The Society of Mediators in London confirmed to me today that I am now a fully qualified and accredited MSoM panel member. For information about my services as a Commercial Mediator please visit the ‘Mediator – Contentious Probate, Inheritance Act, & Trust Disputes’ page at www.ihtbar.com.

See also:Carl Islam: Fully Accredited Commercial Mediator – Advisory Excellence

As a practising Barrister, TEP, MSoM, Certified Mediator and Panel Member of the Society of Mediators in London, I provide a niche service as a Mediator in relation to Contentious Probate, Inheritance Act, & Trust Disputes (including Co-Habitation and Ownership of Property).
I am attending the Zoom Mediations (i.e. controls) course provided by the Society of Mediators in January 2022, and from January 2022 will be conducting all pre-mediation meetings, and mediations by Zoom from my home office in Leicestershire.

To request a copy of my Mediation Agreement and to arrange a free preliminary consultation Zoom call, please either call my Clerk on 0207 936 3030 or send an email to carl@ihtbar.com.

I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled,

‘Trust Disputes, Litigation & ADR.’

As a practising Barrister and Author, I specialise in Contentious Probate, Inheritance Act, and Trust Disputes, and as a Certified Mediator, 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 (http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/12/content_21907980.htm); 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.

As a newly qualified and Certified Mediator, I charge a fixed fee (the ‘basic fee’) for a mediation starting at 9.30am and ending at 5.30pm (GMT), and for time incurred after 5.30pm at my fully inclusive hourly rate of £300 (‘additional time’). The basic fee allows for 8 hours pre-reading time (i.e. position papers and one lever arch file of documents), and a pre-mediation meeting with each participant. There is no refund if a mediation ends for any reason before 5.30pm (GMT). The basic fee is payable in advance, and the mediation will only proceed if all participants and any observers have signed my standard Zoom Mediation Agreement. If the basic fee is payable by representatives of the estate, they are also contractually obliged to pay for any additional time incurred after 5.30pm (GMT). If a participant’s internet connection fails for any reason they agree to carry on by telephone, and bear all corresponding telephone charges.

For appointment as a Co-Mediator I will charge one half of the basic fee and at half of my hourly rate for additional time, so the total fees payable by the participants for either solo or co-mediation are the same.

As a Mediator my role is to manage a process that enables the parties to come out of their trenches and in a safe environment to walk side by side in jointly exploring and developing a commercial solution of their own design which takes into account: the facts presented in their position statements and agreed bundle; legal merits; litigation risks (including the judge); the time value of money; and the benefits of ‘doing a deal’ now instead of incurring further legal costs by resuming trench warfare.

The unifying factor in all contentious probate and trust cases is the composition of the estate/ trust asset pool, and its value. It is not uncommon for litigation costs to exceed the value of an estate, therefore participants are more likely to walk away from mediation with a slice of a larger cake (i.e. of the estate/trust fund) if they mediate before proceeding to litigation. Thus, the first item of business when I visit each participant in their camp (i.e. their Zoom break-out room), is to clarify and confirm the composition of the estate/trust asset pool, and values, which may have gone up or down since e.g. an IHT 400 was filed. Each participant should also apply for up to date Office Copies and valuations for any land in dispute in advance of the Mediation Day.

A Mediator must not only be impartial, but must also be seen to be impartial. The focus of a Mediator is therefore on the process and not on the outcome.

Mediation is a confidential process, and I cannot repeat anything said to me by a participant in their private Zoom break-out room to anybody outside that room unless authorized/told to do so.

The ‘without-prejudice’ rule applies to and protects all communications, see: Without prejudice | Practical Law (thomsonreuters.com)

At the end of the mediation the only document I will keep is the Mediation Agreement. All other documents provided to me and electronic files will be destroyed/deleted.

The golden rule in all mediations – which has always been and continues to be my advice to Clients when representing them as a Barrister in mediation, is that because mediation is essentially a form of facilitated negotiation, success (however that is measured by the participants), depends upon movement and momentum, which requires compromise on all sides, i.e. flexibility – otherwise if the parties stay in their trenches the mediation will fail. This requires courage, trust, and realism. My job as a Mediator is to empower the parties to begin and progress a difficult conversation. This requires counter-intuitive thinking and behaviour and can result in a paradigm shift which results in a creative solution that a court cannot impose. It therefore also requires a commercial rather than a forensic legal mind-set, and some imagination.

Prior to entering private practice I worked in-house for Rolls-Royce and Alstom (in Paris) structuring, drafting, and negotiating deals in multiple jurisdictions around the world. As a Mediation Advocate, I approach doing a deal in settlement of a dispute with the benefit of that commercial experience. Now as a Mediator, I can use my antennae to help parties re-frame their dispute as an opportunity. For example, where family wealth is held in a complex international ‘dynastic’ trust structure with underlying asset holding companies, and a dispute arises out of a critical event such as the death or loss of capacity of the wealth creator, if the overarching trust instrument was drafted using a standard form precedent that is no longer fit for purpose (i.e. because it was not carefully drafted as a bespoke document in the first place), or if the Deed has not been reviewed periodically, mediation of the dispute is an opportunity to re-draft the instrument on tax-efficient terms that a court could not direct. In other words, mediation is an opportunity to re-structure the trust as the end product of doing a ‘deal’ in settlement of the dispute, which may turn out to be a  win/win solution for both the beneficiaries and the trustees.

Prior to practising at the Bar I practised as both a commercial and private client solicitor drafting: shareholders agreements; IPR licence agreements; wills; and trusts, and am the author of ‘Tax-Efficient Wills Simplified’:

Tax-Efficient Wills Simplified eBook : Islam, Carl: Amazon.co.uk: Kindle Store.

I am therefore familiar with both the form and terms of most wills, trusts, and corporate governance documents, including LLP members’ agreements. In my practice as a Barrister I have also advised and written about fiduciary duties, see:

Breach of fiduciary duty claims and the quiet fiduciary thesis | Trusts & Trustees | Oxford Academic (oup.com)

Equitable compensation arising out of sale of a property ordered under section 14 TLATA | Trusts & Trustees | Oxford Academic (oup.com)

In the methodologies I have pioneered for mediation advocates, which are set out in my books the ‘Contentious Probate Handbook’ (published by the Law Society in 2016); and the ‘Contentious Trusts Handbook’ (published by the Law Society in 2020), I recommend that participants do not have an opening plenary session.

Instead, ground-rules and a broad and flexible structure (or direction of travel) are agreed during pre-mediation meetings individually with each participant. This is also an opportunity to test the link if the mediation is being conducted by Zoom.

The business of doing a deal can then get under way within the first hour. Participants therefore need to come to the table with the pragmatic resolve to do a deal, and be ready to make offers and counter-offers.

To discover and close the gap somebody has to get out of their trench and walk into the place in between. When the howitzers have stopped pounding and the smoke clears, each side can then see where a settlement zone exists, and gradually move forward in incremental steps toward closing the gap which divides them. This means they need to calculate their BATNA (best alternative to a negotiated settlement) i.e. what they are likely to end up with at the end of a trial.

Litigation is binary, and nobody ever recovers all of their costs. On the standard basis, as rule of thumb a party is unlikely to get more than two thirds of costs actually incurred, and in reality much less following a detailed assessment. If the losing party cannot pay the winner cannot recover, and this can result in bankruptcy for the losing party. That is why lawyers often liken contentious probate and trust litigation to a game of high stakes poker.

