I am delighted to announce that my new, and seventh book, the ‘Contentious Trusts Handbook’ has been accepted for publication by the Law Society in 2020.
The book currently runs to 146,610 words, and the Preface and List of Contents are set out below.

I would like to thank:
• Toby Graham, Head of Farrer & Co’s contentious trusts and estates group, who is writing the Foreword;
• Pandora Mather-Lees, who is a distinguished Art Historian: https://www.artonsuperyachts.com/;
• Hector Robinson QC, who is a partner in the international offshore law firm Mourant, and is Head of the Cayman Islands Practice Group for International Trust and Private Client Litigation. www.mourant.com; and
• Anthony Trace QC, 4 Pump Court, Temple, England, who won ‘Mediator of the Year’ in the Innovation & Excellence Awards 2019.
for their expert contributions.

Preface
Trust litigation takes place within a sophisticated theoretical and policy framework in which the legal principles governing: (i) the exercise of powers; (ii) the performance of duties; (iii) the rights of beneficiaries; and (iv) the equitable remedies and defences available on a specific set of facts, have been formulated, applied, and developed by courts of equity in England and throughout the common law world, for centuries. Consequently, the building blocks of equity are almost monolithic. The Contentious Trusts Handbook aims to provide a clear practical and comprehensive exposition of the English law principles that apply in commonly encountered trust disputes, and of the practice and procedure governing trust litigation in the English courts. The book also discusses mediation and arbitration in trust disputes, and is accompanied by a suite of precedents.
My aim throughout, has been to write a practical, accessible and authoritative handbook for the busy practitioner, which is a portable reference that covers all aspects of the law and practice governing trust disputes in the English courts. The book contains a comprehensive bibliography of current research sources, and practitioners should note that the new 34th edition of Snell’s Equity has just been published, and the 20th edition of Lewin on Trusts is due to be published in January 2020.

Many of the principles discussed in this book also apply to commercial disputes involving allegations of breach of fiduciary duty/trust. This has recently been illustrated by:
(i) Faichney & Anor v. Aquila Advisory Ltd & Ors [2018] EWHC 565 (Ch), a breach of fiduciary duty/constructive trust claim in which the judge applied the law of illegality and the doctrine of ex turpi causa to breach of fiduciary duty claims following the recent Supreme Court cases of Bilta v Nazir [2016] AC 1 and Patel v Mirza [2017] AC 417;
(ii) Credit Agricole Corporation and Investment Bank v. Papadimitriou (Gibraltar) [2015] UKPC 13, in which the proceeds of an antique collection worth $15 million was misapplied in breach of trust, and the claimant pursued a proprietary claim against the bank which received the money; and
(iii) Stobart Group Ltd v. Tinkler [2019] EWHC 258 (Comm), in which Judge Russen QC found that the former Chief Executive of the infrastructure group Stobart, had acted in breach of his fiduciary duties in: speaking to Stobart’s investors; criticising management; and agitating for the removal of the company’s chairman.
(See also, ‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’, by Carl Islam, Trusts & Trustees, Volume 25, Issue 2, March 2019, pp 237–265).
As Lord Briggs of Westbourne said in the 2018 Denning Society Annual Lecture, ‘Equity in Business’, delivered in the Old Hall at Lincoln’s Inn, ‘There can be no general principle which ring-fences all commercial dealings from equitable intervention. Nor is it right that there is less need for the intervention of equity in business rather than personal or family relationships. Business people can be just as abusive, unconscionable and plain beastly to each other as members of a family.’
Company and commercial disputes (including joint-venture and shareholder disputes) that hinge upon proof of breach of fiduciary duty, are on the increase. The bridge that fuses the traditional technical skill-set of company and commercial lawyers with that of trust lawyers (who in solicitors firms used to live in separate boxes), is however, a relatively recent phenomenon outside of the Chancery Bar. I therefore hope, that this book will also be of value to Solicitors who need to apply first principles when confronted with complex and novel facts that engage the ‘super-highway’ of equitable remedies and principles, when proceedings are issued in any of the lists and courts that constitute the Business and Property Courts of England and Wales. That is how equity evolves. Furthermore, for fiduciary disputes, the Rolls Building in London, is used by litigants as the venue to determine high value disputes, worldwide.
Carl Islam
1 Essex Court
Middle Temple, London
Michaelmas Term 2019

Contents

Foreword
Acknowledgments
Preface
CHAPTER 1 – INTRODUCTION
1.1 Aim
1.2 Introduction
1.3 Classification of trust claims
1.4 Trusteeship
15 Trusts and powers
1.6 Terms of the trust
1.7 Irreducible core of the trust
1.8 Duties
1.9 Decision making
1.10 Breach
1.11 Rights to information
1.12 Equitable jurisdiction
1.13 Remedies
1.14 Liability of trustees
1.15 Standing
1.16 Case preparation
1.17 Letter before claim
1.18 Proof
1.19 Disclosure
1.20 ADR
CHAPTER 2 – SUPERVISORY JURISDICTION OF THE COURT
2.1 Introduction
2.2 Supervisory jurisdiction
2.3 Limits
CHAPTER 3 – POWERS OF TRUSTEES
3.1 Introduction
3.2 Administrative or managerial powers
3.3 Dispositive powers
3.4 Powers of appointment
3.5 Simple general powers
3.6 Special powers
3.7 Duties of donees
3.8 Delegation
3.9 Failure to exercise a power
3.10 Fraud on a power
3.11 Rule in Hastings-Bass
CHAPTER 4 – DUTIES OF TRUSTEES
4.1 Introduction
4.2 Fiduciary duties
4.3 Fiduciary relationships

4.4 Scope and content
4.5 Self-dealing rule
4.6 Fair dealing rule
4.7 Statutory duty of care
4.8 Investment

CHAPTER 5 – BREACH
5.1 Introduction
5.2 Breach of trust
5.3 Breach of fiduciary duty
5.4 Quiet fiduciary thesis
5.5 Wrongful distribution
CHAPTER 6 – THIRD PARTY LIABILITY
6.1 Introduction
6.2 Trustee de son tort
6.3 Unconscionable receipt
6.4 Accessorial liability
6.5 Summary
CHAPTER 7 – CLAIMS
7.1 Introduction
7.2 Personal and proprietary claims for breach
7.3 Construction
7.4 Directions
7.5 Benjamin order
7.6 Removal of a trustee
7.7 Declaration of a beneficial interest in property
7.8 Sham trusts
7.9 Illusory trusts
7.10 Capacity
7.11 Undue influence
CHAPTER 8 – EQUITABLE REMEDIES
8.1 Introduction
8.2 Personal and proprietary remedies
8.3 Election
8.4 Rescission
8.5 Equitable compensation
8.6 Account in common form
8.7 Account of profits
8.8 Tracing
8.9 Injunctions
CHAPTER 9 – DEFENCES
9.1 Introduction
9.2 Limitation
9.3 Laches
9.4 Exemption clauses
9.5 Section 61 TA 1925
9.6 Consent
9.7 Set-off
CHAPTER 10 – LITIGATION
10.1 Introduction
10.2 CPR
10.3 Chancery Division
10.4 County Court
10.5 Transfer
10.6 Claim
10.7 Defence
10.8 Case management
10.9 CPR compliance and sanctions
10.10 Disclosure
10.11 Pre-action disclosure
10.12 Non-party disclosure orders
10.13 Norwich Pharmacal Orders
10.14 Bankers Trust Orders
10.15 Privilege
10.16 Part 18 Requests
10.17 Presumptions
10.18 Inferences
10.19 Trial
10.20 Adducing evidence at trial

