Featured documents
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:
Most recent Practice notes
Powers to adopt The Highways Act 1980 ( Hi A 1980) empowers highway authorities to take on new highways by agreement, imposes a duty on them to look after adopted highways at the public expense, and enables payments to be made to highway authorities for highway works and their upkeep, where the authority is content that such works will benefit the public. Section 38 agreement Adoption under Hi A 1980, s 38 is a well-used mechanism for delivering new highways that are maintainable at the public expense. A developer must build streets to an agreed specification, having obtained the highway authority’s technical approval for the designs. This occurs under a legally binding agreement between the developer and the highway authority made pursuant to Hi A 1980, s 38, referred to as a section 38 agreement. The section 38 agreement sets out the...
This Practice Note examines HM Land Registry’s ( HMLR) plan-related requirements, outlining core standards for plans that will be accepted and highlighting common grounds for refusal. It also addresses plan expectations for particular application types and explains how general and determined boundaries differ on HMLR title plans. HM Land Registry plan requirements Background Under rule 5(a) of the Land Registration Rules 2003, SI 2003/1417 ( LRR 2003), save where an exception applies, the property register for a registered estate must include a description of that estate which, for an estate in land, a rentcharge, or a registered franchise that is an affecting franchise (ie one identifiable as relating to a specific area), must incorporate a reference to a plan derived from the Ordnance Survey map. Any plan lodged with HMLR must be clear enough for the land in question to be located on the Ordnance Survey...
Farm business tenancies Farm business tenancies took effect on 1 September 1995 under the Agricultural Tenancies Act 1995 ( ATA 1995). They mark a clear break from the framework that applies when a tenancy of an agricultural holding is protected under the Agricultural Holdings Act 1986 ( AHA 1986). While AHA 1986 is highly prescriptive about what constitutes a tenancy of an agricultural holding, ATA 1995, in most respects, allows the landlord and the tenant to negotiate freely on almost all matters. Nevertheless, some rules are mandatory and cover: rent ( ATA 1995, Pt II) compensation ( ATA 1995, Pt III) removal of tenant's fixtures ( ATA 1995, s 8) The AHA 1986 and ATA 1995 regimes cannot overlap, so it is essential to identify accurately which form of tenancy applies. In addition, if the tenancy is a farm business tenancy, it cannot be a...
When transferring an interest in land (whether freehold or leasehold) On a transfer of a land interest, and unless the contract states otherwise: fixtures are treated as part of the land and pass with the property; and fittings (also called chattels) are not part of the land and are excluded. It is not always straightforward to decide if a given item is a fixture or a fitting. That uncertainty can trigger disagreements over whether the item is included in the sale. It can also create difficulties when splitting the purchase price between the property and any chattels comprised in the sale for stamp duty land tax ( SDLT)/land transaction tax ( LTT) purposes (see: Tax—fixtures and fittings below). Under a lease, as between landlord and tenant, the drafting may mean an item is classed as a landlord’s fixture, a tenant’s fixture, or a...
What is a grazing agreement? A grazing agreement is where a landowner permits a grazier to use the owner’s land to graze animals that belong to, or are under the care of, the grazier. Such arrangements are often put in place for the summer period ( April to October), but they can run for any length and at any time of year. Depending on the circumstances, the arrangement may amount to a licence or a tenancy. Status of grazing agreements under the Agricultural Holdings Act 1986 The Agricultural Holdings Act 1986 ( AHA 1986) provides security of tenure and other significant rights to anyone who holds a ‘contract of tenancy’ of ‘agricultural land’. ‘ Agricultural land’ covers land used for ‘agriculture’, and ‘agriculture’ expressly includes ‘grazing’ ( AHA 1986, ss 1, 96(1)). A ‘contract of tenancy’ is defined as a ‘letting of land, or...
Need for specific additional enquiry where highway access is crucial Direct connection to the highway can be pivotal to a scheme’s viability. In Gooden v Northamptonshire CC, the local authority ( LA) answered enquiries asserting—incorrectly—that the relevant strip formed part of the highway and was maintainable at public expense. On the strength of that response, the developer purchased the site and secured planning consent for a residential scheme. Four months later, the LA wrote to the developer explaining that part of the land had not been adopted. He brought a claim, arguing he would not have proceeded with the purchase had the reply been accurate. The court rejected the claim, holding that it had to be shown the LA knew, or ought reasonably to have foreseen, the nature of the transaction the developer intended and the purpose for which he might rely on the...
This Practice Note outlines HM Land Registry ( HMLR) requirements for providing evidence of identity with certain applications to guard against property and registration fraud. It explains when identity evidence is required, how it can be supplied, and the practical points that arise from this obligation. HM Land Registry requirements To strengthen protection against property and registration fraud, HMLR requires confirmation of identity to accompany specified registration applications. The applications caught by this requirement are listed in HM Land Registry Practice Guide 67: evidence of identity, and include: Applications to register a transfer, lease or charge The discharge or release of a registered charge Applications for first registration Any application submitted on forms AP1, DS2 and FR1 will almost always require completion of the panels dealing with confirmation of identity. The names of all parties to the transaction(s) being registered must be stated where requested; for an...
