The Supreme Court has granted leave to appeal in Hirachand (Appellant) v Hirachand  EWCA Civ 1498. No reasons were stated. For a withering critique of the judgment on this website, search for, ‘Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021)’, in which I wrote: ‘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%? … 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? 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.’
The Chancery Guide 2022 states: ‘10.13 Where a High Court Judge (‘HCJ’) grants permission to appeal against a decision of the County Court or adjourns the application for permission to appeal or permission to appeal out of time, or both, for a hearing, the appeal will be recommended for mediation unless the HCJ otherwise directs. …
10.15 The recommendation is not compulsory, though a failure to mediate following a recommendation may well have consequences for any order for costs at the end of the appeal. …’
Paragraph 10.8 states: ’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.’ So, although Judges in the Business and Property Courts (which does not include the CLCC) cannot compel mediation, they can in effect start the ball rolling (‘HCAMS’), or create a ‘breathing space’ (para 10.8) for consideration e.g., following the first CMC. Therefore if a Judge in the CLCC at the first CMC, refuses: (i) an application for JENE without consent (which the court has the power to order), and (ii) a subsequent submission that a ‘stay be granted for mediation’, made afterwards during the case-management ‘directions’ stage of the CMC, exclaiming ‘Let’s have a trial!’, if this behaviour results in a successful appeal it will automatically trigger HCAMS. Such a judge should therefore always allow submissions to be made and heard about the merits of ordering a stay for mediation, and provide detailed reasons ‘on the record’ of why he considers that a stay is ‘not appropriate’. A judge who reasons mediation is not appropriate simply because the parties are too far apart,’ is wrong, because that is precisely when mediation is appropriate, as is JENE, and Chancery FDR. For a discussion of the authorities which support this proposition, see my article in Trusts & Trustees – ‘Judicial-ENE and the New Normal’, published by Trusts & Trustees (Oxford University Press), 14 December 2020, which can be downloaded on the ‘Publications’ page at www.carlislam.co.uk.
I have posted the following on the ‘Humanitarian Mediation’ page at www.diplomaticlawguide.com
‘If a proxy war requires a proxy solution, then a proxy solution may also avoid a proxy war. This can be obtained through a process of “convergence.” In my draft essay – “Transforming Conflict Through Humanitarian Mediation & Cultural Heritage Diplomacy’ (scroll toward the bottom of the “Humanitarian Mediation” page at www.diplomaticlawguide.com to find), I wrote, “Where a conflict is primarily the result of a ‘clash’ of divergent values, the solution, i.e. peace, hinges upon evolving a method of convergence.” At the end of the talk given by Anoush Ehteshami (Professor of International Relations in the School of Government and International Affairs, Durham University) on Tuesday 16 May 2023 to the Centre for Geopolitics at Cambridge University about, “The Geopolitics of China’s Belt & Road Initiative and Western Focus”, I asked – “Is the potential for a strategic ‘convergence’ of US and China’s competing interests in MENA – linked to Belt & Road, a geopolitical ‘pivot’ upon which war can be avoided in the South China seas, i.e. because China can either prosper through Belt & Road or risk war in the South China Seas?” In short, it appears that the US and China do have common strategic interests in MENA, which could be explored in a constructive dialogue e.g. about how to resurrect the JPOA and open the door to infrastructure investment in Iran. Therefore, a “convergence” of US and Chinese interests in MENA could potentially:
– avoid war in the South China Seas/Taiwan, by enabling China’s economic expansion through BRI in MENA, i.e. if economic expansion can thereby overtake China’s domestic politics of reunification in the psychology of China’s leadership and political elite – as it did under Deng (which is why the West did not fear China’s rise);
– restore US-Iran relations, by opening the door to business through e.g. US/European/Chinese/Iranian commercial joint-venture infrastructure projects;
– bring peace, affluence, and stability throughout the MENA region (and eventually throughout the continent of Africa?); and
– thereby curb migration i.e. if economic migrants from MENA/Africa, seek jobs where the money is in MENA, instead of migrating to Europe.
It would also drive a wedge between China and Russia, and weaken the resolve of other autocrats to follow in Russia’s footsteps, because they would be excluded from sharing in the economic benefits of participation e.g. in the building of infrastructure and re-construction projects.’
You can listen to the full answer to my question when the Centre for Geopolitics post the recording of the talk on its website https://lnkd.in/e4bTe_Vz
The post referred to above which appears on the ‘Geopolitical Challenges’ page of the Diplomatic Law Guide was as follows:
‘Is the potential for “convergence” in MENA a geopolitical “pivot” upon which war can be avoided in the South China seas?’
