 April 2019. The existence of two rule sets reflects the devolved settlement and the...
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 reviews the aim and makeup of the schedule of services that is commonly attached to a consultant's appointment for a construction project. It considers how such schedules should be drafted and compares them with those found in industry-standard form appointments. A consultant's appointment principally records the scope of what the consultant is retained to deliver, the manner in which that work must be undertaken, and the basis on which payment will be made. Although the clauses in the main body of the appointment are significant, as they set out the parties' respective rights and duties, of equal significance is a precise, itemised account of the services or functions the consultant is to perform throughout the life of the appointment. Role of the schedule of services At the outset of a scheme, the employer must decide 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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