Offences involving highway obstructions Several provisions of the Highways Act 1980 ( Hi A 1980) set out particular kinds of highway obstruction or nuisance arising from placing objects on, or the use of, the highway—for instance, skips located on the carriageway and the oversailing of cranes or other projections. Each is linked to a specific offence, which can be avoided where a licence is applied for and granted by the highway authority. See Practice Note: Highways obstructions—building works, scaffolding and skips. In addition, section 22 of the Road Traffic Act 1988 makes it an offence to leave a vehicle or trailer in such a position or condition that it endangers other persons using the highway. The Clean Neighbourhoods and Environment Act 2005 ( CNEA 2005) also introduces ‘nuisance parking offences’ relating to displaying vehicles for sale or carrying out vehicle repairs on a road...
Applicable law for directors' duties Post Brexit, in those Member States to which Regulation ( EU) 2015/848 ( OJ L141 5.6.2015 p 19), the Recast Regulation on Insolvency [ EU Recast Regulation on Insolvency], applies, the long-standing assumption that a company’s registered office reflects its centre of main interests ( COMI) can be displaced in practice, in reality. In such circumstances, the duties of that company’s directors may fall to be determined by the applicable law under the EU Recast Regulation on Insolvency (ie the law of the lex concursus; where main proceedings are opened) rather than the domestic law of the country of the registered office, which they are likely to be more familiar with. Accordingly, it is crucial to recognise the differing duties and standards that operate across Europe (see Practice Note: Table comparing European directors’ duties)......
A fraudulent trading claim can proceed via two distinct statutory avenues: it constitutes a criminal offence under section 993 of the Companies Act 2006 ( CA 2006) a civil remedy is available under sections 213 and 246ZA of the Insolvency Act 1986 ( IA 1986) This Practice Note addresses the latter. What is fraudulent trading? Fraudulent trading is a cause of action under IA 1986, s 213 (liquidation) or IA 1986, s 246ZA (administration), aimed at recouping value for the company's estate where: the company has been placed into winding up or entered administration, and any part of its business was conducted with intent to defraud the company's creditors or the creditors of any other person, or for a fraudulent purpose In such circumstances, mere negligence or incompetence does not suffice. Who can commence a fraudulent trading claim? Historically, only a liquidator could issue a fraudulent trading claim. However, from 1 October 2015 both...
Introduction The Cross- Border Insolvency Regulations 2006 ( CBIR 2006), SI 2006/1030, give effect specifically in England to the UNCITRAL Model Law on Cross- Border Insolvency and also expressly state that foreign main or foreign non-main proceedings can be commenced (see Practice Note: When does UNCITRAL (implemented by the Cross- Border Insolvency Regulations) apply and what are the effects?).......
Summary This Practice Note outlines the position of Financial Support Directions ( FSDs) under the Pensions Act 2004 ( PA 2004), with a particular focus on how FSD liabilities rank in insolvency, as clarified by the Supreme Court in Nortel/ Lehman. The ruling offers key guidance on: the priority of FSD liabilities on an insolvency the correct interpretation of the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, r 14.1 (previously the Insolvency Rules 1986 ( IR 1986), SI 1986/1925, r 13.12(1)(b)), which defines contingent debts provable in an insolvency the character of insolvency expenses the extent, if any, of the court’s residual discretion to order payments outside the statutory distribution regime The decision also addressed the treatment of contribution notices issued under PA 2004, s 47 (section 47 CNs), which serve to enforce...
The nature of disclaimer Disclaimer is a statutory mechanism arising under the Insolvency Act 1986 ( IA 1986) together with the Insolvency ( England and Wales) Rules 2016 ( IR 2016), SI 2016/1024, which regulate it as follows: in liquidation, the relevant provisions are set out in IA 1986, ss 178–182 and in IR 2016, SI 2016/1024, rr 19.1–19.11 in bankruptcy, the relevant provisions are set out in IA 1986, ss 315–321 and in IR 2016, SI 2016/1024, rr 19.1–19.11 What can be disclaimed? Both liquidators and trustees in bankruptcy (trustees) may, by giving the prescribed notice, disclaim any onerous property, and may exercise that power notwithstanding that they have already taken possession of it, endeavoured to sell it, or otherwise exercised rights or incidents of ownership in relation to it. Onerous property is defined as including: any contract that is...
