Mediation of Will Trust & Probate disputes

Mediation of Will Trust and Probate disputes involves both evaluative and facilitative negotiation.

Winning in a negotiation = doing an optimal deal.

That involves compromise, because in the real world, nobody ever gets everything that they want.

Furthermore, at mediation you may not have current property valuations, i.e. you are negotiating with imperfect information.

ADR is imperfect, but potentially more profitable than litigating, because in litigation one of you will lose.

It is also more creative, because you can agree terms that the Court cannot order at the conclusion of a trial. It therefore requires imagination.

Whereas in a court hearing counsel addresses the judge, in a mediation counsel can speak directly to the other parties in the dispute.

The keys to success are strategy and skillful negotiation, i.e.

(a)    planning, preparation, and critically, determination of your client’s settlement range (i.e. the zone within which your client has commercially decided to settle by ‘doing a deal’);

(b)    communication of litigation risks to your opponent, i.e. to:

(i)     reduce his expectations; and

(ii)     draw him into your client’s settlement zone; 

so that you can negotiate the best deal for your client; and

(c)    a structured and principled process for:

(i)     exploring the practical options available for ‘doing a deal’, i.e. based upon the assets available, values, and ownership claims; and

(ii)     agreeing terms of settlement that are both capable of practical implementation, and sustainable (i.e. a framework, or structure within which a pragmatic deal is ‘doable’).        

I have always advocated getting on with job, i.e. not wasting daylight on a plenary session, which risks inflaming tempers.

There is no risk of your client inadvertently bumping into a hostile family member in a remote mediation. Furthermore, I am hearing from mediators that parties tend to be more businesslike and focused in remote mediations, i.e. because there is less oxygen for posturing and grandstanding by the solicitors and barristers involved.

In a talk broadcast on 29 March to members of the Professional Negligence Bar Association, entitled ‘One year on: lessons to be learned from mediations and hearings during Covid-19’ Michel Kallipetis QC:

observed that:

1.     in a virtual hearing before a judge there are three questions the judge expects counsel to address:

1.1   what do you want me to do [i.e. what order do you want me to make];

1.2   can I do it [i.e. what jurisdiction and powers does the court have to make the order]; and

1.3   why should I do it [i.e. what are the merits based upon facts, evidence, and law];

2.     likewise, in preparation for a virtual mediation, the legal representatives need to discuss three questions with their client:

2.1   what must you have out of any settlement;

2.2   what can you not live with, [i.e. what are your walk-away red-lines];

2.3   what would you like to have out of a settlement [i.e. what is your shopping list, and is this merited, practical, and realistic].

The judicial ethos underlying PD57AC, which concerns witness statements for use at trials in the Business and Property Courts and applies to new and existing proceedings, but only to trial witness statements signed on or after 6 April 2021, is that less is more.

As a matter of best practice, I am advising clients to follow the PD whether it applies to their claim or not.

Culturally there needs to be a shift in emphasis is preparation for a hearing between:

(i)     the amount of time and costs incurred by solicitors in disclosure, preparing documents, and bundles; and

(ii)     intellectual time incurred by counsel in developing arguments and submissions to present at the hearing in order to persuade the judge on the day – because that is the work and product that will get a result.

I am not saying that counsel can make bricks without clay. However, at the hearing of an interim application (and you may only have 20-30 minutes in which to get your points across), a judge is more likely to be persuaded by the quality of oral advocacy, than by documents which he or she may not have even received, or have read beforehand.

I think that since Covid, the rules of the game have changed.

The message that appears to be coming from the Bench, is that in a remote hearing, a judge a more likely to be persuaded by oral argument than by documents.

If that observation is correct, then it does not matter whether your judge is someone who prefers to read or listen, it is striking the right balance between oral and written advocacy that will get a result on the day, i.e. a win.

While a chronology is key, and the Case Summary and List of Issues are important, witness statements should now comply with the guidance in PD57AC, and I think that the underlying ethos should be applied to: all documents; skeleton arguments; and the preparation of electronic bundles.

I also think that these practical ground-rules apply to preparation for a virtual mediation.