In these cases, ‘doing a deal’ is almost always better than going to court, and the Civil Justice Council have recently confirmed that the English court can order parties to litigation to mediate without the consent of all the parties. If a party refuses and wins, this is likely to turn out as a pyrrhic victory, because costs sanctions are likely to be applied for refusing to mediate.

Costs are the elephant in the room, and during the pre-mediation meetings I will ask each participant what costs they have incurred to date (including costs of the Mediation), and what their projection is if the case proceeds to trial, and ask for permission to inform the other participant, because at the end of the day, one of them will be ordered to pay a heavy price if the Mediation fails.

I will also check that the legal representatives have full authority to agree costs in the terms of a settlement agreement.

In contentious probate and trust cases it is not uncommon for costs at the end of a trial to exceed the value of the estate. Costs typically mount in tranches of around £10K for each stage in litigation, and pre-issue base costs and disbursements frequently exceed £25K. If there is a CFA, then part of the success fee can be taken into account as a debt in making an award for maintenance under the Inheritance Act, see: Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

See also: CFA Costs Allowed in second 1975 Act Claim | News and Events | Parklane Plowden Chambers

Re-H-in-the-CA-2021.pdf (radcliffechambers.com)

Adding costs incurred to the financial outcome a participant wants defines the outer limits of the potential zone of settlement, i.e. the gap between them at the outset.

As a Mediator I am always working with incomplete information and do not give any legal advice, although I may ask reality-testing questions about the basis and legal merits of a participant’s position and the corresponding real-world litigation risks if a deal is not done – i.e. by playing Devils advocate.

I will also probe for any element of double counting in the calculation of an offer, e.g. in the capitalisation of income needs in an Inheritance Act claim using Duxbury Tables, see:

Family Law Week: Capitalisation of income needs in Inheritance Act claims: Duxbury or Ogden?

It is the participants who will design, agree, and document their deal and not me They must and consequently will own it.

While my Mediation Agreement states that nothing is agreed until a settlement agreement has been executed, it is up to the participants to decide whether and how to document the terms of a settlement agreement, and usually one of the solicitors will have a worked up template/draft ready for mediation. It is not my job to advise any participant about whether they have agreed a good or bad deal, and how can a Mediator possibly know?

However, where for any reason a claimant’s solicitor proposes or requires that a payment be made either to their firm to hold for the benefit of trustees, or directly to trustees (i.e. instead of to their firm to hold for the benefit of their client after subtracting their fees), then that proposal or requirement should be clearly stated before a deal is agreed. Otherwise, it may not be possible for the participants legal representatives to draft and execute a settlement agreement on the day of the mediation where the Settlement Agreement incorporates complex trust provisions that need to be carfefully considered before they can be agreed.

Please note that as a Mediator I do not give any legal or tax advice whatsoever about the drafting and tax-efficiency of settlement agreements. While I take no part in drafting and recording terms of settlement, before ink is put to paper I will read the document, and if it does not appear to clearly state what has been agreed in principle, I will ask the participants to clarify whether or not the settlement agreement as drafted accords with their wishes and understanding. What they do next is up to them.

Likewise, I will only communicate an offer or counter-offer during the mediation if the participant has written it down and either emailed it to me or put it into the chat box for his break-out Zoom so that with his /her permission I can cut and paste it into the chat box for the other participant’s break-out room.

If participants are willing to walk down the road less travelled I am confident that a deal can be done, and the proportion of cases that settle on the day is around 74%, see:

Reviewing the 2018 Eighth CEDR Mediation Audit – by Joseph Mulrooney (mediatelegal.co.uk)

I suspect that in the majority of those cases, Mediation worked because the participants had invested in the process by preparing to do a deal instead of going to war, i.e. by thinking about: the settlement zone; the gap between what each participant wants; their BATNA’s; and how to close the gap and come away with a win-win solution compared to the costs and risks of litigation, which to an extent is always a lottery depending upon who the judge is.

Where parties and their legal and tax representatives are located in different time zones, while some parties will be participating late into the night, or early in the morning, a Zoom mediation may be particularly effective if the distance between participants has the advantage of avoiding face to face venting in a highly acrimonious dispute, as participants are not physically in the same room. In fact, they do not have to meet and can stay in their own Zoom break-out rooms throughout the mediation, which is not uncommon in domestic contentious probate and Inheritance Act mediations. In 2022 I am planning to write an article provisionally entitled, ‘Tools and Strategies for Mediating International Family Trust Disputes’,

I had the great privilege and honour of carrying out my mandatory mediation observations to qualify and obtain full accreditation as a mediator, with one of the top five Contentious Probate, Inheritance Act and Trust Mediators practising in England and Wales today – Mr Mark Keeley of Freeths.

What I learned is that there are in reality three types of offer a participant can make:

(i)   an ‘unacceptable’ offer that will be rejected and may result in the other participant walking out and ending the process;

(ii)  an ‘acceptable’ offer which is so high that the other participant will bite your hand off – which is why an offeror will not want to make such an offer; and

(iii) an ‘interesting offer’ that makes the other party really think, and start to work with that proposal, as a starting point for opening a discussion that results in a final settlement as the gap narrows.

Before a participant can make an ‘interesting offer’  there has to be reciprocal clarity about the elements of the claim and corresponding values – i.e. the mediation maths.

The challenge for a Mediator is to get each participant to identify (in strict confidence) what is actually at stake. The Mediator can then ask questions in order to get each participant to work out their range of best and worst outcome scenarios, which will identify the gap between their positions.

To help the parties to narrow and eventually close the gap, a Mediator can then ask reality testing questions which get each participant thinking about what a judge is likely to decide on the facts in the real world.

There is always an element of risk in civil litigation, and where the law is unsettled the outcome cannot be predicted with any high degree of certainty.  For example, in certain Inheritance Act claims, if the relief sought was argued before ten different judges, it is possible that each could make a different order.

In the Courts of England and Wales, as a general rule, judges at all levels are also required to assess costs summarily at the end of a trial on the fast track or at the conclusion of any other hearing lasting less than one day, i.e. on the spot at the end of the trial/hearing, see: See, ‘Guide to Summary Assessment of Costs’: Guide to Summary Assessment of Costs 2005 edition (publishing.service.gov.uk), therefore the earlier participants enter into mediation (which the court has the power to order without consent at the first CMC), the less risk there is of incurring a costs liability early on in the proceedings that could have been avoided altogether had the participants had the sense to go to mediation sooner rather than later.

From the outset, my compass as a Mediator is to help the parties to appreciate and think hard about: (i) the litigation risks and costs involved in proceeding to trial, and (ii) the mutual benefits of settling by doing a deal on terms that no judge has the power to order (i.e. a creative and practical solution).

In my experience, nearly all contentious probate and trust disputes eventually settle. The wonder is, why the participants did not mediate earlier instead of after significant costs had been incurred and the Frankenstein creature they  created, i.e. their claim, had taken on a life of its own.

See also my blogs:

Financial provision claim by adult child – Miles v. Shearer [2021] | Carl’s Wealth Planning Blog

Mediation in the Court of Protection | Carl’s Wealth Planning Blog

Mediation Strategies | Carl’s Wealth Planning Blog

Mediation of Will, Inheritance, Probate, and Trust disputes | Carl’s Wealth Planning Blog

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

and my articles:

The Advocate and the Expert in a Testamentary Capacity Claim | Expert Witness Journal

The Advocate and the Expert in the Court of Protection | Expert Witness Journal

Please note that my Mediation Agreement provides that Mediation continues until a settlement agreement has been executed by the participants, and that if a settlement agreement is not executed by the participants before 8pm (GMT) on the day of the mediation, the participants may either elect to adjourn the mediation until a settlement agreement has been executed, or to end the  mediation without a settlement agreement having been executed. If the participants elect to adjourn the mediation, they each agree to proportionately share the cost of paying my fees charged at my standard hourly rate, in advance of any further meeting to conclude the mediation, i.e. on another full or half day.