Applicable legislation As amended, the Insolvent Partnerships Order 1994 ( IPO 1994), SI 1994/2421, provides that IR 2016, SI 2016/1024, “as from time to time in force”, applies to insolvent partnerships, subject to whatever modifications are needed by the circumstances to give effect to IA 1986 and the Company Directors Disqualification Act 1986 ( IPO 1994, SI 1994/2421, Art 18 and Sch 10) (see Practice Note: Partnerships and the disqualification regime). Before 8 December 2017 (and taking account of the transitional and savings provisions in the Insolvency ( Miscellaneous Amendments) Regulations 2017), IPO 1994 stated that IR 1986, SI 1986/1925, “as from time to time in force”, applied to insolvent partnerships. That formulation indicates that, save as noted below, the wide-ranging changes to IR 1986 introduced by the Insolvency ( Amendment) Rules 2010 with effect from 6 April 2010, also applied to...
Symptomology The clearest sign of hand-arm vibration syndrome ( HAVS), sometimes called vibration white finger ( VWF), is blanching of the fingers caused by spasms of the blood vessels that serve them, leading to pallor. Such spasms may involve all or part of one, several, or even every finger, which then become cold and numb, with reduced sensation. Episodes may persist for a few minutes or continue for a couple of hours. It is also possible for similar attacks to arise in the feet or the nose. There is no curative treatment, though spontaneous improvement may occur over time. The condition may occur naturally, yet it is frequently associated with over-exposure to vibrating tools. Its aetiology has not always been understood and, crucially for litigation in these cases, the courts have limited liability to periods after which employers ought reasonably to have been aware of the...
Elements of a fatal accident claim There are two strands to a fatal accident claim: Law Reform ( Miscellaneous Provisions) Act 1934 ( LR( MP) A 1934) allows the deceased’s estate to bring claims for: pain and suffering in the period between injury and death (see ‘ Pain, suffering and loss of amenity ( PSLA) pre-death’) any financial loss the deceased incurred from the accident date up to death funeral expenses, where these were paid by the estate Fatal Accidents Act 1976 ( FAA 1976), as amended, enables dependants to claim for: their losses, including: ...
This Practice Note explores liability for collisions arising from animals wandering onto highways. It sets out the core principles of negligence that usually determine such claims and points to scenarios where the Animals Act 1971 ( AA 1971) could be engaged in certain circumstances. The guidance supports practitioners in thoroughly assessing ownership, control arrangements and foreseeability, all of which are central when advising effectively on liability and evidential needs. Issues to consider The majority of matters involving animals entering the highway are generally resolved under negligence. A cause of action might also be advanced in public nuisance, but this seldom adds meaningfully to a negligence claim. This is because, to constitute a public nuisance, the defendant must have performed an act or omission that enables the animals to stray onto the highway in the first place. Some claims have also succeeded under the AA 1971. Anyone...
Gross to net income conversion This Practice Note directs you to tables for converting gross to net income. Hosted within Butterworths Personal Injury Litigation Service, the resources span the following: General tables: Butterworths Personal Injury Litigation Service [321] 2000/01 [322] 2001/02 [323] 2002/03 [324] 2003/04 [325] 2004/05 [326] 2005/06 [327] 2006/07 [328] 2007/08 [329] 2008/09 [330] 2009/10 [331] 2010/11 [332] 2011/12 [333] 2012/13 [334] 2013/14 [335] 2014/15 [336] 2015/16 [337] 2016/17 [338] 2017/18 [339] 2018/19 [340] 2019/20 [340A] 2020/21 [341] 2021/22 [342] 2022/23 [343] 2023/24 [344] 2024/25 [345] 2025/26 [346]–[360]......
NOTE : On 2 December 2024, the Lord Chancellor confirmed that the discount rate would move to positive 0.5%. That positive 0.5% rate applies from 11 January 2025. Under Schedule A1 to the Damages Act 1996, introduced by section 10 of the Civil Liability Act 2018, later reviews must take place within five years of the end of the previous review, so the next review has to start on or before 2 December 2029. Claims for future loss of earnings include a range of features that make them more complex than other categories of future loss. See also the Practice Note: Past loss of earnings. First, even a straightforward loss of earnings claim involves applying extra factors to the multiplier to enhance accuracy. Second, particular complications may arise, for example where: a residual earning capacity remains the claimant had a realistic prospect of...
Contributory negligence Contributory negligence operates as a partial defence that may result in a reduction of damages. Other defences can be relevant too. See Practice Notes: Did the claimant consent to the risk of injury? and Was the claimant involved in an illegal activity? Where a defendant intends to advance contributory negligence, they must allege, plead, and prove that the claimant played a part in their own injury by failing to exercise all reasonable care for their personal safety. Section 1(1) of the Law Reform ( Contributory Negligence) Act 1945 provides, in essence, that if damage arises partly through the claimant’s fault and partly through the fault of another, the claim is not defeated by the claimant’s fault; instead, the damages recoverable are to be reduced to the extent the court considers just and equitable, having regard to the claimant’s share of...
Popular documents
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 ]...
Discover more from LexisNexis
