Publication of my Residential Nil Rate Band Article by Taxation

My article, co-authored with Stephanie Churchill CTA, ‘Bricks and mortar – the practical application of the residence nil rate band, including drafting issues and claiming the relief’ , will be published in Taxation (www.taxation.co.uk) on 12 October 2017.

My article, ‘Equitable compensation arising out of sale of a property ordered under s.14 TLATA’ is scheduled for publication in Trusts & Trustees (Oxford University Press) in December: https://academic.oup.com/tandt

‘Trusts & Trustees is the leading international journal on trust law and practice. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers … The journal is ideal for international trust lawyers working in both private practice and in-house in trust companies; trusts practitioners; and those working in trust companies. It will also be an essential source of reference for academics specializing in trusts; members of the judiciary; members of regulatory bodies; and institutional libraries.’ Oxford University Press.

The forthcoming ACTAPS monthly Newsletter (which is global) will also contain an article I wrote last month about ‘Rectification of Wills’.

BREXIT – when economic lunatics take over the asylum!

For detailed commentary and links to published articles please visit the Brexit page at www.diplomaticlawguide.com

A two year interim period red line is not practical.

First, ‘[the] Brexit negotiations will take much longer and be far more complicated than many British politicians realise. One set of talks will cover Britain’s legal separation from the EU, the second a free trade agreement (FTA) with the EU, the third interim cover for the UK between its departure from the EU and the entry into force of the FTA, the fourth accession to full membership of the WTO [i.e. regularising the UK’s scheduled commitments as an independent member of the WTO], the fifth new FTAs to replace those that currently link the EU and 53 other countries, and the sixth co-operation on foreign, defence and security policies.’ [There is also a seventh ‘global’ dimension]. Charles Grant, Director of the Centre for European Reform, in his article ‘The Brexit negotiations: the UK government will have incentives to compromise’ published in the CER Insight.

Second, the negotiation of trade regulatory matters has not yet begun. [The] Brexit debate is currently far too focused on tariffs. All the debate was about tariffs. But tariffs are a minor aspect of doing business internationally today. The problem is on regulatory issues. The UK has to negotiate some kind of arrangement that can help to continue to ensure that UK regulatory standards will still be seen as equivalent. Without that it’s too easy for the EU to simply say ‘no, that doesn’t apply anymore’. Professor Stephen Woolcock.

Third, as negotiation of Britain’s WTO schedules could prove harder to negotiate than Brexit, and needs to be sorted out prior to the expiry of any interim period, the idea of an arbitrary two year interim period is vacuous. What work, if any, has been undertaken in relation to regularisation behind the scenes?

Note that Britain is currently a member of the WTO via the EU. Full members must deposit ‘schedules’ of tariffs, quotas, subsidies and other concessions on market access with the WTO. The UK will have to negotiate its own schedules, initially with the other 27. The tariff negotiation could be simple, if the British followed what the EU currently does. But dividing up quotas, on say New Zealand lamb imports, would be more complicated. And then the new British schedules would need the approval of all 163 WTO members, since the organisation’s decisions require consensus. So if one member (for example, Argentina or Russia) wanted to create difficulties, it could block the British schedules. British officials hope that such difficulties do not arise, but reckon that it will be hard work to sort out WTO membership within the two years of the Article 50 negotiation.

‘One of the most important questions for UK businesses and investors is whether the UK could trade under WTO rules as soon as it exits the EU. In my opinion the answer is twofold. First, the UK would most likely lose market access on goods in certain countries and face legal challenges by some WTO members unless it negotiates with both the EU and the WTO members its status as an independent member of the WTO. Second, in relation to the UK – EU trade relationship, if there is no FTA in place on the date the UK exits the EU, it is highly likely that both sides will treat each other on WTO terms (including MFN tariff rates). Due to the EU’s current trade restrictions to third countries, this is not a desirable outcome for either side…The current EU schedule of commitments is the so-called “EU-15” of 2012. The fact that this is an outdated schedule is likely to complicate matters in the UK’s future WTO negotiation because the EU schedule of concessions and commitments regarding agricultural products, domestic support and export subsidies does not reflect the enlargement of the EU (from 15 to 28 Member States). This means that the UK – EU allocation of commitments will likely lead to a series of requests by third countries seeking new compensation from the EU and the UK. How will third countries react to the UK-EU distribution of concessions is anybody’s guess. But at least one can expect the following: it is highly unlikely that WTO members will challenge the UK’s rights, concessions or commitments on industrial goods, export subsidies entitlements including those on agricultural exports or its schedule of services. The challenge, however, is likely to focus on the EU’s agricultural commitments related to tariff rate quotas (TRQ’s) to third countries such as Australia, Argentina, Brazil, China, New Zealand, Thailand, Uruguay and the U.S. TRQ’s are volumes that can be imported with a low or zero tariff. Imports above the quota quantity enter with a higher tariff rate. The UK and the EU would need to negotiate a distribution of the EU’s TRQ’s. This would be problematic to third countries. They may find the redistribution of the EU’s TRQ’s as unfair because it would reduce their access to the EU market as a result of the UK’s exit. The TRQ’s are likely to become the most contentious issue in the UK’s re-establishment of its legal status as an independent member of the WTO. Now let us assume that the UK is unable to agree on new commitments with other WTO members on the day it exits the EU…In the case of UK exports to WTO markets including the EU (in case there is no trade agreement in place yet), one would expect WTO members (including the EU) to apply MFN rates to UK products. But this raises doubts as to whether the UK can trade under MFN tariffs without having to make any concessions or commitments to WTO members. Because the UK would be trading on MFN without being forced to grant concessions and TRQ’s to the rest of the WTO members and, thus, creating an unfair scenario for the other WTO members, it is possible that the UK may be subject to MFN restrictions by other WTO members until it regularises its legal status which can only occur once it has negotiated a new schedule of commitments.

An additional uncertainty, in this case a legal one, is the legal process under the WTO rules to re-establish the UK as an independent member of the WTO, in particular with regard to the distribution of commitments. There is no provision in the WTO framework which covers the particular situation of the UK. The closest provision seems to be Article 28 of GATT which provides for the modification of schedules. Whether this provision applies to the particular case of the UK is not entirely clear. Despite these complexities, WTO members could allow the UK to trade under WTO rules on an interim basis (one or two years) without a schedule of commitments while it concludes the negotiations with all individual WTO members.

Having said all the above, it must be stressed that nothing prevents the UK negotiation in the WTO from being simple and straightforward. This will depend entirely on the political will of the WTO members on whether they want to make the UK’s life outside the EU easy or complicated.’

Brexit: Challenges for the UK in negotiating an FTA with the EU (a trade negotiator’s perspective) by Luis González García.

Fourth, the Government should have developed and agreed a principled position and negotiating strategy based upon evidence before triggering Article 50. However as far as I am aware no evidence based review was undertaken prior to triggering Article 50, or has been undertaken since. Because there is no evidence based strategy it follows that there is no consistent plan to deliver it. In other words, at present, no coherent, rational, and practical plan for negotiating Brexit, has been agreed in Cabinet and approved by Parliament.

‘To be more than an optimistic slogan, Global Britain needs to rest on a clear, evidence based strategy. And once we have the strategy, we will need a consistent plan to deliver it… [Our] strategy should not be opportunistic or reactive, but based in principles. Brexit makes it even more important for the UK to have an international trade system with rules ensuring non-discrimination, fair competition and enforcement. Alone, we will be less equipped to cope in a trade environment driven by the bilateral and power based instincts of the new US administration and China, or indeed the sheer trading weight of the future EU. That is why we should remain a strong supporter of the WTO, and resist any temptation to short-circuit rules to score quick successes…’ The Tacitus Lecture 2017 – ‘The World is Our Oyster? Britain’s Future Trade Relationships’ delivered by Sir Simon Fraser.