In my draft essay – ‘Transforming Conflict Through Humanitarian Mediation & Cultural Heritage Diplomacy’ (see ‘Humanitarian Mediation’ page of this website) I wrote, ‘Where a conflict is primarily the result of a “clash” of divergent values, the solution, i.e. peace, hinges upon evolving a method of convergence.’ On Tuesday, Professor Jonathan Fulton, gave a talk to the Centre for Geopolitics at Cambridge University about the ‘Geopolitical Challenges of China’s Growing Influence in the Gulf.’ During the talk, I wondered whether an opportunity exists for ‘convergence’ between US and Chinese interests in MENA, as a diplomatic tool (along with the participation of regional partners), for engineering stability and peace in the region? In his article, ‘China is trying to create a wedge between the US and Gulf allies. Washington should take note.’ (See the link above), Professor Fulton observes that ‘recent events indicate that leaders in Beijing are no longer satisfied with the logic of strategic hedging and are pursuing a more muscular approach to the Gulf’. On 9 May, Tong Zhao wrote an article in ‘Foreign Affairs’ – ‘How China’s Echo Chamber Threatens Taiwan,’ warning that, ‘the main factor that will determine whether Washington and Beijing come to blows over Taiwan is not necessarily Xi’s strategy for unification but the idiosyncrasies of China’s political system. The dynamics among China’s political leadership, its policy elite, and the broader public have generated an internal feedback loop that is not entirely within Xi’s comprehension or control. This could result in China’s being fully mobilized for war even without Xi deciding to attack Taiwan.’ (See link above). For ‘homoeostasis’ to re-assert itself and supplant the internal ‘feedback loop’ about Taiwan in ‘domestic’ and international policy making, is it possible to diplomatically engineer ‘convergence’ in MENA to: (i) bring about a re-orientation of China’s strategy in the region (i.e. so that US preponderance in MENA is not threatened); and (ii) generate economic and cultural benefits for China (i.e. through increased trade and cultural exchange with Europe and MENA) that will outweigh/’trump’ domestic political imperatives about reunification with Taiwan in the psychology of China’s political elite, i.e. because China can either prosper through Belt & Road or risk war? That is a question I will put at the forthcoming talk about ‘The Geopolitics of China’s Belt & Road Initiative and Western Focus’ on 16 May by Anoush Ehteshami (Professor of International Relations in the School of Government and International Affairs, Durham University): https://lnkd.in/e4bTe_Vz
The question I put at the talk was – ‘Is the potential for a strategic “convergence” of US and China’s competing interests in MENA – linked to Belt & Road, a geopolitical “pivot” upon which war can be avoided in the South China seas, i.e. because China can either prosper through Belt & Road or risk war in the South China Seas?’ For the answer listen to the answer to the second question in the Q&Q session in the recording – which I will post here when I receive it. In short, the US and China do have common strategic interests in MENA, which could be explored in a constructive dialogue e.g. about how to resurrect the JPOA and open the door to infrastructure investment in Iran, which is sitting on approximately 29.6 trillion cubic meters of proven gas reserves which accounts for 16% of the world’s total reserves. This places Iran behind Russia with the second largest gas reserves worldwide. Iran also has more mineral deposits than Russia, which could be mined and exported. Iran is also uniquely situated at the confluence of Europe, MENA, Central Asia, Afghanistan, and Pakistan. Therefore, if my Theory about ‘Convergence’ is intellectually robust, a ‘convergence’ of US and Chineese interests in MENA could:
- avoid war in the South China Seas/Taiwan, by enabling China’s economic expansion through BRI in MENA, i.e. if economic expansion can thereby overtake China’s domestic politics of reunification in the psychology of China’s leadership and political elite – as it did under Deng (which is why the West did not fear China’s rise);
- restore US-Iran relations, by opening the door to business through e.g. US/European/Chineese/Iranian commercial joint-venture infrastructure projects;
- bring peace, affluence, and stability througout the MENA region (and eventually throughout the continent of Africa?); and
- thereby curb migration i.e. if economic migrants from MENA/Africa, seek jobs where the money is in MENA, instead of migrating to Europe.
