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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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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...
What is an agreement on liabilities? Parties to a deal may choose to set out, expressly, how known or potential remediation expenses under Pt IIA of the Environmental Protection Act 1990 ( EPA 1990) will be shared, for example on a land transfer. An agreement on liabilities exists where: two or more persons are “appropriate persons” who bear all or part of the cost of a remediation measure they agree, or have previously agreed, the basis on which that burden is to be apportioned a copy of the agreement is supplied to the enforcing authority, and none of the parties notifies the enforcing authority that it contests the agreement’s application An “appropriate person” is the: person(s) who caused, or knowingly permitted, the contaminating substances to be in, on or under the relevant land ( Class A), or owner or occupier of the contaminated land, but only where a Class A person cannot be...
What is a remediation notice? A remediation notice is a formal written direction requiring an ‘appropriate person’ to undertake the remediation of contaminated land under Pt IIA of the Environmental Protection Act, 1990 ( EPA 1990). For further detail, see Practice Note: Contaminated land—meaning of remediation. An ‘appropriate person’ is: the individual(s) who caused or knowingly permitted the contaminating substances to be in, on or under the land concerned ( Class A), or the owner or occupier of the contaminated land, but only where a Class A person cannot be identified ( Class B) For more information, see Practice Note: Contaminated land—identifying Class A and B appropriate persons. According to the Environment Agency’s ( EA) Dealing with contaminated land in England, only 19 remediation notices had been issued under Part IIA in England (one of which related to a special site). This contrasted with 446...
This Practice Note sets out which agreements are excluded from the Financial Conduct Authority’s ( FCA’s) consumer credit regime and also outlines exemptions for consumer hire agreements. Legislative background to the exemptions On 1 April 2014, the FCA took over responsibility for consumer credit regulation from the Office of Fair Trading ( OFT), which ceased to exist. The handover created a hybrid regime, requiring firms to comply with the Consumer Credit Act 1974 ( CCA 1974) and the Financial Services and Markets Act 2000 ( FSMA 2000), alongside statutory instruments made under each and the relevant sourcebooks in the FCA Handbook, in particular the Consumer Credit sourcebook ( CONC). For further details on the FCA consumer credit regime, see Practice Note: Consumer credit—essentials. What is a regulated credit agreement? Under the Financial Services and Markets Act ( Regulated Activities) Order 2001, SI 2001/544 ( RAO), for...
Employers are legally obliged to consult with members, or their representatives, for a minimum of 60 days before introducing a “listed change” to occupational or personal pension schemes. What amounts to a “listed change” is defined in the Occupational and Personal Pension Schemes ( Consultation by Employers and Miscellaneous Amendment) Regulations 2006, SI 2006/349 (the Pension Consultation Regs). For wider considerations that may arise when amending an occupational pension scheme, see Practice Note: Amendment of occupational pension schemes—employer and trustee considerations. Statutory framework for the pension consultation requirements The consultation duty took effect on 6 April 2006. Its operative provisions are contained in: sections 259–261 of the Pensions Act 2004 ( Pe A 2004), and Pension Consultation Regs, SI 2006/349 In April 2010, the DWP published guidance to assist employers in complying with the consultation duty. The guidance recommends good practice but has no legal...
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...
Claims for construction are widespread in practice, with numerous reported decisions over time. In essence, these applications ask the court to ascertain the testator’s intention as expressed and evident in the Will itself as drafted. Put simply, the court decides what the chosen wording in the instrument actually means and signifies. While any person with an interest in the Will may issue a claim, it is usually the executors who do so, prompted by doubt about the efficacy of a clause or by another perceived ambiguity in the document. The court of construction The label refers to any court that, within its jurisdiction, can determine questions about the meaning and effect of testamentary matters. The Chancery Division holds that jurisdiction, and so does the county court in the uncommon instance that the estate is worth under £30,000. A court may authorise personal...
Introductory guide to construction law This starter guide to construction law is intended for trainee solicitors and anyone new to construction as a practice area. It concentrates on the core principles that govern construction law and projects, and signposts numerous links to Lexis+® UK Construction material offering fuller coverage of the subjects discussed. New starters will also find the Overviews within each topic on Lexis Construction+® UK useful. If a point sits outside this brief guide, head back to the Construction+® UK homepage to explore more content, or use Lexis Ask to put a question to the team. For those handling disputes, see also Practice Note: Construction disputes—new starter guide. Topics covered What do construction lawyers do? Parties to a construction project Project structure (procurement) Pricing Timeline of a construction project Is there any specific...
