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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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Duty to achieve best consideration on disposal of land held by principal councils General duty Under section 123(1) of the Local Government Act 1972 ( LGA 1972), principal councils have broad freedom to dispose of land as they see fit. This covers, for example, selling the freehold, granting or assigning leasehold interests, and creating easements. In England, principal councils are those elected for a non-metropolitan county, a district or a London borough; in Wales, they are a county or county borough. In this note they are collectively described as local authorities ( LAs). That general power is curtailed by section 123(2), which requires LAs to secure the best consideration reasonably obtainable on a disposal, unless approval has been given by the Secretary of State for Communities and Local Government/ Ministers. Disposals by way of a short tenancy are excluded from this duty; a short tenancy means...
The Investigatory Powers Act 2016 ( IPA 2016) reshaped the statutory regime governing covert surveillance by public bodies, a regime that was largely, though not entirely, contained in the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). Local authorities hold powers under both IPA 2016 and RIPA 2000. In addition, the Covert Human Intelligence Sources ( Criminal Conduct) Act 2021 allows certain public authorities to authorise criminal conduct by covert human intelligence sources. For more detail, see News Analysis: Covert Human Intelligence Sources ( Criminal Conduct) Act 2021. Surveillance powers available to authorities The acquisition and disclosure of communications data (such as telephone billing information or subscriber details) Directed surveillance (covert surveillance of individuals in public places) Covert human intelligence sources ( CHIS) (for example, the deployment of undercover officers) Local authorities employ covert methods to support their statutory...
This Practice Note looks at: the principal features of loan to value ( LTV) covenants in secured lending transactions possible issues with calling an event of default arising from a LTV covenant breach potential challenges to an event of default based on a LTV covenant breach remedying a LTV covenant breach the impact of the economy on LTV covenant breaches LTV covenants are a vital element of risk management in secured lending. An LTV covenant is a common financial covenant that requires the outstanding principal of a loan, expressed as a percentage of the value of the security charged in favour of a lender, to stay below a specified threshold for the life of the loan. This gives lenders a means to monitor and protect the strength of their security over time. For borrowers, grasping and...
This Practice Note outlines: what is meant by a loan transfer the key considerations when dealing with a loan transfer the principal ways to transfer a loan under English law transfer clauses found in loan agreements the borrower consent requirement the process and documentation required for a transfer overseas law issues What is meant by a loan transfer? A loan transfer is the passing by a lender of its rights—and frequently its obligations—under a loan agreement to another party. Those rights typically include the entitlement to repayment of principal and interest as set out in the facilities agreement. The lender will also hold other contractual rights, such as the ability to call for early repayment upon an event of default and to recover costs and expenses. The principal obligation that may need to move as well is the...
Loan relationships—the main tax rules As set out in Practice Note: Loan relationships—the main tax rules, the overarching principle is that credits and debits (in broad terms, profits and losses) that arise to a company from its loan relationships are recognised for corporation tax under the loan relationships regime by reference to the company’s accounting assessment of profit and loss, as presented in the company’s relevant accounts prepared in accordance with generally accepted accounting practice ( GAAP). Put another way, GAAP-compliant accounts provide the mechanism by which the presence, quantification and timing of taxable amounts connected to a company’s loan relationships are determined for corporation tax purposes. This approach is commonly described as ‘tax following the accounts’. The statutory rules governing the taxation of loan relationships are found principally in Part 5 of the Corporation Tax Act 2009 ( CTA 2009) ( CTA 2009, ss...
This Practice Note offers a primer on loan portfolio disposals, outlining the sorts of portfolios commonly marketed, who typically sells and buys them, and why. It also sketches a standard sale timeline. For guidance on issues that can arise, see Practice Note: Loan portfolio sales—key issues, and for the principal contractual suite, see Practice Note: Loan Portfolio Sales—legal documentation. What is a portfolio sale? A loan portfolio sale involves a lender transferring a bundle of loans rather than a single position, unlike a trade on the secondary loan market. The vendor may have originated or initially syndicated the loans, or may have purchased them secondarily from other investors. Following the 2008 global financial crisis, portfolio transactions became more visible (see ‘ Motivations of sellers’ below). Many regulated institutions, under political and regulatory scrutiny, sought to de‑leverage and strengthen regulatory capital ratios. Disposing of...
Conditions precedent In financing transactions, conditions precedent ( CPs) are the specific requirements that must be met before funding is made available under a facility agreement. They are usually not conditions for the agreement to take effect, but rather for lending to occur, although some facilities also include CPs to signing (the Loan Market Association leveraged facility being an example). CPs can equally feature in finance documents as conditions to the effectiveness of amendments or waivers, or for an accession. There are two types of conditions precedent: factual conditions precedent documentary conditions precedent Factual CPs are commonly included in the body of the facility agreement within the clause addressing conditions to utilisation. The borrower’s lawyers should confirm with the borrower that these factual CPs will be met immediately before drawdown. Such conditions are often linked to the...