Anecdotally, I had the great privilege of meeting with the late Professor Roger Fisher for two hours in his study at Harvard Law School during an academic visit from King’s College London in 2002, and his parting advice was,

‘Appreciate their point of view:

• understand it – it’s very important to appreciate the way they see it,
• even if you don’t agree, say that it merits serious consideration, don’t say that they are wrong.

Appreciate their self-esteem.

Acknowledge that the other person has been heard.

Be prepared to argue their case better than they can before you answer it.’

By the end of the Bar Council Mediator Training Course, I understood the wisdom that Professor Fisher (co-author of ‘Getting to Yes’ and a founding Father of principled negotiation) had imparted to me.

The secret or acme of mediation is authenticity, empathy, and active listening (without making matters worse!), which develops trust and enables the Mediator to create a safe space into which the participants feel empowered to enter and start a conversation that can lead to a solution of their own design and making, i.e. to a ‘deal’ that they own. This requires counter-intuitive thinking and behaviour, and is a lot harder to actually do than you might think.

Facilitative Mediation can be used to solve almost any kind of dispute, and does not require any legal, economic, business, social, political, or diplomatic knowledge and subject-matter expertise/experience by the Mediator. What it demands is skill in managing a process.

At the end of our meeting Professor Fisher went up to his bookshelf and handed me a copy of his book ‘Beyond Machiavelli’ which he inscribed, ‘To Carl – Another set of ideas!’

It is one of my greatest treasures.

Book review: Contentious Trusts Handbook, Practice and Precedents

Monday, 18 October 2021

Published in the STEP Journal, Issue 5, 2021

Richard Dew TEP reviews Contentious Trusts Handbook, Practice and Precedents

By Carl Islam TEP

Reviewed by Richard Dew TEP

As the foreword to this book states, the unfortunate fact is that the risk of trustees becoming involved in court proceedings is on the increase. This book, described as a handbook, aims to provide the busy practitioner with a practical overview of the key themes and to guide them through each stage of proceedings, from pre‑action to settlement or trial.

The book contains a series of concise chapters covering the core concepts of contested trusts, including the powers of trustees, trustee duties, breach of trust, claims, equitable remedies and defences. Each chapter quotes from, or references, the key authorities in the area such that the reader has no doubt as to the key applicable principles and their effect. Importantly, for a book on contentious trusts, it goes on to describe the process and core concepts for litigation in England and Wales and the key principles relating to costs, and it has a whole chapter devoted to alternative dispute resolution and settlement. There are also three brief notes, written by experts, on art and heritage assets, trust litigation in the Cayman Islands and mediation.

For many – and especially for those new to the area or looking to practise in an area not core to them – the appendix will be invaluable, containing as it does a number of precedents for applications and claims involving trusts, alleging breach of trust, making Part 36 offers (under the Civil Procedure Rules) and so on. Inevitably, not every precedent that could be desired is there, but most will find that those that are there can be adapted to their purposes.

This is not, and does not pretend to be, a Lewin on Trusts. For detailed discussion of difficult areas of the law, the reader will need to look elsewhere. In many ways, though, this is a key advantage of this book, as it is not weighed down by lengthy discussions of disputed areas of law, but instead gives the reader what they need to know when arguing – or defending – a contentious case.

Overall, the book admirably meets the authors aims. It fills a clear need for a simple guide to the principles and conduct of trust litigation and should be a welcome addition to all practitioners’ libraries.

First edition
Price: GBP100
Publisher: The Law Society
ISBN: 9781784461249

See also the Book Review by J.J. Meagher published in Trusts & Trustees (Oxford University Press) (08.06.2021) – Review of my book in Trusts & Trustees (Oxford University Press) | Carl’s Wealth Planning Blog

For more information about the book please visit: Contentious Trusts Handbook – Carl Islam

I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled, ‘Mediation of Probate, Inheritance Act, and Trust Disputes – A Toolkit for Mediators and Participants’. For more information please visit the ‘About Carl’ page at www.ihtbar.com

The moral of Higgins v Morgan [2021] and of Hirachand v Hirachand (CA)(2021) is to mediate early in order to contain the risk of a judge making an award of financial provision that includes an element of a CFA success fee that is impossible to calculate with any precision because as HHJ Cawson QC concluded in Higgins,

‘ 133. I do not agree with Mr Willetts that awarding some part of the CFA success fee would necessarily be contrary to s. 1(2)(b), because it involves providing for something other than maintenance. To the contrary, I consider it relevant for the purposes of s. 3(1)(a) of the 1975 Act to the question of the financial resources and financial needs which Mr Higgins has or is likely to have in the foreseeable future. This is because if I do make an award in his favour so as to trigger “success” and a requirement to pay the success fee, which cannot as a result of s. 58A(6) of CALSA be recovered from the Defendants as costs, then his liability to pay the success fee will be bound to affect his ability to maintain himself to the extent sought to be achieved by the award. I consider that Cohen J was thus correct at [55] in Re H to consider it appropriate to consider the liability for the CFA success fee as part of the claimant’s needs.

134. However, there is plainly a tension, in my judgment, between giving effect to s. 3(1)(a) of the 1975 Act in taking into consideration the success fee on the basis that it would affect the claimant’s ability to maintain himself on the one hand, and the policy considerations behind s. 58A(6) of CALSA on the other hand in not requiring the opposing party to litigation to meet the payment of success fees, a factor taken into account by Deputy Master Linwood in In re Clarke, but not seemingly by Cohen J in Re H.

135. On the other hand, the actual effect of s. 58A(6) is simply to prevent a “costs order” being made so as to permit the recovery of the success fee. It is not in terms outlawing the making of an order under the 1975 Act that includes an element of successf fee within the quantum of the award because that has been taken into account as a consideration in respect of the claimant’s needs. I take Mr Willetts’ point in respect of CPR 36.17(4) that circumstances might arise in which an element of the success fee is brought into account in calculating the punitive sums provided for thereby. However, even if this can properly be construed as a “costs order”, the difficulty occasioned by any unlawfulness could be dealt with by the exercise of the Court’s power under CPR 36.17(4) to depart from the operation thereof, given that the relevant provisions only apply “unless [the Court] consider it unjust to do so”. This exception could be used to avoid any difficulties of the kind that Mr Willetts raises.

136. The overall conclusion that I come to is that I am required to take into account the success fee in considering Mr Higgins’ financial resources and financial needs for the purposes 29 of s. 3(1)(a), but that the policy considerations behind s. 58A(6) CALSA fall within the category of “any other matter” which the Court is entitled to, and in my view should take into account for the purposes of determining the manner in which it should exercise its powers under s.2 of the 1975 Act. 137. I am not persuaded that it is appropriate to take into consideration the respective merits of the case in deciding how much of the success fee ought to be recoverable as part of an award under the 1975 Act, even on the basis of submissions made post judgment. Apart from the difficulties that is likely to create so far as questions of privilege are concerned, I consider it to be an inherently unreliable exercise. I consider that I am entitled to take a rather broader view of the position and have regard to the size of the estate, the amount of the likely success fee compared with the award actually made, and the fact that in many cases, particularly where significantly less is recovered than claimed, some agreement for payment of a significantly smaller success fee might well be negotiated, even if the same is technically payable under the relevant CFA. 138. Taking these broad considerations into account, and having regard to the policy considerations behind s. 58(6)(A), I consider that the appropriate course is to increase the award to £55,000 to include an element of success fee provided that evidence can be produced, in an appropriate way, to prove that the success fee has become payable. Overall conclusion

139. On the basis of my above findings, I propose to make an award of a lump sum payment of £55,000 out of the Deceased’s estate pursuant to s. 2(1)(a) of the 1975 Act, subject to the matters referred to in paragraph 138 above.