Trade negotiations, which are intrinsically linked to: freedom of movement; the rights of EU citizens living and working in the UK; and the Irish border, depend upon a decision being made about whether Britain stays in the single market and customs union. Until this has been decided a coherent trade model cannot be proposed to the EU. The practical real world consequences of political indecisiveness on this issue include the following:

1.        a UK-EU FTA cannot in practice be agreed and implemented;

2.        businesses in the UK cannot undertake long-term planning because they cannot know the extent to which Britain will remain integrated with the EU post Brexit (which will have a direct impact on foreign investment and jobs); and

3.        likewise, because they cannot know the extent to which the UK’s hands will be tied by the terms of a FTA with the EU, no other state (including the US, India, China, and Australia) can practically agree comprehensive terms of a FTA with the UK – which in any event, cannot be agreed and implemented until the UK-EU FTA has been implemented, which in itself may take 3-4 years post agreement on terms following the tabling of a trade model.

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.

It is therefore not inconceivable that the first trade agreement with a non-EU trade agreement counter-party will be concluded and implemented sometime between 2024 and 2029/2030 (if e.g. the conclusion of a bespoke trade agreement with the EU takes e.g. 7 years from commencement of negotiations. Negotiations are unlikely to commence before October 2017 and the EU position appears to be that negotiations will only commence and take place in parallel if progress is made on the divorce settlement first, and crucially, the divorce bill.

7 years from 29 March 2017 is 29 March 2024. Add 5 years = 2029. Factor in delay in commencement = 2029/2030.

Logistically, there is also a huge gap between the scale of negotiations to be undertaken and the resources actually available to undertake them, which will take time to fill through recruitment and training:

1.        ‘The EU currently has existing PTA’s with 52 countries, and it is negotiating trade agreements with another 72 countries. In case of Brexit, the UK would therefore need to re-negotiate or start new bilateral negotiations on 124 trade agreements, plus one additional trade agreement re-defining its own trade status as a third country vis-à-vis the EU. If we limit the focus to the top-50 trade partners of the UK, who account for 92% of all UK trade, 41 of them do have some trade agreements or ongoing negotiations with the EU. 18 of the UK’s top 50 trade partners are EU countries, one (Norway) is an EEA country, one (Turkey) has a customs union agreement with the EU, eight countries have existing EU PTAs in place and 13 countries are currently negotiating EU trade agreements. This would translate into a minimum of 24 negotiations to be concluded.’ Leaving the EU would mean renegotiating more than 100 trade agreements by Pia Hüttl and Silvia Merler.

2.        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 has 40 trade negotiators, compared with the 550-strong trade department in Brussels’: https://www.theguardian.com/business/2016/aug/17/brexit-trade-deals-gruelling-challenge-taking-back-control. Assuming that each UK negotiating team will include at least around 25 negotiators (plus technical experts), 124 x 20 = 2,480 negotiators. One former EU trade negotiator Miriam Gonzalez Durantez, estimated more precisely (17 August 2016) that for the progressive negotiation of priority agreements (i.e. not all 124) the UK would need an operational cadre of least 500 negotiators. How many do we have? Lord Price, the former minister for trade and investment said that the Government had about 40 trade negotiators, compared with the 550 employed by the EU. Yet even these figures may exaggerate the number of people qualified to go into the room for Britain and agree trading deals for a post-EU era. Lee-Makiyama estimates that there cannot be more than 200 actual negotiators in the world as a whole. This shortfall will require the civil service to look far and wide, and is indicative of the kind of skills shortages Whitehall will struggle with in the years ahead. Dealmakers have to know what strategy they will use, if they will scope out the negotiation, what they will scope, and how they will do it. They must have an idea of what they want to propose, in what order, and which sections of a trade deal they want to debate first. Developing an understanding of how to do this can take years.

‘Serious multilateral negotiating experience is in short supply in Whitehall, and that is not the case in the Commission or in the Council.’ Sir Ivan Rogers.

As talks with the EU about the structure and terms of a FTA have not even commenced, and only 12 months remain in the Article 50 negotiating window (including Christmas 2017, Easter 2018, and the 2018 summer break during which MP’s do not sit in the House of Commons), it is respectfully suggested that the primary ambition of the forthcoming Conservative Party conference should be to agree a unified position on whether Britain is to stay in or leave the single market and customs union.

If this is not achieved, the likelihood is that no interim period can be agreed with the EU in which businesses can undertake planning with certainty. In which case there is likely to be an exodus.

This is a chance for the Government to demonstrate that the Conservatives are still the party of business – a vote-winning kudos which they appear to be handing to Labour on a plate.

If Britain falls over the economic cliff edge then:

1.        there appears to be a real likelihood that Labour with the support of Lib Dem votes could win the next general election, resulting in increased capital taxation (i.e. the depletion of personal wealth);

2.        that there will be less tax revenue available to fund public expenditure i.e. because of an exodus of businesses (particularly in the financial services industry); and

3.        that Britain could be bankrupted by Labour.

In which case if Theresa May and her government bring about the economic de-stabilisation of Britain what was Brexit for and all about? What did it achieve?

Carl Islam LLM (Exon) (International Business Law), Barrister, 1 Essex Court, Temple, London, is the founder of the Diplomatic Law Guide (www.diplomaticlawguide.com) which appears on page 1 of the following pages of Google:

  • ‘bilateral and regional trade agreements law’; and
  • ‘trade agreements lawyer’,

and is listed on the website of the United States ‘American Foreign Service Association’ (the ‘AFSA’) based in Washington DC underneath the heading ‘Codes of Conduct from Other Services/Countries’ (http://www.afsa.org/ethics).

Since July 2016 he has been researching and writing a new book for publication in 2018 about the ‘Structuring Drafting & Negotiation of FTA’s’.

Prior to entering private practice as a commercial solicitor and subsequently as a Barrister, Carl worked in-house for the Rolls-Royce Industrial Power Group and for Alstom (in Paris), structuring, drafting, and negotiating major contracts which were awarded in Malaysia, India, and China.

Rectification of wills

I am the guest speaker at the Barlow Robbins Solicitors annual Contentious Probate Seminar in Guildford on 9 November. I am speaking about ‘Rectification of Wills’ and set out below my presentation note.

Rectification of wills

Carl Islam, Barrister, TEP, author of the ‘Contentious Probate Handbook’ (published by the Law Society), www.ihtbar.com

I will speak briefly about:

  • The court’s power to rectify a will set out in section 20 Administration of Justice Act 1982
  • The approach of the court
  • Clerical error
  • Failure to understand instructions
  • Ascertaining the intentions of the testator

The court’s power to rectify a will set out in section 20 Administration of Justice Act 1982

  • Section 20 of the Administration of Justice Act 1982 enables the court to order a will to be rectified so as to remedy a failure to carry out the testator’s intentions in consequence of either:

(i)                a clerical error; or

(ii)               a failure to understand his instructions.

  • Section 20(1) requires the court to examine three questions:

(i)      what were the testator’s intentions with regard to the disposition in respect of which rectification is sought;

(ii)     whether the will is so expressed that it fails to carry out those intentions; and

(iii)    whether the will is expressed as it is in consequence of either:

(a)      a clerical error; or

(b)     a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.

The approach of the court

In Kell v Jones [2012] Judge Cooke stated,

The approach of the court to the question of rectification was agreed by both counsel to be that which was summarised by Mr Justice Chadwick as he then was, in Re Segelman in 1996, as involving the resolution of three questions:

(1)      What were the testator’s intentions with regard to the dispositions in respect of which rectification is sought;

(2)      Secondly, whether the will is so expressed that it fails to carry out those intentions;

(3)      Thirdly, whether the will is expressed as it is in consequence of either:

  1. clerical error; or
  2. a failure on the part of someone, to whom the testator has given instructions in connection with his will, to understand those instructions.

