Review of my book in Trusts & Trustees (Oxford University Press)

A review of my book the ‘Contentious Trusts Handbook – Practice and Precedents’ published by the Law Society in July 2020 has been published in the current edition of Trusts & Trustees by Oxford University Press (08.06.2021):

https://academic.oup.com/tandt/advance-article/doi/10.1093/tandt/ttab015/6295144?guestAccessKey=8284bd51-4496-4454-ab8c-999ca62b9d56

The Review was written by Jacob Meagher, and I would like to take this opportunity to thank him for undertaking and writing this review.

J. J. Meagher Review of Carl Islam Contentious Trusts Handbook: Practice and Precedents (Law Society, London, 2020)

‘There are a few key texts often found within easy reach of every contentious trusts or estates practitioner, be they barrister or solicitor. Often you will find the Chancery Guide, a copy of Lewin or Snell (depending on one’s preference), usually a book on Drafting Trusts and Will Trusts (perhaps by Kessler QC), then one of the texts on the laws of probate, and a copy of the White Book. In terms of the actual practice of and preparation for the contentious area of Chancery litigation, specifically practice and precedents one would then turn to Chancery Practice and Procedure or Chancery Litigation Handbook, published by Jordans in 2001 and 2005.1 Now, a much needed and updated text has been commissioned by the Law Society and authored by barrister Mr Carl Islam of 1 Essex Court, Contentious Trusts Handbook: Practice and Precedents.2 This soon to be indispensable new work is sure to be staple not only for the preparation of contentious matters, but also for those who wish to pre-empt and ward-off problems arising in the administration of trusts and the relationship with beneficiaries and the courts supervisory jurisdiction.

As explained by Toby Graham, who provides the forward to this work, the publication of Mr Islam’s text reflects the fact that the risk of trustees, beneficiaries and their advisors ending up in court is ever on the rise. Of necessity “[t]his handbook provides the busy practitioner with a practical overview of themes that are commonly encountered. It will guide them through every stage of proceedings, from pre-action action protocols through discovery to settlement and trial”.3 What is perhaps even more valuable, is that the work provides the tools to head-off and anticipate potential contentious proceedings as well as to litigate and manage them, thus this work proves itself to be both a guide in times of crisis and gives the non-contentious private client practitioner the benefit of hindsight before the event. Examples of this forward-thinking analysis can be found at various stages throughout the text, which sets out in plain language the equitable principles and the leading cases which may be cited in reliance to further your cause. This handbook can also be used as a guide for trustees to take action (or to take pause) but also to draft from the included CD of precedents.

The chapter on Claims4 covers areas which other texts do not, and is exceedingly thorough in its coverage and application. For example, under the heading ‘Declaration of a Beneficial Interest in Property’5 the author considers the various constructive trust claims and how they can be made out—this is a results focused text. Equally useful, and under the discussion of a claim for removal of trustee appears the heading ‘Trap for the unwary’ along with the warning that “removal [of a trustee] does not automatically ensure that the trust property will be vested in the remaining and any new trustees”.6

The chapters on Equitable Remedies, Litigation, Costs, ADR and Settlement, are particularly relevant to private client and contentious trust practitioners as they place those subjects within the context of trust and Chancery practice—something which general texts do not. That is, “The particular features of trusts can make it difficult to analyse whether privilege attaches to any given communication”,7 those features are then analysed along with a discussion of Dawson-Damer v. Taylor Wessing LLP. Costs are always a factor of concern, to both trustee clients, and or beneficiaries in distress, the work clearly outlines the cost implications to all parties in the context of a trust dispute and it is useful to see the cost implications of Beddoe orders spelt out clearly along with reference to the accompanying precedent.8

For some this text will hold value in its specialised precedents which for the purposes of this area of practice are in my mind superior to more general works on precedents and pleadings.9 These stretch from Beddoe application, Calderback offers (equitable compensation), all the way to a Confidential note to the mediator, Particulars of Claim for: Breach of Trust, Tracing, Breach of Fiduciary Duty, Accessory Liability, as well as TOLATA applications. The work also includes specialist notes by experts Pandora Mather-Less on Art and heritage assets and the duties of trustees, Hector Robinson QC on Trust litigation in the Cayman Islands, and A meditator’s view by Anthony Trace QC.

Mr Islam concludes his preface by observing that “[t]he bridge that fuses the traditional technical skill set of company and commercial lawyers with that of trust lawyers (who in solicitors’ firms used to live in separate boxes) is, however, a relatively recent phenomenon outside of the Chancery Bar.” The author hopes that his text will be of value to all “who need to apply first principles when confronted with complex and novel facts that engage the ‘super-highway’ of equitable remedies and principles, when proceedings are issued” or contemplated.10 I can indeed confirm that his Contentious Trusts Handbook fits that description and is sure to be a staple text found within easy reach of every Equity and Trusts practitioner.’

Footnotes

  1. Chancery Litigation Handbook (2005, Jordans, London); Chancery Practice and Procedures (2001, Jordans, London).

2. (Law Society, London, 2020) – available for £100, CD of precedents included.

3. Ibid., xiii

4. Chapter 7.

5. 115.

6. At 7.6.10: the author goes onto explain the deed requirements under the TA 1925 s40(1).

7. 208.

8. At 11.2.3 per Green v Astor [2003] EWHC 1857 (Ch).

9. Included in hard copy in the Appendices and also included on CD.

10. xv.

Jacob J. Meagher is a barrister and academic, a Partner at Aria Grace Law and a Lecturer in Law at the University of Brighton. Specialising in contentious chancery matters, banking & finance, and governance he is a TEP, FGP, MCIArb, Ch MCSI, Ch ALIBF, Ch MCBI. Jacob also mediates and arbitrates civil and commercial disputes and can be contacted professionally at jacob.meagher@aria-grace.com or academically at j.j.meagher@brighton.ac.uk

Mediation Strategies

In late July I am undertaking the Bar Council Mediator Foundation course. Successful completion results in:

  • Certification as a Society of Mediators recognised mediator;
  • Accreditation as a Civil Mediation Council civil and commercial mediator; and
  • Recognition by the Chartered Institute of Arbitrators.

For Mediation Strategies I have specifically designed for Probate, Trust and Court of Protection disputes, see:

I am  currently researching a new book for publication in 2024 provisionally entitled, ‘Mediation of Art & Cultural Heritage Disputes’. The current outline of the book appears on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com

As a SCMA accredited mediation advocate and practising Barrister I also offer a fixed fee early settlement service. For more information please visit the ‘Mediation of Will Trust & Probate Disputes’ page of my website: www.ihtbar.com