Recognition of a foreign law asserting state ownership of antiquities

Posted on September 18, 2021 by Carl Islam

The principle of due respect for the sovereign right of every State to declare cultural property located in its territory as part of its natural patrimony, has gradually been recognised as a principle of public international law.

Under English law a person in possession of a chattel can bring an action in conversion against the person who wrongfully deprived him of that possession.

Under English principles of conflict of laws, the question of whether a foreign State is the owner of antiquities will be determined by the law of the lex situs of the antiquities when the immediate right to possession arose.

English courts, have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state.

The lack of jurisdiction is not that of the courts of the forum but of the foreign state, which has no international jurisdiction to enforce its law outside its own territory, and the basis of the rule is that the courts of the forum will not exercise their own jurisdiction in aid of an attempt by the foreign state to act in excess of its own jurisdiction.

The fact that a provision is found within a foreign law which contains criminal sanctions, such as penalties and forfeiture, does not however mean that the provision itself is penal in nature.

The starting point in a claim asserting rights of ownership is the almost universal rule that title to moveables depends on the lex situs, and accordingly: the validity of the transfer of the tangible moveable and its effect on the proprietary rights of the parties thereto and of those claiming under them in respect thereof, are governed by the law of the country where the moveable is at the time of the transfer (lex situs) . A transfer of a tangible moveable which is valid and effective by the law of the country where the movable is at the time of the transfer is valid and effective in England.

Where a foreign State has acquired title under its law of property within its jurisdiction in cases not involving compulsory acquisition of title, there is no reason in principle why the English court should not recognise its title in accordance with the general principle.

Consequently, when a State owns property in the same way as a private citizen there is no impediment to recovery.

However, where the foreign State has sought to confiscate or attach private property, the Sate’s title will only be recognised in England if it reduced the property into its possession.

‘The distinction between the two categories of cases, those where the foreign State will be able to claim its property in England even if it has not reduced it into its possession, and those where it may not claim unless it has reduced the property into its possession, depends on the way in which it has acquired ownership.

If it has acquired title under public law by confiscation or compulsory process from the former owner then it will not be able to claim the property in England from the former owner or his successors in title unless it had possession. If it has taken the property into its possession and its claim will be treated as depending on recognition: if it has not had possession it will be seeking to exercise its sovereign authority …

[However, where a State] does not assert a claim based on its compulsory acquisition from private owners [and]asserts a claim based upon title to antiquities which form part of its national heritage, title conferred by [its own State] legislation … This is a patrimonial claim, not a claim to enforce a public law or to assert sovereign rights. We do not consider that this is within the category of case where recognition of title or the right to possess under the foreign law depends on the state having taken possession.’

Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2007] EWCA Civ 1374, paragraphs 148 and 149 of the leading judgment of Lord Phillips CJ.

‘[In] Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd [2007] EWCA … [the Court of Appeal held] first that a claimant could bring a cause of action in conversion based only on an immediate right to possession, without having a proprietary right as well. In determining the nature of Iran’s interest in the antiquities, the appellate court utilised a more functional or substantive approach and articulated the standard as:

“not the label which foreign law gives to the legal relationship, but its substance … The issue with which we are concerned is whether the rights enjoyed by Iran in relation to the antiquities equate to those that give standing to sue in conversion under English law.”

Thus, rather than looking exclusively to the literal terms of the Iranian law, the court considered the fundamental nature of property ownership, which consists of a bundle of individual rights, such as the right to transfer inter vivos or at death, to possess, to exclude, and to lease. It is whether an individual or entity possesses these rights that determines the nature of the interest in the property. The court concluded that Iran’s 1979 Legal Bill confers on the state both ownership and an immediate right to possession of newly discovered antiquities. … Because a foreign state does not have jurisdiction to enforce its laws outside its own territory, courts of a foreign state will not exercise its jurisdiction “in aid of an attempt by the foreign state to act in excess of its jurisdiction.” While acknowledging that English courts would not enforce the penal laws of another state, the court concluded that the vesting of state ownership in the 1979 Legal Bill was not penalbecause it was not retroactive and it did not deprive an owner of an existing interest in the artefacts. The Iranian law only determined the ownership of previously unowned antiquities. Recognising the need to distinguish ownership from export controls, and referring to several earlier cases that touched on national ownership of cultural objects, the court held that “when a state owns property in the same way as a private citizen there is no impediment to recovery.”

Whether Iran needed to have taken actual possession of the artefacts while they were in Iran in order to recover them in England depended on how it acquired ownership. If it acquired title by confiscation or compulsory process, then it could not recover the property unless it first had physical possession. However, Iran did not first have to have possession because Iran’s title was conferred by legislation, which the court called a “patrimonial” claim”. In reaching this conclusion, the court cited the outcomes both in Schulz and in R v Tokeley-Parry. Both parties accepted that a patrimonial claim is simply a claim for property and could be asserted by both individuals and states. The court further held that even if Iran’s ownership law were a public law, British courts are not barred from enforcing a public law unless it is against public policy to do so. In judging public policy, the court stated:

“in our judgement, there are positive reasons of policy why a claim by a state to recover antiquities which form part of its national heritage and which otherwise complies with the requirements of private international law should not be shut out by the general principle invoked by Barakat. Conversely, in our judgement it is certainly contrary to public policy for such claims to be shut out … There is international recognition that states should assist one another to prevent the unlawful removal of cultural objects including antiquities.

The court then cited international instruments to which the United Kingdom is a party, including the 1970 UNESCO Convention, the European Union’s Council Directive 93/7 on the return of cultural objects unlawfully removed from the territory of a member state, and the Commonwealth scheme for the protection of the material cultural heritage. While acknowledging that none of these legal instruments was directly applicable to this case, the court interpreted them as indicating ”international acceptance of the desirability of protection of the national heritage” and the need for mutual assistance among nations to protect that heritage. The court further recognized that if actual possession were required before a State could recover looted antiquities, as a practical matter such antiquities could never be recovered since such artefacts, by being looted directly from archaeological sites, are previously unknown and not part of a specific collection. The court thus concluded that it is British public policy to recognize the ownership claim of a foreign state to antiquities that are part of its cultural heritage.’ [The Oxford Handbook of International Cultural Heritage Law (2020) edited by Francesco Francioni and Ana Filipa Vrdoljak pages 212 to 214].

As a practising Barrister and Certified Mediator, I am developing Art and Cultural Heritage Litigation (including proceedings in the Intellectual Property Enterprise Court) and Mediation, as a niche practice area. My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com) entitled, ‘Art & Heritage Assets – Duties of Trustees’, andI am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law.

A leading global publisher of academic and professional books has expressed an interest in principle in commissioning me to write a book about art and cultural heritage litigation and ADR (including mediation), and I am developing a detailed chapter structure for submission in March 2022.The book is provisionally entitled,the ‘Handbook of Art & Cultural Heritage Dispute Resolution’.

My aim is to write a practical handbook for legal practitioners, mediators; mediation advocates; and parties (including States).

To view the current chapter structure please visit: Mediation of Art & Cultural Heritage Disputes – Carl Islam

Liability for costs in a Contentious Probate case

Posted on September 16, 2021 by Carl Islam

For a full discussion of costs in Contentious Probate cases, see Chapter 9 of my book the ‘Contentious Probate Handbook – Practice and Precedents’ published in 2016 by the Law Society: Wildy & Sons Ltd — The World’s Legal Bookshop Search Results for isbn: ‘9781784460600’

Recently, in Goodwin v Avison & Ors [2021] EWHC 2356 (Ch) (23 August 2021) HHJ David-White QC (sitting a judge of the High Court) stated the following principles in relation to liability for costs in contentious probate cases:

