Since more than one court may have jurisdiction under conflict of laws principles, legislative provisions which merely proclaim that an offshore financial court has jurisdiction, do not automatically preclude the jurisdiction of an onshore court [‘OC’]. The OC will determine whether it has jurisdiction. Where the issue of jurisdiction turns on the ‘proper law’ of the trust, and the OC determines that the offshore trust is governed by onshore law, the trust will be deprived of investor friendly rules under the offshore trust law regime. Thus, the existence of an ‘exclusive jurisdiction’ clause in an offshore trust instrument is not determinative of jurisdiction. While the rule against the ‘enforcement of foreign revenue laws’ is that a state will not enforce or assist in the enforcement of the revenue laws of another state, the status of the rule is convoluted. Recently, the rule has also been circumscribed. Some offshore jurisdictions have voluntarily bypassed the rule, expressing a willingness to assist onshore tax authorities, particularly where criminal activities have been alleged. The rule should also be considered within the context of treaty arrangements, either in relation to double taxation treaties, or in the facilitation of exchange of information agreements. Therefore, a jurisdictional challenge based on ‘conflict of laws’ can nullify offshore legislative initiatives.
‘An emerging basis for assuming jurisdiction over offshore trusts, particularly by US courts, is the in rem jurisdiction of the courts in relation to fraud and injustice, utilizing an “alter-ego” or “sham” argument. In International Credit Investment Company (Overseas) Ltd v. Adham  141 SJLB 56, the court found that it could assume jurisdiction over shadowy offshore trusts and companies and “pierce the corporate veil” of such entities because they were still “indirectly controlled” by onshore residents. The court recognized that an earlier generation of judges “would not have exercised such jurisdiction but felt that such drastic action was now a matter of necessity because of international fraud.”’ (Trusts And Related Tax Issues In Offshore Financial Law, by Rose-Marie Antoine).
is next for Rory Stewart – ‘Still in his 40s, Stewart has already lived many
lives: as an award-winning writer, a cabinet minister, a podcaster, an
academic, a soldier and a diplomat. Now comes another ambitious challenge. “I
think we have a chance of ending extreme poverty worldwide,” he says,
absolutely impassioned. “I can lead a movement starting in Africa that can
demonstrate in a couple of countries how it could be done.”
And after Stewart ends world poverty? “I’d like to take a camel from Morocco to Timbuktu,” he says.’
His books ‘The Places In Between’ and ‘Occupational Hazards, highlight that on the ground the communities he visited in the near east are made up of villages and tribes who have their own culture, customs and practices, and do not want to be westernised. The idea that imposing democratic political structures and institutions will result in a renaissance through political cohesion and the adoption by these communities of western liberal values is naive, and demonstrates a complete lack of any granular understanding of these regions by grand strategists and political leaders in the West. Rory Stewart grasped this, which is why he is a huge loss to British politics.
BBC Proms 47 – Sheléa, Vula’s Chorale, Jules Buckley Orchestra / Jules Buckley – Aretha Franklin: Queen of Soul – Review: https://arcana.fm/2022/08/23/proms-shelea-aretha-franklin/
Sheer Joy! – and if you missed it you can replay it on BBC iPlayer.
The Singer – ‘Sheléa‘, is mentored by Stevie Wonder and is a protégée of Quincy Jones. She was a backup singer for Wonder’s Songs in the Key of Life Tour in 2014 and 2015. In 2018, she held a two-month residency at Jones’ Q’s Bar & Lounge in Dubai. (sheleamusic.com).
Conductor, arranger, curator and composer, Jules Buckley ‘is a unique and rare breed of artist. He has collaborated with some of the most important musicians on the planet, trailblazing his way through a staggering discography of almost 70 albums – more than most artists achieve in a lifetime. He is a Grammy winner with two No.1 albums and the go-to orchestrator for some of the world’s leading names in music.’ www.julesbuckley.com.
· ‘It is not – and probably never will be – possible to state the true doctrine of tax avoidance conclusively. This is partly because of the changing membership of the judiciary, partly because of the nature of the judicial process, partly because of the variety of the situations and partly because questions of statutory construction are matters of opinion on which views may differ.’ [Tiley’s Revenue Law by Glenn Loutzenhiser, p.103].
· For a helpful attempt to summarize the present state of the law on the Ramsay principle, see Lewinson J in Berry v. Revenue & Customs Commissioners  UKUT 81, STC 1057 at para 31.