CHAPTER 11 – COSTS
11.1 Introduction
11.2 Beddoe Orders
11.3 Non-party costs orders
11.4 Security for costs against a non-party
11.5 Part 36 Offers
11.6 Calderbank Offers

CHAPTER 12 – ADR & SETTLEMENT
12.1 Introduction
12.2 Methodology
12.3 Communication
12.4 Mediation
12.5 Arbitration

APPENDICES
A Precedents
A1 Beddoe Application – Details of Claim
A2 Benjamin Order
A3 Calderbank Offer (Equitable compensation)
A4 Calderbank Offer (Rescission)
A5 Confidential Note for Mediator
A6 Draft CMC Directions Order
A7 Draft Order (Interim application)
A8 Initial Disclosure List
A9 Mediation Position Statement & Offer
A10 Norwich Pharmacal Order
A11 Particulars of Claim (Breach of Fiduciary Duty/Accessory Liability/Powers of Investment/Information)
A12 Particulars of Claim (Breach of trust)
A13 Particulars of Claim (Liability to account)
A14 Particulars of Claim (Tracing)
A15 Part 36 Offer (Equitable compensation)
A16 Part 36 Offer (Rescission)
A17 Request For Further Information (‘RFI’) – Letter
A18 Skeleton Argument
A19 Tomlin Order and Tomlin Schedule
A20 Trusts of Land and Appointment of Trustees Act 1996, section 14 Application

B Notes
B1 Art & Heritage Assets – Duties of Trustees, by Pandora Mather-Lees
B2 Trust Litigation In The Cayman Islands, by Hector Robinson QC
B3 A Mediator’s View by Anthony Trace QC, 4 Pump Court, Temple, England

C Bibliography

When margin is thin, overheads high, product over-priced in a competitive global market, and loss inevitable because of:

(a)  delay in completion/delivery; and

(b)  increased costs of:

      (i)   materials/manufacture;

(ii)  regulatory compliance (because our regime is not aligned with that of our biggest market); and

      (iii) increased tariffs,

the cumulative effect = RSV.

It is a rule of the jungle that you are going to go out of business unless you can preserve and increase SV by relocating to a jurisdiction where you can earn a profit because in that environment the business will not suffer any RSV effect.

RSV ultimately means redundancy (‘R‘).

Redundancy reduces the potential for growth.

That reduces the prospect of future investment.

B may cease to be economically viable as a going concern.

Therefore, unless another B exists or can be created to fill the gap, this means poverty for entire communities whose wealth and standard of living depends upon strategic industries who place SV before politics (and as a fiduciary it is the legal duty of a company director to maximise shareholder value). That is because the existence of a business does not depend upon ‘sovereignty’ and ‘democracy’, it depends upon SV.

Government cannot fill the gap with infrastructure spending. All that does is to increase the structural deficit = a higher burden of interest payments.

There used to be a surplus. Now there is a mountain of debt.

What needs to be done to reduce this debt is to increase productivity.

How can you do that if you cannot sell your product because you are uncompetitive?

This spiral leads to a shrinking economy in which operating costs are higher, interest rates for borrowing will become higher, and to salvage what they can or to plug the hemorrhage, uncompetitive businesses will cease trading.

For those owners whose failing businesses have inadvertently become sitting ducks for take-over (e.g. because they possess a brand name, IPR, and know-how which can be exploited, e.g. by: firing the workforce; keeping on and relocating key talent e.g. designers; selling the land and buildings to developers; and then manufacturing in a more profitable environment) – Britain will not be made great again. It will become a hunting ground for vulture-capitalists and hedge fund managers whose only loyalty is to SV. If you think the predators will be British examine who owns some of the best known brands on the high street and premier league football clubs. Ask yourself who is going to make money out of Brexit: Hedge Fund Managers (and their global clients); Property Developers; or the surviving owners of family owned and run small businesses – which are the backbone of the British economy? Is Brexit about the opportunities that will exist to acquire, break-up, re-structure and sell-on British businesses, or is it all about you?

Donald Tusk confirmed by tweet on Saturday night that.

‘The extension request has just arrived. I will now start consulting EU leaders on how to react’.

There has been no ‘casting back’ by the EU, i.e. by return to sender of the actual document itself.

Therefore, in conformity with diplomatic law and practice, the communication requesting an extension has been both sent and received.

Where a communication is sent between heads of government (i.e. Prime Minister to President) by email and delivered by hand by either the ambassador, or by a member of the sender’s private office, together with an accompanying covering letter, that letter might for example say, ‘I have been asked by my Prime Minister to convey to you the enclosed message. I am of course available to convey any response or to attempt to clarify any points in the message.’

The covering letter sent by Sir Tim Barrow reads,

‘Dear Secretary-General,

As the United Kingdom Permanent Representative to the European Union, I invite your attention to the following matter.

Attached is a letter sent as required by the terms of the European Union (Withdrawal) (No.2) Act 2019.

‘In terms of the next steps for parliamentary process, Her Majesty’s Government will introduce the necessary legislation next week in order to proceed with ratification of the Withdrawal Agreement.

I would be grateful for your acknowledgement of receipt of this letter.

Sir Tim Barrow’

Therefore:

1.  the unsigned letter of request is not a draft;

2.  the unsigned letter of request has been sent; and

3.  the covering letter further notifies that ‘necessary legislation next week [will be introduced] in order to proceed with ratification of the Withdrawal Agreement’ (the ‘WAB’).

The covering letter neither qualifies nor withdraws the request contained in the communication. What is does is to notify the fact that legislation will be introduced in order to proceed with ratification of the WAB. While that may impact upon the calculus of each EU state in deciding whether or not to grant a further extension it does not affect the legal status of the request itself.

The personal letter sent by Boris Johnson to Donald Tusk states,

‘It is, of course, for the European Council to decide when to consider the request and whether to grant it. In view of the unique circumstances, while I regret causing my fellow leaders to devote more of their time and energy to a question I had hoped we had resolved last week, I recognise that you may need to convene a European Council.

If it would be helpful to you, I would of course be happy to attend the start of any A50 Council so that I could answer properly any question on the position of HM Government and progress in the ratification process at that time.

Meanwhile, although I would have preferred a different result today, the Government will press ahead with ratification and introduce the necessary legislation early next week. I remain confident that we will complete that process by 31 October.

Indeed, many of those who voted against the Government today have indicated their support for the new deal and for ratifying it without delay. I know that I can count on your support and that of our fellow leaders to move the deal forward, and I very much hope therefore that on the EU side also, the process can be completed to allow the agreement to enter into force, as the European Council Conclusions mandated.

While it is open to the European Council to accede to the request mandated by Parliament or to offer an alternative extension period, I have made clear since becoming Prime Minister, and made clear to Parliament again today, my view, and the Government’s position, that a further extension would damage the interests of the UK and our EU partners, and the relationship between us.

We must bring this process to a conclusion so that we can move to the next phase and build our new relationship on the foundations of our long history as neighbours and friends in this continent our peoples share. I am passionately committed to that endeavour.

I am copying this letter to Presidents Juncker and Sassoli, and to members of the European Council.’

While the dominant purpose of the letter appears to be tactical, i.e. to influence the decision made by EU leaders about granting an extension, it does not expressly revoke the request contained in the official communication (i.e. the unsigned letter taken together with the covering letter). Since it is a ‘personal’ letter it is arguably nothing more than a statement of intent by Boris Johnson which is not capable of impliedly revoking the official communication.

Therefore, the request has been made, and it is now up to the EU to decide. In other words, the UK Government cannot unilaterally prevent the EU from granting an extension.

A ‘planning obligation’ may be made with a local planning authority (‘LPA’) or offered as a unilateral undertaking by a developer as an incident to the grant of planning permission, Town and County Planning Act 1990, s.106.