The starting point is, and has for some considerable time been, that the court has a discretion as to whether costs are payable by one party to another or from the testator’s estate (see CPR r44.2(1); Mitchell and Mitchell-v-Gard and Kingwell (1863) 3 Sw & Tr 275).
That discretion is not unfettered but to be exercised in accordance with principles laid down by the court.
As such Sir J. P. Wilde put it in the High Court of Admiralty in the Mitchell case, after pointing out that absolute rules in this area are not possible: ‘But, where it is not possible, something may yet be done. By acknowledged method and general classification, the suitor may in some measure be enabled to estimate the prospect before him, and foresee the penalties under which he launches into litigation. To this extent it is the duty of the Court, so far as may be, to assist him’.
The principles are, as it has been said in other cases as regards guidelines, guidelines rather than tram lines or strait jackets. Put another way, they are to apply to a wide range of different factual situations and are open-textured in the sense that their application in any case depends upon an evaluative judgment taking into account, in most cases, a number of relevant circumstances some of which may point one way and some another. As Sir J. P. Wilde (the later Lord Penzance) put it in the Mitchell case: ‘It is hardly in the nature of discretion that its exercise should be adjusted by exact rule. No positive regulation could be established that would bear the strain put upon it by the justice or hardship of particular instances.’ Indeed, more recently Jackson LJ has pointed out that the need to consider all the relevant circumstances, now set out expressly in the CPR results in a position where ‘the individual provisions of [what is now, CPR 44.2(4)] tend to pull in different directions.’
The starting principle, now set out in CPR 44.2(2)(a), is that the unsuccessful party will be ordered to pay the costs of the successful party, or, in other words, that costs follow the event. However, the court may make a different order. This applies to the costs of a contentious probate claim, like those of any other claim. However, the notion that the costs of an unsuccessful party will generally be ordered to be paid out of the estate in a probate claim is wrong (Kostic v Chaplin [2007] EWHC 2909 (Ch) at para [4]); Theobald on Wills 10th Edn 2021 para 15-001).
The starting principle, of costs following the event, but also that, as a generality, such starting point may readily be departed from is at least in part to reflect the point that if applied too robustly, ‘the application of the “follow the event principle” can encourage litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points that they take’ (per Lord Woolf MR in AEI Rediffusion Music Limited v Phonographic Performance Ltd [1999] 1 WLR 1507).
In exercising the discretion to make (or not) any order about costs the Court is required to have regard to all relevant circumstances (CPR 44.2(4) and (5)) including: ‘(a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.’
For these purposes, the conduct of the parties includes (CPR 44.2(5)): ‘(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.’
Cases which allege fraud and which are lost or withdrawn will usually result not just in an adverse order for costs but an order for costs on the indemnity basis: ‘[16]….. The general provision in relation to cases in which allegations of fraud are made is that, if they proceed to trial and if the case fails, then in the ordinary course of events the claimants will be ordered to pay costs on an indemnity basis. Of course the court retains a complete discretion in the matter and there may well be factors which indicate that notwithstanding the failure of the claim in fraud indemnity costs are not appropriate, but the general approach of the court is to adopt the course that I have indicated. [17] The underlying rationale of that approach is that the seriousness of allegations of fraud are such that where they fail they should be marked with an order for indemnity costs because, in effect, the defendant has no choice but to come to court to defend his position. [18] In circumstances where, instead of the matter proceeding to trial and failing, the claimant serves a notice of discontinuance, thereby abandoning the case in fraud, it is in my judgment appropriate for the court to approach the question of costs in the same way.’ (per David Richards J in Clutterbuck v HSBC plc [2015] EWHC 3233 (Ch)).
Indeed, where the withdrawal of fraud allegations deprives the defendant of an opportunity to vindicate his reputation, an order for indemnity costs is likely to be the just result: ‘[53] …I consider that the approach in Clutterbuck is sound. Where a claimant makes serious allegations of fraud, conspiracy and dishonesty and then abandons those allegations, thereby depriving the defendant of any opportunity to vindicate his reputation, an order for indemnity costs is likely to be the just result, unless some explanation can be given as to why the claimant has decided that the allegations are bound to fail.’ (per Rose J in PJSC Aeroflot v Leeds [2018] EWHC 1735 (Ch)).
In the case of contentious probate claims regarding the validity of a will, the testator whose will is in issue is not a party and is unable to give evidence. Potential beneficiaries to his estate may have very limited knowledge of the circumstances in which a will is said to have been made. Justice has therefore resulted in the formulation of two principles that can apply in that context and which may lead to a departure from the starting point that costs follow the event. These principles, which can result in a different costs order to one based on costs following the event, are of long pedigree and the considerations of policy and fairness which underlie them remain as valid today as they were before the introduction of the CPR (Kostic v Chaplin [2007] EWHC 2909 (Ch)).
As with other costs principles, these two principles are guidelines not strait jackets (Kostic paragraph [6]).
The underlying policy basis of these relevant costs principles (the ‘probate costs principles’) is the striking of a balance between two principles of ‘high public importance” namely that “parties should not be tempted into a fruitless litigation by the knowledge that their costs will be defrayed by others” on the one hand and that ‘doubtful wills should not pass easily into proof by reason of the cost of opposing them’ (Mitchell at pg. 279).
The application of the first probate costs principle points to, and will result in, an order that costs are awarded to the unsuccessful party out of the estate. The first probate costs principle is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation, a case is made for costs to come out of the estate (Spiers v English [1907] P.122 at 123).
The rationale underlying the first probate costs principle was stated by Sir J. P Wilde in the Mitchell case as follows: ‘The basis of all rule on this subject should rest upon the degree of blame to be imputed to the respective parties; and the question, who shall bear the costs? will be answered with this other question, whose fault was it that they were incurred? If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate. If the party supporting the will has such an interest under it that the costs, if thrown upon the estate, will fall upon him, and he by his improper conduct has induced a litigation which the Court considers reasonable, it is not unjust that the estate should bear the costs of the litigation which his conduct has caused.’
In looking at the ‘cause’ of the litigation, it is not necessary to identify moral fault or culpability, at least so far as conduct of the testator is concerned which has the relevant causal effect.
If it is the testator’s own conduct which has led to the will ‘being surrounded with confusion or uncertainty in law of fact’ it should not matter whether the problem relates to ‘the state in which the testator left his testamentary papers (for example where a will cannot be found, or where there is a question whether a will has been revoked) or whether the problem relates to the capacity of the deceased to make a will’ (Kostic at [9]) or to execution of the will (re Cutcliffe’s Estate [1959] P. 6 at pg.20).
The first probate costs principle is capable of applying to a situation in which undue influence or fraud are alleged but fail. Thus, in the Mitchell case costs were paid out of the estate where a challenge to a will failed but where the person to whom the bulk of the residuary estate had been bequeathed had drawn the will and: ‘been guilty of improper conduct in the transaction, and particularly so, in knowingly omitting from the will legacies which he knew the testatrix had ordered and still desired but which escaped her memory at the time the will was executed. This conduct, and the suspicions which flowed from it, gave the next of kin [who unsuccessfully challenged the will] a fair and reasonable ground for litigation.’
In Re Cutcliffe’s Estate Hodson LJ envisaged that an unsuccessful case of undue influence might fall within the first costs probate principle but on the facts of that case: ‘Unless there is some case of undue influence made out against [the residuary legatee], or some reasonable ground for making out such a case, there is nothing in the Judge’s findings as to her conduct which would make it right to say that this litigation was the fault of the residuary legatee.’
A strong case has to be made out: ‘I should be reluctant to do anything to create the idea that unsuccessful litigants might get their costs out of the estate, without making a very strong case on

[the]

facts. The lure of “costs out of the estate” is responsible for much unnecessary litigation’ (per Scrutton LJ n Re Plant (deceased) [1926] P 139. 32. Indeed: ‘…the trend of more recent authorities has been to encourage a very careful scrutiny of the case in which the first exception is said to apply, and to narrow rather than extend the circumstances in which it will be held to be engaged. There are at least two factors which in my judgment contributed to this change of emphasis. First, less importance is attached today than it was in Victorian times to the independent duty of the court to investigate the circumstances in which a will was executed and to satisfy itself as to its validity. Secondly, the courts are increasingly alert to the dangers of encouraging litigation, and discouraging settlement of doubtful claims at an early stage, if costs are allowed out of the estate to the unsuccessful party’ (Kostic at paragraph [22]).