· While courts must have respect for the legal facts created by the parties, the approach in IRC v Duke of Westminster no longer represents the law.
· Courts look to facts and not labels.
· In relation to transactions, the Courts will look at end results, i.e. whether the transaction is (a) circular and self-cancelling (Ramsay & Burmah), or (b) linear (Furniss v. Dawson).
· In Ramsay, the court used the ‘composite transaction’ approach to decide that a series of ‘self-cancelling’, ‘preordained’ transactions, affected solely to generate an allowable loss for CGT purposes, was not to be given that effect. The wider ratio of the case is that the court is entitled to look at the ‘whole transaction’. As Lord Wilberforce said: ‘[The approach which the Crown contends] does not introduce a new principle: it would apply to new and sophisticated legal devices, the undoubted power and duty of the court to determine their nature in law and to relate them to existing legislation. While the techniques of tax avoidance progress are technically improved, the courts are not obliged to stand still.’
· The new approach applies to mainstream commercial transactions by major companies , IRC v. Burmah Oil Co Ltd .
· ‘Today since MacNiven and Barclays Mercantile Business Finance, all is a matter of statutory construction, so that the basic principle is clear. However, while the basis may be clear, this simply opens the door to the real issue, which is how the statutes should be interpreted: this is not easy . … Following UBS AG and DB Group Services (UK), the key question will be whether the legislation operates “in the real world”; if so, there will be considerable scope for judges to interpret the statute in a way that justifies disregarding non-commercial steps in tax schemes. … What is clear is that, even though a GAAR has been introduced, the players (government and taxpayers alike) are still at the mercy of the courts. It is also clear that in recent years HMRC has been winning almost every pre-GAAR tax avoidance case it has brought before the courts.’ [Tiley’s Revenue Law by Glenn Loutzenhiser, p.122].
Note that the following propositions about the composite transaction doctrine are stated in Tiley:
- In determining whether there is a composite transaction the court asks whether, at the time of the first transaction, it was ‘practically certain’ that the second would follow.
- Where the composite transaction is commercial in nature the end result must reflect the commercial reality.
- The result of the application of the composite transaction doctrine must be intellectually sustainable; the court’s job is to identify the composite transaction; it may not alter the character of the transaction or pick bits out of it.
- The essence of the new approach is to give the statutory provision a purposive construction in order to determine the nature of the transaction to which it is intended to apply and then to decide whether the actual transaction (which might involve considering the overall effect of a number of elements intended to operate together) answers to the statutory description.
- The courts do not have to put their reasoning into the straitjacket of first construing the statute in the abstract and then looking at the facts. It might be more convenient to analyze the facts and then ask whether they satisfy the requirements of the statute.
- However one approaches the matter, the question is always whether the relevant provision of the statute, upon its true construction applies to the facts as found..
- The composite transaction doctrine is thus to be seen as a rule of statutory application as much as interpretation.
- The correct characterization of the composite transaction is a question of law.
- The composite transaction doctrine, as formulated in Furniss v. Dawson, applies where steps are inserted which have no business purpose other than the avoidance of tax.
- Where a particular step has been inserted in a composite transaction, the composite transaction doctrine will not apply if the taxpayer can show that there is a commercial purpose, however slight, behind the inserted step.
- The composite transaction approach is not confined to income tax or CGT; whether it applies to another tax depends on the nature of that tax.
- Both the taxpayer and the revenue may invoke the composite transaction approach.
- Where the taxpayer can bring itself clearly within (the purpose of) a specific relieving provision of the tax legislation, the court will not withhold that relief.
Lewison J in Berry v. Revenue & Customs Commissioners  UKUT 81, STC 1057 at para 31, summarised the present state of the law on the Ramsay Principle as follows:
‘The Ramsay principle.
I was expertly guided by both Ms Nathan and Mr Gammie QC through the origins and development of the Ramsay principle in the House of Lords from its birth in WT Ramsay Ltd v Commissioners of Inland Revenue (1981) 54 TC 101 to its maturity in Commissioners of Inland Revenue v Scottish Provident Institution (2004) 76 TC 538. I will state my own conclusions on this array of learning as shortly as I can.