Any ‘planning obligation’ must be for a ‘planning purpose’, and can be challenged at a public enquiry. A public inspector can then determine whether or not any restriction or regulation of the development or use of land is ‘Wednesbury unreasonable’, e.g. because it is ‘nebulous’.

Each planning obligation contained in a s.106 agreement must serve a specific purpose related to the site and cannot be used for an ulterior purpose, such as to build more schools in order to accommodate the consequential increase in population arising from the development because that would be unlawful.

Therefore, prior to execution of any s.106 agreement, an adjoining owner of land has the standing to invite the LPA to provide:

·      a copy of the terms of each planning obligation contained in the proposed agreement; and

·       a record of the reasons for each contemplated planning obligation.

In Miller, R (on the application of) v The Prime Minister [2019] UKSC 41 (24 September 2019), Lady Hale and Lord Reed giving the unanimous judgment of the Supreme Court stated at paragraph 61,

‘It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.’

In default of disclosure, it may therefore be argued that each and every planning obligation contained in a s.106 planning agreement executed before adequate reasons have been provided, is prima facie unlawful and void.

Furthermore, unless the LPA confirm that any social landlord will be a signatory (i.e. in order to comply with the Law Of Property (Miscellaneous Provisions) Act 1989, s.2), then any s.106 agreement that contains an obligation to transfer land to a social landlord, e.g. a housing association, is technically invalid, and thus unlawful and void.

I refer to the legal principles decided in the following cases:

·      Good Energy Ltd v Secretary of State [2018] EWHC Civ 2102;

·      Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Ltd [2017] UKSC 66;

·      R (Thakenham Village Action Ltd) v Horsham District Council [2014] JPL 772;

·      R (Derwent Holdings Ltd) v Trafford Borough Council [2011] All ER (D) 216;

·      R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20; and

·      Jelson Ltd v Derby City Council [2000] JPL 2013; and

·      Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (the ‘governing principles’).

Applying the governing principles, unless the LPA also provide a statement (which may be relied upon as evidence at a public enquiry) specifying:

·      why it is not possible to address any unacceptable impact through a planning ‘condition’ instead of an ‘obligation’ (NPPF, paragraph 203);

·      why each obligation is necessary to make the application acceptable in planning terms (see Jelson);

·      how each obligation is directly related to the development (see Derwent Holdings); and

·      how each obligation is ‘fairly’ and ‘reasonably’ related in ‘scale’ and ‘kind’ to the development,

then it is axiomatic that no clear and adequate reasons have been provided to demonstrate fulfilment of each of the four legal tests enumerated above (the ‘legal tests’).

Therefore, because the legal tests have not been satisfied, any s.106 agreement that is signed before clear and adequate ‘reasons’ are provided is null and void. That is because in a vacuum, no planning obligation can constitute a valid reason for granting planning permission.

Hence, if the LPA elect to be silent, then the public inspector, as a matter of public law, may draw adverse and negative inferences from the failure of the LPA to provide clear and adequate reasons. On that basis alone, it is submitted that the inspector may conclude that in breach of statutory duty, planning permission was unlawful. Paragraph 7-115 of De Smith’s Judicial Review, Eighth Edition, (2018) states that ‘[u]sually, the remedy given in a case of breach of duty to give reasons or adequate reasons is an order quashing the unreasoned decision.’ (Flannery v Halifax Estate Agencies Ltd (T/A Colley’s Professional Services) [2000] 1 WLR 377).

Consequently, following the decision of the Supreme Court in Miller, any vendor of agricultural land, such as a registered Charity, who refuses to provide information about the reasons relied upon in support of a s.106 agreement, and any LPA, who acts in concert in withholding any reasons from local tax-payers, is likely to face a test case in the Supreme Court if they challenge either:

(i)     the jurisdiction of a public inspector to make a finding about whether planning permission for a development linked to a s.106 agreement was lawful; or

(ii)    any finding that it was unlawful, which results in judicial review, and an appeal to the Supreme Court.

It is submitted that following Miller there is a clear evidentiary presumption that where a vendor and/or the LPA remain silent, and refuse to disclose ‘reasons’ either ‘adequately’, or ‘at all’, that the decision about planning permission is prima facie void, unless and until the LPA demonstrate otherwise by satisfying the legal tests set out above, which is impossible if a s.106 agreement has been signed before adequate reasons have been stated.

This is likely to result in a boom in judicial review applications if the Government has made an irrational decision about whether or not the underlying economic rationale for a planning obligation, i.e. based upon need is lawful where it is based upon a demonstrable statistical error. For example where a LPA rely upon a projection about population growth that indicates growth when accurate and up to date data demonstrates that growth is falling (which is a matter of expert evidence and opinion).

Therefore any: (i) vendor (including e.g. a UK registered charity), (ii) purchaser/developer, and (iii) LPA, who does not provide ‘reasons’, is likely to face litigation if they are involved in a land transaction that is contingent or dependent upon any planning obligation contained in a s.106 agreement being lawful.

Because trustees are fiduciaries this may also result in civil litigation in the Chancery Division in parallel with proceedings brought in the administrative court, brought by litigants who have the standing to allege breach of fiduciary duty. That will engage disclosure remedies that are not available in the administrative court, including ‘train of enquiry’ applications under PD 51 U Disclosure Model E and imaginative applications for a Norwich Pharmacal order, which the author has been researching since May in connection with his forthcoming book about trust litigation.

The following is a comment I provided to a journalist at Channel 4 News who called to enquire about examples of the Police entering diplomatic and consular premises to save life in the aftermath of an incident which took place at the Bahrain Embassy in London. The incident was unprecedented on UK soil. Unlike the Libyan embassy incident which resulted in the death of PC Yvonne Fletcher, (see, http://newsite.diplomaticlawguide.com/ [articles page]) the Police were able to enter and intervene before murder was committed. Staff in the embassy were apparently and allegedly about to throw a protestor off the roof when the police forced entry into the embassy. The entry was made without the prior consent of the head of the mission.

See: https://www.channel4.com/news/police-break-down-door-of-bahrain-embassy-in-uk-after-roof-protester-threatened

(Link to the story provided 09.08.2019 by ITV News)

Further to your enquiry, Article 22 of the Vienna Conventions states, 

‘1.    The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.     The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3.     The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’ 

An embassy is therefore prima facie immune from entry by the Police under any circumstances, unless the Head of the Mission has granted his consent, or the status of the premises has been removed, see paragraph 8.11 of Satow’s Diplomatic Practice (6th ed) by Sir Ivor Roberts (attached). 

However, under paragraph 2 of Article 22 of the Vienna Convention, the receiving state is under a duty to ‘take all appropriate steps to protect the premises of the mission against any … impairment of its dignity.’ Therefore, in my opinion, if the Police judge that by throwing a protester off the roof (and possibly to his death), the dignity of the Bahrain embassy will be impaired, they may enter in order to prevent that act by removing the protester from the premises (i.e. to save life as violence by embassy staff would otherwise impair the dignity of the premises). The same principle presumptively applies to the death of Jamal Khashoggi in the consulate of Saudi Arabia in Ankarra, i.e. had the authorities been able to prevent the murder of this journalist.

‘But hanging over the future of the art market – as with the rest of the UK – is the cloud of Brexit. Analysts are (still) clamouring to figure out what the impact of the UK leaving the EU will be on the art world. Barrister Carl Islam, among many others, was keen to point out that Brexit will lead to an increased regulatory burden and transaction costs on all sales of art. Pontus Silfverstolpe of search service Barnebys highlighted that leaving the customs union would drastically impact the way that we currently, and freely, sell and move art around the EU – in a wholly negative way.’