The first probate costs principle is limited in extent. That limitation was expressed in Re Cutcliffe’s Estate as follows: ‘While it would not be possible to limit the circumstances in which a testator is said to have promoted litigation by leaving his own affairs in confusion, I cannot think it should extend to case where a testator by his words, either written or spoken, has misled other people, and perhaps inspired false hopes in their bosoms that they may benefit after his death. It does not seem to me that the judges who, in the past, have laid down the practice that costs should be allowed out of the estate where the fault of the testator has led to the litigation, had in mind such a situation as that.’
This statement of principle was in relation to the following facts in the case. In that case, on his return from hospital, the testator had called for his solicitor on 19 January 1954. The solicitor had made an attendance note of the meeting. At that stage the testator had fallen out with his step-daughter. He had made a will in favour of the daughter of tenants who lived in an upstairs first-floor flat and who had been looking after him. He told the solicitor that, while he, the testator, had been in hospital, his relations, ‘a lot of blasted scoundrels’, had been pestering him both in hospital and since he had been at home, and that he was determined that they would get nothing from him. He was re-assured when the solicitor explained that the will that he had made left everything to the daughter of the upstairs occupants, Mr and Mrs Veness. He smiled and nodded and asked if he could rely upon it because it was what he wanted and he was worried about what his relatives had been doing. He also expressed concern that they might set aside the will. On January 31 at about 7:30pm the testator saw his stepdaughter and two other ladies known to them both. They brought a typewritten will, revoking his earlier wills and appointed the stepdaughter executrix and sole beneficiary. The new will was signed and attested in the testator’s bedroom. The Judge rejected the evidence of Mrs Veness that while standing outside the bedroom door she had heard a crescendo of the words ‘Sign, sign, sign’. Two hours after the execution of the will, the testator signed in his own handwriting a dated and timed document certifying that he had not signed any document on that date which he wished to be valid and in accordance with his wishes.
The Judge pronounced for the will in favour of the stepdaughter. He found that the case of undue influence was not made out. In particular, the ‘sign, sign, sign’ incident had not occurred and not been heard. He found the testator knew and approved of the terms of the will in favour of the stepdaughter.
It was submitted that ‘because the testator gave a statement to the solicitor on January 19 and left behind him this rather remarkable document of January 31, he was himself responsible for inviting litigation about his estate.’ This was rejected by Hodson LJ in the passage cited in paragraph 33 above. Morris LJ seems to have decided the case on a slightly different point, which I explain further below. Ormerod LJ agreed with both judges.
The approach of Hodson LJ regarding the first probate costs principle was followed by Norris J in Wharton v Bancroft [2012] EWHC 91 (Ch). 38.
The second probate costs principle points to there being no order for costs, but the parties bearing their own costs. The principle was stated in the Spiers v English case as follows: ‘if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them.’
In the second probate costs principle as stated above, it is the ‘reasonably’ that has to be stressed. Thus, Sir James Hannen in the earlier case of Davies v Gregory (1873) LR 3 P&D 28 said ‘Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, they bona fide believe in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs.’
On the face of it, claims which are brought alleging undue influence or fraud, such as would, if made out, involve pronouncement against the will procured in such manner, are capable of falling not only within the first probate costs principle but also the second probate costs principle (see Mitchell).
However, cases of undue influence or fraud ‘differ largely in the degree of probability or suspicion to be demanded for their justification’ (see Mitchell). This is because, in general, fraud and/or undue influence is unlikely. This of course has to be read subject to the light that has been cast on this area by cases such as Re B (Children) [2009] AC 11 esp at [5]-[15] and at [62]-[73] and Bank St Petersburg PJSC & Anor v Arkhangelsky [2020] EWCA Civ 408. Thus, first, the burden of proof in fraud cases remains the civil standard. Secondly, the likelihood of fraud in a particular case will depend upon the relevant surroundings facts and circumstances (see the discussion about the animal outside the lions’ cage in Regent’s Park zoo).
Further, if a failed case of fraud/undue influence is found not to fall within either of the two probate costs principles that I am considering, that does not automatically mean that a failed case challenging knowledge and approval by the testator of the will cannot fall within either of those principles. In Re Cutcliffe’s Estate, Hodson LJ noted that the Judge had considered that the undue influence claim had not been brought on reasonable grounds but on unfounded evidence. The party failing in that claim had to pay the costs of the propounder of the will. However, the Judge had recognised that the case was one where the suspicion of the court was aroused and that knowledge and approval had to be established. Hodson LJ considered that ‘the document of January 31 and the conversation on January 19 are not in themselves evidence of undue influence against the stepdaughter; but, in my judgment, they are relevant in considering whether the testator knew and approved of the contents of his will dated January 31. They would come under the heading of circumstances which are likely to arouse suspicion in ascertaining facts relating to the execution of the will.’
Where suspicion of the court is properly raised such that knowledge and approval of the testator to the will becomes a live issue, but an undue influence/fraud claim fails and is held not to have been reasonably brought it is possible for the court to make separate costs orders regarding the two issues (see e.g. Carapeto v Good [2012] EWHC 640 (Ch)). However, the usual order is likely to be that the person propounding the failed fraud/undue influence case will end up having to pay the costs on both issues. Hodson LJ (with whom Ormerod LJ agreed) put the point as follows in the re Cutcliffes Estate case: ‘It seems to me a strong thing, which I should be slow to listen to, to maintain that people who give evidence which the judge finds to have been wholly false, who have lost their case, and who have had the costs given against them, should be heard to say that an order for costs should be made either wholly or in part in their favour on the ground that the court in exercising its discretion in these cases is in the habit of exercising it along certain lines and in accordance with certain principles. The discretion of the court is always there, and the rules on which that discretion is exercised are there for the assistance of those who have to advise litigants before they embark on litigation, so that they may have some idea of the risks they run as to costs. It must surely be obvious to anyone who has studied the history of litigation in the Probate Division, notwithstanding the exceptions which are to be found in the books, that where pleas of undue influence and pleas of fraud are made, the probability, at any rate, if they are unsuccessfully made, is that the people who make such charges and fail will be condemned in the costs not only of that charge but of the whole action. The evidence in this case was the evidence of the Venesses, and it was directed not only to the question of want of knowledge and approval but also to that of undue influence. A great deal of evidence was directed to both those matters. It was not one of those cases where the defendants merely put the plaintiff to proof that the deceased knew and approved of the contents of the will. They took on themselves the task of proving, if they could, that not only was that onus not discharged but that the will itself was brought into existence by the undue influence of the plaintiff. That they wholly failed to prove. Having failed, and having failed because they were disbelieved, it seems to me inevitable that an order for costs would be made against them. I think that the order was rightly made and that this appeal should he dismissed.’
Morris LJ, with whom Ormerod LJ also agreed, also decided the case on the basis that substantially the case was fought on the undue influence case that had failed and therefore the Judge was not wrong to order the defendants to pay all the costs: ‘The judge said that there was a lot to be said for the proposition that it was the testator who was responsible. But he did not proceed to decide that matter for this reason: It was put to the judge that the case laid been fought substantially on the evidence of the Venesses, and that their evidence went very considerably to the issue of undue influence. That issue failed completely and it failed because the judge rejected their evidence and, indeed, called it unfounded evidence. Therefore, the judge took the view that, substantially, the case was fought on the evidence of those witnesses and on the issue of undue influence, and that the evidence of the Venesses had on many vital matters been positively rejected. I think that the judge, having that in mind and not forgetting the other considerations that had been put to him, came to the conclusion that the right order in the exercise of his discretion was that the costs should be paid by the defendants. I do not feel that I can say that the judge erred in coming to that conclusion.’
I should also note that the test of ‘reasonableness’ in bringing the claim (or opposing a will) is not automatically met where the relevant claim or defence survives the strike out test.
In addition to the two probate costs principles that I have identified, there is a specific provision for costs in probate proceedings in CPR r57.7(5) which provides: ‘57.7(5) (a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and for that purpose, will cross-examine the witnesses who attested the will. (b) If a defendant gives such a notice, the court will no make an order for costs against him unless it considers that there was no reasonable ground for opposing the will’.
In this case the 2nd defendant seeks to rely upon this rule. In Wharton v Bancroft [2012] EWHC 91 (Ch), Norris J suggested that CPR r57.7(5) covers the situation where the defendant does not run a positive case whereas the second costs principle applies in circumstances where the defendant does run a positive case. It may be that both situations boil down to the same question (but with the incidence of the burden of proof being different), that is that where the court finds there was a reasonable ground for opposing the will there will be no costs order against the defendant whereas if the court finds that there was no reasonable ground for opposing the will then the no order as to costs rule/principle will not apply.
Finally I should mention that the normal consequences of withdrawing or discontinuing a claim is that there will be a costs order against the person withdrawing (CPR r.38.6). Because of the special nature of probate proceedings, the court controls the question of whether discontinuance is permitted and on what terms, including what, if any, costs order should follow (see CPR r57.11). Nevertheless, subject to the probate costs principles that I have considered, it seems to me that the starting point will usually be that the party seeking to discontinue should pay the costs. In this case, the defendants did not withdraw their defence and, where made, counterclaim. Nevertheless, in submitting to a consent order in favour of the claimant’s case that the 2017 will is valid and that therefore the 2005 will is not valid, their position was very close to a discontinuance.

The judge was convinced neither that the testator’s conduct had led to the litigation, nor that the defendants had reasonable grounds for challenging the will, and held that the unsuccessful defendants had to pay both their own costs and the claimant’s costs, see: https://www.bailii.org/ew/cases/EWHC/Ch/2021/2356.html

Beddoe Applications

Posted on September 13, 2021 by Carl Islam

The Beddoe jurisdiction arises out of the special rules for costs affecting trustees and personal representatives. For a full discussion of the procedure see my book the ‘Contentious Trusts Handbook’ (published by the Law Society in 2020), at 11.2 [Commentary], and Appendix A.1 [Precedent].

https://www.wildy.com/isbn/9781784461249/contentious-trusts-handbook-law-society-publishing

‘The reviews of the law on liability for ‘dishonest assistance’ and Beddoe orders are models of their kind. The author is to be commended on succeeding in providing a portable reference work covering all aspects of the law and practice governing trust disputes in the English courts.’ Book Review by Ian Mayes QC, Head of Chambers, 1 Essex Court, London EC4Y 9AR

Recently, in Clyne v Conlon, 2021 EWHC 2444 Ch, Master Clark summarised the applicable legal principles as follows:

· CPR 19.7A provides that: ‘(1) A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (‘the beneficiaries’). (2) Any judgment or order given or made in the claim is binding on the beneficiaries unless the court orders otherwise in the same or other proceedings.’

· However, as explained Williams, Mortimer & Sunnucks Executors, Administrators and Probate (21st edn) at para 57-14: ‘If personal representatives, without the sanction of the court, bring legal proceedings against third parties for the benefit of the estate or defend proceedings brought against them as executors they may be held personally liable for the costs if they are unsuccessful and are considered to have acted unreasonably in doing so. They may, conversely, be held personally liable for having failed to pursue a good claim of the estate or for having failed to defend a bad claim against the estate. To protect themselves against this risk the representatives may seek the directions of the court as to whether to take or defend or pursue litigation.’

· A Beddoe application depends on its own facts and is essentially a matter for the discretion of the judge who hears it: Re Evans [1986] 1 WLR 101.

· The modern framework for a Beddoe application is found in CPR 46.3 which provides: ‘(1) This rule applies where – (a) a person is or has been a party to any proceedings in the capacity of trustee or personal representative; and (b) rule 44.5 does not apply. 6 (2) The general rule is that that person is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate. (3) Where that person is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis.’

· This is supplemented by CPR PD 46, para 1.1: ‘A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case including whether the trustee or personal representative (“the trustee”) – (a) obtained directions from the court before bringing or defending the proceedings; (b) acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee’s own; and (c) acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.’

· The fact that a trustee or executor may also be a beneficiary does not render her capacity unrepresentative: see Re Evans, at 106G-H. 33. As stated in Williams at 57-14, if all the beneficiaries are ascertained, competent and capable of deciding whether or not to pursue or defend a claim, and they are agreed as to the course they want the personal representative to take, then the representatives are completely protected, and there is no need or justification for seeking the directions of the court. Where the beneficiaries are not agreed, then the representative is at risk of her claim to be indemnified from the estate being challenged.

· In Re Evans [1986] 1 WLR 101, the main claim was to the entire estate of the deceased intestate, which would otherwise have been distributed among his 6 nieces and nephews. One of the nephews obtained a grant of letters of administration. Another of the deceased’s nephews and his wife brought the claim against the administrator. After serving a defence and counterclaim for possession of part of the estate, the administrator applied for permission to continue to defend the claim and pursue the counterclaim, and an order indemnifying him for all the costs of the proceedings. The Master dismissed the application on the claimants’ undertaking to join the remaining nieces and nephews as defendants to the claim. The Court of Appeal reversed the Judge who had allowed the appeal from the Master.

· The Court of Appeal held that in cases where the beneficiaries were all adult, sui juris and capable of deciding whether or not to resist or pursue a claim, the potential injustice of the indemnity provided by a Beddoe order to a successful claimant or defendant had to be balanced by countervailing considerations of some weight, such as the merits of the case, before it would be right for a claim to be defended or pursued at the cost of the estate. However, the main claim in Re Evans was for the entire estate, so that the order sought would have resulted in the unsuccessful defendant trustees’ costs being met from the assets recovered by the claimants. As Nourse LJ put it, ‘the losers would have started by risking nothing and ended by losing nothing.’