In my judgment:
i) The Ramsay principle is a general principle of statutory construction (Collector of Stamp Revenue v Arrowtown Assets Ltd (2004) ITLR 454 (§ 35); Barclays Mercantile Business Finance Ltd v Mawson  STC 1 (§ 36)).
ii) The principle is twofold; and it applies to the interpretation of any statutory provision:
a) To decide on a purposive construction exactly what transaction will answer to the statutory description; and
b) To decide whether the transaction in question does so (Barclays Mercantile Business Finance Ltd v Mawson (§ 36)).
iii) It does not matter in which order these two steps are taken; and it may be that the whole process is an iterative process (Barclays Mercantile Business Finance Ltd v Mawson (§ 32); Astall v HMRC  STC 137 (§ 44)).
iv) Although the interpreter should assume that a statutory provision has some purpose, the purpose must be found in the words of the statute itself. The court must not infer a purpose without a proper foundation for doing so (Astall v HMRC (§ 44)).
v) In seeking the purpose of a statutory provision, the interpreter is not confined to a literal interpretation of the words, but must have regard to the context and scheme of the relevant Act as a whole (WT Ramsay Ltd v Commissioners of Inland Revenue (1981) 54 TC 101, 184; Barclays Mercantile Business Finance Ltd v Mawson (§ 29)).
vi) However, the more comprehensively Parliament sets out the scope of a statutory provision or description, the less room there will be for an appeal to a purpose which is not the literal meaning of the words. (This, I think, is what Arden LJ meant in Astall v HMRC (§ 34). As Lord Hoffmann put it in an article on Tax Avoidance: “It is one thing to give a statute a purposive construction. It is another to rectify the terms of highly prescriptive legislation in order to include provisions which might have been included but are not actually there”: See Mayes v HMRC  STC 1 (§ 30)).
vii) In looking at particular words that Parliament uses what the interpreter is looking for is the relevant fiscal concept: (MacNiven v Westmoreland Investments Ltd  STC 237 (§§ 48, 49)).
viii) Although one cannot classify all concepts a priori as “commercial” or “legal”, it is not an unreasonable generalisation to say that if Parliament refers to some commercial concept such as a gain or loss it is likely to mean a real gain or a real loss rather than one that is illusory in the sense of not changing the overall economic position of the parties to a transaction: WT Ramsay Ltd v Commissioners of Inland Revenue (1981) 54 TC 101, 187; Inland Revenue Commissioners v Burmah Oil Co Ltd (1981) 54 TC 200, 221; Ensign Tankers Ltd v Stokes  1 AC 655, 673, 676, 683; MacNiven v Westmoreland Investments Ltd (§§ 5, 32); Barclays Mercantile Business Finance Ltd v Mawson (§ 38).
ix) A provision granting relief from tax is generally (though not universally) to be taken to refer to transactions undertaken for a commercial purpose and not solely for the purpose of complying with the statutory requirements of tax relief: (Collector of Stamp Revenue v Arrowtown Assets Ltd (§ 149)). However, even if a transaction is carried out in order to avoid tax it may still be one that answers the statutory description: (Barclays Mercantile Business Finance Ltd v Mawson (§ 37). In other words, tax avoidance schemes sometimes work.
x) In approaching the factual question whether the transaction in question answers the statutory description the facts must be viewed realistically. (Barclays Mercantile Business Finance Ltd v Mawson (§ 36).
xi) A realistic view of the facts includes looking at the overall effect of a composite transaction, rather than considering each step individually: (WT Ramsay Ltd v Commissioners of Inland Revenue (1981) 54 TC 101, 185; Carreras Group Ltd v Stamp Commissioner  STC 1377 (§ 8); Barclays Mercantile Business Finance Ltd v Mawson (§ 35).
xii) A series of transactions may be viewed as a composite transaction where the series of transactions is expected to be carried through as a whole, either because there is an obligation to do so, or because there is an expectation that they will be carried through as a whole and no likelihood in practice that they will not: (WT Ramsay Ltd v Commissioners of Inland Revenue (1981) 54 TC 101, 185).
xiii) In considering the facts the fact finding tribunal should not be distracted by any peripheral steps inserted by the actors that are in fact irrelevant to the way in which the scheme was intended to operate: (Astall v HMRC (§ 34)).
xiv) In considering whether there is no practical likelihood that the whole series of transactions will be carried out, it is legitimate to ignore commercially irrelevant contingencies and to consider it without regard to the possibility that, contrary to the intention and expectation of the parties it might not work as planned: (Commissioners of Inland Revenue v Scottish Provident Institution (2004) 76 TC 538, 558 § 23). Even if the contingency is a real commercial possibility it may be disregarded if the parties proceeded on the basis that it should be disregarded: (Astall v HMRC (§ 34)).