Whitaker’s Almanack – Art page by Eddy Frankel

See, www.whitakersalmanack.com/?id=-119362

Mr Frankel concluded,

‘The impact of Brexit is not some faraway thing, either: it is already being felt. A general decline in the global art market in 2016 may have masked the impact of the referendum, but there was nothing of the sort to hide behind this year. While UK art exports dropped 2.2 per cent to £4.8bn in 2017, imports slumped 21 per cent to £1.8bn. A weak pound played a large role in that, but general reluctance in Europe (the UK’s most regular art trading partner) to send art and antiques over the channel accounts for the rest. Either way, the potential future impact of Brexit has again left the UK art market fearful for another year.The big headline to take from all of this is that even if the auction world looks to be doing well, it is so reliant on the top end of the market that its future is shrouded in worrying uncertainty – combine that with the all-encompassing fear of a Brexit future and you have a recipe for serious uneasiness.’

Leading Brexit politicians argue that by freeing the UK art market from the shackles of ARR through post-BREXIT reform, the overall volume of art transactions in the UK will increase swelling the coffers of the treasury to fund public services. In other words, that BREXIT is an opportunity. Based upon the facts and law set out below, I conclude that the opposite will happen. In other words, that the volume of transactions executed in London will go down and not up.

My new book. the ‘Contentious Trusts Handbook’ also contains a practice note contributed by the Art Historian Pandora Mather-Lees about Trustees’ Duties in relation to art assets.

The impact of BREXIT on the UK art market

By Carl Islam

·       Introduction

·       Economic analysis

·       Artist’s Resale Right (‘ARR’)

Introduction

It is an economic fallacy to suppose that by freeing the UK art market from the shackles of ARR through post-BREXIT reform, that the overall volume of art transactions in the UK will increase swelling the coffers of the treasury to fund public services.

Based upon the expert sectoral market analysis and economic evidence referred to below, it is obvious that the opposite is likely to result, because BREXIT will result in an increased regulatory burden and higher EU cross-border transaction costs. In any event transformation cannot occur during a transition period, and politically ARR is unlikely to be high on the political agenda of whichever party or coalition is in power when BREXIT is implemented.

Liberalisation of Britain’s international Trade market in art and antiquities also overlooks the policy rationale underlying the Artist’s Resale Right Regulations 2006 (the ‘Regulations’) (outlined toward the end of the post), which is to give artists an on-going royalty stream from their work – in the same way as authors, musicians and film directors receive royalties from their work – and to enable artists to benefit from the resale of their artworks in the secondary market.

Economic analysis

‘In order for the UK to maintain its status in the global art market it must attract the highest priced art available for sale worldwide by providing the most favourable and most competitive conditions. Fine art (paintings, drawings, prints and sculpture) dominates the art market, accounting for 64% of all sales by value in the UK in 2016. The analysis of fine art sales at auction … demonstrates the significance of high value art sales to the British art market … In the UK, although 89% of the volume of all transactions in the market was accounted for by works priced at less than $50,000, they made up just 10% of the value of all sales. 90% of the overall value of the market was accounted for by individual sales of over $50,000. Works priced at over $1 million represented a 57% share, despite accounting for just under 1% of the number of individual transactions. In the market for works priced below $50,000, the US, UK and China accounted for a 67% share by value and 51% of all individual transactions. However in the market priced over $1 million, their combined share rose to 94% (by value) and 92% (by volume).For individual sales over $1 million, the UK accounted for a 22% share by value and 21% by volume of the world market. Within the EU as a whole, 81% of the number of transactions at this level in 2016 were in the UK and an 87% share by value. For individual works sold for over $10 million, the UK accounted for a 24% share by value and volume in 2016. Only 2% of the total value of auction sales over $10 million took place outside the top three markets, and just 3% of all individual transactions. Within the EU as whole, the UK accounted for 91% by value and 89% of all individual transactions above $10 million. Although HMRC’s official figures suggest that the bulk of the trade both in and out of the UK by value is with countries outside the EU, with just 16% of imports into the UK coming from within the EU, and just under 3% of exports destined to countries within the Single Market, this picture is incomplete. HMRC statistics understate the extent of intra-EU trade, because many EU sales under the VAT margin scheme are not necessarily recorded. Additional research carried out in the auction sector in 2016 showed that while the US was the most important trading partner by value, for some of the major auction houses, consignments from EU member states accounted for up to 25% of their UK sales on average, while up to 20% of their exports were destined to EU buyers. In the dealer sector also, the main dealer associations reported that on average between 10% and 22% of dealers’ purchases for subsequent sale were made in the EU, and EU purchasers accounted for 15% – 20% of all their sales. The art market contributes to the UK economy through taxes and levies paid to the Exchequer on sales, trade, incomes and profits. These amounted to an estimated £1.46 billion in 2016. It is worth noting that the fiscal contribution of the art trade has grown at more than double the rate of underlying sales since 2013: sales in the art market increased in value by 15% between 2013 and 2016, whereas the contribution made through taxation increased by 22%.

Sales in the art market are divided into those related to Fine art, which includes paintings, sculptures and works on paper (including watercolours, prints, drawings and photographs); and Decorative art, which includes furniture and decorations (in glass, wood, stone, ceramic, metal or other material), couture, jewellery, ephemera and textiles. The fine art sector dominates in terms of values and accounted for close to 64% of all sales by value in the UK in 2016. Given the significance of the fine art sector, the analysis in this section looks at the sectors that comprise the fine art market. While both dealer and auction data is used to research trends within the market and estimate total sales, precise analyses of prices and individual sales within sectors of the art market relies primarily on auction data, which provides the only large scale, global and publicly available information on individual transactions. The sectoral analysis that follows is based only on auction results In the UK fine art auction sector, Modern and Post War & Contemporary art accounted for a 75% share of sales by value in 2016, a percentage which reflects the global market as a whole. Considering both dealers and auctions, these two sectors represented just over half of the value of the UK art market in 2016. While Post War & Contemporary art remained the largest sector of the fine art market in the UK (with a share of 45%), after two years of growth from 2013 to 2015, sales declined significantly in 2016 (by 32%) to $976 million. Worldwide, sales in this sector also fell in 2016 by 18%. Sales in this sector in the UK are now 37% lower than their peak in 2008 of $1.6 billion. The UK’s share of global sales in the Post War & Contemporary sector fell 3% in 2016 to 14%, and has declined ten percentage points since its high point in 2008 of 24%. However, the UK is by far the largest Post War and Contemporary market in the EU, accounting for 65% of the value of sales and 24% of all transactions in 2016. Within the Post War & Contemporary art sector, sales of work of living artists at auction accounted for 20% of total sales in UK fine art auctions in 2016 (or 44% of the Post War and Contemporary sector by value). Sales in this sub-sector reached $434 million in 2016, a decline of 41% year-on-year (against a global decline of just 7%). The UK accounted for 19% global share of the value of living artists sales at auction in 2016, down from 30% in 2015. Within the EU, the UK accounted for the largest share of sales, with 72% by value and 30% by volume in 2016. European Old Masters dominate the Old Master sector in the UK, accounting for 94% of the value of Old Master sales in 2016, with only 6% of sales accounted for by non-European artists. The UK was the largest sales centre for European Old Master works at auction in 2016 with a share of 43% (up 4% year-on-year). Sales of European Old Masters increased in the UK by 16% in value in 2016, by far the best performing of the fine art sectors. The UK also has the highest share of sales in Europe in the sector, accounting for 71% of the value of EU sales of European Old Master works and 40% of number of lots sold.’

The British Art Market 2017 – An Economic Survey prepared for The British Art Market Federation by Arts Economics.

What impact will BREXIT have on art transactions in London?