140. Following the circulation of the draft of this Judgment, Mr Gomer quite properly pointed out that it did not explain how the interim award referred to above ought to be taken into account for the purposes of a final award, bearing in mind that a lump sum of £4,000 was paid pursuant to the interim award, and that some 8 monthly payments of £1000 have been paid to date pursuant thereto, giving a total of £12,000. My intention had been that the award provided for in this judgment should be in addition to the sums already paid and received pursuant to the interim award bearing in mind that the £4,000 element thereof related to a specific debt in respect of arrears of rent, and the figure for maintenance referred to in paragraph 131(c) above was intended to cover the position going forward rather than dealing with the position retrospectively. Whilst the 8 monthly payments of £1000 per month exceed the monthly deficiency identified in Mr Higgins’ Statement of Means as at April 2021, I consider it necessary to bear in mind that Mr Higgins evidence in his first witness statement as to the then monthly deficiency, and that COVID-19 began to have a serious effect from as long ago as March 2019. It is in the light of these considerations that I proceed on the basis that the interim award stands insofar as it has taken effect to date, and that insofar as may be necessary, the figure of £12,000 paid be treated as additional in the final award to the figure of £40,800 referred to in paragraph 132 above, and thus to the figure of £55,000 referred to in paragraph 139 above. However, for the avoidance of doubt, so far as any further monthly payment or 30 payments of £1,000 since the date of the trial are concerned, including the payment due in October 2021, these are to be included within the figure of £40,800, and thus within the figure of £55,000.

141. There is one further postscript to add following the circulation of my draft judgment. On 15 October 2021, and following the circulation of my judgment, the Court of Appeal handed down judgment in an appeal from the decision of Cohen J in Re H (supra) – see Hirachand v Hirachand [2021] EWCA Civ 1498. The decision of Cohen J was affirmed, and Mr Gomer and Mr Willetts have each confirmed that they do not seek to content otherwise than that the decision of the Court of Appeal was consistent with my own reasoning on the issue as to whether, and if so how, the CFA success fee should be taken into account. In these circumstances, I have not considered it necessary to rewrite the relevant parts of the judgment dealing with this issue in order to take into account the decision of the Court of Appeal.’

See also my recent blog – Inheritance Act – 25% CFA cases – Hirachand v. Hirachand (CA) (2021): Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

FS Cairo (Nile Plaza) LLC (Appellant) v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent) (bailii.org)

C:\Users\joeur\Documents\AutoIt_code\getter\processing\out\2021\45.image1.html (bailii.org)

FS Cairo (Nile Plaza) LLC (Appellant) v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent) (bailii.org)

Supreme Court rules in favour of Lady Brownlie in Four Seasons Cairo case | Law News | Kingsley Napley

When reviewing a will in a probate dispute, I am sometimes left wondering why a solicitor has advised a testator to gift his or her beneficial interest in the family home into a discretionary trust.

It also recently occurred to me that some Solicitors and Barristers (including practitioners who specialise in drafting wills and trusts), may be completely unaware of the potential to expand the pie when negotiating the settlement of a probate dispute, by re-structuring a testamentary gift of the family home made on professional advice into a discretionary trust, as a more tax-efficient IPDI, i.e. to increase the IHT tax shelter for the benefit of the estate.

This is a technical tax solution, and I set out below extracts from my article co-written with Stephanie Churchill CTA for Taxation about how the relief works: Tax_2017_Vol180_Issue4619_RNRB-final.pdf (carlislam.co.uk)

For DOV’s, see section 10.9 of Chapter 10 of my book, the ‘Contentious Probate Handbook’: Wildy & Sons Ltd — The World’s Legal Bookshop Search Results for isbn: ‘9781784460600’; and for planning using an IPDI, see pages 174-177 and 298 – 300 of by book ‘Tax-Efficient Wills Simplified’: Tax-Efficient Wills Simplified eBook : Islam, Carl: Amazon.co.uk: Kindle Store

‘The amount of the transferable RNRB is capped at an additional 100% of a surviving spouse’s available RNRB. However, more than one pre-deceased spouse’s RNRB can be transferred. As with the NRB, it is the unused percentage of the RNRB that is transferred, not the unused amount.

Be wary of the many pitfalls when trusts are used to own residential property (either during lifetime or on death). …

If a property is left into a discretionary trust … the RNRB will not be available even if all beneficiaries are lineal descendants. This is because the beneficiaries are not treated as the beneficial owners of the property. Therefore, it is important that lifetime trusts and wills are reviewed to ensure that any potential issues are identified. To avoid the trust being created, it might be possible to put in place a deed of variation within two years of death. On a practical note, there can be problems if the beneficiaries include future children and grandchildren because it is necessary for all parties to agree to a variation. Many discretionary trusts cater for unborn generations and it might be necessary to apply to the court to vary this type of arrangement. Another option is for the trustees to make an appointment of the residential property to lineal descendants under the provisions of s. 144 within two years of death. In this case, the appointment is read back to the date of death which should enable the RNRB to be claimed. However, if no action is taken, no RNRB will be available to the estate. …

Generally, an immediate post-death interest (IPDI) will be effective in providing access to the RNRB because the beneficiary is deemed to own the asset. However, sometimes an IPDI can be set up as a discretionary trust in the first instance. It may therefore be necessary to review its terms to ensure that the RNRB is available. To use the RNRB it will be necessary to transfer part or all of the residence to the life tenant.

As mentioned above, if the RNRB is not available because, for example, the residence is a discretionary trust asset, … the trustees can restore it by making an RNRB gift post-death under s 144 (which is read back to the time of death and so qualifies for the relief). As long as the trust is unwound within two years of death (in other words by the trustees appointing the trust assets to S absolutely) this will be treated for inheritance tax purposes as if the assets had simply been left by T to S outright. Alternatively, the trustees can confer an interest in possession on S within two years of T’s death, which will be treated for inheritance tax purposes as if the will had conferred an IPDI on S.’

For non-tax planning reasons re-structuring may not be appropriate. Before proposing and drafting a DOV, current tax advice should be taken from a CTA in addition to legal advice from a specialist trust law practitioner, as there are elephant traps for the unwary. So plan carefully!

I am co-writing an article with Stephanie Churchill CTA for publication by Taxation early next year entitled, ‘The use of trusts, DOV’s, and s.142 appointments in the tax-efficient settlement of a contentious probate dispute.’