Although I have referred to rather more authority than the FTT (in deference to the very detailed submissions that were made to me) I do not consider that there is any difference in the general approach between my summary and the test that the FTT applied. So far, therefore, I do not consider that the decision under appeal involved any error of law.’
‘An alternative solution for holding the shares of a private company or some other high risk assets on trust is to customise the trustee, rather than the trust instrument. … An estate planning arrangement may be structured by the incorporation of a private trust company, sometimes also known as a dedicated trust company, i.e. a company expressly created to act as trustee in one or more connected settlements relating to a single individual, family, or business group. … For wealth management purposes, the incorporation of a bespoke trustee company is often envisaged when the size of the intended trust fund and its composition, as well as the family dynamics potentially at stake, may exceed the responsibilities that a professional trustee is prepared to undertake (or that its insurer is prepared to cover). This is quite likely to be the case with a controlling interest in a manufacturing business, property investments in various jurisdictions, art collections, aircraft, and other vessels, especially if a combination of many, if not all of these assets is contemplated under the estate planning requirements of a particular family. The management of any or all the assets above exceeds the skills of the average professional trustee. Furthermore, if the main rationale is estate planning at the family level, some crucial exercise of trustee discretion may be called for, requiring an understanding of family matters that an outside professional trustee is unlikely to have. … A PTC, by its nature, does not offer its services to the general public. Accordingly, licensing and regulatory requirements that apply to professional trust service providers in most offshore jurisdictions are typically reduced in the case of a PTC.’ (International Trust Laws, by Paolo Panico).
Gregson v. HAE Trustees Ltd  provides an English example of a company incorporated to act as trustee of family trusts following incorporation as a company limited by guarantee without a share capital. This involved bespoke drafting of the objects clause and articles. In principle, a trust deed can contain an express power to appoint a foreign trustee, and a trust corporation can be appointed as a sole trustee. In structuring a PTC the following issues need to be addressed:
· Corporate governance at the PTC level, with the involvement of the trust beneficiaries and family members in general.
· Licensing requirements, i.e. the choice of the jurisdiction of incorporation for the PTC.
· The overlying holding structure for the shares of the PTC.
An interesting but rarely used concept is to use a foundation as a PTC as there can never be a shareholder, which is one drawback of a traditional PTC. If the foundation is incorporated in a traditional civil law jurisdiction then there is likely to be no licensing requirement for the foundation to act as a trustee.
Official forecasts in 2017 implied that lower tax rates for the self-employed and company owner managers relative to employees will cost about 15 billion in 2021-22. Therefore, if there are tax cuts, that cost will rise. Independently, and in parallel, the cost of government borrowing may increase. UK general government gross debt exceeds £2,365.4 billion (Quarter 1 – Jan to Mar 2022), equivalent to 99.6% of gross domestic product (GDP), see my previous blog ‘What is the economic impact of Brexit on the cost of living crisis?’
In the UK tax liabilities on income from work depend on legal form.
‘The way different incomes are treated for tax purposes is a problem. The system is unfair, complicated and economically inefficient. These problems are not new and not unforeseen. Researchers have been highlighting the problems and predicting that they would grow, including as a result of changing work patterns that blur the lines between employment and self-employment, for more than two decades. As the problems have grown, so too have the costs, including the revenue cost to the government.
… [P]art of the reason that the current system persists is a widespread belief that the system is justified – ie, that there are benefits that offset the costs imposed by differentiating tax by legal form. … None of the common arguments holds up. Levying lower taxes on the self-employed cannot be justified by differences in publicly funded benefits (the differences are far smaller than the tax advantages) or by differences in employment rights (which do not act to skew the labour market toward employment). Lower tax rates are also poorly targeted at boosting entrepreneurship. It has long been recognized that there is a great deal of heterogeneity within the small business population and that not all are entrepreneurial. The latest research using HMRC tax records is allowing the population of the self-employed and company owner managers to be described in much more detail. The research highlights that most business owners, while conducting perfectly respectable trades, are not employing others, investing or growing – let alone doing anything that produces positive ‘spill-overs’ to wider society and that will, therefore be under provided by the market. This serves to demonstrate how poorly targeted the tax breaks are.
… Given that the problems with taxing legal forms in very different ways are large, long-running, well-known and growing and that no one seems happy with the current system, it is perhaps surprising that so little progress has been made in fixing the system.’
(‘Principles and Practice of Taxing Small Business’, by Stuart Adam and Helen Miller, Chapter 5 of ‘The Dynamics of Taxation – Essays in Honour of Judith Freedman’, edited by Glen Loutzenhiser and Rita de la Feria).
