Arbitration of trust diputes in London

Institutional arbitration of trust disputes in England and Wales is almost unknown, because the interests of unborn/unascertained beneficiaries cannot be reliably bound by an arbitration agreement when the trust instrument is drafted. Therefore, English will/trusts and settlements do not usually contain an arbitration clause.

CPR, r.26.4(1) provides, ‘A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.’

Section 6 of the Arbitration Act 1996 [‘AA 1996’] defines an ‘arbitration agreement’ widely as meaning any ‘agreement’ , i.e. whenever made, ‘to submit to arbitration present or future disputes (whether they are contractual or not).’ 

In a trust dispute, where the instrument does not contain an arbitration clause, does an English Court have the jurisdiction to grant a stay under CPR, r.26.4(1) where e.g. at the first CMC, an oral application is made by consent, for a stay for arbitration in Londonand a litigation friend consents to act (e.g. for a minor) with the approval of the Court, following the making of submissions about why this is appropriate? 

In other words, can:

(i)              the parties agree to an ad hoc arbitration; and

(ii)              the court, then stay proceedings, so that the ad hoc arbitration can be convened?

The trustees would need to have the power to agree to arbitration. 

A theoretical obstacle is the extent to which the supervisory jurisdiction of the Court over trust administration cannot be ousted. 

However, logically, the jurisdiction of the Court cannot be ousted if it grants an order by consent, because the Court is acting in the exercise of its jurisdiction, and note the default procedural rules contained in sections 15 to 29 and 33 to 41 of the AA 1996

The Court could make it a term of the Order that the arbitration decision is subject to a right of appeal to the Court (see sections 67 to 69 of the AA 1996), i.e. so that:

(i)     the application for the Order cannot be, and therefore is not, in itself, an attempt to oust the jurisdiction of the Court, which is capable of depriving the Court of its power to grant the Order; and

(ii)     notwithstanding that the application is voluntary (i.e. where each beneficiary is an adult and has full capacity),the convention right provided for under Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: (a) is not engaged; (b) cannot be infringed; and (c) is therefore satisfied.

‘In England and Wales, there is case law to the effect that a settlor or testator cannot validly exclude the jurisdiction of the Court from determining all issues which arise in the administration of a trust. [In Re Wynn [1952]] … Danckwerts J [had] occasion … to consider the juridical basis of allowing arbitration in a contractual context, stating:

“[o]ne’s mind naturally turns to provisions which are often found in contracts providing for the decision of disputes by an arbitrator, the common arbitration clause. After considerable doubt, the position of an arbitration clause appears to have been settled by Scott v Avery as being valid, provided that it merely requires as a condition precedent to the bringing of legal proceedings upon the contract that there shall have been an arbitration fixing the amounts to which the parties are entitled: and, on the other hand, that anything which goes beyond that, and attempts to deprive the parties of their right to bring an action is unlawful as an attempt to oust the jurisdiction of the Court.”

The principle is that the Court must be allowed to retain ultimate control, nowadays represented by the right of appeal on a point of law. In the context of a will it therefore appears to be settled that it is not possible to make a decision of the trustees final and binding. In the process of declaring the clause in In re Wynn to be void, Danckwerts J followed In re Raven, a decision of Warrington J. … As for arbitration clauses, the clear implication of both authorities is that such clauses are safe from invalidity for the very reason that the arbitrator’s decision is not final. In the ordinary course of an arbitration pursuant to a statute, there is a right of appeal, even if a limited one, and this prevents an arbitration clause from being void as an ouster of the Court’s jurisdiction. However, the corollary is that if an arbitration clause does not have an explicit or implicit right of appeal, then there remains a real danger that the clause does amount to an invalid ouster of the jurisdiction. The conclusion for present purposes is that the arbitration of trust disputes in England and Wales would need legislation.’ (‘Arbitration of Trusts Disputes – Issues in National and International Law’ (2016) edited by S.I.Strong, paragraphs 10.56 – 10.67, by Mark Herbert QC).

Why though, is legislation necessary if either:

(i)     an arbitration clause in a trust instrument expressly requires:

(a)    the consent of all beneficiaries; and

(b)    the approval of the Court where there are any: unborn; minor; or incapacitated beneficiaries, who in the exercise of it’s ‘supervisory jurisdiction’ can sanction the bringing of arbitration proceedings, supported by a stay, on terms which provide that any party is at liberty to apply to the Court to review the arbitrator’s decision, and then allow the decision to be appealed under s.69 AA 1996; or

(ii)     after a dispute has arisen, all trustees and beneficiaries agree to an ad hoc arbitration, and if as in (i) above, an application is then made to the Court for:

                  (a)    directions; and

                  (b)    if necessary a stay,

the Court grants its blessingwhilst preserving its supervisory jurisdiction?