See also my recent blogs:

Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

Testamentary Capacity claims | Carl’s Wealth Planning Blog

Recent advocacy testimonial | Carl’s Wealth Planning Blog

Liability for costs in a Contentious Probate case | Carl’s Wealth Planning Blog

Beddoe Applications | Carl’s Wealth Planning BlogArt of persuasion in court | Carl’s Wealth Planning Blog

I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled, ‘Mediation of Probate, Inheritance Act, and Trust Disputes – A Toolkit for Mediators and Participants’. For more information please visit the ‘About Carl’ page at www.ihtbar.com

If there is a CFA, then part of the success fee can be taken into account as a debt in making an award for maintenance under the Inheritance Act, i.e. before a decision is made about costs taking into account the making of any Part 36 or Calderbank Offer. Extracts from the judgment at First Instance are set out at the end of this post. See also my blogs:

Financial provision claim by adult child – Miles v. Shearer [2021] | Carl’s Wealth Planning Blog

Could HMRC attack a trust established to receive a capital sum in settlement of an Inheritance Act claim as a sham or an ‘illusory trust’? | Carl’s Wealth Planning Blog

In Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 (15 October 2021),Lady Justice King (with whom Lord Justice Singh and Sir Patrick Elias agreed) concluded:

‘Two issues arise on appeal:

ii)     In determining the lump sum award payable to the Respondent, the judge included the sum of £16,750 as a contribution towards the Respondent’s liability to pay a Conditional Fee Agreement (“CFA”) success fee. The issue is whether it is wrong in law for a judge to include such a contribution in an maintenance-based award calculated by reference to the financial needs of a claimant. …

It is submitted on behalf of the Appellant that the inclusion in the award of all or part of the debt which is represented by the success fee cannot be regarded as “provision that is to be made to meet recurring expenses, being expenses of living of an income nature” as approved by Lord Hughes in Ilott (see [43] above). Ms McDonnell submits that contrary to the Appellant’s argument, the inclusion of the award of £16,750 towards part of the Respondent’s success fee was ‘directed at meeting day to day living expenses’. This, she says, is obvious from the context of the Respondent’s financial circumstances as found by the judge; she has no other means to discharge her debt other than from her income which, on any view, is and will remain very modest. Moreover, Ms McDonnell submits the judge expressly held that if he did not make such an allowance ‘one or more of C’s primary needs will not be met’.

I agree with the analysis of Ms McDonnell, but in any event in my judgment, the Appellant’s argument that a success fee is not a recurring expense falls at the first hurdle as when one reads on from the passage relied upon by Ms Stevens-Hoare taken from the passage In re Dennis incorporated into his judgment by Lord Hughes and highlighted at [43] above, it is quite clear that payment of a debt can form part of a maintenance payment.

It follows that, in my judgment, the judge was right in concluding that an order for maintenance could contain an element referable to a success fee. As already noted, on the facts of this case, the judge concluded that without such a contribution ‘one or more of the claimant’s primary needs would not be met’. As Lord Hughes re-emphasised in Ilott at [24]: ‘The order made by the judge ought to be upset only if he has erred in principle or law’. In my judgment the judge did neither. The judge was entitled to regard the success fee as a debt capable of inclusion in a maintenance award. That being the case, it would be wrong for this court to interfere with the judge’s individual value judgment.

I am conscious, as was the judge, of the difficulty identified by Briggs J in Lilleyman, namely of the potential for undisclosed negotiations to undermine a judge’s efforts to make appropriate provision under the Inheritance Act. The civil litigation costs regime, unlike the approach in financial remedy cases, means that there is the potential for a situation where a claimant is awarded a contribution to her CFA uplift but is subsequently ordered to pay the defendant’s costs of the claim where, for example, the claimant won overall but failed to beat a Part 36 offer. I note however that this is likely to be less of a risk than might be thought at first blush to be the case given that under many CFAs the claimant is obliged to accept any reasonable settlement offer or an offer above a specified threshold or risk the solicitors withdrawing from the CFA. Conversely a success fee is frequently not payable in the event that the claimant, on advice, rejects a Part 36 offer or other relevant settlement offer but subsequently fails to beat that offer at trial.

The judge was alive to this tension and commented that he could not avoid some potential injustice to one side or the other. The judge therefore mitigated that potential injustice by taking a cautious approach towards the success fee liability and made an order which resulted in only a modest contribution of 25% towards payment of the success fee. In my view the judge’s cautious approach to this difficult aspect of maintenance cases where the claim is made on the back of a CFA contract cannot be faulted and only serves to highlight the imperative of the full engagement in the Part 36 process and the importance of the parties making realistic offers in order to settle these difficult and distressing cases.’

A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement, see: Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.44: Legal Aid, Sentencing and Punishment of Offenders Act 2012 (legislation.gov.uk), see also: CFA Success Fees in Claims under the Inheritance | Ashfords Solicitors; and sections 8 (Offers to settle) and 9 (Costs in 1975 claims) of Chapter 7 of ‘Inheritance Act Claims’ by Sidney Ross.

Is this decision likely to result in an increase in the making of hopeless (i.e. unmeritorious) claims using high success fees as leverage to negotiate a bigger settlement for Claimants, who on a forensic (i.e. legal merits based) analysis, have an unrealistic expectation of recovery at trial?

In effect, what the court has done, is to shift the litigation risk of a successful claimant being unable to pay their own irrecoverable legal costs (i.e. the success fee), on to the defendants. Does this mean that Part 36 Offers will now need to arithmetically include an amount for a contribution to a CFA success fee, e.g. of 25%?

In other words, has the court shifted the goal posts, to the advantage of unworthy claimants, at the expense of estates. If they have, is this likely to result in even more litigation and not less?

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

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

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

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

I think it has.

The problem now, is working out in any given case, ‘by how much?’

Therefore, the earlier parties proceed to mediation, the better.

Conversely, where a Claimant refuses to enter into mediation/JENE, or walks out, there is an argument that the court should not make any allowance for a success fee in making an award for a successful claimant.

Since the court has the power to order mediation where parties do not consent, this is a tool that every judge should consider using at the first CMC, i.e. to contain the escalation of costs. However, if for example a Circuit Judge refuses an application for Mediation/JENE, i.e. because he or she thinks it is not appropriate (which can happen), unless your client appeals, the price will go up. Therefore, what is now needed, is judicial guidance about the consequences of refusing to enter into ADR in an Inheritance Act claim.

At First Instance, the Trial Judge, The Hon Mr Justice Cohen held:

‘36.  I have to undertake a two-stage approach by asking two questions:

i)      Did the will make reasonable financial provision for C;

ii)   If not, what reasonable financial provision ought now to be made for C?

That those two tests are the correct approach was re-emphasised in Ilott v The Blue Cross and others [2018] AC 545.

37.   In answering both questions I must have regard to the factors set out at Section 3(1) of the Act, in particular I must have regard to the following matters:

a)     The financial resources and financial needs which the claimant has or is likely to have in the foreseeable future;

b)     … (immaterial);

c)     The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

d)     Any obligations and responsibilities which the deceased had towards any applicant for an order under section 2 or towards any beneficiary of the estate of the deceased;

e)     The size and nature of the estate of the deceased;

f)      Any physical or mental disability of any applicant for order under the said section 2 or any beneficiary of the estate of the deceased;

g)     Any other matter, including conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

38.    I have read but do not set out for the purposes of this judgment the other sub-sections to section 3.

39.   Lord Hughes in Ilott acknowledged that the section 3 factors are applicable equally to both stages and there is in most cases a very large degree of overlap between them. He confirmed that in terms of addressing the stages in a judgment: “There can be nothing wrong, in such cases, with a judge setting out the facts as he finds them and then addressing both questions arising under the act without repeating them”.

40.   The standard for what is reasonable financial provision (in cases other than spouse claims) is defined in Section 1 (2) (b) of the Act as: “Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.

41.   At paragraph 14 of Ilott, Lord Hughes explained that, “the concept of maintenance is no doubt broad but the distinction made by the differing paragraphs of section 1 (2) shows that it cannot extend to any or everything it should be desirable for the claimant to have. It must import provision to meet the everyday expenses of living”.