LMAA Terms 2021 The London Maritime Arbitrators Association ( LMAA) Terms 2021 (the Terms) govern arbitrations begun on or after 1 May 2021 where the parties have agreed to their use by agreement between them. They supersede the LMAA Terms 2017, which apply to arbitrations commenced between 1 May 2017 and 30 April 2021. The Terms impose an express duty on both the parties and the tribunal to 'actively consider ways to make the arbitral process as cost-effective and efficient as possible' ( Second Schedule, paragraph 13). Among other things, this entails the parties following the procedures in the Second and Fourth Schedules, unless a different course can be justified on efficiency grounds in the particular case. The overall cost of an LMAA arbitration may vary considerably, reflecting the nature of the dispute and the conduct of both the parties and the...
Real estate finance ( REF) transactions Real estate finance arrangements fall into two categories: investment finance and development finance. The dividing line is whether the property is bought as an investment (that is, already producing income) or acquired for development. Although encountered less frequently, development finance is generally more complex than investment finance. For a broad primer on development facilities within real estate finance, see the following Practice Notes: Introduction to real estate finance—the lending structure Real estate finance—development facilities—key features The Loan Market Association ( LMA) has issued a recommended facility agreement for use in real estate finance development transactions, together with a user guide, both available to LMA members—see the Single Currency Term Facility Agreement for Real Estate Finance Single Property Development Transactions (the LMA REF Development Facility Agreement) and the accompanying user guide on the LMA website. As real estate finance...
This Practice Note sets out the concept of liquidated and ascertained damages ( LADs/ LDs) and their role within building contracts. It explains how these provisions function and why they are used. Distinguishes liquidated from general (unliquidated) damages; Reviews enforceability and common challenges, including penalty arguments; Addresses setting the LADs figure, caps, and the dangers of stating “nil” or “ N/ A”; Refers to case summaries in a related case law Practice Note. What are liquidated damages? Where parties to a construction contract agree LADs, they pre-determine a fixed sum payable if a specified breach occurs. These provisions are also known as liquidated and ascertained damages, with the acronyms “ LDs” and “ LADs” used interchangeably. When liability for LADs arises, the amount is usually payable by the contractor to the employer, or the employer may deduct it from sums...
This Practice Note explores the limitation period(s) that apply to professional negligence claims. It examines the date of accrual in both contract and tort, and summarises the courts’ approach to issues that commonly arise in such claims. For related limitation guidance, see: Limitation—overview and Practice Notes: Limitation Act 1980—general application Limitation—contract claims Limitation—tort claims For general guidance on professional negligence claims, see also: Professional negligence claims—overview. Professionals owe duties to their clients in both contract and tort Where a professional undertakes responsibility to perform services for another who will rely on them, a duty in tort to exercise reasonable skill and care may arise, even though those services are provided under a contract between the same parties ( Henderson v Merrett, contrasted with Tai Hing v Liu Chong Hing)......
Limitation Limitation frequently arises in noise-induced hearing loss ( NIHL) cases. Typical claimants were exposed to workplace noise far more than three years before approaching a solicitor about a claim. Consequently, they are often beyond the primary three-year personal injury period and must rely on the alternative date of knowledge in section 11(4)(b) of the Limitation Act 1980 ( LA 1980). Under LA 1980, section 14, the date of knowledge is the date the person first knew: that the injury was significant; that the injury was caused, in whole or in part, by the act or omission alleged to constitute negligence, nuisance or breach of duty; and the defendant’s identity. Whether those acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant......
Limitation Act 1980 and Latent Damage Act 1986 The Limitation Act 1980 ( LA 1980), as amended by the Latent Damage Act 1986 ( LDA 1986), sets the time limits for starting different categories of legal action. If proceedings are issued after the relevant period has run, a defendant can contend that the claimant’s remedy is time-barred. For the construction sector, the most pertinent deadlines concern contractual and tortious (negligence) claims, though the LA 1980 also fixes periods for personal injury, defective products and defamation. There are, moreover, particular limitation rules for claims under specific statutes, including the Defective Premises Act 1972, the Building Act 1984 and the Building Safety Act 2022. Limitation is often critical for disputes about defective work, as the cause of action may arise long before any issue is visible. For example, faulty foundations installed by a...
