The general law relating to ‘fixtures’ applies to ‘listed buildings’, see:
(i) Section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
(ii) R v Secretary of State for Wales ex p. Kennedy [1996] 1 P.L.R.97, in which the court held that the definition of ‘fixture’ is the same for the purposes of the listed buildings legislation as for any other area of the law.
(iii) Berkley v. Poulett [1977] EGLR 86 – which contains the definitive pronouncement.
Whether an article or chattel is a fixture, depends on:
(a)   The degree to which the article in question could properly be said to be annexed to the building.
(ii)   The purpose for which it was put there.
See the planning decisions in Time and Life Building [1999] J.P.L. 292 (which concerned reinstatement of: bronzes; a painting; a clock; and a sculpture); and Noseley Hall [1999] J.P.L. 1145 (which concerned reinstatement of paintings).
Consequently, any decision of a Council, Inspector or Court that the removal of works of art [‘WA’] requires ‘listed building consent’, necessarily involves a decision that the WA was a ‘fixture’, and therefore part of the building or ground. People, sometimes even entire branches of families, think/beleive that they own WA, only to discover as the result of such a decision, that the WA in fact belongs to the owner of the building or ground to which it has been deemed to be fixed. This can leave a taxpayer (‘TP’) between a rock and a hard place because:
(i)                       The owner [‘O’] may sue the TP in conversion, and possibly bailment, or on the grounds of the existence of a constructive trust. Unless there is a Limitation Act time-bar, O may also sue the purchaser [‘P’] in conversion and P may counter-claim against TP. If WA is worth millions, this is likely to result in substantial and complex litigation.
(ii)                      Where an estate paid IHT on the basis that it was the owner of chattels which it has now been decided constitute fixtures, and therefore belong (and a fortiori might always have belonged) to some other person i.e. ‘O‘, HMRC may be protected from a mistake of law under section 255 of IHTA 1984, because any question of whether too little or too much tax was paid is determined on a view of the law then generally received or adopted in practice.
One of my essays for the Diploma in Art Law course at the Institute of Art Law in London is ‘Co-Mediation of Tax Disputes Involving Art & Cultural Heritage Assets’, which I am planning to write in October, see the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk. In the essay, I will set out the framework of both ‘tax law’ and ‘general legal’ issues (including title), that apply to the settlement of ‘tax liabilities’ using art and cultural heritage assets i.e. WA. This includes due diligence about the potential impact of monument and treasure laws in England and Wales on a TP’s assumed title to WA, i.e. because a TP cannot settle a tax liability using WA that he/she does not own.

As I explain in my forthcoming article – ‘Mediating probate and trust disputes – process challenges and tools: part 2’, which was submitted to Oxford University Press for per review on Friday – ‘A principle of human behaviour is that people do not like uncertainty. All litigation involves risk, and all litigation involves publicity. P’s are usually risk-averse. Loss aversion increases with the magnitude of the potential loss. For most P’s there will be a “tipping” point beyond which they cannot afford to lose, because the magnitude of loss exceeds the compensation any gain can provide, i.e. “the candle is not worth the flame”. Where P’s have a blind spot about the existence and extent of potential loss, [the Mediator’s] M’s function is to help them see the world as it actually is, by bringing the potential risk/loss into graphic focus. While M must avoid giving the impression that he is making a value judgment about merits, he can lay a foundation stone during a pre-mediation Zoom/TEAMS call with each P, by making a general observation that whatever the merits of each case – and whether the Judge prefers one narrative over the other, someone is going to end up with a huge “price tag” to pay at the end of the trial, and that in probate/trust cases the costs of litigation frequently exceed the value of what is at stake, and sometimes even of the estate itself. So, a seed of thought will have been planted before the mediation day, that mediation is a “risk-management” tool which can benefit both P’s. Teasdale v Carter [2023] EWHC 490 Fam, is illustrative. Moor J stated: “I have to say that this is one of the most regrettable pieces of litigation that I have ever come across. It is not just because this family has become so fractured as a result. The total costs of the litigation at the conclusion of the hearing below were approximately £828,000. The costs of this appeal are £220,000. These figures do not include the costs of the financial remedy proceedings. The house at the heart of the dispute, Cow House, is worth £245,000, after a 20% reduction for an agricultural occupation restriction.”