This is a classic case of where by entering into early Mediation over 1/3 of the estate could have been saved for distribution. In Amnir & Others v Bala & Others (2023) EWHC 1054 (Ch) – a dispute in which several members of the deceased Testator’s extended family claimed reasonable provision under the Inheritance Act, Master Brightwell stated:
‘What follows below may be seen as an exhortation to parties embarking on litigation under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) to consider in advance the potentially devastating consequences of fighting points of marginal relevance at inordinate cost with the effect of depleting a significant estate so that none of the competing claims on it can be fully met. It may also highlight the difficulties in determining claims before the value of the net estate has been established, and the futility of pursuing through to the end of trial claims of a magnitude which the net estate is on any view not large enough to meet. …
The represented parties were agreed at trial that the parties’ litigation costs should be paid out of the estate first, i.e. before the court considers what award to make to each of the parties.’
– Costs incurred = £703K.
– Estimated net estate = £1,979,546.
– Therefore costs are likely to deplete the estate by 35.5%.
‘The property particulars put forward by Shama suggest that around £750,000 is required to buy a three-bedroomed house in the area where she has been living. This would entail payment of stamp duty land tax of £25,000 plus the costs of moving. I consider that it is most likely that Shama will be required to buy a property which costs less than £750,000, whether by buying a flat and/or moving to a different area, but that will be a decision for her once the size of the net estate is established.’ (Para 169).
‘With the most likely range of values for the net estate in mind, I consider that the first charge on the net estate, after payment of costs and testamentary expenses, should be an award of £550,000 to Shama. In the unlikely event that it transpires that the net estate after payment of costs is less than £550,000, the entire estate will be awarded to Shama. That is the minimum sum reasonably required to accommodate Shama and her children, and move them to their new accommodation. I have well in mind that Shama considers that she needs to spend considerably more than this.’ (Para 170).
This is a brilliantly analysed and written, i.e. ‘Model’ judgment, and I will discuss it in the 2nd edition of the ‘Contentious Probate Handbook’, which after I have completed my Diploma in Art Law Course at the Institute of Art & Law in London, I will be writing in my free time for publication by the Law Society in 2024. I started work on the book in January and have written/updated around 20% of the first edition.
I have today obtained permission to change the title of my third essay for the Diploma in Art Law Course at the Institute of Art & Law in London to – ‘The case for repatriating the Parthenon Marbles using a trust structure as under International Law National Museums have a broad “fiduciary” duty to strive to be better collaborative custodians of world heritage.’
I have also started to sketch the outline of the essay on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk
The following is an extract,
‘Implementation of a trust/fiduciary solution hinges upon a political decision being made above the heads of the BM T‘s by Parliament, who will have to debate the issue before voting. What then is the case for repatriating the Parthenon Marbles using a trust structure if under International Law, National Museums are under a broad ‘fiduciary’ duty to strive to be better collaborative custodians of world heritage?
The logical starting point is does such a duty exist, and if it does what does it require?
Does such a duty exist?
The arguments which support the existence of such a duty include:
- The author’s ‘Fiduciary Theory of Art’.
- The philosophy of International Law.
- Rules and norms under International Law developed in relation to Cultural Heritage (‘International Cultural Heritage Law) – which includes International Humanitarian Law (‘IHL’).’
Each argument will be researched, developed, and set out in the essay. I am planning to write the essay, which I am on schedule to write in August/September.
The essay will also discuss:
- What does the duty require?
- Legal creation and technical drafting issues
- Residence, Governing Law and Supervision.
- Class of beneficiaries.
- Governance structure.
A museum or gallery cannot voluntarily dispose of its property, however compelling the moral demand, unless the disposal is lawful. As a general rule, trustees [‘T’s] would be ill-advised to return a work of art/cultural heritage unless they were able to look to the Attorney-General , the Court, or the Charity Commissioners, for approval. In the context of repatriation, the critical question is whether the T’s have the power, i.e. a lawful right, to make a disposition of trust property. Furthermore, in the exercise of a power conferred on T’s to enable them to discharge their duties, they must exercise the power for the purpose for which it was given, i.e. to further the purposes of the trust. In the exercise of a discretionary power T’s must act honestly and upon a fair consideration of the matter. (See my 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). The Prime Minister of Greece has said his government is exploring a ‘win-win’ solution to the repatriatrion of the EM but has ruled out any deal that would include the word ‘loan’, saying, ‘We will never recognise that these sculptures are … legally owned by the British Museum [‘BM’]. … But again, we have to be constructive and we have to be innovative if a solution is to be found.’ (We want win-win solution on Elgin Marbles, says Greek prime minister | The Independent). The British Museum Act 1963 [‘BMA’], s.3(4) provides,
‘Objects vested in the Trustees as part of the collections of the Museum shall not be disposed of by them otherwise than under section 5 or 9 of this Act [or section 6 of the Museums and Galleries Act 1992].’ These tight statutory restrictions override any common law or charity law exception. While the BM is an exempt charity under the Charities Act 1960, the procedure available under s.27 of the Charities Act 1993 is not available to it. The BMA defines the discretions available to T’s regarding the keeping and disposal of objects under their care. Beyond the limits of the BMA, the BM has said it is only obliged to respond to a claim for return ‘promptly, constructively and sensitively’ in compliance with the limitations of the law, the guidance of the DCMS, the Arts Council, and the National Museum Directors Conference. Becuase of s.5 BMA, the repatriation of any item from the BM for ‘moral reasons’ must be authorized by Parliament through legislation. Therefore, if a creative and lawful solution can be developed, e.g. by transferring the EM to a bespoke sub-trust created by statute for the benefit of: (i) the people of Greece; and (ii) mankind, involving the appointment of both BM and Greek T’s, and the conferring of a power on the T’s to deliver the EM to Greece for permanent display, then first, a political decision must be made above the heads of the BM T’s by Parliament.