Coronavirus ( COVID-19) : The COVID-19 Clinical Negligence Protocol (2020), last updated in June 2021, was introduced to modify how clinical negligence claims and litigation were handled during the coronavirus ( COVID-19) period. It covered: Limitation and time extensions Communication Service Medical examinations Exchange of evidence Interim payments Settlement meetings and mediations BACS payments Costs budgeting Hearings (including adjournments) With effect from 27 August 2024, this Protocol was replaced by the Clinical Negligence Claims Agreement 2024, which develops the earlier approach, with many practices now forming part of day-to-day claims management. The new Agreement is not contractually binding, but places emphasis on collaborative working between the parties. Limitation period: Section 11 of the Limitation Act 1980 ( LA 1980) provides a three-year limitation in personal injury and clinical negligence cases from the date the cause of action...
This Practice Note outlines how light obstruction notices ( LONs) operate, clarifies the ‘19 years and 1 day’ principle and its bearing on applications for temporary or definitive certificates, sets out the impact registration of a LON has on rights of light, explains the process for lodging such a notice, and states the circumstances in which it can be cancelled, covering application, registration, effect and cancellation scenarios. Light obstruction notice procedure A building owner may acquire a prescriptive right to light at law over adjoining land where light has been enjoyed for 20 years without an interruption of a year or more. Under the Rights of Light Act 1959, the owner of the neighbouring land can formally prevent such rights arising by applying to the local authority or HM Land Registry ( HMLR) to register a notice treated as an obstruction to light, known as a...
Differences between leases and licences to occupy Leases In Scots law, a lease is a contract permitting a tenant to occupy a landlord’s heritable property for a set period, in exchange for rent, typically paid on a periodical basis and usually in money (though payment in goods is possible, albeit uncommon). The four cardinal elements of a lease are generally accepted as: defined subjects a rent an agreed duration identification of the separate parties For further information, see: Cardinal elements: Stair Memorial Encyclopaedia [4]. If the other cardinal elements are present but the length is not, the court may imply a duration of one year. Licences to Occupy A licence to occupy (licence) is a contract falling short of a lease, granting a right to use property, or part of it, rather than any possessory right in the property itself being ceded; see: Licence: Stair...
Mandatory prepayment events Facility agreements very frequently oblige borrowers to repay, in whole or in part, the facility when specified particular triggers arise, commonly referred to as mandatory prepayment events. For an overview of the typical mandatory prepayment events, see Practice Note: Repayment, prepayment and cancellation. Historically, leveraged facilities agreements have set out a broader catalogue of mandatory prepayment events in comparison with an investment grade loan agreement......
Legal professional privilege ( LPP) is a crucial factor when assessing whether to file a suspicious activity report ( SAR) with the National Crime Agency ( NCA) under the Proceeds of Crime Act 2002 ( POCA 2002) and the Terrorism Act 2000 ( TA 2000). Key questions include: Would submitting a SAR to the NCA breach your obligation to preserve client confidentiality? Would it infringe the client’s right to LPP? Does the privileged circumstances defence arise? This is an exceptionally complex area of law. This Practice Note addresses privilege only as it relates to the AML and CTF regime. Broader privilege matters are excluded. For general guidance on LPP, see the subtopic: Legal professional privilege. Duty of confidentiality Law firms owe a stringent professional and legal obligation to keep clients’ affairs confidential. Safeguarding a client’s confidential information is a core aspect of your duty to the...
What are leavers? People who depart are generally described as ‘leavers’. Under the terms of the relevant share award, the departure reason will typically determine whether someone is a ‘good leaver’ or a ‘bad leaver’, with different consequences arising accordingly. Usually regarded as ‘good leavers’ are those leaving due to: redundancy retirement death disability ill health or injury a transfer of employment protected by Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006), SI 2006/246 the participant leaving because the employer company has ceased to be an associated company of the scheme organiser Conversely, individuals dismissed for any other reason, specifically for poor performance, or those who leave to join a competitor, are treated as ‘bad leavers’. These are not technical terms, but are widely used in share scheme provisions to set out the treatment of leavers and to...
Possession ' Possession' and 'occupation' are not synonymous terms. A covenant in a lease that bars parting with possession is not breached where, in law, the tenant retains possession, even if another is permitted to use and occupy the premises. Possession encompasses the entitlement to collect rents and income from the property. A tenant only parts with possession if the person admitted to occupation holds the power to exclude everyone else, the tenant included, from the premises. Hence, in Reiner v Triplark, the tenant parted with possession by assigning the lease, notwithstanding that the assignment was unregistered at HM Land Registry and legal title remained with the tenant; the assignee had assumed control of the premises and could exclude all others. Where there is a prohibition on sharing possession, the term ‘possession’ is construed with the same strictness and does not extend to, and...
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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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