It is accepted that the burden of proof is on the person seeking rectification in so far as all these matters require to be established. As to the standard of proof (which is primarily applicable to the evidence required to establish the testator’s intentions, given that that must be established by evidence extrinsic to the will in the nature of matters in relation to applying for rectification) that is accepted to be, again as Mr Justice Chadwick summarised it:

“Although the standard of proof required in a claim for rectification made under section 20(1) of the 1982 Act is that the court should be satisfied on the balance of probabilities, the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary.”

Thus, the contrary intention of the testator must be established by convincing evidence.’

Clerical error

  • In Bell v Georgiou & Anor [2002] which was expressly endorsed and approved by Lord Neuberger in Marley v Rawlings [2014], Mr Justice Blackburne said that, ‘a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert… The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.
  • The court must consider three issues:

(i)      what the deceased’s intentions were;

(ii)     whether the will fails to carry them out; and

(iii)    whether the failure to do so, was the result of a clerical error?

  • In Re Segelman [1996] Chadwick J distinguished between three situations, the first two of which engage s.20 and the third of which does not:

(i)      the introduction of words into a will through lack of care without advertence to their significance and effect;

(ii)     the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions; and

(iii)    the introduction of words to which the draftsman has applied his mind with a proper understanding of his instructions but which (perhaps through failure properly to understand the law) did not achieve the objective which he and the testator intended.

  • Marley v Rawlings [2014] was the first case on rectification of wills to reach the Supreme Court. Lord Neuberger stated the following:

(i)      The best judicial summary of the effect of the cases so far decided on s.20(1)(a) was given by Blackburne J in Bell v Georgiou [2002]:

‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.’

(ii)     If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under s.20(1)(a). It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, [there is no apparent reason] why that should not give rise to a right to rectify under s.20(1)(a), provided of course the testator’s intention was clear.

(v)     The expression ‘clerical error’ is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly described as ‘clerical’, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called ‘a clerical error’.

(vi)    ‘Clerical error’ is an expression which has to be interpreted in its context, and, in particular on the assumption that s.20 is intended to represent a rational and coherent basis for rectifying wills. The expression ‘clerical error’ in s.20(1)(a) should be given a wide, rather than a narrow, meaning.

(vii)   Rectification of other documents (including unilateral documents) is not limited to cases of clerical error, however wide a meaning that expression is given. Accordingly, given that there is no apparent reason for a different rule for wills, it would appear appropriate that the grounds for rectification is as wide for wills as the words of s.20(1) can properly allow.

(viii)  There is no apparent limit on the applicability of s.20(1)(b), which supports the notion that s.20(1)(a) should not be treated as being of limited application. However, s.20(1)(b) also has a potential limiting effect on the ambit of s.20(1)(a), in the sense that s.20(1)(a) should not be given a meaning which significantly overlaps with, let alone subsumes, that of s.20(1)(b).

(ix)     Sections 17 to 21 of the 1982 Act are all aimed at making the law on wills more flexible and rendering it easier to validate or ‘save’ a will than previously. Section 17, which re-enacts s.9, is concerned with the ‘relaxation’ of formalities; sections 18 and 19 introduce greater flexibility in relation to the effect of the testator’s marriage and death of his issue; s.20 introduces rectification for the first time for wills, and s.21 permits the testator’s subjective intention to be taken into account for the first time. The whole thrust of the provisions is therefore in favour of a broad interpretation of a provision such as s.20(1)(a).

Where a will draftsman knew what he wanted to achieve, and thought wrongly, that he was doing so, i.e. where he made a mistake advertently, then the mistake is not a ‘clerical error’ (Kell v Jones [2012]), and a claim for rectification will fail notwithstanding that the expression ‘clerical error’ should be given a wide, rather than a narrow, meaning following the Supreme Court decision in Marley v Rawlings.

Failure to understand instructions

(i)      ‘A failure to understand the testator’s instructions involves a misunderstanding or breakdown in communication between the testator and the person who is drafting or writing out his will. It is to be distinguished from the situation where the draftsman understands his instructions but uses inappropriate language in seeking to give effect to them, as where he introduces words into a will to which he has applied his mind with a proper understanding of his instructions but (perhaps through a failure properly to understand the law) they do not achieve the objective which he and the testator intended.’ (Hodge, Paragraph 8-48).

(ii)     This ground is limited to cases where the draftsman fails to understand the instructions given, and thus has a limited scope. It does not cover circumstances where the testator fails to understand the legal effect of the words actually used or where the draftsman uses the wrong technique in drafting the will, even though he has understood the intentions of the testator correctly.

(iii)    The conclusion to be reached by the court about whether the draftsman had failed to understand the testator’s instructions is ‘to be arrived at on the balance of probabilities but bearing in mind a strong bias in favour of the conclusion that a duly executed will evidences the intention of the testator.’ (Goodman v Goodman [2006].

Ascertaining the intentions of the testator

(i)      It is the testator’s intention at the date of the will that falls to be considered, rather than as at the date of his death.

(ii)     It should be borne in mind that the remedy of rectification is available to correct mistakes in the expression of the testator’s intentions, and not for lack or vision, perception or knowledge. ‘One cannot look at circumstances that were not foreseen by the testator at the time he made his will, speculate as to what he might have done in those circumstances, and then supply words to meet those circumstances.’ (Hodge, paragraph 8-43).

(iii)    Whilst the standard of proof required is that the court should be satisfied on the balance of probability, ‘the probability that a will which a testator had executed in circumstances of some formality reflects [his] intentions is usually of such weight that convincing evidence to the contrary is necessary.’ (Re Segelman [1996]).

(iv)    The evidential burden of proving that the testator’s will failed to carry out his true intentions, is particularly difficult to discharge where he has drafted his own will without the benefit of independent professional legal advice because:

(a)      there is unlikely to be any documentary evidence of the testator’s intentions other than the will itself; and

(b)     there may not be a witness who was privy to, and can provide evidence of, the testator’s true testamentary intentions.

 

BREXIT ‘Blue sky’ thinking

This is not a worked through set of ideas and is merely intended to provide some food for thought as David Davis has called for blue sky thinking.

Agree as an interim package that:

1.    Britain will remain in the single market and customs union – which would also solve the problem of maintaining an open border with the Republic of Ireland and take any remaining wind out of the sails of Scottish nationalism, thereby preserving the relative market size of the UK in any future trade negotiations as part of the EU or outside it. For a brief explanation of the existential significance of the relationship between ‘relative market size’ and ‘integration’ please see my recent post, ‘What is the Single European Market?’: https://www.linkedin.com/pulse/what-european-single-market-carl-islam;

2.    instead of payment of a divorce bill, Britain continues to pay its full annual contribution to the EU budget throughout the duration of the interim period;

3.    all EU nationals currently resident in the UK can remain (including their families);

4.    all EU nationals who are deemed to meet qualifying criteria, are free to move to the UK and remain here at the end of the interim period, e.g. those working for a recognised employer e.g. the NHS, a University, or company (including the financial services industry);

5.    all other EU nationals seeking to move to the UK may do so if they meet certain criteria e.g. income, savings and health insurance for an initial period of two years before they can claim health and welfare benefits;

6.   there are specific carve-out rules e.g. for students paying for education in the UK;

7.   during the interim period the EU examines its freedom of movement policies and rules with the aim of reforming them to enable greater control by each sovereign member state in accordance with uniform criteria (i.e. to restore border control);

8.    the interim period end after policy reform has been voted on by each member state, subject to a specified long-stop end-date;

9.   following publication of the decision reached by the EU about reform of freedom of movement, a referendum be held about whether Britain should remain a full member of the EU or negotiate an orderly exit within a period that is sufficient for the civil service to put in place practical implementation plans e.g. about customs, ports, and air safety, and for businesses to adjust.

Would this provide business with the certainty is needs in order to undertake long-term planning? If not, and businesses decide that it is better to go now rather than in e.g. 4-6 years time, the package will not avoid the adverse economic consequences of a hard Brexit.

 

 

What is the European Single Market?