· In Alsop Wilkinson v Neary [1996] 1 WLR 1220, the claimant solicitors had obtained judgment of £1 million against the first defendant, a former partner in the firm, for dishonest misappropriation of client monies. During the time when the misappropriations were taking place, the first defendant made two settlements, the beneficiaries of which were himself, his wife and their issue. The claimants brought a claim against the first defendant and the trustees of the settlements for declarations that they were void as transactions for the purpose of putting assets beyond the reach of creditor (within s.423 of the Insolvency Act 1986). Again, therefore the entire trust estate was in issue in the main claim, so that if an indemnity were granted, the costs of unsuccessfully defending the claim would have been paid from the assets recovered by the claimants.

· The judge (Lightman J) held that in a case where the dispute is between rival claimants to a beneficial interest in the subject matter of the trust, the duty of the trustee is to remain neutral and (in the absence of any court direction to the contrary) offer to submit to the court’s directions, leaving it to the parties to fight their battles.

· However, in Alsop Wilkinson, the rival contenders were parties to the claim, and the trustees’ role could properly be described as mere stakeholders. The position is, in my judgment different where, as here, the claimant choses to sue only the trustee. The beneficiaries cannot defend because they are not parties. If the trustee does not defend the claim, then the claimant may win by default, irrespective of merit.

If the trustee is clearly advised that she has no reasonable prospect of success in defending the claim, then the reasonable course may be not to do so. Otherwise a failure to defend places the trustee at risk of a claim from the beneficiaries. As the editors of Lewin on Trusts (20th edn) state, at para 48-104: ‘The rationale for neutrality on the part of the trustee is not present because there is no rival with whom the claimant might fight his battle. For the trustee to allow the claim to go by default when there is a reasonable prospect of defence, but no effective defendant, would be tantamount to passive support to the claimant against the beneficiaries, not mere neutrality. It is one thing for a trustee to take proper measures for his own protection, but a trustee must not by his acts or omissions set up the right of a third party against the beneficiaries …’

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Wealth creation can defeat an ideology

Posted on September 12, 2021 by Carl Islam

An idea cannot be killed by military action, however its appeal can be weakened by creating a stable and thriving economy that rewards application, in other words entrepreneurship and wealth creation are weapons that can silently defeat an ideology over time by making it irrelevant to people’s needs, expectations, and aspirations. That is why communism was doomed to fail from the start, i.e. because it removed the incentive to work, which runs counter to human nature, as most rational people want to improve not only their own lives, but also to create opportunities for their children. Wealth creation should therefore be part of a coherent and cohesive diplomatic strategy for managing the risk of terrorism fuelled by a culture of crime in a hostile oligarchy or failed state.

See further: Humanitarian Mediation – Diplomatic Law Guide

Art of persuasion in court

Posted on September 10, 2021 by Carl Islam

‘The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.’ Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013 , applied in Rainey v Weller & Ors [2021] – a Will forgery claim (see below).

Therefore, in a contentious probate case and thinking like a judge, to assist the court and as part of elementary case-preparation, counsel should draft a Chronology after reading the papers, i.e. before connecting the dots, in order to arrive at an overall conclusion based upon inferences drawn from the documentary evidence and known or probable facts.

While an advocate cannot win a case using logic alone, assisting the judge to make findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, is the metier of advocacy in contentious probate trials, and an essential technique in drafting a Skeleton Argument, and delivering a compelling final speech at trial.

To see the big picture as early as possible, apply Keith Evans’ original golden rule of case preparation and planning, which is:

‘1. As soon as you have an approximate idea of what a new case is about, sit down and write your ideal final speech. Then read it. See how well the available evidence supports it. At once you will see the gaps, the missing bits. Trying to close those gaps is the preparation of your case.

2. When you think you are getting close sit down and write your opponent’s final speech. This will concentrate your focus more sharply on what you still need to do by way of preparation and on the weak points you will have to reach and deal with before anybody else does.

3. Perfect your final speech – This is the blueprint of your trial. It becomes a record of your progress through the case, a shopping list of all you have to do, a fool proof checklist. The evidence you need and the way you need to present it stares straight at you from this final plan.’

‘[The]purpose of doing the closing speech when you receive the brief isit lights up precisely what you want from each witness. Your closing speech is what you want to be able to say to the [judge]. It is a mixture of comment and reference to the evidence. Once you know what you want to say to the [judge], you will know what evidence you will seek from the witnesses. Once you know what comments you want to be able to make to the [judge] at the end of the trial based on that evidence, it is easy to work out precisely what you want from each witness. So, in preparing the closing speech, you find the natural consequence is that instinctively you prepare your examination of the witnesses… you know what you would like them to say, and can gear your preparation towards thinking about exactly how you will get them to say it… [so that you can] elicit from each witness only what you need for the closing speech… The closing speech is your map. It tells you where you are going, what you have to do, where you have been, and where you have to get to. It tells you everything you will want to do at trial… [From] your closing speech, you identify the comment you want to make. From the comment you want to make, you identify the facts you want to hear. From the facts you want to hear, you identify the questions you want to ask and of whom.’ [‘The Devil’s Advocate’ by Iain Morley QC].

Another useful technique to focus your mind, is as early you can, to draft the order you will seek at the end of the trial.

Recently, in Rainey v Weller & Ors [2021] EWHC 2206 (Ch) (05 August 2021), Deputy Master Linwood stated;

‘[Counsel] cited, as to the burden of proof, Face v Cunningham [2020] EWHC 3119 (Ch) where His Honour Judge Hodge QC sitting as a Judge of the High Court at [46] said: “…where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving that the will was duly executed by the testator and was duly witnessed.” It is therefore for the Defendants to establish, on the balance of probabilities, that the signature of [the deceased Testator] on the [disputed] Will was genuine. In closing submissions I said to [Counsel] and the Defendants that in my approach to the evidence I would very much have in mind the well-known paragraphs 15-22 in Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) where Mr Justice Leggatt as he then was set out the difficulties of recollection based oral evidence, and the importance of documentary evidence.’

In Guestmin Mr Justice Leggat (as he then was) stated;

‘An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

Memory is especially unreliable when it comes to recalling past beliefs.Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’

In Rainey v Weller & Ors [2021], the judge accepted the expert evidence of the Claimant’s handwriting expert, observing that the expert:

‘expresses a more positive view on the scale they both worked to that the signature on the [disputed] Will was not that of [the deceased Testator]. Thirdly, but at the very bottom of my scale of expert witness factors/considerations, is that [‘C’s expert] just edges [‘D’s expert] in his credentials, although I place very little weight upon that. … The totality of [his expert] evidence is unassailable in my judgment.’

In finding that the disputed will was a forgery the Judge made findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, which included:

i) It is highly improbable, indeed verging on the impossible, in the circumstances I have set out above that [the deceased Testator] decided in the very short gap between the 9th February – 5th March to wholly change her will – she knew her own mind;

ii) In particular there was no change of circumstances or intervening event as I have found above;

iii) Likewise it would not make sense that, had she so decided, she would not go back to the solicitors, with whom she was still in contact as they were finalising the LPA, to make any new will;

iv) The [disputed] Will was not mentioned by [D.1] … to anyone. That appears unlikely if it had been made as [D.1] says as his sons … were living with him at all material times;

v) When his mother died [D.1] did not immediately produce the [disputed] Will. In oral evidence he said he could not remember where he had put it, and eventually found it in his loft. That I find unbelievable in circumstances where the natural reaction would be to keep one’s mother’s will close but safe and to produce it immediately upon her death;

vi) [D.1] had in his control the evidence as to from where he obtained the template for the [disputed] Will that he said he used; he never produced it;

vii) Likewise as I observed at the start of trial I was surprised no metadata was obtained from [D.1’s]laptop/PC to show exactly when he prepared it and how or from what, although as I said it was also open to [C’s] solicitors to apply for it had they appreciated that;

viii) [D.1] provided to his expert the Cards which he had access to as he took control of his mother’s house and effects including her papers after her death. [C] said in evidence and I accept that [T] did have various bank cards which she had not signed. One such blank card was produced by [C] on disclosure. I find that [D.1] or someone at his behest forged his mother’s signature on the Cards in an attempt to manipulate the expert evidence;

ix) However he had to provide the Cards for examination by [C’s] expert, as appears from the correspondence I have referred to. He therefore decided to send an empty envelope to Streathers but obtained a Certificate of Posting to show he had provided the Cards to them;

x) However [D.1] had not appreciated that the Post Office on the Certificate of Posting set out their weight of the envelope and any contents, for charging purposes, which according to the evidence of Dr Chatfield, was about twice the weight of what was actually despatched by [D.1], namely the empty envelope;

xi) [D.1] then tried to get around this evidential problem he had created for himself by saying the envelope was not, as Ms Jelea said, white but brown. However this attempt to manipulate the evidence also failed as Dr Chatfield said a brown envelope would actually weigh less, which only fortified his conclusion;

xii) That none of [T’s grandchildren] were told by their grandmother of their future legacies, notwithstanding how close they all say they were to her, and – for [D.5 & d.6] – that she regularly told them they were to inherit her house and possessions;

xiii) That [D.1] in cross examination said his mother did not need to name her grandchildren who were to benefit as he knew who they were to be;

xiv) Likewise his confidence that notwithstanding his mother not naming the three beneficiaries he prepared the [disputed] Will and got [D.3] to go round to witness it before his mother had even seen it;

xv) The fact that when their mother died on 24th November 2018 neither [D.3] nor [D.1] told anyone of the [disputed] Will – in fact it did not surface until [D.1] applied for probate of it in January 2019. I do not accept [D.1’s] explanation that the reason for this was because he was grieving; …

xvii) If Mrs Weller had really made the March Will, it would in view of her conduct of her affairs follow that she would have ensured a copy was in [a] Suitcase [which T had] prepared carefully to resolve her affairs, in all respects, for the future, with the copy of the [earlier] Will and the physical gifts of cash and jewellery;

xviii) Likewise all the urgent efforts and concern to locate and secure the Suitcase would have been clearly pointless to [T] if she really had appointed [D.1] as her executor;

xix) Especially, the evidence of [C’s handwriting expert] that there was moderate to strong evidence that the signature of [T] had been forged.’

