The title of my next book is, ‘Ethics in Mediation Advocacy.’ This will be written as both an academic coursebook for Law Students, and as a handbook for Mediation Advocates – globally.

If you did not see this here is a link – https://lnkd.in/esbnfTEQ
¡Feliz Año Nuevo! to all readers of my posts in Spain.

Mediation meeting: Greatest Criminal Minds in the World Inc v Catwoman.

9am:            Opening plenary session.

Venue:         The Commissioner Gordon and Police Chief Miles O’Hara conference suite (located in the basement of a law firm somewhere in Gotham City!)…

The Joker (representing ‘Greatest Criminal Minds in the World Inc’) and the Penguin are seated on one side of the table, and Catwoman (a formerly purrfect employee) and her representative – the Riddler, are seated on the other. They are face to face, eye ball to eye ball, and nobody has touched the chocolate chip cookies.

It’s an unfair dismissal claim.

Catwoman’s complaint is that she was unfairly dismissed because she had whacked the Penguin on his beak with her Il Marchesato designer umbrella, when he turned up for work (yes you guessed it) dressed as a penguin, and waddled toward her making a loud quacking noise and flapping his arms, which she took to be an insult.

The company (‘Greatest Criminal Minds in the World Inc’) allege that it was dress down Friday in Gotham City and that Catwoman had behaved inappropriately.

They are meeting in an attempt to resolve the dispute through ‘Barrister-Assisted Co-Mediation’.

Batman, who is an accredited Mediator, but neither a lawyer, nor an expert on dress codes in the workplace of a criminal organisation, has been jointly appointed by the parties to mediate the dispute.

The parties have also jointly appointed Robin (otherwise known as the ‘Boy Wonder’), a very smart Barrister who specialises in this area of the law, to help Batman, i.e. as an expert/specialist Co-Mediator:

1.       understand the facts, technical issues in the case, and underlying legal principles, and

2.       facilitate the negotiation of a settlement (jointly developed by the parties) through a process of road-mapping and creative problem-solving that results in the agreement of a formula for settlement and terms.

I call this process ‘Barrister Assisted Mediation’ (‘BAM!’).

Through the process of Barrister Assisted Mediation (‘BAM’), can the caped crusaders help the parties agree terms of settlement before 5.30pm?

Well folks you will have to wait until the next episode.

Meanwhile, there is a lot of work going on behind the scenes, and the chocolate chip cookies have mysteriously disappeared!

Batman: ‘Come on, Robin, to the Bat Cave! There’s not a moment to lose!’

Boy wonder: ‘The way we get into these scrapes and get out of them, it’s almost as though someone was dreaming up these situations; guiding our destiny.’

Batman: ‘Let’s Go Robin’.

Boy Wonder: ‘Atomic batteries to power, Turbines to speed.’

Batman: ‘Roger. Ready to move out.’

BAM! …

As Commissioner Gordon might have said to Police Chief Miles O’Hara as they gazed upwards at the Batcopter flying overhead (que Batman music) – ‘Doesn’t it give you a warm glow just knowing that they are up there!’

TO BE CONTINUED …

Meanwhile wishing all readers of my posts a Happy and Peaceful New Year!

My next online talk to members of the SCMA worldwide later in the year, is entitled – ‘Mediation Advocacy & Ethics in Claims for the Return of Ancient Art.’

In my available free time this month, I will be reading ‘What’s Fair – Ethics for Negotiators’, which is a publication of the Program on Negotiation at Harvard Law School, edited by Carrie Menkel Meadow and Michael Wheeler. It is the leading textbook for students and practitioners on the subject.

Today I also discovered this article about honesty and integrity in Mediation –
https://lnkd.in/ePnbSEEq

Note also my post – ‘Truth in key pre-action documents is a litigation “cultural” game-changer!’ (23.08.2024) at ‘Carl’s Mediation blog’, in which I wrote:

‘P.89 of the 92 page CJC Review of Pre-Action Protocols Final Report Part 1, August 2023, states that the parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute.

“As the matter progresses, you will be required to give signed confirmation of the truth of certain matters in the dispute. There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings. A statement of truth confirms that a party believes that the facts in a document are true.”