Mediation is not an adversarial duel. The aim is to do a deal. Therefore, the mediator is more likely to be effective from the outset, if he understands what your client wants; must have; cannot live with; and would like to get. In my experience, unless you have had that conversation with your client beforehand, it is unlikely that the case will settle, and some clients do not understand that mediation is all about doing a deal, and that there is no point in mediating unless and until all parties have the will to settle, i.e. are ready to do a deal.

So, focus on persuasion, rather than documents.

That is why you need counsel in mediation – not as a champion, but in order to persuade the other parties through the mediator, and of course the mediator cannot convey your message if he does not understand your client’s commercial thinking and imperatives. Do the mediation math!

The key to success is preparation.

For the methodology I have designed and pioneered for trust disputes – the ‘BME Mediation method’, see Chapter 12 (ADR and settlement) of my book the Contentious Trusts Handbook’, published in July 2020 by the Law Society of England and Wales.

For mediation techniques that apply in will and probate disputes, see Chapter 10 of my book, the Contentious Probate Handbook , published by the Law Society in 2016.

Purchasing links:

Wildy & Sons Ltd — The World’s Legal Bookshop : Islam, Carl

Contentious Trusts Handbook – Law Society Bookshop

See also Mediation of Will Trust & Probate Disputes: https://newsite.carlislam.co.uk/advocacy

Arbitration of trust disputes in London

Institutional arbitration of trust disputes in England and Wales is almost unknown, because the interests of unborn/unascertained beneficiaries cannot be reliably bound by an arbitration agreement when the trust instrument is drafted. Therefore, English will/trusts and settlements do not usually contain an arbitration clause.

CPR, r.26.4(1) provides, ‘A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.’

Section 6 of the Arbitration Act 1996 [‘AA 1996’] defines an ‘arbitration agreement’ widely as meaning any ‘agreement’ , i.e. whenever made, ‘to submit to arbitration present or future disputes (whether they are contractual or not).’ 

In a trust dispute, where the instrument does not contain an arbitration clause, does an English Court have the jurisdiction to grant a stay under CPR, r.26.4(1) where e.g. at the first CMC, an oral application is made by consent, for a stay for arbitration in London, and a litigation friend consents to act (e.g. for a minor) with the approval of the Court, following the making of submissions about why this is appropriate? 

In other words, can:

(i)              the parties agree to an ad hoc arbitration; and

(ii)              the court, then stay proceedings, so that the ad hoc arbitration can be convened?

The trustees would need to have the power to agree to arbitration. 

A theoretical obstacle is the extent to which the supervisory jurisdiction of the Court over trust administration cannot be ousted. 

However, logically, the jurisdiction of the Court cannot be ousted if it grants an order by consent, because the Court is acting in the exercise of its jurisdiction, and note the default procedural rules contained in sections 15 to 29 and 33 to 41 of the AA 1996

The Court could make it a term of the Order that the arbitration decision is subject to a right of appeal to the Court (see sections 67 to 69 of the AA 1996), i.e. so that:

(i)     the application for the Order cannot be, and therefore is not, in itself, an attempt to oust the jurisdiction of the Court, which is capable of depriving the Court of its power to grant the Order; and

(ii)     notwithstanding that the application is voluntary (i.e. where each beneficiary is an adult and has full capacity),the convention right provided for under Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: (a) is not engaged; (b) cannot be infringed; and (c) is therefore satisfied.

‘In England and Wales, there is case law to the effect that a settlor or testator cannot validly exclude the jurisdiction of the Court from determining all issues which arise in the administration of a trust. [In Re Wynn [1952]] … Danckwerts J [had] occasion … to consider the juridical basis of allowing arbitration in a contractual context, stating:

“[o]ne’s mind naturally turns to provisions which are often found in contracts providing for the decision of disputes by an arbitrator, the common arbitration clause. After considerable doubt, the position of an arbitration clause appears to have been settled by Scott v Avery as being valid, provided that it merely requires as a condition precedent to the bringing of legal proceedings upon the contract that there shall have been an arbitration fixing the amounts to which the parties are entitled: and, on the other hand, that anything which goes beyond that, and attempts to deprive the parties of their right to bring an action is unlawful as an attempt to oust the jurisdiction of the Court.”

