As Mr. Justice Newey (as he then was) said in Avrora Fine Arts Investment Limited v. Christie, Manson Woods Limited [2012] EWHC 2198 (Ch) [38], ‘A judge is not bound by expert opinion. A judge may presume to find that an expert’s final opinion is based on illogical or even irrational reasoning and reject it. But the judge should not himself assume an expertise he does not possess.’ Thus, a judge should not refuse permission for the admission of expert evidence about industry best practice in relation to the making of trustee decisions about investments in a trust and estate dispute on the grounds that he/she can form an opinion based upon what he/she reads in the tabloid press about the state of the market. So, if a judge says that there is no need for expert evidence in order to assist the court in deciding whether an executor has behaved in breach of fiduciary duty in selling investments by failing to obtain any professional investment advice before selling investments in a bear market, that would appear to provide a ground for appeal. In my experience, some senior practitioners who hold themselves out as being ‘experienced’ contentious probate and trust specialists do not know that in relation to the exercise of their powers of investment, executors are trustees for the purposes of the Trustee Act 2000, i.e. because s.28 of the Trustee Act 2000 clearly and unequivocally states: ‘(1) Subject to the following provisions of this section, this Act applies in relation to a personal representative. administering an estate according to the law as it applies to a trustee carrying out a trust for beneficiaries. (2) For this purpose, this Act is to be read with the appropriate modifications and in particular—
a. references to the trust instrument are to be read as references to the will, b. references to a beneficiary or to beneficiaries, apart from the reference to a beneficiary in section 8(1)(b), are to be read as references to a person or the persons interested in the due administration of the estate, and c. the reference to a beneficiary in section 8(1)(b) is to be read as a reference to a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate).’ Therefore, if a practitioner who does not know the law makes a legally erroneous submission about the relevance of expert evidence in relation to allegations of breach of fiduciary duty by an executor/trustee, and the judge accepts the argument, then that would also appear to ground an appeal. See my article ‘Electing between equitable remedies’, published by Trusts & Trustees (Oxford University Press) on the ‘Publications’ page at www.carlislam.co.uk. The litigation risk of a judge not allowing expert evidence to be adduced at trial is a reason why in contentious probate cases where expert evidence is required, it is better to mediate.