In ‘Brexit: opportunity or threat for the Art industry?’ Macfarlanes LLP conclude: https://www.lexology.com/library/detail.aspx?g=8aec652d-d856-4708-abc1-ec73a6e9882b

‘It is likely that Brexit will make the movement of art between the UK and EU more burdensome and costly, but there are also certain opportunities for the UK art market to benefit from Brexit. However, such changes are unlikely to take effect for some time, particularly as the government has announced its proposal for a transitional / implementation period of “around two years” (which may ultimately be considerably longer than that). If that position can be agreed with the EU, the UK would, during such transitional period, continue to be bound by the existing structure of EU rules and regulations, which would include continued membership of the Customs Union and the Single Market.

This transitional / implementation period would be welcome in providing more much needed time to agree and implement a new trade agreement between the UK and the EU as well as to consider necessary amendments to domestic UK law and the UK’s future relations with other countries. We have in this note considered just a few potential impacts Brexit will have on the art market, but there are many others, including restitution claims for cultural property illegally removed between EU member states and the anti-money laundering regime, which will need to be considered once the position is clearer.’

A key opportunity is that Brexit gives the UK Government the opportunity to revisit the Artist’s Resale Right Regulations 2006, either through reform or abolition. The results of a survey of the PAIAM members on ARR are set out before the Appendix to the PAIAM note ‘What impact might Brexit have on the Artist’s Resale Right?’

The artists’ resale right (ARR) gives creators of original works of art (including paintings, engravings, sculpture and ceramics) a right to receive a royalty each time one of their artworks is sold on the secondary market in the UK by an art market professional (e.g. an auction house, gallery or dealer) for more than €1,000. There is an exception: no ARR is due if the seller acting in the course of business acquired the artwork directly from the artist less than 3 years before the sale and the sale price does not exceed €10,000.

ARR affects two major areas of the UK art market – Modern art and Post War & Contemporary.

While, as stated above, the UK is by the largest Post War and Contemporary market in the EU, accounting for 65% of the value of sales and 24% of all transactions in 2016, the UK’s share of global sales in the Post War & Contemporary sector fell 3% in 2016 to 14. The comparative advantage of abolishing ARR in order to compete with other markets outside the EU therefore needs to be weighed in the balance against the comparative costs and regulatory burden imposed by BREXIT on other art transactions.

Furthermore as the PAIAM Note states, 

‘Despite fears that the introduction of ARR would negatively impact the UK art market and divert sales to non-ARR markets, there has been no evidence to date to support this. In 2006 when ARR came into play in the UK, The European Fine Art Federation (TEFAF) published a report that valued the UK art market at over £8.5 billion.61 Although the global art market felt the impact of the recession – contracting 41% in 2009 from its peak in 2007, by 2010 the global art market was in recovery and rose by 51% to €43 billion.

In 2011, the European Commission’s report on ARR concluded that “no clear patterns can be established to link the loss of the EU’s share in the global market for Modern and Contemporary art with the harmonisation of provisions relating to the application of the resale right in the EU on 1 January 2006.”

Looking at the recent figures in TEFAF’s latest report, the global art market in 2014 has reached its highest ever-recorded level – a total value of €51 billion worldwide and a 7% year-on-year increase from the 2007 pre-recession level.

This growth trend was also evident in the UK which grew 17% in 2014, increased its own market share by 2% and was valued at €11.4 billion (approximately £9 billion and higher than its value in 2006 when ARR was introduced). In context, the ARR royalties distributed by DACS represent just 0.1% of the total market value in 2014. Auction sales are also on the rise. According to the report, public auction sales accounted for 48% of the overall market in 2014 with total sales exceeding the peak in the market in 2007 and have recovered value by 88% since their low point in 2009.

Post War and Contemporary art sales at auctions, which make up 48% of all global fine art sales followed by modern art at 28%, have grown to record levels as well. In 2014 Post War and Contemporary sales saw an all-time high of €5.9 billion globally, which has sharply risen since its post-crash low of €1.42 billion in 2009. 65 These two sectors are predominately responsible for ARR royalties with modern art covering artists born between 1875 and 1910 and Post War and Contemporary for artists born after 1910. In the UK Post War and Contemporary art sales represent €1.1 billion and modern art sales €753 million – both increasing on the previous year’s figures. 66

Compared to ARR royalties DACS collected in 2014, this represents just 0.64% of the Post War and Contemporary and Modern art sales in the UK. The royalties collected and distributed for ARR are only a minor fraction of a strong Contemporary and Modern art market. Furthermore, a survey of art dealers at the London Art Fair revealed that their biggest concerns are business rates and rents; nonetheless, 85% of those surveyed believed that the British Modern and Contemporary art market in 2016 would remain strong or fare better.67

Lastly, visual arts as part of the wider UK creative industries is immensely valuable to the UK economy. For every £1 of Gross Value Added (GVA) by the arts and culture industry, an additional £1.43 of GVA is generated in the wider UK economy.68 Overall, visual arts contribute US $3 billion GVA to the UK economy each year and employs more than 37,000 people.’

Artist’s Resale Right (‘ARR’)

In the UK, the Regulations created an intellectual property right (“resale right”) which was previously unknown to United Kingdom law.

The Regulations implemented Directive 2001/84/EC of the European Parliament and of the Council on the resale right for the benefit of the author of an original work of art (‘the Directive’).

The Directive entered into force on 13 October 2001 and required transposition into national law by 1 January 2006.

The Directive was an internal market measure adopted under Article 95 of the EC Treaty which required Member States to introduce a harmonized right for authors of an original work of art, and their successors in title, to benefit from a share of the proceeds when the artists’ works are resold on the art market.

The Regulations introduce a new right which has not previously existed in the UK, although it has existed in several other EU Member States. The Directive has also been extended to the European Economic Area.’

Article 3 of the Regulations states,

‘3.

(1) The author of a work in which copyright subsists shall, in accordance with these Regulations, have a right (“resale right”) to a royalty on any sale of the work which is a resale subsequent to the first transfer of ownership by the author (“resale royalty”).

(2) Resale right in a work shall continue to subsist so long as copyright subsists in the work.

(3) The royalty shall be an amount based on the sale price which is calculated in accordance with Schedule 1.

(4) The sale price is the price obtained for the sale, net of the tax payable on the sale, and converted into euro at the European Central Bank reference rate prevailing at the contract date.

(5) For the purposes of paragraph (1), “transfer of ownership by the author” includes in particular—

(a)      transmission of the work from the author by testamentary disposition, or in accordance with the rules of intestate succession;

(b)      disposal of the work by the author’s personal representatives for the purposes of the administration of his estate; and

(c)      disposal of the work by an official receiver (or, in Northern Ireland, the Official Receiver for Northern Ireland) or a trustee in bankruptcy, for the purposes of the realisation of the author’s estate.

Regulation 9(1) further provides ‘Subject to regulation 10(2), resale right in respect of a work is transmissible as personal or moveable property by testamentary disposition or in accordance with the rules of intestate succession; and it may be further so transmitted by any person into whose hands it passes.’

Resale right may be transmitted to:

1.     a natural person (and where it is transmitted to more than one person, it shall belong to them as owners in common); or

2.     a qualifying body.

Regulation 11 further provides that nothing in Regulation 9 prevents a resale right from being held, and exercised in respect of a sale, by any person acting as trustee for the person who would otherwise be entitled to exercise the right (“the beneficiary”), or from being transferred to such a trustee, or from the trustee to the beneficiary.

ARR entitles visual artists or their heirs to receive a royalty payment each time their work is sold on the secondary market in the UK through an auction house, gallery or dealer. The royalty is calculated as a percentage of the sale price, on a sliding scale ranging from 0.25 per cent to 4 per cent, subject to exemptions and a cap of €12,500 – see Schedule 1 of the Regulations.