Delay analysis Delay analysis is a specialist technique used by programming/planning experts to pinpoint delay and its cause(s) in relation to a project’s works completion date. In turn, this enables responsibility under the contract, and liability for the delay, to be determined. Software tools are routinely employed within delay analysis. This Practice Note outlines the principal delay analysis methodologies in common use, together with the key terms that accompany them. It adopts the framework set out in the second edition of the Society of Construction Law Delay and Disruption Protocol ( SCL Protocol), guidance section 11. For further details on the SCL Protocol, see Practice Note: Delay and disruption in construction projects— The Society of Construction Law Delay and Disruption Protocol. Owing to their highly technical character, none of the delay analysis methods lends itself to a simple or brief...
On construction schemes, it is routine for the contractor, principal sub‑contractors and consultants (together called warrantors in this Practice Note) to issue collateral warranties to a range of parties, including funders and purchasers (termed beneficiaries in this Practice Note). See Practice Note: What are collateral warranties? Collateral warranties establish a direct contractual relationship between the beneficiary and the warrantor. Without that link, a beneficiary would have no basis to pursue the warrantor if it fails to properly discharge duties under the building contract, sub‑contract or professional appointment, as applicable. Typically, a collateral warranty includes an undertaking mirroring obligations in the underlying agreement, and also addresses issues such as copyright licences, assignment, professional indemnity insurance, and, in some instances, a clause granting step‑in rights. This Practice Note sets out what step‑in rights involve, identifies which parties in a construction project are commonly given such rights, and...
The second edition of the Pre- Action Protocol for Construction and Engineering Disputes (the Protocol) also introduces a formal mechanism allowing the parties to appoint a ‘protocol referee’ to direct how the Protocol should be conducted or to resolve allegations of non-compliance with it. The Protocol Referee Procedure ( PRP) was devised and issued jointly by the Technology and Construction Solicitors’ Association ( Te CSA) and the Technology and Construction Bar Association ( TECBAR). A copy of the PRP is available here: The referee’s decision is binding upon the parties for the Protocol process—see The decision of the referee below. Until a decision is issued by the referee, however, the PRP does not affect the Protocol process; the time limits continue to run in accordance with the Protocol ( PRP para 1.6). How does a party start the...
This Practice Note describes the nature of a Referral Notice (often called a ‘ Referral’) and outlines the material it ought to include. It further offers pragmatic guidance on preparing a robust Referral Notice, and examines the timing for service together with the ramifications of missing the service deadline. For a Precedent Referral Notice, refer to: Referral Notice for an adjudication. It explains what the document should contain and how best to present it in practice to achieve effective drafting. What is the Referral Notice? After a Notice of Adjudication is issued and an adjudicator has been appointed, the dispute must be formally put before the adjudicator. The Referral Notice is the written referral of the dispute to the adjudicator, intended to present the referring party’s case with clarity and brevity. In effect, it combines the party’s pleadings, evidence, and submissions in a single...
Offence of conspiracy to defraud This is a common law offence expressly retained by section 5(2) of the Criminal Law Act 1977 ( CLA 1977) and remains triable only on indictment. The essence is an agreement, between at least two persons, to act dishonestly so as to defraud a victim. It is notably broad and captures behaviour that, standing alone, might not be criminal at all, yet, because two or more agree to pursue it with the necessary intent, it is treated as an offence in law. Accordingly, the common law form extends beyond statutory conspiracy in practice, since it does not insist that the agreement concerns carrying out a specific substantive criminal offence. The statutory conspiracy provision appears in CLA 1977, s 1. That statutory offence demands a pact which will of necessity amount to, or entail, the commission of an...
This Practice Note considers when a person is ‘connected’ with a company under section 249 of the Insolvency Act 1986 The concept of being ‘connected’ is central to antecedent transaction claims that an office-holder may pursue to reclaim any transfers of a company’s property made before a formal insolvency process, for the benefit of creditors. The purpose is to ensure ‘connected’ individuals do not gain from such dispositions. By way of clarification: For transactions at an undervalue, the office-holder usually carries the burden of proving the company was unable to pay its debts at the time of, or because of, the transaction; however, if the deal was with a connected person, a rebuttable presumption arises that the company was unable to pay its debts at the relevant time, unless the contrary is demonstrated. Where a company has granted a preference to a person connected with it (other than by...