42.   Lord Hughes then cited with approval the extract from Re Dennis (Deceased) [1981] 2 AR 140, where at paragraph 145 Browne-Wilkinson LJ (as he then was) said: “… the word “maintenance” connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. … “

43.   Specific guidance for claims by adult children were considered in Ilott. At paragraph 19 Lord Hughes said this:

“19. For all other claimants [other than spouses], need (for maintenance rather than for anything else, and judged not by subsistence levels but by the standard appropriate to the circumstances) is a necessary but not a sufficient condition for an order. Need, plus the relevant relationship to qualify the claimant, is not always enough. In In re Coventry the passage cited above was followed almost immediately by another much-cited observation of Oliver J at page 475: “It cannot be enough to say ‘here is a son of the deceased; he is in necessitous circumstances; there is property of the deceased which could be made available to assist him but which is not available if the deceased’s dispositions stand; therefore those dispositions do not make reasonable provision for the applicant.’ There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made. “

20. Oliver J’s reference to moral claim must be understood … There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J did not impose one. He meant no more, but no less, than that in the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim”. (Emphasis added).

44.   Thus the first question before me is whether, in the circumstances, C’s financial position, difficult as it is, caused by reason of her suffering from a severe and debilitating mental illness which makes her unable to support herself and her two primary school age children, and which makes her dependent on state benefits and precarious financial support from her partner, means that the will did not make reasonable financial provision for C.

45.   The more that I have contemplated this matter, the harder I have found it. There is no doubt that C is in a position of real need. But, on the other hand, C had cut herself off from her family some 10 – 20 years ago and has had no financial support from them for over 20 years save for the period 2007 – 2011. For these purposes I ignore the minor gifts that they provided her with on birthdays and other festivals.

46.   How do I factor in the fact that C’s treatment of her family is largely to be explained by her psychiatric illness which she, rightly or wrongly, blames upon their treatment of her?

47.   This is not a large estate and the priority must be to ensure that C’s mother, the beneficiary under the will, has sufficient funds properly to be maintained for the rest of her days. She is aged almost 80 and would have a normal life expectancy of 10 – 11 years. She has very severe health problems which do not bode well for her future, but the world contains many who have lived beyond their life expectancy. 

48.   The parties have not been able to agree that I should know of any Part 36 offers and so I will need to deal with costs as between the parties separately, but it is right that I should at this stage consider the Conditional Fee Agreement into which C has entered. …

50. As a matter of law, the other party to litigation cannot be ordered to pay the uplift. Yet, C asks me to make an order that the additional £48,175 success fee should fall on the estate as part of her award. As a result of the agreement which C had to enter into to fund the continuation of the litigation, she has incurred a liability which her solicitors can enforce so that her needs-based claim will be correspondingly reduced.

51.   There are only two authorities which Ms Rogers has been able to trace where this appears to have been considered. The first in time was Re Clarke [2019] EWHC 1193 and 1194 (Ch), a decision of Deputy Master Linwood sitting in the Chancery Division. In an Inheritance Act case he declined to increase his award to include a success fee on 5 grounds:

i)      The calculation of damages is a matter of procedure carried out before costs are considered and has never included an element of costs;

ii)      To allow it would contrary to legislative policy that the losing party should not be responsible for a success fee – s.58A(6) Courts and Legal Services Act 1980;

iii)     It would amount to an increase in damages by way of costs;

iv)     It may put a CFA funded litigant in a better position in terms of negotiation due to the risk of a substantial costs burden;

v)     It would put a claimant in Inheritance Act proceedings in a better position than, say, a claimant in a personal injuries claim.

52.   The second case is Bullock v Denton, an unreported decision of His Honour Judge Gosnell in the Leeds County Court in a judgment given just 9 days before this hearing. In that case the claimant had entered into both a Damages Based Agreement with her first set of solicitors and a Conditional Fee Agreement with her second solicitors and arguably might be liable under both agreements. The judge disregarded the potential DBA liability and considered the CFA. In that case there was a success fee representing a 50% uplift on costs which as at 7 June 2019 (i.e. almost a year before trial) stood at approximately £24,000 + VAT with a substantial (but unquantified) increase as a result of the trial. The judge allowed a figure of £25,000 in total in respect of the CFA by way of contribution. That was added to the claimant’s award.

53.   As it is impossible for me to know how much the true liability by way of success fee was, I can only surmise, but it seems to me that what was awarded was bound to have been less than half the uplift to which the solicitors were entitled under the CFA.

54.   It does not appear that HHJ Gosnell was referred to the decision in Re Clarke.

55.   I accept that it is appropriate for me to consider this liability as part of C’s needs. I do so largely for case specific reasons. I am not making a large award (unlike in Re Clarke). It is not an award that permits of much elasticity. If I do not make such an allowance one or more of C’s primary needs will not be met. The liability cannot be recovered as part of any costs award from the other parties. The liability is that of C alone. She had no other means of funding the litigation.

56.   I refer also to the obiter comments of Briggs J (as he then was) in Lilleyman v Lilleyman [2012] 1 WLR 2801 where the judge was faced with the risk in an Inheritance Act claim of the award being undermined by the effect of undisclosed negotiation offers. He said this: 26. I must in concluding express a real sense of unease at the remarkable disparity between the costs regimes enforced, on the one hand for Inheritance Act cases (whether in the Chancery or Family Divisions) and, on the other hand, in financial relief proceedings arising from divorce. In the latter, my understanding is that the emphasis is all on the making of open offers, and that there is limited scope for costs shifting, so that the court is enabled to make financial provision which properly takes into account the parties’ costs liabilities. In sharp contrast, the modern emphasis in Inheritance Act claims … The judge then went on to observe that the potential for negotiation offers to undermine a judge’s attempt to meet needs is a disadvantage to the sole litigation costs regime.

57.   It was, of course, for that main reason that the making of Calderbank offers in matrimonial financial remedy cases was outlawed.

58.   I intend to adopt the same approach as HHJ Gosnell. I think that it would not be fair on C for me to ignore completely her liability to her solicitors. But, I recognise that there is a risk of injustice to the estate, in particular if an appropriate Part 36 offer had been made, of which I am necessarily unaware at this stage of proceedings. In addition, I flag up that I do not know the precise terms of the agreement and what is the definition of “success”. If my award does not bring about the operation of the uplift, I will revisit this element of the award.

59.   I cannot see how I can avoid some potential (and it is only potential) injustice to either C or the estate. All I can do is mitigate the potential by taking a cautious approach towards this liability.

60.   Bearing that approach in mind and knowing what I do of the case, I cannot envisage how it could reasonably be thought that the chance of failure was a high chance. I propose to allow the figure, as part of C’s needs, of £16,750, which approximates to a 25% uplift.’

I will be attending the ASEAN Business & Investment Summit 2021 online, see: https://lnkd.in/dNM4Ep9p and would like to take this opportunity to thank the organisers for inviting me. See also ‘Cultural Heritage Funds – Can an ESG Fund be a Charitable Trust?’, on the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com.

I am not sure if anybody has yet designed a structure that combines the idea of a charitable trust with an ESG fund for the ethical financing of social projects, e.g. a cultural heritage project. If you know of any precedent for such a public/private sector project please let me know.