£50bn (not taking any account of the £15bn I mentioned) will increase GND by 2.1%. The Observer view on Liz Truss and Rishi Sunak’s tax cut promises (see the link below) states, ‘Truss, … has gone much further, pledging tax cuts she claims will cost £38bn annually, but which economists believe could actually cost more than £50bn a year. She claims this will promote growth, but these kinds of tax cuts will do nothing to address the real reasons for Britain’s dire productivity growth – a lack of investment in infrastructure, skills and other forms of capital – while significantly reducing the resources available for public services at a time when inflation is eroding the real value of budgets in hospitals, schools and care homes. Most of the conversation about the cost of living crisis has, understandably, been framed through the lens of household budgets. But it will have just as damaging an impact on Britain’s public services. … Inflationary pressures, including higher wage bills and energy costs, are predicted to cost the NHS billions this year.’
If this economic analysis proves to be correct, then:
(i) tax cuts will not increase economic growth; and
(ii) the economic cost of cuts will be GND = 101.71% of GDP.
That is an economic tipping point.
To refresh and update my technical knowledge of tax law principles and FTT procedure, in July I read ‘Tolley’s Guide to Tax Disputes’ by Adam Craggs, Julian Hickey and Jonathan Levy; and ‘Tax Appeals – Law and Practice at the FTT (5TH Edition) (2022), by Keith Gordon. I am now on page 1000 (Corporation Tax) of ‘Tiley’s Revenue Law’, Tenth Edition, (2022), by Glen Loutzenhiser (Professor of Tax Law at the University of Oxford). Not your typical summer reading, I grant you, but nevertheless highly instructive. For example, I discovered today that for Corporation Tax, ‘The reintroduction of the small profits rate from 2023 means a revival of the associated companies rules.’ The next book on my list is, ‘Tolley’s Estate Planning 2021-2022’. To be followed by ‘Trusts And Related Tax Issues In Offshore Financial Law’ by Rose-Marie-Antoine, which discusses ‘challenges’ and the ‘conflict of laws’, in relation to the taxation of offshore trusts. So, by 1 September I will have updated my technical knowledge of tax law & litigation. This is timely, because in September I am planning to complete the writing of my next article which is for ‘Trusts & Trustees’ (OUP) entitled, ‘Mediation of Probate Trust & Tax Disputes – Challenges & Tools.’The introduction is set out at the foot of the‘Mediation of Probate & Trust Disputes’ page at www.carlislam.co.uk. If you are a solicitor or CTA and would like to discuss the advocacy services, I can provide in the FTT from September, I am available for a free zoom consultation from Monday 5 September. I have also pre-ordered a copy of the Pump Court Chambers ‘Tax Litigation Handbook’, which is due to be published in September, and of ‘Regulation of Tax Avoidance’ by Hartley Forster, which is due to be published in December. My programme of reading and advanced tax law education will therefore continue into 2023. I studied tax law as an undergraduate, and my tutor was the late Stephen Brandon QC. My dissertation was about the ‘Taxation of UK resident foreign domiciliaries’. I also wrote five editions of ‘Tax-Efficient Wills Simplified’ after qualifying as a TEP, and earlier in my career, when I was working in-house, I was involved in the tax-efficient structuring of infrastructure projects in the far east. I am therefore looking forward to putting my knowledge of tax law, corporate transactions, trusts, planning, and the conflict of laws, to use in relation to revenue disputes, which is a natural add on to my probate and trust litigation knowledge and expertise as an advocate, Mediator, and author.
Rees-Mogg: “The overwhelming opportunity for Brexit is over the next 50 years.” (interview with Channel 4 News – ‘Jacob Rees-Mogg Says It Could Take 50 Years To Reap The Benefits Of Brexit’).
In the Tacitus Lecture 2017 – ‘The World is Our Oyster? Britain’s Future Trade Relationships’, Sir Simon Fraser argued that the Government had made a political decision to, ‘prioritise other goals over our economic relations with the EU. … This is fine, provided either people are prepared to pay the price in more expensive goods, less inward investment and lower growth, or we can quite rapidly find compensating alternative markets.’
The Peterson Institute for International Economics who analysed how long it took the US to agree 20 bilateral trade deals concluded: (i) one and a half years, on average, and (ii) more than three and a half years to get to the implementation stage. https://www.weforum.org/agenda/2016/07/how-long-do-trade-deals-take-after-brexit/ = 5 years.