If you stopped a member of the public on the street and asked ‘what is the economic rationale and function of the European single market?’, what is the likelihood they would preface their remarks by explaining:

  1. differing national technical and licensing regimes create major obstacles to a unified market, restricting market entry on a grand scale;
  2. differing product standards and certification procedures hamper the Europe-wide acceptance of numerous items ranging from cars to pharmaceuticals, and cereals;
  3. the basic rule on the elimination of non-tariff barriers to trade is enshrined in Article 34 of the Treaty of the Functioning of the European Union (‘TFEU’) which provides,

‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’;

  1. ‘measures having equivalent effect’ has been defined by the European Court of Justice as meaning,

‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions’ (Fourcroy v Dassonville [1974]).

Therefore Articles 34 and 35 (which contains a similar prohibition for the export of goods) apply to any conceivable, discriminatory and non-discriminatory, direct and indirect hindrances to trade within the internal market; and

  1. Article 26 of the TFEU propounds the existential policy that,

‘The Union shall adopt measures with the aim of … ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties… The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

Efficiency depends upon integration. ‘Thus an essential thrust of the move towards completion of the internal market by 1992 was the harmonisation of regulatory regimes with respect to financial services, securities, insurance, company law, and telecommunications, as well as community-wide standards with respect to product safety, and technical specifications’. (The Regulation of International Trade by Trebilock, Howse, and Eliason).

Integration determines economic power. ‘The EU’s role and possibly effectiveness in international economic negotiations will be greater the larger the EU’s economic power. Equally important is the ability or willingness on the part of the EU to offer or deny access to its market. In the exercise of such market power it is the EU as a whole that counts and therefore the ability of the EU rather than the member states to determine access. If one takes market size as a measure of economic power then clearly the more integrated the EU market the greater the potential economic power of the EU.’ (European Union Economic Diplomacy by Stephen Woolcock).

Reduction of relative market power is an existential threat. It also proves the fallacy that Britain will be economically better off ‘out’ rather than ‘in’ because we can then negotiate FTA’s on our own terms. As we will be proceeding from a position of weakness against states that belong to trading blocs who in relation to the UK have vastly superior market power to dictate terms in their own favour, it is they (including the EU) who will be in the driving seat and not us. This is a stark negotiating reality that the British public does not yet appear to have grasped or even woken up to. Furthermore, because terms pivot upon residual integration post-Brexit, no state is likely to conclude and implement terms of a FTA with the UK until the EU and UK have agreed and implemented terms of a FTA to govern their future trading relationship, which typically can take up to seven years from commencement of FTA negotiations (which have not yet started), see the Brexit page of the Diplomatic Law Guide which refers to research by the Peterson Institute: http://newsite.diplomaticlawguide.com/brexit-2#roadmap

‘Relative market power is important because all economic diplomacy is shaped to a greater or lesser degree, and more or less formally, by reciprocity or the view that there should be a broad balance of benefits (or costs) resulting from any negotiation. The issue is generally how such a balance is defined and over what period. In some areas such as trade policy, reciprocity has been and remains, for better or for worse, one of the underlying principles of the GATT/WTO system of multinational trade negotiations. Relative market size is even more important in bilateral (or other preferential) trade negotiations that have become the dominant feature of international trade negotiations since the late 1990’s. In 2009 the EU constituted the largest single market in the world with a GDP in purchasing power parity of $14.5 trillion, just slightly larger than the US at $14trn and equivalent to China, India, Brazil and South Africa put together ($14.9trn) (European Union Economic Diplomacy by Stephen Woolcock).

When the British public voted for Brexit I wonder what percentage could have explained if you had stopped them on the street and asked them, what the Single Market and Customs Union actually are, and the existential significance of the relationship between relative market size and integration?

For a definition of ‘customs union’ please visit the ‘Bilateral and Regional Trade Agreements’ page of the Diplomatic Law Guide: http://newsite.diplomaticlawguide.com/bilateral-and-regional-trade-agreements#structuring

In his article published in the Independent 3 August 2017, ‘This is what the single market and customs union actually are – and here’s what will happen to Brexit if we leave them’, Richard Corbett wrote,

‘The debate about continued British membership of the single European market is often confused, because the shorthand term “membership”, just like the term “access to”, can mean different things.

There is not actually an entity called the “single market” that you can apply to join. The EU has created an “internal market” as one of its policies, and it has associated countries from outside the EU with it, to various degrees, as the EU treaties allow it to do. The EEA countries (Norway, Iceland and Liechtenstein) are the most closely involved though not quite fully participating, as fish and agriculture are excluded. Switzerland is involved through different arrangements. So are others, to a lesser degree, such as Moldova.

The shorthand term “members of the single market” is inaccurate, but is usually used to refer to the EEA countries and Switzerland. Those countries have red-tape-free access to the single market for most of their products, on the condition that they follow its rules.

After all, that is what the single market is about: ensuring that there are common standards on consumer protection, workers’ rights, the environment and fair competition means that products do not need to be checked at borders and can circulate without hindrance. This is particularly important for supply chains that criss-cross borders, such as in the manufacture of automobiles and aircrafts, or in agriculture. It is also vital in transport, where, notably, the right of airlines to fly across Europe is conditional on them complying with EU safety standards and being tested by the European Air Safety Agency. Britain’s financial sector, which provides one third of government tax revenue, is similarly dependent on its right to passport insurance and banking services across the single market in accordance with its rules.

In other words, “membership” of the single market is vital for our economy, jobs and public finance. 

But here’s the rub: leaving the EU, assuming we go ahead with it, means Britain will have no direct say on those rules anymore. We would probably have some influence – the EEA countries are consulted on draft single market legislation – but we would no longer have representation where the final decisions are taken: the EU Council of Ministers and the European Parliament.

This loss of influence is the political price of leaving the EU. We do not need to compound that by the economic damage of distancing ourselves from the single market.

Some argue that we must leave the single market in order to make our own, separate rules, otherwise we will be a rule-taker, not a sovereign state. But the supposed gain in sovereignty would not be so great as to justify the huge economic cost. EU legislation in its entirety amounts to some 13 per cent of our laws according to the House of Commons library, and single market rules are a proportion of that. Within even that smaller proportion, we would have little option but to keep most of it anyway.

First, some of it is where the EU has set standards that have since become world standards, as frequently happens. Second, sectors such as chemicals, aviation, pharmaceuticals and agriculture will still be dependent on EU rules that apply to their supply chains. Thirdly, some EU rules are the simple application in the single market of world level agreements in the WTO, UN agencies and so on. Fourthly, most rules are not controversial and there would be no particular gain from changing them. All in all, the extra “sovereignty” to do our own thing would, in practice, be limited, and not worth the economic damage of leaving the single market.

Others argue that staying in the single market does not respect the result of the referendum. Yet, it was Leave campaigners themselves who promised that we could leave the EU without economic damage because we’d stay in the single market:

“I’d vote to stay in the single market. I’m in favour of the single market,” said Boris Johnson.

“Only a madman would actually leave the [single] market,” said Owen Paterson.

“Increasingly, the Norway model looks best for the UK,” said Arron Banks.

“Absolutely no one is talking about threatening our place in the single market,” said Daniel Hannan.

A similar argument applies to the customs union – the arrangement whereby EU countries don’t impose any tariffs on trade between themselves, but set a common external tariff to the outside world. Leaving the customs union would probably mean tariffs and certainly mean border checks on our exports to, and imports from, the EU, which, let us not forget, is our biggest trading partner by some margin.

The price to pay here is that staying in the customs union means we can’t negotiate a different set of tariffs with third countries. But the new shiny trade agreements offered by Liam Fox are anyway turning out to be illusory. It won’t be easy to get better deals than we have secured via the EU with countries around the world. These have been negotiated with the clout of the whole of Europe – the world’s largest market – behind us. Negotiating new agreements, as Britain alone, and in a hurry, would not be to our advantage. If we gain anything at all compared to now, it is unlikely to balance the loss of diminished access to the European market.