In other words, can the Court grant an order by consent, which enables the parties to resolve their dispute by arbitration, i.e. because there is no prohibition in the circumstances outlined above?

I cannot see a substantive or procedural impediment under English law to the granting of a consent order in these circumstances, however the point has never been tested in the English Court. Sticking my finger in the air, I think that if an application was made in the High Court and was heard by a Chancery Master or Judge (and depending upon the facts), it would probably have more than a 60% chance of success. However, if the application ends up being heard by a Circuit Judge sitting in the County Court (i.e. the Central London County Court), it would probably fail, because depending upon the technical knowledge and experience of the judge, he or she is likely to adopt a conservative approach, i.e. to refuse the order unless and until the point has been tested in the High Court. That would then potentially open the door for an appeal in a relatively low value test case, however the case might end up going all the way to the Supreme Court depending upon the composition of the bench sitting in the Court of Appeal (which may include judges who were not Chancery practitioners prior to their appointment as a judge). 

So, unless and until there is a test case, the law is unsettled on the merits of making such an application in the English Court.  

Alternatively, the Government could legislate to create certainty, however in spite of BREXIT, and the potential for London to become a global centre for the arbitration of trust disputes, the Government as far as I am aware are not actively planning to do anything about this. 

For a full discussion, please refer to Chapter 12 (ADR and settlement) of my book, the ‘Contentious Trusts Handbook’ (2020), published by the Law Society: Wildy & Sons Ltd — The World’s Legal Bookshop : Tax-Efficient Wills Simplified 2013/2014

To view my recent article ‘Judicial Early Neutral Evaluation and the New Normal’ published by Trusts & Trustees (Oxford University Press): Trusts & Trustees | Oxford Academic ( please visit the ‘Publications’ page at

I am currently writing an in-depth article about duties and powers of executors and trustees in relation to property and investments, which is being co-authored with a leading trust law academic at Cambridge University.

For more information about my future trust law articles please visit: Carl Islam – Carl Islam LLM(Exon)(International Business Law)

Recent advocacy testimonial

‘Mr Islam was able to present a very complicated set of facts in a clear and persuasive manner in advocating the claimant’s claim at a recent hearing. This demonstrated his thorough preparation prior to the hearing with the preparation of the appropriate written submissions. A very committed advocate in the cause of his client and I would thoroughly recommend him to you.’

Faizal Essat FCILEX

Consultant Chartered Legal Executive

Chartered Legal Executive Advocate

Summerfield Browne Solicitors

24 September 2021

See also: Art of persuasion in court – Advisory Excellence

I passed the Mediator Training course provided by the Society of Mediators for the Bar Council of England and Wales on 30 July 2021 with a score of 96% on the exam

On 22 September 2021 I completed my required number of mediation observations and applied yesterday for full accreditation as a Panel Member with the Society of Mediators in London. August and September were busy months!

I would like to take this opportunity to thank the Partner Private Client Dispute Resolution and Joint Head of Private Client Division of the leading UK and international law firm who arranged for me to observe these contentious probate and Inheritance Act mediations, who is one of the top five mediators in the country in the field of Contentious Probate, Inheritance Act and Trust disputes. It was both an honour and a privilege to have been provided with the benefit of his over 12 years of experience and wisdom as a mediator.

I am attending the Zoom Mediations (i.e. controls) course provided by the SOM in Januaury 2022. Please note that I will be conducting all pre-mediation meetings, and mediations by Zoom from my home office in Leicestershire.

Provided the amount in dispute (including costs) is within the limit of my PI Cover), as a Certified Mediator, I can be appointed to act as either a solo or co-mediator in a Zoom mediation about a dispute anywhere in the world, including the following trust law jurisdictions: Australia; Bahamas; Bermuda; BVI; Canada; Cayman; China (; Dubai; Guernsey; Gibraltar; India; Jersey; Malaysia; New Zealand; Northern Ireland; Pakistan; Republic of Cyprus; San Marino (The Court for Trusts and Fiduciary Relations – Corte Trust) (i.e. for trusts holding art, cultural heritage, and luxury assets located in Italy); and the United States.

See also the menu of my blogs and articles at the bottom of the page at: Contentious Probate, Inheritance Act & Trust Disputes – Carl Islam

In 2022 I am planning to co-author an article provisionally entitled, 
Tools and Strategies for Mediating International Family Trust Disputes.’