ASEAN Business & Investment Summit 2021 – Advisory Excellence

Where wealth is held in a complex international trust structure with underlying asset holding companies, and a dispute arises out of e.g. a ‘monumental’ event such as death or loss of capacity by the wealth creator, if the overarching trust instrument was drafted using a standard form precedent, i.e. is not bespoke, or has not been reviewed periodically, mediation of the dispute is an opportunity to re-draft the instrument on terms that a court could not direct, i.e. as the end product of doing a ‘deal’ in settlement of the dispute at mediation. Where parties and their legal and tax representatives are located in different time zones, while some parties will be participating late into the night, or early in the morning, a Zoom mediation may be effective, particularly if the distance between participants has the advantage of avoiding face to face venting in a highly acrimonious dispute, as participants are not physically in the same room. In fact they do not have to meet and can stay in their own Zoom break-out rooms throughout the mediation, which is not uncommon in domestic mediations.

I am developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled,

‘Mediation of Probate, Inheritance Act, and Trust Disputes – A Toolkit for Mediators and Participants’, and would be interested to hear generally what your experience of Zoom mediations has been throughout the pandemic. To contact me please send an email to carl@ihtbar.com. See also Chapter 12 of my book, the ‘Contentious Trusts Handbook’ published by the Law Society in July 2020:

Wildy & Sons Ltd — The World’s Legal Bookshop Search Results for isbn: ‘9781784461249’

As a practising Barrister and Author, I specialise in Contentious Probate, Inheritance Act, and Trust Disputes, and as a Certified Mediator, 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 (http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/12/content_21907980.htm); 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.

For more information about the Mediation of Contentious Probate and Trust Dispute services I provide, please visit: Mediator – Contentious Probate, Inheritance Act, & Trust Disputes – Carl Islam

For my recent blogs including:

Advocacy & Experts | Carl’s Wealth Planning Blog

Art of persuasion in court | Carl’s Wealth Planning Blog

Beddoe Applications | Carl’s Wealth Planning Blog

Liability for costs in a Contentious Probate case | Carl’s Wealth Planning Blog

Mediation of Will, Inheritance, Probate, and Trust disputes | Carl’s Wealth Planning Blog

Poverty charity intentionally abused for criminal purposes by two of its trustees | Carl’s Wealth Planning Blog

Recent advocacy testimonial | Carl’s Wealth Planning Blog

Testamentary Capacity claims | Carl’s Wealth Planning Blog

The psychology of advocacy | Carl’s Wealth Planning Blog

please visit: Carl’s Wealth Planning Blog | by Carl Islam LL.M (Exon)

The aim of the advocate is to win at trial within the rules of law, evidence, and professional ethics. ‘The means of winning is by being persuasive… Rightly or wrongly, adversarial advocacy is not really an enquiry into the truth. Perhaps the adversarial system should be about finding out what really happened. But it isn’t. Instead it creates a polite contest. The contest is this: while a judge will seek out the truth as best they can, the advocates use their skill to test the evidence, and to control the way the evidence emerges, and then comment in closing on whether a case has been proved to the necessary standard of proof.’ (Morley).

‘A trial is not an exercise designed to discover the truth. The rules of evidence are mainly designed to exclude. They often operate to prevent the evidence actually presented from showing the truth of the matter at all … The Judge is not an investigator but more like an umpire … What we are doing as advocates is trying to get the fact finder to arrive at an opinion, an opinion in our favour … our objective at trial is not the ultimate truth but an opinion in our favour.’ [Evans].

‘The task of the advocate is to be argumentative, inquisitive, indignant or apologetic – as the occasion demands – and always persuasive on behalf of the person who pays for his voice …when making submissions to a judge … or cross-examining hostile witnesses, the advocate is required to entice, to flatter, [and within the boundaries of what is ethically permissible to ridicule and] to insult, all in order to advance the cause for which he is instructed. The professional function of the advocate is, essentially, one of supreme, even sublime indifference to much of what matters in life. He must advance one point of view irrespective of its inadequacies. He must belittle other interests, whatever their merits … It is not for counsel appearing in court to express equivocation, to recognize ambiguity or to doubt instructions. His client is right and his opponent is wrong. The wider consequences can be left to the judge. The fundamental role of the advocate is not to enlarge the intellectual horizon. His task is to seduce, to seize the mind for a predetermined end, not to explore paths to truth.’ [Advocates].

At trial, the strategic objectives of the advocate therefore include:

(i) persuading the judge to rule in favour of the lay client through the admission and convincing presentation of expert evidence (which includes anticipating attacks upon the credibility of the expert and the value of his evidence);

(ii) the exclusion of expert evidence relied upon by the other party; and

(iii) undermining the credibility of the opponent’s expert, and the value of his evidence, to minimize the weight that the judge will attach to that expert’s opinions and conclusions, i.e. to neutralise its effect in the mind of the judge, e.g. by getting the expert to agree to a point which can be referred to in closing in order to submit that his evidence is abstract and incomplete, and therefore that the evidence of witnesses of fact who knew and or met the testator should carry equal if not greater weight, or to submit that the expert expressed no opinion about the possibility that a disposition made by a deceased testator while prima facie eccentric, was not necessarily irrational, and was in fact in character, i.e. to cast doubt about the probative value of the expert evidence and to add weight to an alternative case theory/narrative.

When examining his own expert witness the advocate’s aims include:

(i) ensuring that the judge understand the expert’s evidence;

(ii) persuading the judge of points essential to the case; and

(iii) anticipating the other side’s cross-examination and fortifying against that assault.

The expert is obliged to state his qualifications in his report (PD 35, paragraph 3.2(1)). The usual practice at trial is for the judge to be referred to the relevant page in the report and for the advocate to then move on to the substance of the expert’s evidence. ‘In almost every civil case the expert will have written a report before the trial which will have been disclosed to the other parties pursuant to a direction of the court. This report should have been pre-read by the judge and examination-in-chief is usually relatively brief consisting of the advocate highlighting the important sections of the report and asking the expert to amplify or clarify ambiguities in the report and, sometimes, to comment on issues raised by the other side’s expert (albeit that this has usually been done in the expert’s joint statement) and/or issues that have arisen since he wrote the report. The bulk of the expert’s time in the witness box is usually taken up with cross-examination. In many civil cases (in particular those involving a single joint expert all of the expert evidence is given by report alone and, thus examination-in-chief does not arise.’ [Expert Evidence, paragraph 8-012].

The opinion of an expert, however correct, is of no use to the court unless it is clearly formed by inference from facts which have been or are to be proved in evidence. The expert must always, in expressing an opinion, indicate which facts he relies upon. Counsel calling an expert should therefore in examination in-chief, ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination. ‘Unless a witness states in his evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless.’ Cadbury Schweppes v Durrell Lea [2007].

Once the expert’s opinion has been stated, immediately provide the underlying theory. The theory should furnish the nexus between the expert’s conclusion and the data used to support the conclusion. In other words the examination should follow this pattern:

(i) here is my opinion;

(ii) here are the principles that support my opinion; and

(iii) here is what I did to reach my final conclusion.

Having stated and supported his theory choice, the expert can then specify the nature of his investigations and tests. It is not necessary to explain or outline every hypothesis used by your expert, but the more important assumptions should be noted and supported. The examination in chief of an expert should conclude with a powerful restatement of his most important conclusions. Many complex ideas can be made understandable with examples, analogies, or metaphors. Expert witnesses should be encouraged to clarify their testimony through the use of such imagery. (Lubet pages 224 to 232).

Just as a party must in cross-examination challenge evidence of fact given in chief by a lay witness which is not accepted, so the opinions of an expert must be challenged if they are to be disputed. The purpose of cross-examination is to:

(i) elicit support for your own case, and to weaken your opponent’s case; and

(ii) put your client’s case (including as to the fact or content of documents) to the witness to afford the witness the opportunity to respond to it.