The right lasts for as long as the copyright in the work subsists, which is normally for 70 years after the death of the artist. It may accordingly be inherited by the artist’s successors. Two points arise from the fact that resale right was previously unknown to United Kingdom law. The first is that, where an artist dies before the Regulations come into force, there will at that time have been no resale right to pass to a successor. In regulation 16, the Regulations accordingly make provision for which of the artist’s successors is to be regarded as holding resale right in such circumstances. The second point is that the Article 8(2) of the Directive provides a special derogation which is limited to those Member States which did not previously have resale right in their national law. Such a State may prevent the successors of a deceased artist from exercising their resale right until 1st January 2010. Regulation 17 takes advantage of that derogation.

Resale right is declared by the Directive to be inalienable, and accordingly may neither be assigned nor waived. This principle is implemented in regulations 7 and 8. The limited exceptions provided by regulation 7(3) (transfer between charities) and regulation 11 (transfers of legal title to trustees) are not in reality a derogation from that principle, as the beneficial ownership of resale right is not thereby affected.

The Regulations also impose certain nationality requirements on the enjoyment of resale right (see regulation 10) . Only an EEA national, or a national of a country specified in Schedule 2, may benefit from resale right. This reflects the fact that (leaving aside EEA nationals, who must be treated equally with United Kingdom nationals) resale right is a right enjoyed on the basis of reciprocity. Thus only the nationals of countries which make resale right available to EEA nationals may benefit from the rights given under the Directive. That principle is also applied to charitable bodies, which may benefit from resale right only where they are based in such a country.

Hard copies of the March 2019 edition of Trusts & Trustees (published by Oxford University Press) containing my new article ‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’ are now being sent out to subscribers worldwide.

To read the article please click on the link to the article on the ‘Publications’ page at: https://newsite.carlislam.co.uk/publications

On the same page you will also find a link to my article published in 2018 about equitable compensation.

As a practising Barrister, I am currently acting in several cases involving breach of fiduciary duty, and am developing my practice to include minority shareholder disputes, and civil fraud.

My forthcoming book, the ‘Contentious Trusts Handbook’, which I have been commissioned to write by the Law Society for publication in October, will also include detailed chapters about: (i) breach of duty; (ii) equitable remedies; and (iii) equitable defences.

As a registered Public Access Barrister, I can be instructed directly by members of the public (including executors and trustees) without the involvement of a solicitor.

I exercise rights of audience before every court in England and Wales in relation to all proceedings and principally appear inwill, trust, and inheritance disputes in the Business and Property Courts and Central London County Court. I also appear as an advocate in the Court of Protection (see my article the ‘Advocate and the Expert in the Court of Protection’ co-authored with Dr Hugh Series of Oxford University which is also available on the Publications page of my website).

I formerly practised as a solicitor, and am authorised by the Bar Standards Board to conduct litigation. In an appropriate case, this permits me to carry out day to day case management activities (including the issue of a Claim Form in any court in England and Wales) which are reserved to Solicitors. This enables me to offer a one stop shop litigation and advocacy service to members of the public, from evaluation of the merits, evidence, and remedies, through to trial or settlement of the claim.

To enquire about instructing me please contact my Clerk at 1 Essex Court: 

Tel: 020 7936 3030 or 020 7832 1010.

Tel out of hours: 07721 866 858.

Email: clerks@1ec.co.uk

www.ihtbar.com 

‘Trusts & Trustees is the leading international journal on trust law and practice. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers … The journal is ideal for international trust lawyers working in both private practice and in-house in trust companies; trusts practitioners; and those working in trust companies. It will also be an essential source of reference for academics specializing in trusts; members of the judiciary; members of regulatory bodies; and institutional libraries.’ Oxford University Press.

My article, ‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’ has been published in Trusts & Trustees by Oxford University Press, and a link to the article has been posted on the Publications page at www.ihtbar.com.
My new book about Contentious Trusts (due to be published by the Law Society in October) will also contain an extensive chapter on breach of trust and breach of fiduciary duty claims.
The abstract of the article is as follows:
‘In arriving at the conclusion that a claim for fraudulent calumny can be brought on the grounds of breach of fiduciary duty where a fiduciary has been silent (the ‘Quiet fiduciary thesis’), the author examines:
· the approach of the court to breach of fiduciary duty claims—i.e. the framework of applicable legal principles;
· the hallmarks of a fiduciary—i.e. who is a fiduciary;
· the scope and content of fiduciary duties—i.e. the nature of the duties which define a fiduciary; and
· the equitable remedies available to the claimant which result—i.e. the remedial consequences of breach of fiduciary duty, which include: (i) the availability of the section 21(1) Limitation Act 1980 carve-out; (ii) equitable proprietary remedies, including tracing in equity, which is not defeated by the irretrievable mixing of property, Agip (Africa) Ltd v Jackson [1991] Ch 417; and (iii) the non-application of common law principles of remoteness in claims for equitable compensation based upon breach of fiduciary duty. (the ‘fiduciary principle’).
After applying the Fiduciary Principle to demonstrate the validity of the Quiet Fiduciary Thesis, the author discusses the operation of the fiduciary principle in the wider commercial and contractual context. Because rescission is a self-help remedy at common law, in equity the question that arises is, ‘can a contract be rescinded on the grounds of breach of fiduciary duty, by reason of silence/non-disclosure e.g. by a company director or co-venturer?’ The author concludes that it can. The principles applicable to breach of fiduciary duty claims in the context of a commercial joint-venture were recently examined in: Glenn v Watson & Ors [2018] EWHC 2016 (Ch) (31 July 2018) and Sheikh Al Nehayan v Kent [2018] EWHC 333 (Comm).’
I am currently acting in 3 breach of fiduciary duty cases, one of which is currently in the High Court in Cardiff where I appeared in January.
To enquire about instructing me in relation to a will, trust, or breach of fiduciary duty dispute please contact Ian Hogg at 1 Essex Court on 0207 936 3030.
www.ihtbar.com
‘Trusts & Trustees is the leading international journal on trust law and practice. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers … The journal is ideal for international trust lawyers working in both private practice and in-house in trust companies; trusts practitioners; and those working in trust companies. It will also be an essential source of reference for academics specializing in trusts; members of the judiciary; members of regulatory bodies; and institutional libraries.’ Oxford University Press.

What follows is blue-sky thinking.

How do you honour the referendum result whilst avoiding no deal without agreeing to remain in the customs union and single market (i.e. a soft Brexit)?

The answer is simple.

You stop and wind back the clock.

The analogy is to pressing the re-set button on an athlete’s stop watch.

Parliament therefore needs to vote on a motion that results in the revocation of Article 50.

Why does that work?

Answer:

1. it restores the status quo ante to the time before Article 50 was triggered in the aftermath of the referendum result; and
2. Brexit is not prevented because the clock can be switched back on at the touch of a button, e.g. following a second referendum in 10 years’ time.

Consequently:

1. there is no need for a second referendum now;
2. there is no need for a general election;
3. there is no need for a deal;
4. there is no need for a backstop;
5. there is no need for a bespoke Norway/Canada plus style arrangement;
6. the UK retains access to the EU market and through its membership to the FTA’s negotiated by the EU with other states (as can those Commonwealth countries who rely upon access through the UK’s membership);
7. the UK would not need to regularise its WTO scheduled commitments, and can benefit from the EU’s recently updated and revised schedules;
8. the UK and the EU would not need to negotiate a distribution of the EU’s TRQ’s, which could be problematic to third countries who find that the redistribution of the EU’s TRQ’s is unfair because it reduces their access to the EU market as a result of the UK’s exit;
9. the UK can pool its: (a) evolving international trade & WTO dispute resolution expert resources and; (b) diplomatic soft-power, with the EU to collaborate in negotiating FTA’s with other states e.g. China; and
10. Scottish independence is avoided.