Moral Rights of Artists

Posted on September 3, 2021 by Carl Islam

Moral rights are noneconomic rights in creative works, which protect the superior interests of human genius.

Therefore, a work of art must be protected and kept as it emerged from the imagination of its author and later conveyed to posterity.

In the UK moral rights continue for the duration of copyright protection, with the exception of the right of attribution which lasts the life of the author plus 20 years, and can pass to an author’s heirs upon death.

Section 80 of the Copyright, Designs and Patents Act 1988 [the ‘CDPA’] provides:

‘(2) For the purposes of this section—

(a) “treatment” of a work means any addition to, deletion from oralteration to or adaptation of the work, other than—

(i) a translation of a literary or dramatic work, or

(ii) an arrangement or transcription of a musical work involving no more than a change of key or register; and

(b) the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director…

and in the following provisions of this section references to a derogatory treatment of a work shall be construed accordingly.

(4) In the case of an artistic work the right is infringed by a person who—

(a) publishes commercially or exhibits in public a derogatory treatment of the work, or communicates to the public a visual image of a derogatory treatment of the work,

(8) This section has effect subject to sections 81 and 82 (exceptions to and qualifications of right).’

Section 81 CDPA provides:

‘(1) The right conferred by section 80 (right to object to derogatory treatment of work) is subject to the following exceptions.

(2) The right does not apply to a computer program or to any computer-generated work.

(3) The right does not apply in relation to any work made for the purpose of reporting current events.’

It is not clear what amounts to derogatory treatment, but it seems that as well as there being either a distortion or mutilation this must be prejudicial to the honour or reputation of the artist.

In Tidy v. Trustees of the Natural History Museum [1196] 39 IPR 501] HHJ Overend, sitting in the Plymouth County Court stated:

“In my judgement what the plaintiff must establish is that the treatment accorded to his work is either a distortion or a mutilation that prejudices his honour or reputation as an artist. It is not sufficient that the author is himself aggrieved by what has occurred.”

‘Primary infringement of this right in relation to an artistic work can take the form of:

(a) publishing commercially, exhibiting in public or communicating to the public a visual image of a derogatory treatment of the work; or

(b) showing in public a film including a visual image of a derogatory treatment of the work or issuing copies of such a film to the public.

Secondary infringement of the right to object to derogatory treatment of the work takes place when a person deals in an infringing article and has knowledge or belief that the work infringes the right in section 80. Dealing can take the form of:

(a) possessing in the course of the business and infringing article; or

(b) selling or letting for hire, or offering or exposing for sale or hire an infringing article: or

(c) in the course of the business exhibiting in public of distributing and infringing article; or

(d) distributing and infringing article otherwise than in the course of business so as to affect prejudicially the honour or reputation of the artist.’ ‘Moral Rights’ by Ruth-Redmond-Cooper, Director of the Institute of Art and law.

Case law on moral rights in the UK is sparse.

In Confetti Records Ltd v. Warner Music UK Ltd [2003] EWHC 1274, the court applied the two-part test set forth in section 80(2)(b) of the CDPA (above):

(i) adaptation that amounted to distortion, mutilation, modification, or other derogatory action, and

(ii) this would be prejudicial to honour or reputation.

‘Analyzing these factors in light of article 6bis of the Berne Convention, the court concluded that an author can object to distortion, mutilation, or modification of his work only if it is prejudicial to his honour or reputation. The mere fact that the work is distorted is not enough. … The court dismissed the case, in part because it found no evidence of prejudice [to the author’s] honour or reputation, and therefore concluded that there was no derogatory treatment. Some commentators have noted that without a definitive ruling in the High Court after a full trial, or indeed at a higher court at all, the scope of derogatory treatment in the UK remains uncertain. It is clear, however, that there must be prejudice to the author’s honour or reputation and that the test is objective, rather than subjective. Also, taking into account the interpretation of article 6bis of the Berne Convention, “derogatory” would suggest a subjective standard, but still subject to the more objective criterion of prejudice to honour or reputation, and analogous to the personal interests protected by the law of defamation.’ Visual arts and the law (2013) by Judith Powda p.116.

Therefore, to succeed at trial, an artist must persuade the court that a distortion, mutilation, modification, or other derogatory action defacement is also prejudicial to his/her honour or reputation.

Expert evidence, if it can be obtained and is admissible, is likely to be of assistance to the court.

Disparaging tweets and other communications received on social media may also support the artist’s case.

While it is generally accepted that mere placement of a work within a larger context (e.g. a speech playing or surrounding slogans) would not qualify as a ‘treatment’ since there is no addition, deletion, alteration, or adaption, because Section 80(b) CDPA formulates the legal test of derogatory treatment as including anything that ‘is otherwise prejudicial to the honour or reputation of the author’, it is arguable that placement of a work within a larger context amounts to derogatory treatment where the overall impression is prejudicial to the honour or reputation of the author. I submit that success at trial would depend upon proving that the work formed part of a composite sensory message which included accompanying [images] and [sound], i.e. that the impression given to the public is that the work and the setting in which it had been placed were linked, i.e. because they do not compete with, or contradict each other in the eyes of a visitor to the exhibition. Where in addition, a work has been daubed with a statement or symbol that appears to connect the work with the setting in which it has been exhibited, the impression is reinforced. In which case the author can potentially sue for derogatory treatment on two standalone grounds of claim:

alteration to or adaptation of the work – i.e. addition, deletion, alteration, or adaption of the work; and
the setting in which the work has been placed is prejudicial to the honour or reputation of the author.

‘Provided the author has asserted their right to paternity, then any commercial publication, public performance or (in general) other exploitation of the work including via the Internet must identify the author (or director of the film) otherwise this right will be infringed. Commercial publication includes making work available to the public by means of any electronic retrieval system. One might consider the Internet to be one enormous electronic retrieval system. Also, the inclusion in the CDPA by the 2003 regulations of the “act of communication to the public” as an act potentially infringing moral rights in the work means that it is now clear (if there was any doubt) that moral rights apply to websites. … ’ Digital Copyright Law and Practice , Fifth edition by Simon Stokes (2019) paragraph 4.2.1.

However, Section 81(2) of the CDPA provides that the right of integrity does not apply to computer programs or computer generated works.

While in the UK performance artists have a right of attribution and integrity (i.e. the right to object to derogatory treatment), these rights are of limited application to the visual arts because they do not apply to films.

Afghanistan – Create mediation ‘safe zone’ by organising international infrastructure development conference?

Posted on September 2, 2021 by Carl Islam

Applying the following conflict resolution principles to Afghanistan, and taking into account the points set out below about the transference of global economic power to Asia and the fast evolving new world economic order, can a diplomatic ‘safe zone’/ ‘breathing-space’ be created by organising an international conference about infrastructure development in Central Asia in e.g. Qatar or Turkey?

Paradoxically, could ‘Global Britain’ miss out entirely on potentially ‘the largest free trade deal in history’ because the UK is ‘going-it alone’, whereas geo-politically Central Asia as a region, is moving in the opposite direction of multi-lateral trade and development co-operation. In other words, does Afghanistan present the UK with a diplomatic opportunity for future investment in Central Asia? – see: https://www.adb.org/sites/default/files/publication/29927/central-asia-trade-policy.pdf, the extract from the New Silk Roads below, and Afghanistan – Linking economic diplomacy to humanitarian relief, & evacuation, see: Humanitarian Diplomacy – Diplomatic Law Guide

Transform conflict into an opportunity – ‘Every conflict takes place at a crossroads that, when recognised for what it reveals, offers each participant an opportunity to overcome what Sigmund Freud called “the narcissism of minor differences”, and thereby become better, more balanced, collaborative human beings. … At its deeper levels, conflict resolution is naturally and automatically a path of integrity and character, of heart and spirit, of learning and revolution, that begins here and now inside each of us. In the end, of course there are no paths. The way forward begins wherever we are, and opens whenever we are ready to open our eyes, drop our judgements and expectations, and act authentically. More fundamentally, we need to learn how to resolve our differences if we hope to ever end the use of warfare, reduce climate change and environmental degradation, and assuage racial, gender, national, religious, and cultural hatreds. This will require is not only to focus our energies on learning and teaching these more subtle and demanding arts and sciences in dispute resolution, but to recognise that we can only succeed in eliminating conflicts in others by discovering how to eliminate them within ourselves.’ ‘The Crossroads of Conflict – A Journey Into the Heart of Dispute Resolution’ by Kenneth Cloke (2019).

Create an enabling environment for transformation and transcendence, i.e. a ‘breathing space’ / ‘safe zone’ to open up unimagined possibilities – ‘[Daniel Shapiro has] developed a practical method to bridge the toughest emotional divides. This method leverages the unique feature of conflict that has been consistently overlooked: the space between sides. We typically view conflict as a binary concept – me versus you, us versus them – and focus on satisfying our independent interests. But conflict literally exists between us – in our relationship – and in that space live complicated emotional dynamics that thwart cooperation. Learning how to transform an emotionally charged conflict into an opportunity for mutual benefit requires that you learn how to effectively navigate the space. My goal has been to decode the space between disputants and to design processes to help them work through intransigent emotions, divisive dynamics, and clashing beliefs. The result is the method that I call ‘relational identity theory’, which features practical steps that produce dynamic effects, much as the few simple actions necessary to light a pile of wood produce the dynamic effect of fire. The greatest barrier to conflict resolution is what I called the tribes effect, divisive mindset that cast you and the other side as inevitable adversaries. As long as you are trapped in this mindset, you will be trapped in conflict. The way out is to counteract the five hidden forces that draw you toward this outlook – the Lures of the tribal mind – and to cultivate positive relations via the process of integrated dynamics. In the course of doing so, you will confront unavoidable tensions – relational dialectics – that threaten to make your conflict feel like a no-win proposition. ….