The key to generating flexibility is recognition by the P’s that all litigation involves unquantifiable risk. Once each P has come to this realisation, i.e. after consulting their legal advisors, M can then help the P’s to move ahead by reframing their dispute as a “risk bearing proposition”. It is not usually necessary to discuss the extent and degree of risk because, the precise quantification of the risk of losing tends to matter less than the fact that there is some risk of losing.’

That is the ‘elephant in the room’ in the mediation of both commercial and probate/trust/inheritance disputes.

The ‘Power Paradox is that the harder P.1 makes it for P.2 to say ‘no’, the harder P.1 makes it for P.2 to say ‘yes’.

‘The key mistake we make when we feel frustrated is to abandon the problem-solving game and turn to the power game instead. Overcoming the power paradox means making it easier for the other side to say yes at the same time that you make it harder for them to say no. Making it easy to say yes requires problem-solving negotiation; making it hard to say no requires exercising power. You don’t need to choose between the two. You can do both. Treat the exercise of power as an integral part of the problem-solving negotiation. Use power to bring the other side to the table. Instead of seeking victory, aim for mutual satisfaction. Use power to bring them to their senses, not to their knees. If the other side refuses to come to terms despite all your efforts, it is usually because they believe they can win. They believe that their best alternative to negotiation—their BATNA—is superior to your golden bridge. You need to convince them that they are wrong. Use your power to educate the other side that the only way for them to win is for both of you to win together. Assume the mind-set of a respectful counsellor. Act as if they have simply miscalculated how best to achieve their interests. Focus their attention on their interest in avoiding the negative consequences of no agreement. Don’t try to impose your terms on them. Seek instead to shape their choice so that they make a decision that is in their interest and yours. Using power to educate the other side works in tandem with building them a golden bridge. The first underscores the costs of no agreement, while the second highlights the benefits of agreement. The other side faces a choice between accepting the consequences of no agreement and crossing the bridge. Your job is to keep sharpening that choice until they recognize that the best way to satisfy their interests is to cross the bridge.’  William Ury | Getting Past No – Use Power to Educate

As I wrote in my article, ‘Mediating probate and trust disputes – process challenges and tools: part 2’, which was submitted to OUP today for peer review, ‘While you can lead a horse to water, you cannot force it to drink. However, once they have come down the hill to the edge of the river, and can see what is on the other side, then psychologically, most P’s will want to cross the river rather than climb back up the hill. The bridge across the river is the existence of common ground. Common ground already exists in preserving the capital value of the estate/trust fund. If the P’s will allow M to show them the way to the river, they may discover that there is more common ground in the dispute than they had previously imagined/thought possible. … [And] the closer they get to settlement, the harder it will be to spend more time and money on litigation.’