Why is this a rational political choice?

The answer lies in the premise that when the referendum was held the public were not told that the earliest an FTA is likely to be concluded with a non-EU country is after 2030.

In other words, because the deal = no FTA’s for at least another 10 years, Brexit is already dead for an entire generation.

That is because when you cumulate the transition period (which may have to be extended) with the time necessary to negotiate, approve and ratify an FTA (see the Brexit page at www.diplomaticlawguide.com) that = 10 years.

The practical reality is that Brexit cannot be delivered until after 2030 under the terms of the deal, because ‘with the exception of any state whose executive decisions are made by a dictator, in the real world no state will constrain its options by doing a deal with the UK until it has received comprehensive legal advice about the extent to which the UK remains integrated and aligned with the EU. In other words, countries with whom the EU does not have a FTA like the US, New Zealand and China will simply not want to negotiate an FTA with the UK until they know what Britain’s relationship with the EU actually is. Which bits of the single market, if any, is the UK in? Which parts of EU competition law apply to the UK? Once Britain has left the EU’s customs union, what rules of origin will Brussels apply, so that other countries cannot use the UK as a way of circumventing the EU restrictions on their exports? Does regulatory harmonisation between the EU and the UK make convergence between the UK and their country impractical or a legal impossibility?’ see, Brexit page of Diplomatic Law Guide www.diplomaticlawguide.com under ‘Brexit Agreements’: http://newsite.diplomaticlawguide.com/brexit-2#agreements

If the back-stop kicks in then it will be as long as it takes to find a solution to the Irish border, and the technology and surrounding legal infrastructure for its implementation does not exist and is likely to take more than 5 years to develop, test, and agree.

Since voting demographics will change whilst the clock is switched off and an entire generation of British youth will be left to wander in the economic wilderness until they arrive at the foothills of the promised land in say 10 years’ time if the deal (on the terms agreed ) is approved and ratified, then it is common sense to have a second referendum in 2030, and meanwhile to remain a member of the EU.

During the next 10 years the UK can then re-negotiate its long-term relationship with the EU. If e.g. immigration is resolved and there is no need to leave there is no point in Brexit. If not, then the public can vote again in 10 years’ time.

The government’s lawyers appear to have conceded that Parliament has the power to direct the government to withdraw Article 50, which can be confirmed in a question before the vote.

A state may seek to adjust the way in which treaty will apply to it by means of interpretative declarations or reservations.

‘… Article 21 of the Vienna Convention indicates that a reservation “modifies … the provisions of the treaty” … Since the effect to be brought about by a reservation is expressed in words, and results in a different set of words apt to describe the rights and obligations of those affected by the reservation, thinking of the result in textual terms may not be such a bad approach … [a reservation is] akin to a modifier of what the treaty is, in contrast to the interpretive declaration which affects how the treaty is to be understood. Put in a nutshell, a reservation affects what is to be interpreted; an interpretive declaration seeks to affect how something is to be interpreted, that is what meaning is to be attributed to it.’ Treaty Interpretation, 2nd Ed (2015) by Richard Gardiner (OUP), para 3.3.1.

Can an amendment be proposed which results in a reservation about the backstop that has the effect of deeming Article 50 to be revoked, i.e. by directing the government to notify the EU in e.g. the event that the backstop provisions are not withdrawn from the treaty by the EU within a specified time-period? In which case, the notification would have to be made prior to 29 March, unless Article 50 is extended. Therefore, the EU must confirm its refusal to withdraw the backstop provisions from the treaty within the time available, which could extend beyond 29 March if Article 50 is extended. If not, then the deadline must be before 29 March.

Some food for thought!

It’s beginning to look a lot like Christmas, lawyers in every store, and to celebrate my anniversary of 4 years at 1 Essex Court, here is an early present just for you…

So let your heart be light and have yourself a merry little Christmas now.

Now, listen to what I say …

When planning the cross-examination of a witness, the starting point is to ask yourself what your cross-examination is directed at eliciting and proving, which in this case is the existence of Santa Claus. So, you better be good!

Even though it’s lovely weather for a sleigh ride with the witness, your aim should be to:
(i) destroy the material parts of his evidence – i.e. that NASA have found no evidence of the existence of dwellings at the North Pole sufficient to accommodate a colony of Elves that is large enough to manufacture at least one toy for every child in the world – ‘Of course not as my expert witness (Mr Kris Kringle of 34th Street New York, New York) has clearly stated in his report, ‘they only exist in the dream world’ – really I thought everyone knew that!’;
(ii) weaken the evidence where it cannot be destroyed – i.e. that reindeer cannot fly – ‘The case I shall advance on behalf of my Client is that Reindeer only fly at midnight on Christmas Eve’;
(iii) elicit helpful evidence, i.e. the Christmas albums of Bing Crosby, Frank Sinatra, the great Nat King Cole, Andy Williams, Perry Como, Johnny Mathis; Deano, Rod Stewart, Michael Bublé and Cliff – well why not it’s Christmas …;
(iv) to undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge, ‘I will demonstrate that Frosty the snowman has no peripheral vision whatsoever. I shall also prove that at all material times he was wearing woolen ear muffs.’

The ideal to be aimed at is to lead the witness to admit that his evidence was untruthful or mistaken. ‘How do you know that you saw Mummy kissing Santa Claus underneath the mistletoe?’

Cast doubt.

Bring in Schrodinger’s cat: https://whatis.techtarget.com/definition/Schrodingers-cat

Then distract and use as an opportunity to get the witness to prove another fact, e.g. that reindeer can fly.

‘My next question, as you no doubt correctly anticipated [flatter witness to disarm], is that outside, the snow is falling, and friends are calling, “yoo-hoo!” – Yes?’
Then get the witness to gradually agree.
‘There’s a birthday party at the home of Farmer Gray – Yes?
It’ll be the perfect ending of a perfect day?
We’ll be singing the songs we love to sing without a single stop?
At the fireplace while we watch the chestnuts pop, pop, pop, pop?
There’s a happy feeling nothing in the world can buy?
When they pass around the coffee and the pumpkin pie?
It’ll nearly be like a picture print by Currier and Ives?
These wonderful things are the things we remember all through our lives?
Do you hear those sleigh bells jingling, ring-ting-tingling, too?’
‘Sleigh bells ring – are you listening – Yes?’
‘Please turn to Bundle J, Tab 14 at page 300 Do you see exhibit …
‘It is a picture print by Currier and Ives isn’t it – yes?’
‘What is the reindeer doing?
‘It’s flying isn’t it!’

After the witness has said, ‘yes – I suppose so’ nod vigorously, flick a large wad of pages over in your file (any will do), and declare ‘so you have seen a reindeer fly!’ – then move on quickly to your next question.
In most cases, the objective is not so much to destroy the evidence outright, as to weaken it, i.e. to reduce the weight of the evidence and qualify the inferences which might be drawn from it. This objective is particularly important where the evidence is circumstantial, so that its damaging effect depends not so much on what is actually said as on what may be deduced from it. The witness may be induced to admit that other explanations are possible. Relentlessly probing into the details, as in cases where identification is in issue may show that there is a possibility of a mistake. The eliciting of fresh evidence may lead to a new topic altogether. More often, however, the new evidence simply consists of facts which put a new colour on the evidence in chief. If this is done successfully, the result is not only to help in the building up of one’s case, but also, at the same time, to weaken the other side. Undermining, if successful, destroys the assumptions on which the reliability of the evidence depends. ‘How can you be sure that reindeer don’t like heights? After all, don’t they bear an uncanny resemblance to mountain goats? – only with big red noses and antlers. Is it a coincidence that they both like carrots? What other possible explanation can there be – reindeer are an elevated species of mountain goat. QED, I believe.’
After enjoying the sight of the witness’ jaw dropping to the ground savour the silence as if you had just stepped into the winter wonderland (i.e. Harrods – pronounced ‘arrods’) and taken in a deep breath of refreshingly pure winter air. Smile – but for not more than 5 seconds.