Few people voted for Brexit-at-any-cost; indeed they were told it would save money that could go to the NHS. If it turns out to be a costly exercise, damaging the economy, they will be entitled to feel let down. A soft Brexit, staying in the single market and the customs union, will attenuate that cost and is arguably the only kind of Brexit that would come close to what several Leave campaign leaders pledged. But many would go further and say that even these costs, and the loss of British influence over decisions that will affect us anyway, are too high a price to pay for Brexit.And if this government doesn’t fall within the next 18 months and muddles its way through to an unclear, half-baked, or clearly damaging deal, then the clamour for a rethink of Brexit will grow. As Manuel Cortes said from a trade union perspective: “If a bad deal is on the table, the prospect of staying in must be an option.”

And as David Davis himself said: “If a democracy cannot change its mind it ceases to be a democracy.”

This still has a long way to go. But the fact that, well over a year after the referendum, there is still no clarity in what alternative to full membership we might go for means that no option should be closed.’

 

How civil courts decide

The common law judge is not concerned with establishing the truth of what did or did not happen on a given occasion in the past but merely with deciding, as between adversaries, whether or not the party upon whom the burden of proof lies has discharged it to the required degree of probability. Adversarial advocacy is not an enquiry into the truth. The adversarial system creates a polite contest: while a judge will seek out the truth as best he 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.

‘After hearing the evidence the judge must decide where the truth lies, decide any points of law, and give judgment… [The] judge is guided by any inherent probabilities, contemporaneous documentation or records, any circumstantial evidence tending to support one account or the other, and impressions made as to the character and motivations of the witnesses. Generally the judge is constrained by the pleadings, and has to make decisions on the pleaded issues. There are limited exceptions. A judge should not be deterred from deciding a case on the correct basis, where through incompetent presentation, the underlying legal cause of action has not been identified by a party’s representatives. The more usual course is to require the correct basis of the claim to be formulated through amended statements of case, which can be done even at the end of closing speeches. The claimant has the burden of proof on the balance of probabilities. It is for the claimant to prove the case, and the judge should be aware of too much speculative reconstruction. The law operates a binary system in which the only values are zero and one. There is no halfway house for the judge who concludes there is a real possibility that a fact in issue took place. If the party with the burden of proof fails to discharge that burden, the fact is treated as not having happened. If the burden of proof is discharged, the court treats the fact as having happened.’ (Blackstone’s Civil Practice 2017).

In Ball & Ors v Ball & Ors [2017] HHJ Paul Matthews, sitting as a judge of the High Court made the following observations about how judges decide civil cases,

‘Lawyers will know this, but it may help the parties (none of whom is a lawyer) to understand this judgment if I explain a few points about the way in which judges decide civil cases. Where there is an issue in dispute between the parties in a civil case, such as this is, the law places the burden of proving the necessary facts upon one party or the other. As a general rule in English law, the person who asserts something has to prove it: Robins v National Trust Co Ltd [1927] AC 515, 520. On the issues whether the testatrix was acting under pressure from her husband amounting to undue influence, or whether the will fails to make reasonable provision for the claimants, these matters are alleged by the claimants. So they bear the burden of proving them. The defendants do not have to prove a negative. As to the question of testamentary capacity of the testatrix, this is more complex. Ultimately the proponents of the will (the defendants) bear the burden of proving that she had capacity, but only once the issue of incapacity is properly raised. Here the claimants say that the testatrix was mistaken at the time she made her will, and thus had no capacity. So, on that basis, it would be for the defendants to show that she had capacity.

The significance of who bears the burden of proof in civil litigation is this. If the persons who bear the burden of proof of a particular matter (here the claimants) satisfy the court, after considering the material that has been placed before the court, that on the balance of probabilities that something happened, then, for the purposes of deciding the case, it did happen. But if those persons do not so satisfy the court, then (for these purposes) it did not happen. Our system of fact-finding is binary. It is either one thing or the other. There is no room for maybe. As I have said, the standard of proof in a civil case is the balance of probabilities, that is, that a thing is more likely to have happened than not. In mathematical terms, more than 50%. It is not scientific certainty at 100%. Nor is it even the criminal standard of “beyond reasonable doubt”, even though sometimes (as in this case) there are some criminal elements in what happened.

There is another point that I should make about the way the English civil courts reach their decisions. This is that it is for the parties to find and put before the court the material which they think will best help the court and prove their case. The English courts do not investigate of their own motion. It may often be that other relevant material exists elsewhere. But the court does not go and look for it. In civil litigation, the court usually makes its decision only on the basis of the material put before it by the parties.

Taken altogether, what all this means is that the decision of the court is not necessarily the objective truth of the matters in issue. Instead, it is what is most likely to have happened, based on the material which the parties have chosen to place before the court. My decision in this case must be seen in that light.’

Whether or not the burden of proof is discharged depends on the weight and value which the judge attaches to the various strands of evidence. This involves weighing up the credibility or reliability of the evidence, and ultimately comes down to deciding which version of the relevant matters is more likely to be correct.

 

The psychology of advocacy

The trial advocate should remember at all times that ‘Human beings are far more video than audio. The way we collect most of our information is through our eyesight…Intent listening is something we do with surprisingly rarity…What most lawyers ask the fact finders to do in court is to use their second best device for gathering understanding. And the fact finders do it: on the whole they do it well. But since we don’t tie blindfolds on them, they don’t switch off their best information gathering device… People who have studied the psychology of communications have some terrifying statistics for us lawyers. Examples:

  • 60% of a message is conveyed by body language and visual appearance generally.
  • 30% of the message is conveyed by tone of voice.
  • Only 10% of a message comes through the words used.
  • Only 10% of what people hear gets remembered. If, on the other hand they see something connected with what they are hearing, as they are hearing it, they remember 50%.

Lawyers tend not to know these statistics, just as they don’t seem to realise that they are operating all the time in the Video dimension.’ (Common Sense Rules of Advocacy for Lawyers by Keith Evans).

In his book the Golden Rules of Advocacy, Keith Evans adds,

‘[At trial what the judge normally has to do] is decide which parts of the evidence [he] prefers. An advocate’s job is to lead his or her fact finder to a preference and thus to an opinion…Your fact finders may arrive at their preference and their opinion entirely as a result of thinking. But that’s not very likely, is it? Even trained thinkers like us, in choosing between two conflicting witnesses, often ask ourselves what our gut reaction is…The process of getting to a preference and an opinion involves both – thinking and feeling. In a trial by judge alone you are before a trained thinker: here there may be more thinking than feeling involved in the search for preference or opinion. I say “may be” because that isn’t by any means certain. Judges are human too…You see lawyers behaving as if their fact finders had no feelings at all, whereas it is their feelings you should be reaching out to all the time. Your job is to make them feel , as well as think, that they prefer your version. It is your task, in total honesty, to lead them to this. And if you take this as your starting- point all sorts of guidelines present themselves.’

‘Judges, as human beings, are not immune from vanity. It is, then, “always a good principle of advocacy” for counsel to base his submissions on the previous decisions of the judge trying the case, since, as Lord Donaldson MR has acknowledged, “nothing appeals to judges quite as much as something which they have thought of themselves”. Little has changed since Quintilian advised all aspiring advocates in the first century AD that “we shall win the goodwill of the judge not merely by praising him, which must be done with tact and is an artifice common to both parties, but by linking his praise to the furtherance of our own case.’ (Advocates, by David Pannick).

To read my on-line guides to Advocacy and ADR please visit www.carlislam.co.uk

The direct link to the Advocacy page of my website is: http://newsite.carlislam.co.uk/advocacy

“The Advocate and the Expert in a Testamentary Capacity Claim”, the paper serialised in the monthly Newsletter of the Association of Contentious Trust and Probate Specialists (ACTAPS), of the talk I presented at their Annual Spring Seminar on 7 April 2016, at Charles Russell Speechlys in the City of London is also available to download on the Publications page: http://newsite.carlislam.co.uk/publications click on the link ‘HANDOUT’.