The principle is that the Court must be allowed to retain ultimate control, nowadays represented by the right of appeal on a point of law. In the context of a will it therefore appears to be settled that it is not possible to make a decision of the trustees final and binding. In the process of declaring the clause in In re Wynn to be void, Danckwerts J followed In re Raven, a decision of Warrington J. … As for arbitration clauses, the clear implication of both authorities is that such clauses are safe from invalidity for the very reason that the arbitrator’s decision is not final. In the ordinary course of an arbitration pursuant to a statute, there is a right of appeal, even if a limited one, and this prevents an arbitration clause from being void as an ouster of the Court’s jurisdiction. However, the corollary is that if an arbitration clause does not have an explicit or implicit right of appeal, then there remains a real danger that the clause does amount to an invalid ouster of the jurisdiction. The conclusion for present purposes is that the arbitration of trust disputes in England and Wales would need legislation.’ (‘Arbitration of Trusts Disputes – Issues in National and International Law’ (2016) edited by S.I.Strong, paragraphs 10.56 – 10.67, by Mark Herbert QC).

Why though, is legislation necessary if either:

(i)     an arbitration clause in a trust instrument expressly requires:

(a)    the consent of all beneficiaries; and

(b)    the approval of the Court where there are any: unborn; minor; or incapacitated beneficiaries, who in the exercise of it’s ‘supervisory jurisdiction’ can sanction the bringing of arbitration proceedings, supported by a stay, on terms which provide that any party is at liberty to apply to the Court to review the arbitrator’s decision, and then allow the decision to be appealed under s.69 AA 1996; or

(ii)     after a dispute has arisen, all trustees and beneficiaries agree to an ad hoc arbitration, and if as in (i) above, an application is then made to the Court for:

                  (a)    directions; and

                  (b)    if necessary a stay,

the Court grants its blessing, whilst preserving its supervisory jurisdiction?

In other words, can the Court grant an order by consent, which enables the parties to resolve their dispute by arbitration, i.e. because there is no prohibition in the circumstances outlined above?

I cannot see why not.

For a full discussion, please refer to Chapter 12 (ADR and settlement) of my book, the ‘Contentious Trusts Handbook’ (2020), published by the Law Society: Wildy & Sons Ltd — The World’s Legal Bookshop : Tax-Efficient Wills Simplified 2013/2014

To view my recent article ‘Judicial Early Neutral Evaluation and the New Normal’ published by Trusts & Trustees (Oxford University Press): Trusts & Trustees | Oxford Academic (oup.com) please visit the ‘Publications’ page at www.ihtbar.com

In the summer, I am planning to write an in-depth article about duties and powers of executors and trustees in relation to property and investments, which will be co-authored with a leading trust law academic at Cambridge University.

Deaccessioning of art & antiquities by a museum in breach of fiduciary duty

With reduced funding, some museums have turned to ‘deaccessioning’ the removal of an object from a museum collection with the intent to sell it.

‘Trustees of museums, like trustees of other public and charitable organizations, are subject to the legal obligations imposed upon fiduciaries.This proposition has, however, rarely been recognized either by museum trustees in their conduct of museum affairs, or indeed, by the legal system itself. As a result, museums have often been operated by their curatorial staffs and boards of trustees with little external supervision. Particularly in such areas as self-dealing, conflicts of interest and failure to observe donors’ directives.’ ‘The Fiduciary Duties of Museum Trustees’, by Patty Gerstenblith, Columbia-VLA Art and the Law (1983).

What claims may arise from deaccessioning in breach of fiduciary duty? see, ‘Art Deaccessions and the Limits of Fiduciary Duty’, by Sue Chen, Art Deaccessions and the Limits of Fiduciary Duty (duke.edu)

Art deaccessions prompt lawsuits against museums, and some commentators advocate using the stricter trust standard of care, instead of the prevailing corporate standard (business judgment rule), to evaluate the conduct of non-profit museum boards. This Article explores the consequences of adopting the trust standard by applying it to previously unavailable deaccession policies of prominent art museums. It finds that so long as museum boards adhere to these policies, their decisions would satisfy the trust standard. This outcome illustrates an important limitation of fiduciary law: the trust standard evaluates procedural care but cannot assess deaccessions on their merits. Yet this limitation, far from undercutting the trust rule, balances judicial review with protecting boards’ management discretion. This article ventures beyond formalist analysis of fiduciary duty and examines the non-legal, substantive rules governing art deaccessions. It argues that complemented by non-legal rules, the trust standard provides the best framework for adjudicating deaccession lawsuits because it ensures judicial scrutiny of deaccession procedures while leaving appraisal of deaccessions’ merits to museum professionals and the public they serve.’