In 2016, in my post, ‘The economic dangers of political wishful thinking?’ I pointed out that, ‘In theory 124 trade agreements x 5 years each = 620 years. Hypothetically, all 124 could be negotiated within 5 years (if negotiated in parallel). How many trade negotiators does the UK need to resource this? The EU typically sends 20 commission negotiators to any round of trade talks, backed up by between 25 and 40 technical experts.’ The UK at the time had 40 trade negotiators, compared with the 550-strong trade department in Brussels.
Today the New Statesman featured an article by Will Dunn – ‘Why the housing market is about to crash.’ I commented,
‘Inflation hit 10.1% in July (a 40 year high). It is predicted to reach over 13% in December. If Liz Truss become Prime Minister, cuts taxes and borrows, inflation is likely to rise. If inflation goes up then interest rates may have to be increased. That is likely to impact the mortgage market. As the author of the article states, ‘Everyone considering buying a house will be thinking about this. “This is the most predicted recession ever,” Dorling said. “And as soon as you get hunkering down, and the feeling of ‘wait and don’t buy now’, that’s it. It’s all it takes.” ‘ If Prime Minister Liz Truss (as she has pledged), also passes laws banning members of certain unions from going on strike, there are likely to be a series of general strikes. For inflation, we have already gone back to 1982. Economically are we heading back to 1974 (when Edward Heath was Prime Minister)? While inflation is linked to energy prices, the cost of imports is linked to the cost of doing business, i.e tariffs and administrative costs/logistical delays. The unmentionable ‘Elephant in the room’ is therefore Brexit. What economic impact report has the Government ordered (or Labour demanded) to assess the economic impact of Brexit on the cost of living crisis?’
Therefore, unless ‘people are prepared to pay the price’ or we ‘rapidly find compensating alternative markets’, we will all have to live with the economic impact of Brexit on the cost of living for at least 50 years or more. How can we afford not to recognise the elephant in the room?
We currently have: (i) inflation at a 40 year high (which may rise to 13-15% by January); (ii) a cost of living crisis; (iii) strikes and the risk of general strikes if laws are passed banning members of certain unions from going on strike; (iv) a shortage of NHS staff; (v) a shortage of workers in the hospitality industry (linked to: (a) rising wage demands (b) the cost of living; & (c) inflation); (vi) VAT at 20%; (vii) Corporation Tax set to rise to 25% in 2023 (1st increase in CT in 50 years); (viii) Brexit costs linked to rising inflation – see the links at the end of this post at ‘Carl’s Wealth Planning blog’); (ix) the risk of a property crash if rational buyers decide not to purchase until the rate of inflation has peaked and stabilised, i.e. because if interest rates rise to a point where they cannot make mortgage payments, and their property is sold in a falling market at auction below the original purchase price, they will end up: (a) without a roof over their heads; (b) in negative equity; and (c) with a legal liability to discharge the unpaid balance of the mortgage; & (x) UK general government gross debt in excess of £2,365.4 billion (Quarter 1 – Jan to Mar 2022), equivalent to 99.6% of gross domestic product (GDP).
Therefore, we should also be asking – ‘What impact has Brexit had on inward investment?’
See also my blog on this website (and use the search box at the top to find) ‘What is the European Single Market’ and:
2022 edition of the Chancery Guide came into force from 29 July. This is
the first new edition of the guide since 2016, and it contains substantial
changes which will be discussed in the 2nd edition of the Contentious Probate
Handbook, which I am planning to write next year.
See: The Chancery Guide 2022 | Courts and Tribunals Judiciary
ADR – Note:
‘10.8 The court may also stay the case or adjourn a hearing of its own motion to encourage and enable the parties to use ADR. The stay will be for a specified period and may include a date by which representatives of the parties with authority to settle and their legal advisers are required to meet, or a requirement for parties to exchange lists of neutral individuals who are available to carry out ADR and seek to agree on one. If agreement cannot be reached, the CMC can be restored for the court to facilitate agreement. Although the court may strongly recommend mediation, it cannot order that a mediation takes place and will not recommend an individual or body to facilitate ADR
10.10 Any order staying the case for ADR may (but is not required to) include an order as to the liability of the parties for the costs they incur in using or attempting to use ADR. Such order will usually be (a) costs in the case or (b) each side to bear its own costs.’
The court does have the power to order madatory JENE, see my article about JENE on the publications page at www.carlislam.co.uk.