The emperor’s new clothes – How can Brexit be negotiated without a plan?

Until a political decision has been made and voted on in Parliament about whether or not Britain is to remain in the EU single market and customs union, how can Britain and the EU negotiate a FTA, as there is no trade agreement model on the table to negotiate terms about.

Following the German Federal election the time that will remain to make a decision, propose a position, and agree terms, will be less than 10 months (taking into account Christmas, and the usual New Year, Easter, and Summer holiday periods in 2018). After March 2019 the EU’s priority will be to progress the negotiation of FTA’s with other countries, to which negotiations with Britain over Brexit are likely to be relegated when allocating technical negotiating resources. Britain’s negotiators should not waste a minute of the precious little time available which the EU have allocated to Brexit because this is not an elastic window, although it can be extended.

What is the government’s plan? – NB the Treasury reported that whereas £13 bn of contributions were paid to the EU in 2015, there would be a 9.5% cut in UK GDP which would trigger a £66 bn (per annum) loss of tax revenues under WTO rules if there is a hard Brexit, which = 85.7% differential net loss if Britain falls over the cliff edge. In other words trading with the EU under WTO rules will cost Britain (in lost revenue) 6.5 times more per annum than the cost of full membership did in 2015. That does not include the cost to each British business of the consequential administrative burden of additional bureacracy and tariff charges, and that is only half of the picture. As observed in the Brexit Roadmap on the Diplomatic Law Guide (www.diplomaticlawguide.com) underneath the heading ‘Regularising the UK’s WTO scheduled commitments’, ‘Britain is currently a member via the EU. Full members must deposit ‘schedules’ of tariffs, quotas, subsidies and other concessions on market access with the WTO. The UK will have to negotiate its own schedules, initially with the other 27. The tariff negotiation could be simple if the British followed what the EU currently does. But dividing up quotas, on say New Zealand lamb imports, would be more complicated. And then the new British schedules would need the approval of all 163 WTO members, since the organisation’s decisions require consensus. So if one member (for example, Argentina or Russia) wanted to create difficulties, it could block the British schedules. British officials hope that such difficulties do not arise, but reckon that it will be hard work to sort out WTO membership within the two years of the Article 50 negotiation.’

Where are Britain’s detailed position papers (for which we have had 12 months to prepare)?

If there is no strategic intelligence leading British negotiations with defined, practicable, and agreed (i.e. all singing off the same song sheet) objectives, then how can Theresa May’s government know where it is going and taking Britain?

How can it negotiate Brexit?

In “The Emperor’s New Clothes” (published 7 April 1837 in the final instalment of “Fairy Tales for Children”), Hans Christian Andersen told the tale of two weavers who promised an emperor a new suit of clothes which they said was invisible to those who were unfit for their positions, stupid, or incompetent. When the emperor paraded before his subjects in his new clothes, no one dared to say that they didn’t see any suit of clothes on him for fear that they would be seen as “unfit for their positions, stupid, or incompetent”. Finally, a child cried out, “But he isn’t wearing anything at all!”

Does this tale have any resonance for the trust politicians expect British voters to place in them to conclude terms of a comprehensive FTA with the EU before October 2018?

Do they see something that nobody else does?

If not, when the Article 50 clock stops ticking, unless an interim arrangement is actually in place (which has to be agreed), then what is the likelihood of Brexit negotiations resulting in a fairy tale ending?

In an article published in the Guardian (18 July) ‘How to beat the ticking Brexit clock: let British business leaders do the talking’, Miriam González Durántez concludes,

‘The best thing this government could do to appease the serious concerns of UK business leaders on Brexit is to rely on the business leaders themselves. This means no more toying with extravagant and ill-founded ideas. And it also means seeking an interim arrangement with the EU to continue benefiting from the single market and the customs union for as long as is needed until an alternative EU-UK deal is reached, as business leaders have proposed. This can be done by placing the UK into the European Economic Area on a temporary basis, and/or looking for an ad hoc arrangement extending the current status quo. Neither the extreme Brexiteers nor the extreme remainers like this option, but it is the only sensible thing to do right now. It allows the UK government to win time. And time is what the government needs – to get the skills it misses, to draft proposals it has not even started to draft yet and to negotiate with the serenity that the high economic interests at stake deserve. 

An interim deal is the only way to deal with the ticking clock Michael Barnier hears because, as any trade negotiator knows, there is nothing worse than negotiating against time. Except for negotiating against time in pursuit of delusional and unrealistic ambitions.’ 

https://www.theguardian.com/commentisfree/2017/jul/18/brexit-british-business-leaders-legatum-eu

She also observes that at the meeting held at Chevening last week,

‘British business leaders were asked to share the table with the Legatum Institute, a think tank with unparalleled access to Davis and Theresa May and that seems to have been at the origin of some of the preposterous positions on Brexit taken by the government so far. Its inexplicable presence at that table was the clearest signal that the government has not changed its views on Brexit after the general election even one tiny little bit.’ [In which case, in spite of the Chancellor’s economic concerns, the Government remains unswerving it is determination to negotiate a hard Brexit].

‘Unlike think tanks like the Center for European Reform which knows more about the EU than the whole cabinet put together, the common characteristic of most of the Legatum trade commission seems to be not having worked at any time within the EU or even directly with it. I have negotiated myself for the EU on many occasions on trade, and I have seen how shocked negotiators from other countries become when they realise how difficult it is to negotiate with 27 countries – with their own institutions and legal system – at the same time. 

It is easy to see why this government would be mesmerised by Legatum. It is keen on unilaterally removing tariffs and quotas on agriculture products (farmers, take note) in exchange for services agreements all over the world. The effect of this on food security and food prices was highlighted this week in a report published by the University of Sussex. Equally importantly it doesn’t take much to realise that we are going to need an agriculture market at least 50 times the size of the UK’s to secure like-for-like access in foreign markets for our much larger services sector. A think-tank that can’t even work out the respective sizes of our farming and services sectors is in dire need of a lot more “thinking”. 

The institute also seems to be behind Davis’s recurrent claim that the UK will have “frictionless” access to the single market even if it is not part of it – an embarrassing comment that brings despair to Europeans, as the single market is a system of rules based on trust and a single legal order, and therefore accessible only to those who are part of it. When the EU negotiator Michel Barnier says that “some in Britain still do not understand”, he seems to be referring among others to how Davis still has not understood this. 

The main idea of the institute, though, seems to be the creation of a “prosperity zone” between the UK, Australia, New Zealand and Singapore, eventually extended to the US, Canada and Mexico, if the North Amercian Free Trade Agreement renegotiations succeed. This is actually an old idea, originally floated by Mitt Romney in 2008. It obviously did not work then, and it will not work now. One does not need to have a Nobel Prize in trade economics to realise that, even with the US and Canada included (which is very unlikely indeed) this can hardly compensate for all the trade that the UK will lose by stepping out of the EU.’ 

In an article in the Guardian (18 July) ‘In David Davis, Britain has a schoolboy in charge of the moon landings – Not all the early signs point to the Brexit secretary being a reckless bluffer who is wildly out of his depth. But most of them do’ (https://www.theguardian.com/commentisfree/2017/jul/18/david-davis-brexit-secretary) the Guardian columnist Rafael Behr observes,

‘One definition of an ideologue is a person who responds to the collision of opinion with reality by insisting that reality must yield.

There are times when stubbornness is admirable, when formidable obstacles must be overcome by transcendent principle. Without that idea, Mahatma Gandhi would have bowed to British colonial rule. Rosa Parks would have surrendered her seat to a white passenger on an Alabama bus.

But in those cases, systemic prejudice ruled out negotiated compromise. Brexit is not such a case, and David Davis is no Rosa Parks. 

The Brexit secretary is certainly stubborn when it comes to belief in his own abilities. He is also on a collision course with a wall of reality in Brussels. It is a stark fact that Britain’s prosperity and security depend on his technique for navigating that obstacle. 