In the sunny resort town of Sharm el-Sheikh, Egypt, I facilitated a workshop called “building peace, breaking taboos”. Its purpose was to help regional leadership wrestle with political taboos constraining progress in the Israeli Palestinian negotiations. Co-led by Tony Blair, former Prime Minister of the United Kingdom and the United Nations Middle East quartet special envoy at the time, the session included participants ranging from high-level negotiators and government leaders to royalty and religious figures. To create a safe zone, I established the rules of our workshop [i.e. mediation], including confidentiality and mutual respect. In the tense context of the conflict, I knew that productive conversation would be possible only if participants felt safe enough to voice their honest opinions. I also emphasise that our workshop was exploratory, providing everyone a clear chance to think outside the constraints of the conflict [i.e. to think outside the box]. No one will be asked to commit to any action discussed in the workshop. This freed the participants to engage in energised conversation. Mr Blair took the floor to discuss his involvement in negotiating the Good Friday peace agreement that helped to resolve the Northern Ireland conflict. He explained that effective negotiations could not have taken place within an environment of violence and counter-attack. Both sides needed “breathing space” – safe zone that, once established, opened up possibilities that Blair said he had “never imagined possible”.’

‘Negotiating the Non-Negotiable – How To Resolve Your Most Emotionally Charged Conflicts’ by Daniel Shapiro (2017).

New economic world order? – By 2050 the per capita income in Asia could rise sixfold in purchasing power parity (‘PPP’) terms, making 3 billion additional Asians affluent by current standards. By nearly doubling its share of global GDP to 52%, as one recent report put it, “Asia would regain the dominant economic position it held some 300 years ago, before the industrial revolution.” The transference of global economic power to Asia “may occur somewhat more quickly or slowly”, agreed another report, “but the general direction of change and the historic nature of this shift is clear” – concluding similarly that we are living through a reversion to how the world looked before the rise of the West. The acute awareness of the New World being knitted together has helped prompt plans for the future that will capitalise on and accelerate the changing patterns of economic and political power. Chief amongst these is the Belt and Road initiative, President Xi’s signature economic and foreign policy, which uses the ancient silk Roads – and their success – as a matrix for Chinese long-term plans for the future. Since the project was announced in 2013, early $1 trillion has been promised to infrastructure investments, mainly in the form of loans, to around 1000 projects. Some believe that the amount of money that will be ploughed into China’s neighbours in countries that are part of the Belt and Road over sea and land will eventually multiply several times over, to create and interlinked world of train lines, highways, deep-water ports, and airports that will enable trade links to grow even stronger and faster … Today, there is a series of Great Games taking place, over competition for influence, energy and natural resources, for food, water and clean air, the strategic position, even for data. … The number of passengers travelling by plane will nearly double to 7.8 billion a year by 2036, with the growing and increasingly affluent populations of Asia, with China, India, Turkey and Thailand driving this increase. … Pakistan is now the World’s fastest growing retail market, partky thanks to the fact that disposable income has doubled since 2020. … There are fortunes to be made by being in the right place at the right time – and consequences for failing to adapt or respond in the right way. … Tastes, trends and appetites will be made in the East and not in the West . Changing aspirations, appetites and tastes will drive demand- as the always have done. … Corporate fortunes and failures will be made in the East – and not in the West. … The age of the West is at a crossroads. … The themes of isolation and fragmentation in the West are in sharp contrast to what has been happening along the Silk Road since 2015. The story across large parts of the region linking the Pacific through to the Mediterranean has been about consolidation and trying to find ways to collaborate more effectively; the trend has been about defusing tensions and building alliances; the discussions have been about solutions that are mutually beneficial and provide the platform for long-term cooperation and collaboration. These have been facilitated by multiple institutions that both enable dialogue and take practical steps to deepen ties between states – multilateral financial institutions such as the Asian Development Bank and the New Asian infrastructure Development Bank, but also groups like the Shanghai Cooperation Organisation, the Eurasian Economic Union, the BRICS summits, the Transpacific Partnership (albeit without US participation) and the Regional Comprehensive Economic Partnership – the last of which includes countries from South East Asia along with China, India, South Korea, Japan, Australia and New Zealand. Together, these have a combined GDP of almost – 30 trillion or 30% of global GDP – and represent 3.5 billion people. Negotiations to create a modern comprehensive high quality and mutually beneficial economic partnership agreement have intensified, raising the prospect that one economist has called the largest free trade deal in history. .. The world is spinning in two different directions: decoupling and going it alone in one, and deepening ties and trying to work together in another. … – A typical example of the way in which the heart of the world is being knitted together comes from a conference held in Samarkand in November 2017 when senior officials from the Central Asian republics as well as from Afghanistan, Russia, China, Turkey, Iran, India and Pakistan, met to discuss ways of working together to deal with terrorism, religious extremism, transnational organised crime and drug trafficking under the theme “Central Asia: one past and a common future, cooperation for sustainable development and mutual prosperity.”… If Kazakhstan and Iran build transit networks, Kazakhstan may be linked to the southern waters through Iran, and Iran can be connected to China via Kazakhstan … The development of a new international north-south transport corridor that connects Southeast Asia and northern Europe has also made progress and seen government bodies in Azerbaijan, Russia and Iran working closely with each other.’’ The New Silk Roads – The Present and Future of the World, by Peter Frankopan (2018).

Opportunity? – The UK elected to ‘go it alone’. The US President has pinned his colours to a policy of isolationism. China is the emerging global leader in Central Asia. Could the UK miss out entirely on ‘the largest free trade deal in history’ because of a lack of coherent thinking, imagination and diplomatic leadership, or does regime change in Afghanistan represent a time-limited opportunity?

See also Afghanistan – Linking economic diplomacy to humanitarian relief, & evacuation: Humanitarian Diplomacy – Diplomatic Law Guide

Educated Afghan refugees can help build the economies of Central Asian states and create wealth and social flourishing in the region, which in the long term may increase stability in Central Asia.

‘Regional preferential trade agreements have the potential to contribute to Central Asia’s economic diversification. Their usefulness is positively correlated with their capacity to facilitate trade among participants and negatively correlated with the extent of trade diversion caused by the agreement. From that perspective, the Commonwealth of Independent Statesfree trade area is useful and fairly harmlessbecause it reinforces the already existing regime of Central Asia’s trade with traditional partners based on a set of rules consistent with the WTO’ – Connecting Central Asia with Economic Centres: Final Report (adb.org)

Is there a time-limited opportunity for the US, EU, UK, Turkey, Canada and Australia, to jointly develop a coherent diplomatic strategy linking trade deals to an agreement by Central Asian States to provide a home for refugees from Afghanistan?

A potential Win/Win strategy?

Fly in aid to Afghanistan.
Fly out evacuees for settlement in Central Asian States.
US, EU, UK, Turkey, Canada and Australia to provide: (i) humanitarian relief to Afghanistan; and (ii) trade and development support to Central Asian States.

The problem

After the last flight has left Kabul there will be no airports under neutral control to fly in and out of, and no force on the ground to create and protect a humanitarian land corridor, and to escort evacuees to safety.

Can Pakistan and the UAE provide troops wearing ‘blue’ helmets and air cover with the agreement of the Taliban and local war lords, to operate and protect strategic airports and to ensure safe passage?

Otherwise, how are people, including UK and US citizens i.e. passport holders, left behind (who apparently number more than 2000), to get out of Afghanistan?

They are trapped.

Likewise, how is humanitarian aid going to get into Afghanistan and be distributed where it is needed?

That is where a coalition of the US, EU, UK, Turkey, Canada and Australia appear to have some diplomatic leverage, unless of course China advances into the political vacuum and eventually controls the ungoverned space. If it does, geopolitically who is going to end up being the largest investor in Central Asia – the US, EU, UK, Turkey, Canada and Australia or China?

‘The United States has a vested interest in promoting regional economic integration, which could catalyze political reform and reinforce efforts to stop illicit traffic and militant activity at Afghanistan’s borders. As cited in a World Bank report, landlocked countries can face average growth rates that are about 1.5 percentage points lower because of transaction costs and other inefficiencies such as unpredictability in transportation time. In July 2011, Secretary of State Hillary Clinton announced the New Silk Road (NSR) initiative, a long-term economic vision to transform Afghanistan into a hub of transport and trade, connecting markets in India, Pakistan, Afghanistan, and Central Asia. Some of the proposed NSR projects include completing the Afghan Ring Road; establishing rail links between Afghanistan and Pakistan; completing the Turkmenistan-Afghanistan-Pakistan-India (TAPI) pipeline; and creating a regional electricity market by establishing a transmission line between Central Asia and South Asia (CASA-1000). NSR requires U.S. leadership, not necessarily an infusion of new U.S. funds. It will instead involve cooperation from multilateral development banks, foreign donors, regional governments, and the private sector. NSR has been enthusiastically welcomed by governments in Afghanistan and Central Asia who want to connect to markets in Europe and Asia and appreciate American attention to their economic challenges. However, connecting Central to South Asia via Afghanistan will be challenging in light of the barriers to continental transport and trade, including the lack of regional cooperation. NSR will not be a panacea for Afghanistan’s economic woes, but it does offer a vision for the broader region that could foster private sector investment if projects are prioritized and steps are taken to create an enabling environment. The United States can play a vital role by supporting political and economic reform and leveraging its resources.’

CENTRAL ASIA AND THE TRANSITION IN AFGHANISTAN (govinfo.gov)

Copyright protection of Art

Posted on August 31, 2021 by Carl Islam

· Copyright protects expressions.

· Copyright and related rights are national rights.

· Consequently, the requirement of originality varies from jurisdiction to jurisdiction.

· Copyright is not concerned with the originality of ideas but with the expression of thought.

· The originality which is required relates to the expression of the thought.

· This does not require that the expression must be in an original novel form, but that the work must not be copied from another work, i.e. that it should originate from the author.

· Originality for the purposes of establishing copyright requires the author’s own intellectual creation, see Infopaq International A/S v Danske Dagblades Forening [2010] FSR 20.

· No specific measure of originality is required.

· The standard required for a work to qualify as original is low.