So, if in a key pre-action communication/document which requires a statement of truth, a party knowingly makes a false representation e.g. by alleging a revised factual narrative that is demonstrably false, i.e. because logically, it is self-contradictory, then it would appear to follow that this may result in a criminal investigation and prosecution. If my understanding is correct & if these proposals are implemented, then this will deter unmeritorious claims before significant costs have been incurred, i.e. nuisance value/try-on claims.’

Depending upon how rigorously judges apply these principles, will determine whether the underlying ‘policy’ of the court, i.e. its ‘ethos’, becomes a ‘cultural’ game-changer in litigation.

Meanwhile, I suspect that any lawyer working under a CFA, would not want to go near such an unscrupulous claimant with a barge-pole, as in effect these proposed changes will result in a new and more rigorous standard of pre-action diligence, not only by the parties themselves, but also by their legal advisors – which of course will be an ongoing process throughout the conduct of the litigation.

So, let us see just how strict the judges are, about applying the letter of the CPR in accordance with the underlying ethos, in 2025.

This is the title of an essay written by Professor John Mearsheimer of the University of Chicago, which was published on his Substack on 24.12.2024.

In summary he wrote:

‘On 19 December 2024, Human Rights Watch issued a 179-page report detailing Israel’s genocide in Gaza.

On 5 December 2024, Amnesty International issued a 296-page report detailing Israel’s genocide in Gaza.

On 21 November 2024, the International Criminal Court issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant for crimes against humanity and war crimes.

On 26 January 2024, the International Court of Justice found that a plausible case can be made that Israel is committing genocide in Gaza.

Given the West’s presumed commitment to human rights and especially to preventing genocide, one would have expected countries like the United States, Britain, and Germany, to have stopped the Israeli genocide in its tracks.

Instead, the governments in those three countries, especially the United States, have supported Israel’s unimaginable behaviour in Gaza at every turn. Indeed, those three countries are complicit in this genocide.

Moreover, almost all of the many human rights advocates in those countries, and in the West more generally, have stayed silent while Israel executed its genocide. The mainstream media has made hardly any effort to expose and challenge what Israel is doing to the Palestinians. Indeed some key outlets have staunchly supported Israel’s actions.

One wonders what people in the West who have either supported Israel’s genocide or remained silent tell themselves to justify their behaviour and sleep at night.

History will not treat them kindly.’

I am not a Human Rights lawyer, however in my specialist and niche capacity as an International Cultural Heritage Law academic author and advocate, I have written about – ‘The unspoken connection between the destruction of cultural heritage/’memory’; and: (i) ethnic cleansing; and (ii) genocide’, see my essay ‘ – ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’, at www.artandcivilization.tv.

I will be returning to this subject in the summer of 2025, as I plan to record a video about this ‘unspoken connection’, to be broadcast on www.artandcivilization.tv. in September.

Meanwhile I will be keeping a close eye on what happens to ancient archaeological sites in the Levant, which are threatened with destruction.

In July 2025 I am planning to launch a YouTube Channel – ‘Art and Civilization.’ Meanwhile, today I have created and registered the domain name –’www.artandcivilization.tv‘.

The ‘Art and Civilization’ page at www.carlislam.co.uk (to which this domain name will become attached on Monday – until which time the url will not function), states:

The theme of the channel is international cultural heritage and humanitarian law, including the protection of cultural heritage during war and armed conflict.

Planned programmes:

– What is art?
– Why does art matter?
– Heritage, culture & rights.
– Rights & civilizations.
– Intersections in international cultural heritage law.
– Protection of cultural heritage under international humanitarian law.

Essays:
– Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?
– Mediation Advocacy & Ethics in Claims for the Return of Ancient Art. [To be written in 2025 – see the ‘Claims for the Return of Ancient Art’ page of this website].

Wishing all readers of my posts, wherever you may be, a Joyous Christmastime and a Happy and Peaceful New Year – may all of your dreams come true!