It does not follow that because an individual’s evidence is unreliable in some respects it is must also be unreliable in others.’ i.e. just because Gloria Estefan said that ‘all she wanted for Christmas was me’ [NB what she actually said was ‘you’ but that’s not how I heard it], it is not axiomatic that she did not also want a copy of my latest book on Contentious Probate – which incidentally is very reasonably priced at £79.95 and ordering links appear on the Publications page at www.carlislam.co.uk. Spread the love at Christmas.

Cross-examination requires the greatest ingenuity:
· a habit of logical thought;
· clearness of perception in general;
· infinite patience and self-control;
· power to read men’s minds intuitively, to judge their characters by their faces, to appreciate their motives;
· ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and
· above all, the instinct to discover the weak point in the witness under examination.
By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, whilst his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself, it it is however, only with the matter of our cross-examination, that we can hope to destroy him.

‘Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen – are all professional dancers on ‘Strictly Come Dancing’ [which incidentally was very good this year, and I am voting for Stacey] – yes?
So, you stay in on Saturday nights?
You also stay in on Sunday nights to watch the results show – don’t you!
And yet here you stand today telling us that your field of expertise is ‘jingle bells’.
Not very likely is it?
In fact, you have never been conveyed in a one-horse open sleigh, have you?
Ever!’

There are three principal techniques for undermining credibility. An advocate may suggest that a witness is:
(i) being dishonest;
(ii) inaccurate or inconsistent; or
(iii) biased.

Alternatively, the advocate may seek to suggest some combination of (i) to (iii).
In cross-examination an advocate may either:
(i) confront the witness with evidence that is inconsistent with their account;
(ii) insinuate another version of events; or
(iii) probe the witness’s evidence for flaws.
‘Your childhood hero was Ebenezer Scrooge – was he not?
you worshiped his work ethic – didn’t you.
So, you espouse thrift as a core value?
Your friends – if you had any, might call you ‘thrifty’ – is that not so?
Scroogle knew about Tiny Tim – didn’t he! [note I have got the fact at which my question is directed down to only 5 words].
Charity does not feature in your vocabulary – does it?
In the hierarchy of moral values – Scrooge comes first doesn’t he?
Neither of you shed a tear for poor Tiny Tim before the midnight chimes ran out through your empty house – which until then had been as quiet as a mouse. [NB not a moose!].
So why should we believe you when you say that you were visited by Muppets at midnight on Christmas Eve?
Your evidence is nothing more than fantasy is it!’

Confrontation, as the name indicates, consists of confronting the witness with a great mass of damaging facts which he cannot deny, and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening. Probing consists of inquiring thoroughly into the details of the story to discover flaws. It may be used either to weaken or destroy, or open up a lead to something new. Insinuation is a many-sided technique. In essence, it is the building-up of a different version of the evidence-in-chief, by bringing out new facts and possibilities, so that, while helping to establish a positive case in one’s own favour, at the same time it weakens the evidence-in-chief by drawing out its sting. Insinuation may take the form of quietly leading the witness on, little by little: alternatively, it may be necessary to drive him. Thus, there are two main forms of the technique, gentle insinuation and firm insinuation. The object of undermining is not to break down the evidence by inquiring into the facts, but to take away the foundations of the evidence by showing that either: (i) the witness does not know what he is talking about; or (ii) if he does know the truth, he cannot be trusted to tell it.

‘Santa Claus is also known by other names isn’t he?
[Santa anoraks please visit: https://www.wordhippo.com/what-is/the-meaning-of/swahili-word-106819fed9cd37eab541002dcf4e23899c833f98.html]
In Swahili Santa Claus means Santa Claus!
That is right isn’t it!
The evidence is therefore overwhelming, and without doubt points to only one conclusion – namely that there is a Santa Claus, because during the holidays he parties with the Zulus.
Surely you are not suggesting that the Zulus invented Santa Clause – and if I were you I really wouldn’t go there, because as Michael Caine will tell you (see film on boxing day), it’s not a smart move to upset the Zulus – they are very sensitive about things like that.
So you better watch out
You better not cry
You better not pout
I’m telling you why
Santa Claus is coming to town
He’s making a list,
Checking it twice,
Gonna find out who’s naughty or nice.
He sees you when you’re sleeping
He knows when you’re awake
He knows if you’ve been bad or good
So be good for goodness sake
With little tin horns, little toy drums
Rooty toot toots and rummy tum tums
Santa Claus is coming to town
And curly head dolls that toddle and coo
Elephants, boats, and kiddie cars too
Santa Claus is comin’ to town
Then kids in Girls and Boy land will have a jubilee
They’re gonna build a Toyland town
all around the Christmas tree
So! You better watch out, you better not cry
Better not pout, I’m telling you why
Santa Claus is comin’ to town – Yes?’
Then pause for silence and throw in a splattering of latin phrases, whilst looking meek – as if praying for the salvation of the soul of the witness.
‘En grege relicto
Humiles ad cunas,
Vocati pastores adproperant,
Et nos ovanti,
Gradu festinemus.
Venite, adoremus!’

An expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.
Move in for the kill …

‘I notice that your CV does not mention ‘walking in the winter wonder-land.’
You live in a village, don’t you?
So how do you know that Santa Clause ‘is not coming to town’?
You have never heard sleigh bells in the snow have you?
In fact, you were not even dreaming of a white Christmas when you gave your evidence were you?
Examine your conscience.
Can you tell us truthfully whether you have you been naughty or nice this year?
Finally [the five golden rings question!]
Please turn to Bundle A, Tab 4 at page 108 – do you see what I see? – an exhibit as big as a kite? – a receipt marked ‘all items we supply have been certified as complying with Elf and Safety.’
Listen to what I say …
‘on the fifth day of Christmas DHL, who bring goodness and light, delivered –
Five golden rings!
Four calling birds,
Three French hens,
Two turtle doves,
And a partridge in a pear tree?’
What did DHL bring on the 12th day of Christmas?
You don’t know! … ’

Look astounded and shake head 3 times in disbelief.
Then pull yourself up by lapels on gown, look judge straight in the eye and gently say in re-assuring voice …

‘My Lord, I bring tidings of comfort and joy.
The only question you have to ask yourself is ‘do I believe?’
I submit that there is only one conclusion which can be reached on the facts in this case – and please think of the little children when you deliver your ruling, silver bells, presents on the tree, and bonuses in the City …
and that conclusion is that Santa Clause does exist, and that he exists in the person of my expert witness Kris Kringle!’

Then whilst opposing counsel’s head slumps into his papers as he thumps the table with his right hand, spread the joy! – and don’t hold back – it’s Christmas:
‘So, deck the halls with boughs of holly, strike the harp and join the chorus …
May your days always be merry and bright!
Joyeux Noël et bonne année
Frohe Weihnachten und neues Jahr, Glückliches
Buon Natale e felice anno nuovo
Feliz Navidad, Próspero año y Felicidad’.

Result.

Then do a high five with the court usher – but only in an American court!

Disclaimer

This is a work of pure fiction. Any similarity to actual persons, living or dead, or actual events, is purely coincidental, and that includes Zulus.

May all your future cross-examinations be well-mannered and polite!
Merry Christmas and a Happy New Year to one and all wherever you may be.