· In substance what is required is that the work is the result of the author’s own intellectual creation, i.e. that it is the result of skill and labour/intellectual creation, see paragraphs 51-54 of the judgment of HHJ Birss QC in Temple Island v. New English Teas [2012].

· While photography is a problem area, there is scope for originality where specialized techniques are used, e.g. angle shot; exposure and use of filters; the creation of a specific scene or style of subject; and merely being in the right place at the right time.

· Copyright in the UK is solely the creature of statute.

· The governing statute is the Copyright Designs and Patents Act 1988 [the ‘CDPA’].

· Section 1(1) CDPA provides:

‘(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a) original literary, dramatic, musical or artistic works,

(b) sound recordings, films or broadcasts, and

(c) the typographical arrangement of published editions.’

· Section 4 CDPA defines a work of art as meaning;

‘(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b) a work of architecture being a building or a model for a building, or

(c) a work of artistic craftsmanship. …

“building” includes any fixed structure, and a part of a building or fixed structure;

“graphic work” includes—

(a) any painting, drawing, diagram, map, chart or plan, and

(b) any engraving, etching, lithograph, woodcut or similar work;

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

“sculpture” includes a cast or model made for purposes of sculpture.’

· It is a question of fact in any particular case whether what is being considered is a painting.

· No particular artistic merit is required for graphic works.

· Section 9(1) CDPA provides:

‘(1) In this Part “author”, in relation to a work, means the person who creates it.

(2) That person shall be taken to be—

(aa ) in the case of a sound recording, the producer;

(ab) in the case of a film, the producer and the principal director;

(b) in the case of a broadcast, the person making the broadcast (see section 6(3)) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;

(d) in the case of the typographical arrangement of a published edition, the publisher.

(3) In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

(4) For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.

(5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.’

· In general, a work will be protected by UK copyright provided either: (a) that the author is at the material time a ‘qualifying person’ i.e. a British national or is resident or domiciled in one of the countries of the Berne Union or a country which is a party to the Universal Copyright Convention , or (b) that the work was first ‘published’ in one of these countries [Sections 156-156 CDPA].

· Section 175 CDPA provides:

‘(1) In this Part “publication”, in relation to a work—

(a) means the issue of copies to the public, and

(b) includes, in the case of a literary, dramatic, musical or artistic work, making it available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.

(2) In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means—

(a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.

(3) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.

(4) The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly—

(a) in the case of a literary, dramatic or musical work—

(I) the performance of the work, or

(ii) the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);

(b) in the case of an artistic work—

(i) the exhibition of the work,

(ii) the issue to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship,

(iii) the issue to the public of copies of a film including the work, or

(iv) the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);

(c) in the case of a sound recording or film—

(i) the work being played or shown in public, or

(ii) the communication to the public of the work].

(5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(6) No account shall be taken for the purposes of this section of any unauthorised act.’

· ‘Sculpture’ is not defined by the CDPA.

· There is no statutory requirement for ‘fixation’, however the English court has occasionally held that it is necessary – see Merchandising Corporation of America Inc v Harpbond Ltd [1983] FSR 32 (the ‘Adam Ant‘ case).

As a practising Barrister, I am developing Art and Cultural Heritage Litigation (including proceedings in the Intellectual Property Enterprise Court) and Mediation, as a niche practice area.

For more information, please visit the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com.

Shifting the burden of proof in a rectification claim before the FTT

Posted on August 24, 2021 by Carl Islam

Introduction

The powers of the Land Registration Division of the First-tier Tribunal (Property Chamber) [the ‘Tribunal’] are conferred by statute.

An order for rectification made by the Tribunal has the same effect as an order for rectification made by the High Court, consequently rectification relates back to the time when the instrument was executed.

Practitioners need to distinguish between:

(i) rectification of a document under s.108(2) of the Land Registration Act 2002 [‘LRA]’; and

(ii) alteration of the register under Schedule 4 of the LRA where the word ‘rectification’ has a specific meaning.

In a Schedule 4 case, if the Applicant persuades the Tribunal Judge that it would be ‘unjust for the alteration not to be made’ that will shift the burden of proof onto the Respondent to prove ‘exceptional circumstances’. Then, if the Respondent fails to discharge the burden of proof at the hearing, rectification must be ordered. For the legal test see Dhillon v Barclays Bank Plc & Anor [2020] below.

s.108 jurisdiction

LRA s.108 states:

‘(1) The adjudicator [i.e. the Tribunal, see: https://www.gov.uk/government/publications/objections-and-disputes-a-guide-to-land-registry-practice-and-procedures/practice-guide-37-objections-and-disputes-a-guide-to-land-registry-practice-and-procedures]

has the following functions—

(a) determining matters referred to him under section 73(7), and

(b) determining appeals under paragraph 4 of Schedule 5.

(2) Also, the adjudicator may, on application, make any order which the High Court could make for the rectification or setting aside of a document which—

(a) effects a qualifying disposition of a registered estate or charge,

(b) is a contract to make such a disposition, or

(c) effects a transfer of an interest which is the subject of a notice in the register.

(3) For the purposes of subsection (2)(a), a qualifying disposition is—

(a) a registrable disposition, or

(b) a disposition which creates an interest which may be the subject of a notice in the register.

(4) The general law about the effect of an order of the High Court for the rectification or setting aside of a document shall apply to an order under this section.’

Schedule 4

Under the Land Registration Act 1925, any alteration of the Register to correct a mistake was referred to as ‘rectification’. The LRA has a more limited definition of rectification. It is an alteration which involves the correction of a mistake and prejudicially affects the title of a registered proprietor.

The power of the Registrar and of the court to correct a mistake is tempered by a principle of qualified indefeasibility. Consequently, the circumstances in which the Register can be rectified against certain classes of registered proprietor are limited.

Section 58 of the LRA states:

‘(1) If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration.

(2) Subsection (1) does not apply where the entry is made in pursuance of a registrable disposition in relation to which some other registration requirement remains to be met’.

Therefore, a legal estate will be vested in a person upon registration as proprietor of the legal estate, even if it would not otherwise vest.

Schedule 4 to the LRA exists to make provision for alteration of the register and to introduce the concept of ‘rectification’.

Schedule 4 distinguishes between alteration:

(i) pursuant to a court order; and

(ii) otherwise than pursuant to a court order, which in practice means by the Registrar.

‘The registrar has no ability under Schedule 4 to the Land Registration Act 2002 to correct a mistake in a deed. Only the court, or the tribunal under section 108(2) of the Land Registration Act 2002, has such power but you should note that the tribunal’s powers relate to a more limited range of documents than the court.’ See: Practice guide 39: rectification and indemnity – GOV.UK (www.gov.uk)

Paragraph 1 of Schedule 4 states:

‘In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which—

(a) involves the correction of a mistake, and

(b) prejudicially affects the title of a registered proprietor.’

Procedure

Typically, a reference for rectification made to the Tribunal from the Land Registry will be the result of a contested application to amend the Register. After an objection has been made, the decision about alteration of the Register is effectively made by the Tribunal Judge, who has the power to order the Registrar to allow the application. Under the LRA, Schedule 4, paragraph 1 for an alteration to also be a rectification it must:

(i) involve the correction of a mistake; and

(ii) prejudicially affect the title of the registered proprietor.

Consequently, rectification can only be ordered where:

(a) the registered proprietor consents;

(b) the registered proprietor has by fraud or lack of proper care caused or contributed to the mistake; or

Schedule 4 of the LRA 2002 provides:

‘Introductory

In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which—

(a)

involves the correction of a mistake, and

(b)

prejudicially affects the title of a registered proprietor.

Alteration pursuant to a court order

(1)

The court may make an order for alteration of the register for the purpose of—

(a)

correcting a mistake,

(b)

bringing the register up to date, or

(c)

giving effect to any estate, right or interest excepted from the effect of registration.

(2)

An order under this paragraph has effect when served on the registrar to impose a duty on him to give effect to it.

(1)

This paragraph applies to the power under paragraph 2, so far as relating to rectification.

(2)

If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor’s consent in relation to land in his possessionunless—

(a)

he has by fraud or lack of proper care caused or substantially contributed to the mistake, or

(b)

it would for any other reason be unjust for the alteration not to be made.

(3)

If in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so.

(4)

In sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land.

Rules may—

(a)

make provision about the circumstances in which there is a duty to exercise the power under paragraph 2, so far as not relating to rectification;

(b)

make provision about the form of an order under paragraph 2;

(c)

make provision about service of such an order.

Test of ‘exceptional circumstances’

In Dhillon v Barclays Bank Plc & Anor [2020] EWCA Civ 619 (14 May 2020) (bailii.org) Lord Justice Coulson stated:

‘6. PARAGRAPH 3(3) OF SCHEDULE 4: EXCEPTIONAL CIRCUMSTANCES

6.1 The Law

46. The best guide to the test of “exceptional circumstances” remains the decision of Morgan J in Paton and Anor v Todd [2012] EWHC 1248 (Ch); [2012] 31 EG 48. The adjudicator had concluded that there were exceptional circumstances which justified the non-rectification of the Register. The appeal against that decision was allowed on the facts and remitted to the adjudicator to consider the practical effect for each party of both altering and not altering the Register. In addressing the relevant test, Morgan J said:

“66. Whilst the statement in the Law Commission report can be taken as accurate for most purposes, it may in some cases be necessary to analyse the position a little more closely. There is no doubt that section 82(1) of the 1925 Act conferred on the court a residual discretion as to rectification. That position is indeed repeated in para. 5 of schedule 4 to the 2002 Act where, in a case of alteration which is not rectification, the registrar has a discretion to alter the register; the statutory wording is: “the registrar may alter the register” (my emphasis). However, in a case of rectification which falls within para. 6(3) of schedule 4 to the 2002 Act, the court must adopt a more structured approach. First of all, the paragraph imposes a duty to rectify the register. Secondly, that duty does not apply in a case where there are exceptional circumstances which justify not rectifying the register. Thus, in a case within para. 6(3), the court must ask itself two questions: (1) are there exceptional circumstances in this case? and (2) do those exceptional circumstances justify not making the alteration? The first of these questions requires one to know what is meant by “exceptional circumstances” and then to establish whether such circumstances exist as a matter of fact. Thus the process involved in the application of para. 6(3) of schedule 4 to the 2002 Act is not identical to the exercise of the discretion involved in section 82(1) of the 1925 Act.