On 18 December 2024, the UK Supreme Court handed down its judgment (Hirachand v Hirachand & Anor [2024] UKSC 43 (18 December 2024). The court unanimously ruled that success fees do not constitute ‘financial need’ under the Inheritance Act. The leading judgment was delivered by Lord Richards. The Supreme Court Press Statement highlighted:

Lord Richards begins by dealing with whether the meaning of “maintenance” in s1(2)(b) of the 1975 Act is wide enough to include a sum to meet a liability for litigation costs. The Appellant argued that “maintenance” is restricted to everyday living expenses and could not therefore include litigation costs. Lord Richards rejects this submission, noting that it is well-established that payments to fund legal costs may constitute “maintenance” in proceedings under the Matrimonial Causes Act 1973 (the “MCA”) and finding that there are no grounds for excluding the payment of legal costs from the meaning of “maintenance” under s1(2)(b) of the 1975 Act [23]-[26].

Lord Richards provides a background to the rules and principles governing the recovery of costs in civil proceedings. The general rule, established by a consistent line of decided cases over a long period, is that the liability of one party to pay some or all of the costs incurred in the proceedings by another party is treated as a separate matter from the substantive relief sought in the proceedings. In other words, litigation costs can only be recovered by way of a separate costs order, not as part of a substantive award. This basic rule will apply unless a claimant can rely on a separate cause of action against the same respondent to recover costs [27]-[41].

This appeal concerns the recoverability of success fees under CFAs. CFAs have been allowed in all proceedings, other than criminal and family, since 30 July 1998 [43] but the approach towards recovery of success fees has varied since then. In 2010, Sir Rupert Jackson published a report identifying CFAs as “the major contributor to disproportionate costs in civil litigation” and recommending that, on public policy grounds, success fees cease to be recoverable. This led to the prohibition on the recovery of success fees by the addition of s58A(6) to the 1990 Act. [45]-[51].

Lord Richards considers the recovery of base costs in proceedings under the 1975 Act. Such proceedings are subject to the costs regime contained in the Civil Procedure Rules (the “CPR”). The recovery of base costs is dealt with under the CPR by way of an order for costs. It would undermine the costs regime and produce an incoherent result if a party could recover base costs as part of the substantive award [55]-[60].

Lord Richards proceeds to discuss the recovery of success fees in proceedings under the 1975 Act. The logical position, which serves to give effect both to the general principle as to the treatment of costs and to the policy underpinning s58A(6) of the 1990 Act, is to say that success fees are not recoverable as part of a substantive award in any civil proceedings, including those under the 1975 Act [61-66].

This position is supported by a consideration of Part 36 of the CPR. Part 36 is designed to encourage parties to make settlement offers and is based on the proposition that the parties’ costs are to be dealt with only through the operation of the costs regime. The provisions of Part 36 are virtually unworkable in accordance with their purpose of achieving settlements if success fees are recoverable as part of the substantive award [67]-[74].

Counsel for the Daughter argued that the prohibition in s58A(6) of the 1990 Act only applies if provision for payment of a success fee is made in “a costs order”, leaving it open for such provision to be made as part of the substantive award [77]-[78]. The Supreme Court finds that this submission fails for several reasons, including the fact that the order made by the judge in this case was a “costs order”, to the extent that it made provision for payment of part of the Daughter’s success fee [80].

In its judgment, the Court of Appeal drew an analogy with awards in financial remedy proceedings under the MCA, where a party can recover its legal costs as part of the substantive award, notwithstanding a general rule in such proceedings that the court will not make an order requiring one party to pay the costs of another party. This general rule is known as the ‘no order principle’ [86].

The Supreme Court does not accept that a valid parallel can be drawn between proceedings under the 1975 Act and financial remedy proceedings under the MCA. The costs regime in civil proceedings governed by the CPR is substantially different from that applicable to financial remedy proceedings.[93]. The analogy is also inapplicable as success fees are prohibited in family proceedings [94].

In oral submissions, counsel for the Daughter also made a submission by reference to Schedule 1 of the Children Act 1989. For the avoidance of doubt, the Supreme Court considers this is also a flawed analogy [95]-[99].

(Please note that references in square brackets are to paragraphs in the judgment).

See also my earlier blogs – Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021), in which  on 15 October 2021, I wrote:

‘The uncertainty this decision has created is not limited to just a future merits based analysis of Inheritance Act claims, and its impact upon the drafting and effect of settlement offers, it also leaves both practitioners and judges adrift about how in principle a contribution is to be calculated, as quantification of the contribution in this case was based upon supposition. Making an educated guess in any case is an unreliable method of quantification, because a belief may subsequently turn out to be based upon a false premise. By contrast with an empirical method, ‘best thinking’ based upon supposition is both subjective and arbitrary. Consequently, it is prone to bias, which could result in an appeal.