Early signs are not encouraging. It would be silly to extrapolate too much from the photograph, published on Tuesday, depicting Davis empty handed at a table opposite Michel Barnier, his European commission counterpart, who is holding a heap of notes. Officials say the snap was taken before UK team members had unpacked their own stack of documents. 

But, as is often the case with such episodes, the awkward optics reinforced a valid caricature: Davis as an amateur trying his (and his country’s) luck against professionals. It did not help that Davis was on his way back to Westminster within an hour of the picture being taken. The defence was that underlings remained and got down to business. 

But it is another stark fact of Brexit dynamics that Barnier’s staff are drilled in EU process and law. They are playing at home. Team Davis has hardly laced its boots. Whitehall is unable to plan for the government’s desired outcome because no one knows what it is. The UK is also unpractised in negotiating in Brussels as an external party because we have, until now, been an integral component of this thing called Europe. 

British “position papers” on technical aspects of the negotiation (how to trade in nuclear material when article 50 requires exit from Euratom, for example) make painful reading for anyone seeking reassurance that Davis’s department is match fit. They are vague summaries of problems without solutions, as if the authors are only now beginning to grasp the challenges, through the act of writing them down for the first time.

British officials could not build a workable Brexit model before article 50 was triggered because the prime minister would not divulge her preference. She then squandered weeks on an election campaign that turned ambiguity into paralysis. 

Anyone imagining that a strategic intelligence lurked behind the scenes should ponder Davis’s assertion last July that the UK could expect to conclude trade deals with the US, India, China and Japan among other countries, starting in September 2016. “Within two years, before the negotiation with the EU is likely to be complete … we can negotiate a free trade area massively larger than the EU,” he said. 

Where are those deals? As long as the UK is part of the single market and the customs union – which it will be until at least March 2019 – there can be no external trade pacts. Thereafter, an optimistic expectation for the duration for such complex talks is five years. Put politely, Davis was talking out of his article 50 ignorance. 

That might be cited as evidence to support the charge levelled this week by Dominic Cummings, former head of Vote Leave, that Davis is “thick as mince, lazy as a toad and vain as Narcissus”.. Yet the jibe, typically unkind, was also unfair on two points. Davis is neither stupid nor idle. Arrogance alone could not have raised him from a penurious childhood to the top of government. He is energetic and cunning. But his skills are suited to a peculiarly British mode of advancement: the celebration of swagger and bluff over due diligence. Davis has benefited from Westminster’s generosity to men who gamble and busk their way through scrapes born of their own ill preparation – overgrown schoolboys who shirk their homework, then talk their way out of detention.

It is a trait Davis shares with Boris Johnson, one of his rivals in a succession battle, should Theresa May be deposed. Both have a reputation in government for ignoring their briefing notes. 

Viewed from Brussels, where there is a higher premium on command of boring detail, it is depressing to see the question of Britain’s European future yet again subsumed into a parochial Tory pissing contest. It is irritating too to Brexit realists in the cabinet, one of whom has urged May to slap down the testosterone-fuelled “donkeys” in government. 

Davis’s allies say completion of Brexit is his only goal, after which he intends to retire. That denial does not rule out finishing the job from No 10, should a vacancy arise. Supporters also say Davis is also pragmatist – unlike the wilder ideologues, who prefer a frenzied bolt out of the EU exit to a staged departure. 

Davis has yielded to some realities. His early bravado has been tempered by recognition that aspects of the job “make the Nasa moonshot look simple”. He accepts the need for an “implementation phase” to Brexit. He knows that some payment will be made to settle the UK’s EU budget obligations. He has forged an alliance with Philip Hammond, the cabinet’s leading advocate of the view that drastic rupture from the single market would be ruinous. But awareness of potential calamity is not proof of a strategy to avoid it. Assurances of Davis’s sober intent cannot expunge his record of maverick gestures. 

The Apollo 11 mission is a better metaphor than the Brexit secretary realised. It took the best part of a decade to plan. It cost billions. It was delivered by forensic expertise, not cocksure improvisation. Besides, getting to the moon was only half of the job: Nasa would not have initiated the countdown without a plan to get everyone back to Earth unharmed. Yet Davis is at the controls, already firing us out of Europe’s orbit on an undefined trajectory, with a shaky grasp of the laws of political gravity.’

My guide ‘Brexit Roadmap’ is set out on the Brexit page of the Diplomatic Law Guide www.diplomaticlawguide.com

Settlement methodology

There is of course no one size fits all standard methodology for calculating a settlement range in dispute resolution. In contentious probate, a method which occurred to me, whilst not being scientific, may be practical where liquid assets in the estate (or realisable liquidity) is greater than the sum of the agreed settlement multiplied by the number of beneficiaries (including the claimant), is as follows:

Win = loss of 1/3 costs (unless costs are awarded on the indemnity basis).

If own trial and preparation costs = £50k = £16.6k.

Split (i.e. to demonstrate goodwill) 50:50 = £8.3K.

Lose = £50K x 2 = £100K.

If chances of losing = 25%.

£100K x 25% = £25K.

Therefore BATNA settlement range = £8.3 – £25K. Mid-point = £12.5k.

Each party bears own costs up to settlement.

 

 

 

‘A bird in the hand is better than two in the bush – the moral of Thornton & Ors v Woodhouse & Anor [2017]’

Application of the suspicious circumstances rule was recently considered in Thornton & Ors v Woodhouse & Anor [2017].

The suspicious circumstances rule

Where there are circumstances giving rise to suspicion that the testator did not know and approve the contents of his will, e.g. where a person who takes a substantial benefit under the will prepared it or was closely involved in its preparation, the presumption of due execution will not apply, and the court will not pronounce in favour of the will unless the suspicion is removed. The burden rests on the party propounding the will to produce sufficient evidence to dispel the suspicion arising from the circumstances. The court will be vigilant in examining evidence in support of the instrument and the party propounding the will must produce positive evidence of knowledge and approval by the testator. Thus the court may require evidence that the effect of the document was explained to the testator, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect: Re Kroll [2004]. (Duress, Undue Influence And Unconscionable Dealing 2nd ed by Nelson Enonchong paragraph 13-013).

Application of the legal principles

In Thornton & Ors v Woodhouse & Anor [2017] Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division):

  1. referred to the following guidance provided in Wharton v Bancroft [2011]:

‘(1)   The overall burden lies on the claimant to produce evidence sufficient to prove the Will. Certain evidential presumptions may assist in the discharge of that burden. However, the circumstances may indicate that the propounder is required positively to prove what in other circumstances might be presumed or inferred from the proof of other facts.

(2)   The assertion that the testator did not “know and approve” of the Will requires the Court, before admitting it to proof, to be satisfied that he understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.

(3)   The burden lies on those seeking to prove the Will to show that the testator knew and approved of the Will in that sense.

(4)   The Court can infer knowledge and approval from proof of capacity and proof of due execution.

(5)   Circumstances such as those described in Gill v Woodall at [14] raise a very strong presumption that the Will represents the testator’s intentions at the relevant time.

(6)   However, proof of the reading over of a will does not necessarily establish “knowledge and approval”. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.

(7)   Those challenging the Will must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.

(8)   It is not for them positively to prove that the testator had some other specific testamentary intention: but only to lead such evidence as leaves the Court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.

(9)   Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.

(10) A challenge on the grounds of want of knowledge and approval is not precluded by an admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect: see Hoff v Atherton [2004] EWCA Civ 1554 at [64].’

  1. referred to the following paragraphs in the judgment of Lord Justice Chadwick in Hoff v Atherton [2004] (CA):

‘62. …       if testamentary capacity — the ability to understand what is being done and its effect — is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.