The commercial settlement (i.e. through mediation) of a breach of fiduciary duty dispute resulting from the de-accessioning and sale of art and antiquities by a Museum, is therefore inextricably linked with established norms and standards of behaviour by Museum trustees.

See also Museum ethics: when the law plays catch up’

Posted on: March 23, 2021 by Alexander Herman:

Museum ethics: when the law plays catch up | Institute of Art and Law (ial.uk.com)

I am developing the negotiation and mediation of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. I plan to qualify as a mediator in 2024. I can then be appointed as an expert co-mediator to provide technical support to mediators on law, best practice, and ethics.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

To view the current outline of the book please vists the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.

Use of British soft power to protect Cultural Heritage in a conflict zone? – UK Review of Security, Defence, Development and Foreign Policy (March 2021)

State responsibility for intentional destruction of cultural heritage may also be conceived in terms of responsibility to protect (“R2P”) such heritage. R2P consists in the responsibility of each state to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, while the international community has the responsibility to help states to protect populations from such crimes. The three pillars of R2P – as specified by the UN Secretary General – are the following:

1)     each state has the responsibility to protect its populations from said crimes;

2)     the international community has the responsibility to assist states in fulfilling their R2P;

3)     when a state manifestly fails to fulfil its own R2P, the international community has a responsibility to take timely and decisive action through peaceful diplomatic and humanitarian means and, if that fails, through other more forceful means, including the use of military force.

Since intentional destruction of cultural heritage amounts to a war crime and a crime against humanity, it is straightforwardly subsumed within the scope of R2P. As regards the modalities through which R2P may be realized in concrete terms, it’s third pillar clearly shows that the United Nations, regional organizations, and even single states may take action to protect populations from intentional destruction of cultural heritagein territories where the territorial state manifestly fails to comply with its own R2P. In this respect, the denotation of international destruction of cultural heritage as an offence against humanity as a whole makes the international obligation to prevent and avoid such destruction an obligation erga omnes, with respect to which any state other than the one directly injured by a violation may take lawful measures to ensure that cessation of the breach and reparation in favour of the injured state or other victims of the breach, pursuant to the rule enshrined by Article 54 of the International Law Commission’s Articles on Responsibility of States for Intentionally Wrongful Acts. Among the possible measures to be taken in this respect, even recourse to military force would be possible, although only as a last resort and taking the relevant decision with the utmost caution and preferably with the authorization and under the guidance of the UNSC, acting pursuant to Chapter VII of the UN Charter. This conclusion is corroborated by the characterization of intentional destruction of cultural heritage as a threat to peace.’

[The Oxford Handbook of International Cultural Heritage Law, Chapter 4, Intentional Destruction of Cultural Heritage, by Federico Lenzerini (2020), at pages 97 to 98].

Global Britain in a competitive age – The Integrated Review of Security, Defence, Development and Foreign Policy(March 2021): Global Britain in a Competitive Age: the Integrated Review of Security, Defence, Development and Foreign Policy – GOV.UK (www.gov.uk) states:

‘The source of much of the UK’s soft power lies beyond the ownership of government – an independence from state direction that is essential to its influence. The Government can use its own assets, such as the diplomatic network, aid spending and the armed forces, to help create goodwill towards the UK – for example, through support to disaster relief or through our international work to protect cultural heritage in conflict settings.’

In any conflict, the humanitarian aim of Cultural Heritage protection always competes with military operations. Since there is no international authority responsible for defining: (i) each country’s cultural property; and (ii) the case of ‘military necessity’ / ’loss of immunity’, on the ground ‘it [is] difficult to separate military operations from cultural property under protection.’ [‘Legal Changes In The Regime Of The Protection Of Cultural Property In Armed Conflict’, Prof. Dr . Sabine von Schorlemer, Art Antiquity And Law, Vol IX, Issue 1, March 2004, p.43 at p.76].

Does an opportunity exist for Britain to use its diplomatic, military, and academic expertise and networks, to facilitate the development of an international code of ethics for the protection of Cultural Heritage in future conflicts around the globe?