Has this decision increased the litigation risks involved in these claims, by adding yet another element of uncertainty into what is already a rather muddled, incoherent and unstable equation?

If this decision results in the making of inconsistent judicial decisions, what damage has it caused to the integrity and rigour of the Jackson Reforms?

Has the court just pushed up the price of doing a deal in mediation, i.e. where mediation is preceded by the making of a Part 36 Offer?

See also my blog on 25 May 2023 – ‘CFA fees in Inheritance Act claims’

The judgment of the Supreme Court therefore provides welcome clarity. The impact on Law firms whose ‘bread and butter’ is CFA work, is likely to be seismic. As a result, perhaps there will be an increase in the early mediation of these disputes.

Resources:

• https://www.supremecourt.uk/cases/press-summary/uksc-2022-0015
• https://www.bailii.org/uk/cases/UKSC/2024/43.html
• https://www.mishcon.com/news/success-fees-in-1975-act-claims-the-supreme-courts-decision-in-hirachand-v-hirachand
• https://www.lawgazette.co.uk/news/supreme-court-provides-clear-guidance-on-costs-recovery-in-inheritance-claims/5121853.article

I am proof-reading the 2nd Ed of my book, the ‘Contentious Probate Handbook’, which is scheduled for publication by the Law Society in mid to late February 2025.

I have updated the manuscript to refer to the principles stated in El Haddad v. Rostamani [2024] EWHC 448 (Ch) at [177] – [182] & set out below a short extract. I will ask my editor to reproduce the entire text of these paras in the book:

Mr Justice Fancourt stated:

[178]          Rule 16.4(1) of the CPR requires a claimant to include in their particulars of claim a concise statement of the facts on which the claimant relies. In this regard, the Chancery Guide states that the particulars of claim must be ‘as concise as possible’ (para 4.2(a)), and that in rare cases, where it is necessary to give lengthy particulars of an allegation, these should be set out in schedules or appendices (para 4.2(k). It also imposes a page limit … The court will expect a party to be able to justify the need for any statement of greater length.’
[179]          The Practice Direction to Part 16 of the CPR provides that
‘8.2   The claimant must specifically set out the following matters in the particulars of claim where they wish to rely on them in support of the claim (1) any allegation of fraud; (2) the fact of any illegality; (3) details of any misrepresentation; ….’
It is well-established in the case law that the requirement to set out an allegation of fraud means that particular facts relied upon as demonstrating the fraud must be pleaded.
[180] The Chancery Guide explains what is required at para 4.8 … [NB the book will set out the text of the revised para 4.9 in full, which refers to the El Haddad principles].
[181] The last sub-paragraph is of particular significance. In a claim where there are no available facts that directly prove dishonesty or fraud, a claimant relies on inferences to be drawn from other facts. These facts must be stated, including those on the basis of which it is to be inferred that a defendant knew that what they or someone else said was false. As para 4.9 of the Guide says, a party must not make allegations of fraud or dishonesty unless there is credible evidence to support the allegation.
[182] The more serious is the allegation of wrongdoing, the greater the need for particulars to be given that explain the basis for it: Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1, per Lord Hope at [51]. The inference of dishonesty from the primary facts pleaded must be more likely than one of innocence or negligence: JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm), approved by the Court of Appeal in Sofer v Swissindependent Trustees SA [2020] EWCA Civ 699; [2020] WTLR 1075, per Arnold LJ at [23].

The prime asset in CP claims is usually the family home & other property.

As I explain in my forthcoming book, the 2nd Edition of the Contentious Probate Handbook (which is on schedule for publication by the Law Society in mid to late February 2025), the following are not CP claims:

– Proprietary estoppel claims (‘PE’); and
– Constructive Trust Claims (‘CT’).

However they are associated with CP, and therefore are bound-up with the administration of justice in these claims.