67. “Exceptional” is an ordinary, familiar English adjective. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual or special, or uncommon; to be exceptional a circumstance need not be unique or unprecedented, or very rare but it cannot be one that is regularly, or routinely, or normally encountered: see R v Kelly [2000] 1 QB 198 at 208 C-D (a decision from a very different context but nonetheless helpful as to the ordinary meaning of “exceptional circumstances”). Further, the search is not for exceptional circumstances in the abstract but those which have a bearing on the ultimate question whether such circumstances justify not rectifying the register.”

47. The result in Paton v Todd reflects that two-stage test. Morgan J agreed with the adjudicator that the fact that the applicants did not own the relevant land was an exceptional circumstance. However, he found that, in the absence of evidence as to the effect of rectification on either party, it could not be concluded in the defendant’s favour that the exceptional circumstance justified the decision not to rectify the Register. Hence the matter was remitted. Unsurprisingly, perhaps, Mr Polli QC relied on the fact that the claimants’ lack of ownership of the relevant land had been regarded in Paton v Todd as an exceptional circumstance, because he said that precisely the same was true of Mrs Dhillon in the present case.’

Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013, r.40 states:

‘Requirements directed to the registrar

40.—(1) The Tribunal must send written notice to the registrar of any direction which requires the registrar to take action.

(2) Where the Tribunal has made a decision, that decision may include a direction to the registrar to—

(a) give effect to the original application in whole or in part as if the objection to that original application had not been made; or

(b) cancel the original application in whole or in part.

(3) A direction to the registrar under paragraph (2) must be in writing, must be sent or delivered to the registrar and may include—

(a) a condition that a specified entry be made on the register of any title affected; or

(b) a direction to reject any future application of a specified kind by a named party to the proceedings—

(i) unconditionally; or

(ii) unless that party satisfies specified conditions.’

‘Where a disputed application is referred to the [Tribunal] it may, instead of determining the matter, direct a party to the proceedings to commence proceedings for the purpose of obtaining the court’s decision on the matter and will do so where it does not have the jurisdiction to make the relevant decision. If the [Tribunal] does not make such a decision, it must decide the case itself, and if either party wishes to withdraw from the dispute the Tribunal has a discretion whether to terminate the reference or proceed to a determination on the merits. The practice and procedure before the [Tribunal] are prescribed by rules [see below]. An appeal lies from the [Tribunal’s] decision to the Lands Chamber of the Upper Tribunal , on a point of law or fact, but permission to appeal is required.’ Megarry & Wade – The Law Of Real Property, para 6-130.

Will Construction – Approach of English Court

Posted on August 19, 2021 by Carl Islam

In Royal Commonwealth Society for the Blind v Beasant & Anor (2) Benjamin Ho [2021] EWHC 2315 (Ch) (17 August 2021), Master Schuman summarised the approach of the court to the construction of legacies as follows:

· Viscount Simon LC said in Perrin v Morgan [1943] AC 399 at 406,

“The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made the will, but what the written word he uses mean in the particular case – what are the ‘expressed intentions’ of the testator.”

· Wills are construed in the same way as any other document. This was confirmed by the Supreme Court in Marley v Rawlings [2014] UKSC 2. Lord Neuberger at paragraphs 19 to 22 set out the task for the court when construing a document,

“19. When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions. …

20. When it comes to interpreting wills, it seems to me that the approach should be the same. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context. As Lord Hoffmann said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667, para 64, “No one has ever made an acontextual statement. There is always some context to any utterance, however meagre.” To the same effect, Sir Thomas Bingham MR said in Arbuthnott v Fagan [1995] CLC 1396, that “[c]courts will never construe words in a vacuum“.

21. Of course, a contract is agreed between a number of parties, whereas a will is made by a single party. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills: it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned. Thus, the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts – see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 , per Lord Steyn at 770C-771D, and Lord Hoffmann at 779H- 780F”.

· This approach had previously been confirmed by the Court of Appeal in RSPCA v Sharp [2010] EWCA Civ 1474; cited with approval in Marley v Rawlings.

· Patten LJ at paragraphs 20 to 22 looked at how to approach the construction of the will,

“20. We have therefore to examine the language of the will in its context taking into account the will as a whole; any relevant background circumstances which inform the meaning of the words used; and giving to those words their ordinary meaning unless they are obviously used in some special or technical sense.

21. The divide in this case centres on whether the Testator intended to make a will which excluded IHT unless the Property exceeded the nil rate band in value. In this event the pecuniary legacies under clause 3 would also be eliminated. The judge largely rejected this construction on the will because he considered it incredible (as he put it) to assume that the Testator would have intended to reduce or eliminate the gifts of money to his brother and to the Sharps in the event that the combined value of the non-exempt transfers should exceed the amount of the nil rate band. But, in the absence of any extrinsic evidence about the Testator or his wishes, this is largely speculation. We know nothing about his brother’s financial circumstances; the Testator’s degree of commitment to the RSPCA; or the strength of his desire to avoid any charge to IHT on his assets. It is perfectly possible that the second and third of these elements outweighed any perceived risk that the clause 3 legacies would be reduced to nil.

22. For these reasons it is dangerous to approach the assessment of the Testator’s intentions other than through the language of his will. The first relevant consideration in my view is that the will was professionally drafted by a solicitor who has to be assumed to be competent. Although solicitors do obviously make mistakes, there needs to be something in the language of the document or its admissible background to justify that inference. More importantly, those factors must be such as to permit the court to give the words actually used a meaning which is not strictly in accordance with the usual rules of grammar or vocabulary: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.”

No extrinsic evidence was admissible in that case and no claim for rectification was made. The court was therefore left to examine the language of the will in its context both as to the will as a whole and placing it into the relevant background circumstances. Patten LJ reiterated that it was dangerous to approach the testator’s intentions other than through the language of the will. The Judge had fallen into error by speculating that the testator would not have wished to reduce the amounts to be paid to his brother and the Sharps. To accept the executors’ argument would be to redraft clause 3.

· The importance of both text and context to the process of construction is usefully summarised by Lord Hodge in Wood v Capita Insurance Services [2017] UKSC 24 and is uncontroversial. The Supreme Court was concerned with construing an indemnity clause in a share purchase agreement, but this is of general application. At paragraph 13, Lord Hodge said,

“Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type. The iterative process … assists the lawyer or judge to ascertain the objective meaning of disputed provisions.”

· As Theobald on Wills, 18th Ed, observes at paragraph 13-001, the first rule of will construction is that every will is different. Whilst it is helpful to see how Lord Neuberger and Patten LJ approached the task of construing the will before them, I must construe the will that is before this court by reference to the clause in question, looking at the natural and ordinary meaning of the words used, its overall purpose, the other provisions in the will and the facts known to or assumed by the testator at the time and with common sense. I ignore subjective evidence of the deceased’s intention. Both counsel accept that this is the task for the court.

Conclusion in this case

‘The issue concerned a nil-rate-band (NRB) gift made by the will to one of the executors, John Beasant, who had been a friend of Arkell’s.

Arkell died in August 2017, having made her final will in June 2016. Her instructions for that will were taken by a chartered legal executive and director at her solicitors, Alletsons, who also drafted the will. Probate was granted in August 2019, but the charities, led by the Royal Commonwealth Society for the Blind, challenged the executors’ interpretation of the will’s fourth clause.

The contentious clauses state: ‘4. I give the Nil-Rate sum to my Trustees on trust for my said friend John Wayland Beasant. 4.1. In this clause ‘the Nil-Rate Sum’ means the largest sum of cash which could be given on the trusts of this clause without any inheritance tax [IHT] becoming due in respect of the transfer of the value of my estate which I am deemed to make immediately before my death.’

Beasant argued that these clauses meant that a sum of GBP325,000 was due to him from the estate, in addition to several other specific legacies that Arkell left him. However, the charities interpreted clause 4.1 as nullifying the effect of the sentence that preceded it, so that the NRB legacy was not payable to Beasant. They contended that clause 4 means the legacy payable is the sum left, if any, after deduction of the value of all other legacies of the will on which IHT is charged at the nil-rate. As the value of the other legacies and devise exceeded the NRB limit, that amounted to zero.

Beasant argued that clause 4 should be construed so that there was a tax-free gift of an amount of the GBP325,000 NRB limit in force at the deceased’s death, without reference to the other gifts of the will. Sub-clause 4.1 should be disregarded as unnecessary, he said, pointing out that it contained no reference to the other gifts under the will or exempt gifts and merely said what the NRB was at the deceased’s death. He argued that it would be ‘whimsical or harsh’ to construe clause 4 as not leaving him the NRB legacy. Beasant asked the EWHC to follow the approach in Re Huntley (Deceased) (2014 EWHC 547 Ch), which construed a will by omitting a clause that had refined the meaning of the NRB sum.

However, Master Shuman in the EWHC disagreed. If Arkell had intended to gift the NRB to Beasant, the will could easily have been drawn up to do that while expressing that it was to be free of IHT, he said, noting the ‘striking similarity’ to the case of RSPCA v Sharp (2010 EWCA Civ 1474).

“Clause 4 clearly contemplates that the ‘nil rate sum’ is to be calculated by reference to the operation of IHT across the whole of the deceased’s estate and the order of the gifts in the will does not matter”, said Shuman.

The legacy left by the clause was accordingly limited to the amount left of the NRB, if any, before tax would become payable, he ruled. He duly accepted the charities’ interpretation of the clause and declared the corresponding gift to be zero.’ STEP Industry News 19.08.2021.

Carl's Wealth Planning Blog

by Carl Islam LL.M (Exon)

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