The aim would be to develop a code that strikes a balance between:

(a) Cultural Heritage protection; and

(b) military interests.

The development, agreement, and practical implementation (e.g. through military training manuals) would require the ‘round-table’ expert involvement of: representatives of states; military officials; academics; UNESCO; the International Committee of the Red Cross; and NGO’s.

The ambition would be to develop clear norms of behaviour and standards, that are capable of practical and universal implementation on the ground by armed forces in a conflict zone.

The UNESCO ‘Protection Of Cultural Property Military Manual’ (2016) highlights the strategic importance of this global humanitarian challenge:

‘Over the past few decades, culture has moved to the frontline of war, both as collateral damage and as a target for belligerents who use its destruction to foster violence, hatred and vengeance. This destruction strikes at societies over the long term, weakening the foundations of peace and hindering reconciliation when hostilities end. Recent conflicts in Mali, Libya, Yemen, Iraq and Syria have demonstrated that the protection of heritage is inseparable from the protection of human lives. The destruction of heritage has become an integral part of a global strategy of cultural cleansing which seeks to eliminate all forms of diversity. In this context, military forces need to adapt their tools, behaviours and skills to take into account the protection of heritage as an integral part of sustainable strategies to build peace and security. Over the last seven decades, UNESCO has elaborated standard-setting instruments to help Member States tackle these issues. As the first international agreement of universal scope focusing exclusively on the protection of cultural property in armed conflict, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict has made a tremendous contribution to the protection of cultural heritage and has inspired subsequent treaties aimed at preserving such heritage. Following the conflicts of the 1990s, the Convention was strengthened with the adoption in March 1999 of its Second Protocol, which reinforces the protection afforded to cultural property in armed conflict, notably through new mechanisms for its implementation on the ground. This has been complemented by several other instruments, notably the 1970 UNESCO Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, as well as the 1972 UNESCO World Heritage Convention. Most recently, in 2015, UNESCO Member States adopted a fully-fledged strategy for the reinforcement of UNESCO’s action for the protection of culture. The examples of the rebuilding of the mausoleums in Timbuktu, Mali, destroyed by violent extremists, the training of military personnel for United Nations peacekeeping operations (MINUSMA) and the recent conviction of Ahmad Al Faqi Al Mahdi for war crimes by the International Criminal Court all attest to UNESCO’s determination to take this new strategy forward. Conventions and other legal instruments are necessary, but they are not enough to tackle increasingly complex situations on the ground. Just as culture is on the frontline of conflicts, it should be on the frontline of peace. To succeed, we need to broaden and rethink traditional approaches to protecting heritage. We need to connect the dots between the cultural, security and humanitarian aspects, while fully respecting the mandate and prerogatives of each actor. Military forces must pay particular attention and be capable of ensuring the protection of heritage in difficult circumstances. This is the aim of the present manual, namely to outline the practical implementation of the 1954 Hague Convention and its Second Protocol so as to enable Member States, in cooperation with UNESCO, to xiv include in their military directives guidelines and instructions on the protection of cultural property. All this should be viewed not as an additional burden on armed forces but as a means to achieve and consolidate long-term security objectives, in particular social cohesion and reconciliation.’

I am developing the negotiation, mediation, arbitration and diplomatic dispute settlement of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. I plan to qualify as a mediator in 2024. I can then be appointed as an expert co-mediator to provide technical support to mediators on law, best practice, and ethics.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

To view the current outline of the book please vists the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.

The state as a fiduciary?

Hobbes’s insight in ‘Leviathan’ (1651), to the collective action problem in the state of nature, was to empower some entity, i.e. the sovereign state, to make decisions for the group. However, by ‘[e]mpowering the state to override individual autonomy – which inevitably entails delegating powers of discretion to elites to carry out the task of governing – leaves the people subject to that power and discretion vulnerable to its abuse. … [E.G. through nepotism in awarding public contracts].