So, where e.g. a beneficial interest in property (‘BP’) bypasses the estate of the deceased testator (‘T’) on death because T made a lifetime gift of BP to e.g. his daughter (‘B.1.’), then in parallel with a CP claim e.g. by T’s son (‘B.2’) i.e. challenging the formal and/or substantive validity of T’s will, can B.2 apply to the FTT for the setting aside of the lifetime transfer of land to B.1 e.g. on the grounds of: PE/CT/lack of mental capacity (‘LMC’)/undue influence (‘UI’)?

If B.2 can, does & succeeds, then the BP falls back into T’s residuary estate. There may also be a failed PET for IHT – so can that thereby be rendered a nullity?

‘Standing’ – Para 26(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (2013 No. 1169) states:

‘… an application must … unless a practice direction makes different provision, include — … (f) the applicant’s connection with the premises or property … (h) the result the applicant is seeking; (i) the applicant’s reasons for making the application; … (k) the name and address of every person who appears to the applicant to be an interested person, with reasons for that person’s interest …’

As the 1st task for a party asserting a beneficial interest is in the application, to clearly set out the basis upon which the beneficial interest is said to have arisen, then in a PE or CT claim the answer logically is yes.

Is ‘laches’ available as a defence? In principle – Yes.

‘The jurisdiction in relation to LMC & UI claims?’ – There does not appear to be much literature for practitioners about this, i.e. do such claims because of the burden of proof & complex factual matrix end up being referred upwards or side-ways, i.e. to the Upper Tribunal or to the High Court?

The interesting point is that if there is jurisdiction to entertain such applications, that they can be mediated by a FTT Judge/Mediator, in which case:

– no mediator & venue fees are payable;
– the style of mediation is both evaluative & facilitative;
– if settled, the incurrence of significant costs can be avoided;
– administration of the alteration of the register is dealt with efficiently.

I will research & untangle this for practitioners in an article that I will write & offer to Trusts & Trustees in early 2025. I will also discuss Mediation Advocacy skills in this context.

I have just watched an excellent Chancery Bar Association online talk about the work of the FTT Property Chamber. Hopefully for CHBA members, the recording and slides will appear on the CHBA website in due course.

Two of the speakers were Judge Michael Michell and Judge Simon Brilliant, who are the co-authors of ‘A Practical Guide to Land Registration Proceedings’ (which you can order online from Wildy’s bookshop in Lincoln’s Inn).

As judge Simon Brilliant mentioned, in a ‘boundary dispute’, costs can exceed the value of the land involved.

Where there is a significant disparity, a County Court judge might refuse to make a judicial determination. That does not happen in the FTT.

What I did not know was that FTT mediation (which can take place at any stage and possibly even before statements of case have been filed) is free. So, no Mediator fees and no venue fees. The FTT Mediator is a specialised property judge who is also a trained and accredited Mediator. So, you could not do better!

Mediation in the FTT which the judges encourage early, but as far as I am aware cannot mandate (and I did not ask and should have asked that question – so if you know the answer please comment), can even take place on site.

Since FTT Judges exercise the same powers as High Court judges and have a broad jurisdiction, then what is the point of litigating a boundary dispute in the County Court, i.e. before a judge who has no Chancery pedigree or detailed technical grasp of principles of property law?

As many practitioners can attest, the County Court (including the CLCC) is one of the most administratively frustrating courts in which to litigate any case. This in and of itself, can result in the unnecessary incurrence of significant costs, which could have been avoided altogether, had a more efficient method of dispute resolution been used by the parties, i.e. Mediation.

Since some County Court judges have no Chancery pedigree whatsoever,
why incur thousands of pounds in costs litigating a property dispute before a judge who is not a Chancery specialist?

Some CLCC judges do profess a Chancery pedigree. However, from my own experience,  I am not convinced that all of these CLCC Chancery specialist judges do in fact have a thorough grasp of property law, and of conveyancing law and practice. This should not come as a surprise if these judges have never practised conveyancing (as I did before coming to the Bar), i.e. who did not qualify and work as a solicitor (as I did).

I was very impressed by the calibre of the speakers, who are all experts, and by the relative informality of the FTT. I had the sense that an FTT Judge/Mediator can be highly effective, when required, in saving the parties from themselves.

I recommend that you watch the video of the talk if you are a CHBA member.

See also my blog – ‘Mediating a Boundary Dispute’ – Google ‘Carl’s Mediation blog’ and use the search bar at the top to find the blog.