‘Effective cross-examination of an expert is no different than of any other witness: you must have a sound analytical approach to the witness so that you can determine whether to cross-examine and, if so, how to organize and execute the cross-examination to carry out realistically attainable goals. This approach involves the following basic considerations.

a. Should you cross-examine? Not every witness needs to be cross examined. If the expert has not hurt you, or if you have no effective points to make, or your own experts have been more persuasive, consider not cross-examining.

b. How should the cross-examination be organized? All cross-examinations have two possible basic purposes: eliciting favourable testimony, and conducting a destructive cross. Eliciting favourable testimony ordinarily comes before a destructive cross. If the expert has substantially helped you by agreeing to helpful facts, consider not attempting a destructive cross at all, although you have destructive ammunition.

c. Effective cross-examinations have a structure that starts strong, and keeps it simple. They maintain control over the witness by asking simple, leading questions and stop when the point is made.

d. What favourable information can you elicit? Did the witness say things on direct that you can have her repeat on cross? Can the witness admit facts not yet mentioned that support your case? What must the witness admit that helps?

e. What discrediting or destructive cross-examination can you do? Are the witness’s perception, memory, or communication skills vulnerable? Can the witness be impeached? Can you expose the witness’s bias, interest, or motive? Has she made prior inconsistent statements? Can the witness be impeached by a treatise? A good approach to any cross-examination is to ask yourself: what will I say about this witness in closing arguments? Planning the cross-examination is then a matter of determining what facts you can realistically make the witness admit during cross-examination that support your planned closing argument.’ (Mauet, page 365).

‘In general, if wishing to contest the opinion of an expert being called by our opponent, we can either contest the factual basis of the opinion, or we can contest the opinion itself. If the factual basis of the opinion is disputed, then we should be able to get the witness to agree in cross-examination that if the facts were as we contend, then his or her opinion would be different. If it is the opinion which we are contesting, on the other hand, then we will probably need to call our own expert witness… There are six critical questions we can ask about experts:

1. Expertise questions: How credible is E as an expert source?

2. Field question: Is E an expert in the field that A is in?

3. Opinion question: What did E assert that implies A?

4. Trustworthiness question: Is E personally reliable as a source?

5. Consistency question: Is A consistent with what other experts assert?

6. Backup evidence question: Is E’s assertion based on evidence? …

The expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.’ [Palmer, page 148].

An expert may be:

(i) challenged as to credit in relation to his opinion as he may in respect of facts;

(ii) asked to justify or deny particular opinions expressed on other occasions (including evidence given in similar cases) to cast doubt upon the opinions he has expressed in the present case;

(iii) asked about his attitude to the parties, i.e. if it is suggested that he is biased; and

(iv) questioned about whether he is or was not in a physical or mental state to express a proper opinion.

When cross-examining an expert witness the advocate’s aims specifically include:

‘(a) limiting the witness’s apparent expertise. Narrow the extent of his or her expertise/experience by showing that it is not directly applicable to the case in question or, perhaps, by contrasting it to the experience of your expert;

(b) showing that the witness has had less involvement/contact with the case than your expert;

(c) showing your knowledge of the expert’s subject. Using your knowledge of the technical terms involved or the way in which any tests were carried out, the expert will be less inclined to avoid your questions. Contrast this approach with the way you may deal with an ordinary witness of fact by simplifying technical terms;

(d) inviting the witness to define technical terms and sometimes in highly complex matters it may be necessary to invite the expert to use common language;

(e) challenging his or her methods, for example showing that there were other tests that the expert could/should have carried out that might have produced a different result. Remember to check that the expert’s facts, calculations and methods do actually produce the results set out in his or her report and, if they do not, challenge the expert as this may undermine the confidence and credibility of the expert’s evidence;

(f) inviting the witness to agree with the propositions that form the basis of your expert’s opinion – he or she is unlikely to disagree with everything your expert says, and you should know from your own expert those areas that are in dispute. Remember to ‘put your case’ to the expert by inviting him or her to deal with your expert’s methods/opinions/conclusions;

(g) inviting the witness to agree that, in his or her field, legitimate differences of opinion frequently occur between qualified experts. This shows that the witness is not infallible and that his or her evidence is ‘opinion’ only; and

(h) using hypothetical facts to test the strength of the expert’s opinion. Testing whether a different interpretation of the same facts or a slight change in those facts would affect the expert’s opinion.’ [Advocacy, paragraph 22.7.1].

Paragraph 5 of PD 35 provides, ‘Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice.’

Cross-examination of an expert witness is a hazardous undertaking. ‘A witness under cross-examination does not want to agree with you. He will fight tooth and nail to confound you. He will misunderstand your questions. He will provide evasive answers. He will try to use your questions as an excuse to repeat the deadly features in his testimony which destroy your case. Unlike TV, a witness has no script which must be followed. He will try everything to wriggle out from under your questions. Every question in cross-examination is an invitation to disaster. It is an opportunity for the witness to hammer you and your case. So your first thought is don’t do it. Always start from the point of view: if I can avoid it, I will.’ [Morley].

‘The advantage of a cross-examiner over even the most prepared witness is that only the cross-examiner knows which questions are going to be put next… 10 cardinal rules:

(i) Always put your case to a witness in so far as it is relevant to that person’s evidence. Failure to do so may damage your case and may result in the witness being recalled.

(ii) Keep your xx to what is absolutely necessary.

(iii) Leading questions are permissible and should be used. Put propositions to a witness. Don’t give them a chance to give equivocal answers. Listen carefully to what they have to say. If a witness avoids answering the question put it again until he/she does.

(iv) Do not ask multiple questions. Keep them short and keep a tight rein on the witness. You should be in charge.

(v) Permissible – forceful/insistent. Impermissible – hectoring/bullying. XX does not mean being cross. Never lose your temper with a witness.

(vi) Let the witness finish his/her answer, before proceeding to the next question. If a damaging answer has been given, pause before proceeding. Silence is golden. Let it sink in.

(vii) Watch the Judge’s pen. No matter how good the XX is, if the Judge cannot record it, it may be lost. On a long trial, try to get a daily transcript if possible, it is very helpful for closing speeches.

(viii) Never put questions on a false premise. It denudes the XX of its force and makes you look bad/ incompetent/unprepared. (ix) Never misrepresent a witness’s earlier answer. (x) Put questions, don’t make speeches/submissions. Don’t clutter the questions with comment – save that for closing.’ (Hochhauser).

The purpose of re-examination is to correct, clarify or expand matters arising out of cross-examination. No question may be asked in re-examination which does not arise out of cross-examination. The basic rule about re-examination is do not do it, i.e. ‘break glass in the event of emergency’.

For the Bibliography, see: Handout.pdf (carlislam.co.uk) (from which the above is an extract).

See also:

The Advocate and the Expert in a Testamentary Capacity Claim – Layout 1 (carlislam.co.uk)

The Advocate and the Expert in the Court of Protection | Expert Witness Journal

Mediation in the Court of Protection | Carl’s Wealth Planning Blog

Under s.142(1) IHTA a deed of variation can be executed by a beneficiary to rearrange the distribution of the deceased testator (T’s) estate by varying or redirecting his entitlement, with the effect that the altered gifts are automatically read-back into the will as having been made by T.

For planiing using a DOV see paragraph 10.9 (Tools for constructing a tax-efficient settlement) of my book the ‘Contentious Probate Handbook’ published by the Law Society in 2016.