Connected companies relationships Within the loan relationships regime in Part 5 of the Corporation Tax Act 2009 ( CTA 2009), tailored provisions govern loans between ‘connected companies’. In that Part, they are termed ‘connected companies relationships’, being the label used for connections......
This Practice Note offers overarching guidance on conflicts of interest obligations contained in Chapter 10 of the Senior Management Arrangements, Systems and Controls sourcebook within the Financial Conduct Authority ( FCA) Handbook ( SYSC 10), in summary, and additionally addresses measures that will supersede Commission Delegated Assimilated Regulation ( EU) 2017/565 (the UK Mi FID II Organisational Regulation) upon its repeal on 23 October 2025. Which firms do the conflicts of interest rules apply to? The following provisions in SYSC 10 are applicable to so-called common platform firms (banks, building societies, designated investment firms and MIFIDPRU investment firms) and are listed below: SYSC 10.1.-4R SYSC 10.1.-3R SYSC 10.1.1R SYSC 10.1.2G SYSC 10.1.3R SYSC 10.1.4R SYSC 10.1.5G SYSC 10.1.6R SYSC 10.1.6AAR SYSC 10.1.7R SYSC 10.1.8R SYSC 10.1.9G SYSC 10.1.10R SYSC...
A borrower will typically ask any potential lender to sign a confidentiality letter. This letter, settled between the borrower and the proposed lender, is usually managed by the parties’ in-house legal teams. It is most often drafted by the borrower’s internal lawyers and then sent to the lender’s in-house lawyers for their review. On occasion, external lawyers will both prepare and assess these confidentiality letters... Parties The parties to the confidentiality letter will be: the prospective lender; and the prospective borrower Drafting the confidentiality letter Finding a suitable precedent Precedent Comments Confidentiality agreement—one-way—pro-recipient This confidentiality agreement is suitable where one party supplies information to a recipient in connection with a proposed transaction and is framed from the recipient’s standpoint. It can be adapted for lending arrangements where: the prospective borrower is the party disclosing the information (the Discloser) the prospective lender is the...
Fulfilling conditions precedent in an acquisition finance transaction broadly mirrors other lending arrangements. However, compared with an investment grade transaction, acquisition finance frequently involves a markedly larger set of conditions precedent, reflecting its higher risk profile and greater complexity. This note summarises, in the context of acquisition finance: the purpose of conditions precedent key types of conditions precedent satisfying conditions precedent For further detail on conditions precedent in acquisition finance, see: Conditions precedent (‘ CPs’): Tom Speechley: Acquisition finance. For general guidance on satisfying conditions precedent on a lending transaction, see Practice Note: Conditions precedent. Purpose of conditions precedent Conditions precedent are included in the facilities agreement(s) for the lenders’ protection. Lenders decide whether to provide financing based on a range of legal and commercial assumptions and qualifications. Some of these are expressly recorded in the credit papers they prepare as part of the...
Contracts are frequently prepared on the footing that one or more specified conditions must be met before completion takes place, or before the relevant agreement becomes effective (a condition precedent). Typical conditions include: securing planning permission obtaining a third party’s consent (for instance, the superior landlord’s consent) undertaking works a viability or site assembly requirement It is essential that the condition is drafted with clarity and precision, and that the contract sets out how, when, and by whom it must be satisfied. In addition, the contract should make clear whether a party has the ability to waive the condition, and should also include termination rights if the condition has not been fulfilled by a specified date. Certainty Where a condition is so vague or indeterminate that the parties’ intention cannot be identified with reasonable certainty, the condition is void for uncertainty: see Lee- Parker v Izzet (where the contract...
What is a CFA? A conditional fee agreement ( CFA) is an arrangement with a professional providing advocacy or litigation services under which their fees and expenses, in whole or in part, are payable only when certain specified conditions arise. CFAs commonly include provision for a success fee. In short, a CFA is taken to provide for a success fee where, in defined circumstances, the amount of the applicable fees is increased above the figure that would have been due if payment were not restricted to those circumstances. For a fuller discussion of success fees, see the section ‘ Success fees’ below and the Practice Note: Conditional fee agreements—success fees. Note that particular provisions, including those relating to success fees, apply when a CFA is used in personal injury, clinical negligence and mesothelioma claims, and these are not covered in this Practice Note. For those...
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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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