A core function of HMRC is to collect taxes prescribed as ‘due’. HMRC is vested with a managerial discretion, which allows it to take decisions conducive to the collection and management of taxes and credits, which includes engaging in co-operative compliance, and settling disputes, e.g. through mediation. The boundaries of this discretion are unclear. The exercise of discretion raises three questions:
1. ‘Legal’ – What may HMRC do with the discretion?;
2. ‘Normative’ – What ought HMRC do?; and
3. ‘Practical’ – What can HMRC do?
The pervasive managerial discretion which HMRC exercises to collect tax is derived from section 5 of the Commissioners for Revenue and Customs Act 2005 (CRCA 2005), which is supplemented by section 9, which provides that HMRC may do anything which it considers:
(i)          necessary or expedient in connection with the exercise of their functions; or
(ii)        incidental or conducive to the exercise of their functions.
However, s.5 does not specify how HMRC should go about performing this task, and correspondingly it provides legal discretion as to how the task is to be performed. This provision is to be contrasted with statutes that do express how a ‘discretion’ is to be exercised. The fact that a legal discretion arises means that the courts will respect the decisions taken by HMRC pursuant to the ‘discretion’ provided that the limits or boundaries of the ‘discretion’ are not breached. Therefore, provided HMRC does not cross any statutory and judicially developed ‘boundaries’, then it has open to it a range of choices, any one of which will be considered to be lawful if chosen. S.11 of CRCA 2005 also provides, ‘In the exercise of their functions the Commissioners shall comply with any directions of a general nature given to them by the Treasury’, e.g. On 30 April 2020, the Chancellor made a ‘Treasury Direction’ under Section 71 and 76 of the Coronavirus Act. It sets out that HMRC were responsible for the payment and management of amounts to be paid under the Self-Employment Income Support Scheme, as set out in the Schedule to the Direction. Therefore, it would appear that this power can be used to provide grants. Can it also be used to provide ‘targeted’ tax relief to e.g. entrepreneurs and SME’s who meet certain criteria and threshold requirements, in order to encourage and boost growth in the economy? If so, could it also be used as a political tool to avoid/end a strike by public sector workers, by providing temporary tax incentives in lieu of a pay increase?

Under English law, a transferee of goods cannot derive a better title than that of the transferor. If the Claimant [‘C’] can establish a continuing title that is better than the party who dispossessed him, any possessor subsequent to the first party, including a statutory museum e.g. the British Museum, is susceptible to the original possessor’s title. Therefore, if the museum [‘M’] acquired cultural property that was stolen or looted, provided the applicable limitation period has not expired, C prima facie has a valid claim against M in conversion. However, this is subject to the ‘Lex Situs’ rule. Thus, where privately owned cultural property was nationalised prior to acquisition by M from a foreign government (who had nationalised it / a successor government), C has no claim, Princess Paley Olga v. Weiz. That is because when M acquired the object(s) the object(s) were within the foreign government’s jurisdiction. In my submission, the logical corollary of the proposition that ‘disposal restrictions apply to items accessioned to a national museum collection’ [P.1], is the proposition that ‘legal restrictions on deaccessioning can only apply to those items insofar as the national museum holds good title’ [P.2]. Therefore, subject to the availability of a Limitation Act defence, if C can show better title than M, the cultural property in question never became part of the museum’s collection. In other words, any statutory restrictions on deaccession would not apply because lack of title precluded the item(s) from ever having legally become part of M‘s collection. Furthermore, to hold otherwise, would effectively displace the lawful owner in a manner akin to seizure by the state, which is a possible infringement of Article 1, First Protocol of the European Convention on Human Rights. Therefore, if the title of M is inferior to that of C, it should be within M’s power to deaccession the item(s) claimed. See also my evolving essay ‘Deaccessioning Art and Cultural Heritage – The Legal and Ethical Framework’ on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk

‘Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law. As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York. The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct. And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution. The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal. The current Court is divided about when this rule of lenity should apply, and whether it provides much protection at all to criminal defendants. But, if the current slate of justices decide that they must have the final word on whether Bragg may prosecute Trump, they could easily invoke the rule of lenity to justify asserting the Supreme Court’s jurisdiction over the case. Bragg, in other words, has built one of the most controversial and high-profile criminal cases in American history upon the most uncertain of foundations. And that foundation could crumble into dust if the courts reject his legal arguments on a genuinely ambiguous question of law. As Pomerantz writes in his recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s own criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.” It’s also possible that Bragg will try to link Trump to a second federal crime allegedly committed by Pecker or his company. As Bragg notes, Pecker’s company “entered into a non-prosecution agreement with the United States Attorney’s Office for the Southern District of New York in connection with AMI’s payoff of Woman 1.” But linking Trump to a second federal crime does not solve the legal problem that could blow up his felony case. That doesn’t mean that Bragg will lose, but it does mean that he will have to convince New York’s courts to adopt the more expansive reading of the felony statute in order to sustain a conviction. If the courts embrace the more narrow reading of the statute, that would mean that Trump can only be charged with a misdemeanor. There’s also one more twist here. The statute of limitations for the felony version of the false records crime is five years, while the statute of limitations for the misdemeanor version is only two years. Trump’s final payment to Cohen occurred in December 2017, which was more than five years ago. That said, New York law sometimes allows the clock to be stopped on these statutes of limitations when the defendant was out of the state, and Trump spent four years living in the White House before relocating to Florida. As a general rule, New York’s own courts are supposed to have the final word on how to interpret New York’s own law. Though the US Supreme Court is the final authority on how to read federal law (including the US Constitution), the highest court in each state is supposed to have the final say on how to interpret that state’s own law. But this case also presents at least two questions that turn on the proper way to read a federal statute or the US Constitution. The first question is whether federal campaign finance law actually criminalizes the $130,000 payment to Stormy Daniels. Former Attorney General Bill Barr — a lawyer who, admittedly, often bent over backward to protect Trump while he was in office — was a staunch critic of this legal theory. And the question of whether Cohen could lawfully be convicted under campaign finance law was never tested because Cohen pleaded guilty and did not fight his conviction. But the question of whether federal law prohibited the payments to Daniels is also at the heart of Bragg’s prosecution. If these payments were not a federal crime, then Trump potentiallycannot be charged with the felony version of the New York law and the case against him must be dismissed. The second federal legal question presented by Bragg’s prosecution is whether the rule of lenity requires courts to select the narrower interpretation of the New York falsified business records law. Many justices have argued that this rule of lenity is implicit in the Constitution’s guarantee that no one shall be denied liberty without “due process” of law. So Trump could ask the Supreme Court to rule that this prosecution is unconstitutional. Will that argument prevail? It’s unclear. The current Court is divided on how broadly to apply this rule of lenity, with Justices Sonia Sotomayor and Neil Gorsuch arguing for a more expansive approach, while Justices Samuel Alito and Brett Kavanaugh push a more pro-prosecution approach. For the moment, Alito and Kavanaugh appear to have the advantage in this fight. The Court said in Ocasio v. United States (2016) that the rule requiring ambiguous criminal statutes to be construed favorably toward the defendant “applies only when a criminal statute contains a ’grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from which aid can be derived,’ the Court ‘can make no more than a guess as to what [the legislature] intended.’” But it’s unclear whether the Court would stick to Ocasio if the alternative were to allow the frontrunner for the Republican Party’s presidential nomination to be hauled off to prison. All of which is a long way of saying that we may need to wait a very long time before the courts determine once and for all whether Trump may be convicted under the felony statutes he is accused of violating — indeed, if the Supreme Court gets involved in this case, we may not get an answer until wellafter the 2024 election. And, of course, even if Bragg does convince the courts that Trump was properly charged with a felony, he will still need to prove that case to a jury beyond a reasonable doubt.’ See: Will Trump be convicted? The glaring legal problem with the Manhattan DA’s case. – Vox

Depending upon the judicial determination of the meaning and scope of the phrase, ‘another crime’, the outcome of this case may have far reaching consequences for other defendants in the future. Not least, because in any event, an asset recovery lawyer in NY can trace a dollar transfer from a bank outside the US e.g. in Lichtenstein made to an offshore account e.g. in Nevis, by using a 1782 subpoena. The reason is that when money is transferred in dollars, even between two Russian banks, it touches a US clearing bank [‘USB’] for a fraction of a second, leaving a permanent record. The HQ’s of the USB’s are in Manhattan. In other words they are under the jurisdiction of the US courts. Therefore, a NY lawyer can subpoena the USB’s to obtain their records, in order to follow the money trail all the way e.g. from Russia, or Lichtenstein, to an offshore bank account. See:
The Expanding Use of 28 USC § 1782 | Seyfarth Shaw LLP