I am also developing the litigation, mediation, and arbitration of Art and Cultural Heritage disputes as a niche practice area, see:

Applicable law in an Art Authenticity dispute?

‘A misattribution is an erroneous attribution: the error lies in the wrongful identification or appreciation of the object. With sleepers, the misattribution must also devalue the art object. Essentially, three types of erroneous and undervalued attributions produce sleepers … [i] attribution of the artwork or antique to a lower valued creator instead of the actual higher valued creator … [ii] The incorrect dating of the object … [iii] Incorrect provenance or ownership history.’ [The Sale of Misattributed Artworks And Antiques At Auction (2016), by Anne Laure Bandle, page 8].

In order to determine the applicable law, it is first necessary to classify the legal issue in dispute (i.e. contract, tort, moveable or immovable property).

The instruments that currently determine applicable law, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II), have been implemented in UK domestic law, and continue to apply post-Brexit.

Articles 3 and 4 of Rome I lay down the basic rules, i.e. that a contract is generally governed by the law chosen by the parties (‘choice of governing law’).

A choice of governing law may be expressly agreed or be clearly demonstrated by the terms of a contract, or from the circumstances of a case. 

In the absence of a choice of law, the law of the contract will be that of the habitual residence of the seller of goods, or the provider of the services in dispute.  

There are exceptions to this rule, e.g.

  1. where a contract relates to immoveable property the Lex Situs rule will apply;
  2. if the sale occurred at auction, the law of the state where the auction took place will apply); or
  3. if the contract is manifestly more closely connected with another state, the law of that state will apply.

Further exceptions apply to specific types of contract, e.g. in a consumer contract the law of the consumer’s habitual residence will generally apply. 

The choice of law in English tort matters is governed by the Rome II regulation. Under article 4 of Rome II, the law applicable to a noncontractual obligation arising out of a tort will be the law of the state where the damage occured. This will be irrespective of the state in which the event giving rise to the damage occurred or where indirect consequences of the tort are suffered.  

In an action claiming damages for loss of or damage to e.g. a painting, the applicable law will be that of the state where the loss or damage was sustained. However, where both parties to the dispute have their habitual residence in the same state at the time the damage occured, the law of that state shall apply, and where the tort is manifestly more closely connected with another state, the law of the other state will apply. 

Under English Law, in a contract or tort action ‘in personam‘ (i.e. against a person), the English court has residual jurisdiction in three situations:

(i)       where the defendant has been served with the statement of claim whilst in England;

(ii)      where a person who might otherwise be excluded, submits to the jurisdiction; or

(iii)     if the case comes within CPR, r. 6.20, where in the discretion of the court, leave is granted for service of proceedings outside the jurisdiction.

Since Brexit, the doctrine of Forum non conveniens also applies. 

The EU-UK trading cooperation agreement contains nothing to replace the previous civil Justice framework. Acceding to the Lugano Convention requires unanimous consent from all parties, including the EU, and the EU has declined, stating:

‘The Lugano Convention applied to the United Kingdom of Great Britain and Northern Ireland (“the United Kingdom”) until 31 January 2020 via its EU membership. For the duration of the transition period, which ended on 31 December 2020, the other Parties to the Lugano Convention had been notified by the EU that the United Kingdom was to be treated as a Member State for the purposes of international agreements to which the Union was a Party, which covered the Lugano Convention. On 8 April 2020, the United Kingdom applied to accede to the 2007 Lugano Convention in its own right. This application was submitted to the Depositary of the Lugano Convention . The United Kingdom proposed to extend the application of the Convention to Gibraltar. By a letter of 14 April 2020, the Depositary officially transmitted the application and the related information to the Lugano Contracting Parties, including the European Union, represented by the European Commission. In view of the nature of the Lugano Convention (see below, section 2.1.) and the existing framework of judicial cooperation with third countries (see below, section 2.2.), the Commission considers that the EU should not give its consent to the accession of the United Kingdom to the Lugano Convention.’ 1_en_act_en.pdf (

Therefore, ‘for cases commenced prior to 1 January 2021, the Lugano Convention and Recast Brussels Regulation will continue to apply. For cases commenced after 1 January 2021, if there is an exclusive jurisdiction agreement and the chosen court is a contracting party to the Hague Convention, the 2005 Hague Convention will apply. In the absence of this, decisions on jurisdiction and enforcement will fall to domestic law.’ [‘Brexit and the art market’, talk by Rudy Capildeo of Charles Russell’ Speechlys to the Institute of Art, 6 February 2021].