Part 1 is available to view of the ‘Publications’ page at www.carlislam.co.uk.
‘Trusts & Trustees is the leading international journal on trust law and practice, and the official journal of the International Academy of Estate and Trust Law. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers.’: About | Trusts & Trustees | Oxford Academic (oup.com). It is also the official journal of the International Academy of Estate and Trust Law.
‘Although life can only be understood backwards, it must be lived forwards’.[i] Litigation is a backwards looking process, at the end of which a Judge must make a binary choice between competing narratives. Mediation is a forward-looking process in which the participants (‘P’s’) work out their own solution through a process of engagement. Therefore, the first challenge for a mediator (‘M’) is to understand what each P wants, needs, prioritizes, and why. This requires empathy and affirmation. The second is to facilitate engagement. As discussed in Part 1, the ‘hook’ is the making of an ‘interesting offer’. Some might add that an ancillary challenge for M is to understand the facts – the narrative, and it is often helpful if each P provide M with their statement of facts.
Orthodox mediator strategy is to move the P’s from considering their positions to considering their interests, and ultimately their needs. There is no magic formula. Each M will have their own style and approach. Mediators expect the unexpected, and progress at mediation is rarely linear. Achieving settlement at mediation requires momentum, which in turn requires flexibility, so, while it has a ‘beginning’, a ‘middle’ and an ‘end’, the process does not always take place in that order, and in practice, M’s do not adhere to a rigid structure/agenda. In other words, mediation is always improvised to an extent. However, for the purposes of analysis and discussion, in the opinion of the author, a well-constructed Mediation typically involves seven distinct phases which can overlap:
(iii) Exchange of further information.
(iv) Formulation of proposals.
(vi) Adjustments to narrow the gap.
(vii) Agreement of terms in principle followed by the drafting and execution of a binding Settlement Agreement.’
[i] ‘Sending Them Home – Some Observations on the Relocation of Cultural Objects from UK Museum Collections’, by the late Professor Norman Palmer, Art Antiquity And Law, Vol 5, Issue 4, December 2000, page 353.Activate to view larger image,
In my forthcoming article for Trusts & Trustees (OUP) – ‘Mediating probate and trust disputes – process challenges and tools: part 2’,
I argue that, ‘If the primary reason the P’s [i.e. Participants] have come to the table is to contain costs, eliminate litigation risks, and thereby to maximize net gains, then the resolution to “do a deal” must exist. It also follows, that the P’s are paying for mediation, i.e. have invested in the “process” in order to achieve that outcome. They are not paying M [i.e. the Mediator] to facilitate a conversation as some form of therapy in order to see where that may lead. The secret of success in the mediation of a probate/trust dispute, is preparation. [Where the Mediation Day is preceded by pre-mediation Zoom/TEAMS calls – as discussed in Part 1 of my article which is available to download on the “Publications” page at www.carlislam.co.uk], each P needs to be ready to discuss their “settlement range” with M during the first round of private sessions. If risk-aversion accentuated by the asking of reality-testing questions can help the P’s psychologically to park their emotions and to focus instead on using mediation as a “risk-management” tool to get what they “need” (which will not be everything that they “want” because a compromise must be agreed), then the outcome will depend upon the skills of the P’s negotiators, i.e. their legal representatives. 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. While it is up to the P’s to decide what to do, as they will own the outcome of the process, the closer they get to settlement, the harder it will be to spend more time and money on litigation.’ – That is why results matter in the mediation of ‘probate/trust’ disputes.