  1. Whether those are inferences which should be drawn depends, of course, on the facts of the particular case. The fact that a beneficiary has been concerned in the instructions for, and preparation of, the will excites suspicion that the testator may not know the contents of the document which he signs — or may not know the whole of those contents. The degree of suspicion — and the evidence needed to dispel that suspicion — were considered by this Court in Fuller v Strum [2001] EWCA Civ 1879, paragraphs [32]–[36], [73], [77], [2002] 1 WLR 1097, 1107 C –109 A , 1122 A–C , 1122 G –1123 C.
  2. Further, it may well be that where there is evidence of a failing mind — and, a fortiori , where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred.’
  3. applying these considerations to the facts of the case, concluded, that the disputed will (the ‘2009 Will’), ‘was properly executed, after being prepared by [a solicitor] and discussed with [the testator] at [a] meeting…, and there is accordingly a strong presumption that it represents his intentions at the time he executed it. Properly considered, there were, in my judgment, no suspicious circumstances in the present case, but if I am wrong about that, on the facts of this case the degree of suspicion is low and is readily dispelled by the points made by Mr Dew and the factors that I have gone over when considering (the submissions made on behalf of the 2nd Defendant).

For all these reasons, and applying the guidance that is provided by the decided cases, including (if it were necessary to place reliance on it) the caution against accepting too readily arguments of the kind that have been put forward on (on behalf of the 2nd Defendant) in this case, I am satisfied that [Testator] knew and approved of the contents of the 2009 Will.’

Submissions made by Richard Dew

‘Mr Dew submitted, in a nutshell, that proper application of these considerations to the facts of the present case leads inexorably to the conclusion that Richard did “know and approve” the 2009 Will. In brief outline, his main submissions were as follows:

(1)   There are no suspicious circumstances in this case, and the Court is not required to go beyond the fact, in accordance with Ms Harris’ evidence, the Will was discussed with Richard and the key changes and provisions identified for him.

(2)   The suspicious circumstances suggested by Lucy in Mr Macpherson’s opening submissions bear little relationship to the reality of 16 September 2009:

(i)     There is no evidence that Richard was lacking in mental abilities. All the independent evidence, and the perception of the solicitors, was that he was not. The “golden rule” (i.e. that the making of a will by an old and infirm testator ought to be witnesses and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings – see Cattermole v Prisk [2006] 1 FLR 693 at [12]) was not applied because it did not apply.

(ii)    Neither the Will nor the appointment of Susie [as an executor and trustee] represented a substantial break in Richard’s pattern of testamentary giving. The Will was essentially the same as earlier Wills, especially once it is appreciated that a life interest could and would have been granted to Susie under the 2001 Will. Although making Susie an executor and trustee was a new development, (a) it did not represent a radical break in Richard’s testamentary wishes, and (b) it is a change that is fully explained by the evidence.

(iii)   Withers’ advice as to the appointment of executors and trustees clearly changed or else was not accepted by Richard. That is not suspicious.

(iv)   The statement that Lucy and Mary are “cut out” from the Will is based on their stated perceptions of Susie, rather than on the real effect of her appointment, still less on how Richard would have perceived that appointment. It is wrong in both fact and law.

(v)   The effect of appointing Susie as executor and trustee is wholly consistent with the desire stated by Richard that Susie should be sufficiently provided for. It is not contrary to the 2009 Letter of Wishes.

(vi)   Lucy’s complaint that Susie does not, in truth, have a veto and that this was not properly explained to Richard pulls in the opposite direction to other aspects of her case, but is ill-founded in any event: Richard had already engaged in a number of conversations about the positions of executors and trustees, and was fully aware of their powers.

(vii)  Susie’s involvement in the Will was limited and, on the evidence of Ms Harris, was not uncommon, surprising or unusual. In most cases where a beneficiary has been involved and a Will is successfully challenged, they not only receive substantial benefit from the Will, but their desires can be seen in the Will that results. The present case is not one of those cases.

(viii) There is likewise no evidence of pressure from Susie in the creation of the Will.

(ix)   The contemporaneous alterations to the Letter of Wishes do, in fact, make sense. The alteration regarding Lucy directly reflects her demands on Richard at the time. The fact that he made the changes shows strongly that he did understand the 2009 Will and Letter of Wishes.

(x)   The “lack of any record” that the changes were explained to Richard is a particularly bad point, given the extensive records of the Will being explained to him and the evidence of Ms Harris that the important provisions of the Will would have been explained to him on the day.

(3)   If the Court is required to go on to consider whether Richard had knowledge and approval, the test remains the simple one of whether the 2009 Will reflected his intentions. It plainly did so. In particular:

(i)     There are good reasons to believe that Richard understood sufficiently well the nature of the office of executor and trustee. Among other things, he was a long-standing officer of listed companies and charities and had in fact obtained a law degree. He did not have an unsophisticated mind.

(ii)    In so far as it is Lucy’s case that Richard failed to consider the effect of the strained relations between Susie and others, it is based on the false premise that Susie would never make distributions to (for example) Lucy and Mary. Moreover, even if that premise were true, Richard had been aware for many years of the relationships between family members, and there is nothing to suggest that he would not properly have considered them here.

(iii)   The suggestion that Richard failed to understand the tax effect (given the probability or risk that Susie would never allow any distributions to anyone) ignores the competing demands that existed in respect of the residue of Richard’s UK estate and Richard’s desire that the BPF should, if possible, be conserved as a dynastic asset, all of which he understood.

(4)   The Withers documents and the evidence of Mr Cooke and Ms Harris show very clearly that the 2009 Will represented Richard’s intentions.

(5)   Richard received the 2009 Will and Letter of Wishes by both email and letter and that they remained in his possession until he became ill in 2011. He had ample opportunity to review them and had he not understood, or had they not reflected his wishes, he could have amended them, but he never sought to do so.

(6)   The jurisdiction pursuant to which the Court may omit from probate particular words of a Will where they did not reflect the testator’s intentions has become largely redundant following the passing of section 21 of the Administration of Justice Act 1982, not least because that section permits the court to add words as well as to omit them. This jurisdiction could not properly be applied here. In Fuller v Strum [2002] 1 WLR 1097, Peter Gibson LJ said at 1108 “I do not doubt that it is possible for a court to find that part of a will did have the knowledge and approval of the deceased and another part did not. An example would be if a solicitor, who had been instructed to draft a will, obtains the deceased’s approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator and keeps the executed will. But the circumstances in which it will be proper to fund such a curate’s egg of a will are likely to be rare”. None of Lucy’s evidence or cross examination has been directed at the possibility that Richard understood fully the remainder of the 2009 Will but not the appointment of Susie. Further, to exclude that part alone from probate would disturb the whole balance of the Will and so create a Will that does not reflect the testator’s intentions at the relevant time, and this would not be right.’

Conclusion

On an evidence based review following disclosure, it should therefore have been apparent, that the element of the counterclaim based upon the allegation of suspicious circumstances, whilst properly arguable, was in fact hopeless, and would in all likelihood fail at trial. That was the reality.

It is not known to the author whether an application for Chancery ENE/FDR was considered or proposed e.g. at the CMC. If proceedings had been stayed on an application by consent, to permit ADR, then perhaps a deal could eventually have been done to:

  • spare the family from having its dirty linen washed in public;
  • for nuisance value; and
  • to demonstrate goodwill,

which would have resulted in a considerable saving in costs and thereby preserved the size of the estate pie for a reasonable settlement to have been agreed.

The moral of the tale

A bird in the hand is better than two in the bush.

As Lord Neuberger warned in Gill v Woodall [2010], the moral of Thornton & Ors v Woodhouse & Anor is that,

‘Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.’

Whilst the court may sympathize with an adult child of the testator who has been ‘cut-out’ of the will, they have no power to rewrite the testator’s will, or to make a determination based upon a moral sense of ‘right’ or ‘wrong’. Consequently, where clear ‘cold-headed’ mathematical calculation is substituted by ‘wishful thinking’, a claim is likely to fail. To succeed, what is required from the outset, is a critical forensic examination and evaluation of the legal merits, remedies, costs, and litigation risks, tempered by realism, i.e. clinical ‘due diligence’. The claimant can then make a calculated and informed decision about whether the candle is going to be worth the flame.