‘To date little attention has been given to the [Hague] Convention given itslimited application. However, now that the Brussels Regime no longer applies, and unless/until the EU consents to the UK’s accession to the Lugano Convention, the Hague Convention provides a means by which English judgments can be enforced within the EU. However, there are potential issues:

·        It only applies to the establishment of jurisdiction and the enforcement of a judgment that results from an exclusive jurisdiction agreement (and judgment does not cover interim measures of protection such as freezing orders). It can be extended to apply to judgments flowing from a non-exclusive jurisdiction clause, but as yet no contracting states have exercised that option.

·        The Convention arguably does not apply to asymmetric clauses (where one party is required to bring proceedings in one jurisdiction exclusively, while the other party has the option to bring proceedings in any competent jurisdiction). The definition states that it covers only those agreements that designate the courts of one contracting state to the exclusion of any other courts. The Explanatory Report (paragraph 105) confirms that in order to be covered by the Convention, the agreement must be exclusive irrespective of the party bringing the proceedings. Asymmetric clauses are therefore very likely to fall outside the definition of exclusive jurisdiction clause.

·        The UK was previously a signatory via its membership of the EU, but has now become a signatory in its own right. There is, however, some uncertainty as to the date the Convention will be regarded as having entered into force in the UK: the date of EU ratification (1 October 2015), or the date on which it entered into force in the UK in its own right? This is an important distinction as Article 16 provides that the Convention applies only to jurisdiction agreements concluded after its entry into force in the state of the chosen court. In its accession declaration, the UK states that it considers that the Convention entered into force for the UK on 1 October 2015 and that the UK is a Contracting State without interruption from that date. However, the EU Commission appears to be taking the opposite position, stating that the Convention will only apply to exclusive jurisdiction agreements entered into on or after 1 January 2021. It is possible that the issue of the UK’s status under the Hague Convention, so far as the EU courts are concerned at least, may have to be resolved by the CJEU.

·        There is also some uncertainty as to whether, if there is no party domiciled in the UK or other non-EU Hague contracting state, the EU courts can stay proceedings or decline jurisdiction to give effect to an exclusive jurisdiction clause in favour of an English or other non-EU court, unless the non-EU proceedings are commenced first. In this situation, the Recast Brussels Regulation appears to takes precedence over the Hague Convention and case law on this issue under the Regulation is inconsistent.’ Dispute resolution: what now? | Ashurst

See also:

Mediation of Art & Cultural Heritage Disputes – Carl Islam

Choice of court agreements after Brexit | The Law Society

Alternative dispute resolution after Brexit | The Law Society

I thought we were exclusive? Some issues with the Hague Convention on Choice of Court, Brussels Ia and Brexit | Blog | School of Law | The University of Aberdeen (

Is the 2005 Hague Choice-of-Court Convention Really a Threat to Justice and Fair Play? A Reply to Gary Born – EAPIL

Scrutinizing the 2005 Hague Convention: Two Further Reasons to Keep Arbitration a Viable Option – Kluwer Arbitration Blog

Recognition of a foreign law asserting state ownership of antiquities

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 possessionIf it has taken the property into its possession and its claim will be treated as depending on recognitionif 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 claimnot a claim to enforce a public law or to assert sovereign rightsWe 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 artefactsThe 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 Conventionthe 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  ( 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.See also my blogs:

Copyright – Copyright protection of Art | Carl’s Wealth Planning Blog

Moral Rights – Moral Rights of Artists | Carl’s Wealth Planning Blog

Protecting Cultural Heritage – Use of British soft power to protect Cultural Heritage in a conflict zone? – UK Review of Security, Defence, Development and Foreign Policy (March 2021) | Carl’s Wealth Planning Blog

Cultural Heritage Diplomacy – British cultural heritage diplomacy post-BREXIT | Carl’s Wealth Planning Blog

Does equity give teeth to international humanitarian law? –Does equity give teeth to international humanitarian law? | Carl’s Wealth Planning Blog

The state as a fiduciary? –The state as a fiduciary? | Carl’s Wealth Planning Blog

and the ‘Humanitarian Mediation’ page at

–         Humanitarian Mediation – Diplomatic Law Guide [or Google ‘Humanitarian Mediation’  and go to page 3 to find a link].

Liability for costs in a Contentious Probate case

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


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:

Beddoe Applications

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].

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

See also: Contentious Trusts Handbook – Carl Islam

Recently, in Clyne 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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Art of persuasion in court

‘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

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 todeletion 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:

  1. alteration to or adaptation of the work – i.e. addition, deletion, alteration, or adaption of the work; and
  2. 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.

For more information about my services as a Mediator please visit: Mediation of Art & Cultural Heritage Disputes – Carl Islam