Conceiving of state authority in fiduciary terms has a long historical pedigree, dating back at least to Plato, Cicero, and Locke. …

Evan Fox-Decent [in his book ‘Sovereignty’s promise: The State as fiduciary’ (2011)] offers the most encompassing account of the state as fiduciary. He argues that the state, as a sovereign entity, is a fiduciary for “each person subject to its power and authority”. He derives this fiduciary relationship not from any contractual delegation of authority, but rather from Kant’s example of the obligations that a parent owes to a child. Just as children are subject to their parents’ discretionary decisions and incapable of either looking out for themselves or consenting to such an arrangement, the people are subject to the state’s administrative power and incapable of exercising state power on their own. According to Fox-Decent, the state’s fiduciary obligation to the people thus rests on trust, not consent. To fulfil that trust, the state must exercise its powers over it subjects for their benefit, not arbitrarily or for the aggrandisement of the ruling class. It must, in short, create a legal order that is governed by the rule of law and treat subjects fairly and reasonably. And those subjects owe a corresponding duty to obey the commands of the state that fulfils its fiduciary obligations. … Fox-Decent and Evan Criddle [in their book ‘Fiduciaries of Humanity: How International law Constitutes Authority’] have argued, that states may even have duties to other people who are not its subjects, including, for example, indigenous peoples within its borders who have not surrendered their own sovereignty, the subjects of other states, and future generations.’ [Extract from the Fiduciary Law Handbook, Chapter 17 ‘Fiduciary principles and the state’ by Theodore Rave].

Therefore,these duties could extend to protecting the environment, e.g. the Amazon Rainforest.

Do these duties need to be placed upon a statutory footing?

The relationship between the ancient idea of ‘Fiduciary Government’ and the existence of fiduciary duties owed by states in relation to cultural heritage, based upon a jus cogens theory, is a subject I am researching for my new book the ‘Fiduciary Theory of Art and Cultural Heritage’, see the ‘Art & Cultural Heritage Disputes’ page at www.ihtbar.com.

The art of exposing innuendo

How can you demonstrate that a sophisticated person is combining the techniques of:

(i)     lack of awareness, e.g. to persuade the listener that they had no knowledge of a state of affairs, or were an innocent victim of unforeseen circumstances outside their knowledge and control;

(ii)    unconscious bias, by triggering an emotional response to switch off the listeners’ critical thinking faculties, e.g. by pressing a ‘red-button’ designed to make the listener relate what is being said to their own subjective experience, i.e. to lend credibility to the narrative by proxy, because what the witness says fits with the listener’s worldview and personal beliefs;

(iii) innuendo; and

(iv) suggestion,

to plant a false impression in the mind of the listener about the witness’ actual knowledge, understanding, beliefs, intentions, and behaviour?

In other words, how can you prove that it is more probable than not, that this person is both: (a) acting (i.e. by putting on a face and manner/demeanor); and (b) manipulating facts, in order to present falsehoods as truth?

The answer is to test rigor, in order to challenge the credibility of the facts and the witness.

In preparing for cross-examination can advocates learn from academic research methodologies?

An insightful and instructive article about qualitative research methodologies is,

‘Rigor or Reliability and Validity in Qualitative Research: Perspectives, Strategies, Reconceptualization, and Recommendations’ by Brigite S Cypress: Rigor or Reliability and Validity in Qualitative Research: P… : Dimensions of Critical Care Nursing (lww.com)

See also ‘What is the RED Model of Critical Thinking?’: LinkClick.aspx (af.edu)

My new book

As a SCMA Accredited Mediation Advocate, I am developing mediation of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. In 2024 I plan to qualify as both a mediator and an arbitrator.

My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,

‘Fiduciary Theory of Art And Cultural Heritage’.

The current outline of the book appears on the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.

Institute of Art & Law Study Forum – virtual event – 6 February 2021

I am looking forward to this all day event on Saturday, as so much has happened since December 2020.

One of the questions to which I was seeking an answer, is whether the UK is now outside the restitution scheme of the EC Directive on the Return of Cultural Objects 2014, i.e. what was agreed in the BREXIT negotiations? My Tutor has since confirmed that this was actually included in the Trade & Co-operation Agreement in December: so the UK and EU will work towards returning such material through cooperation and assistance, but the civil claim option (Art 6 of the Directive) is no longer possible. This I think, highlights the importance of Cultural Heritage Diplomacy, which I will address in my new book, see: Art & Antiquities Disputes – Carl Islam

If you are wondering what the connection is (and there are many), between contentious probate disputes and the Art world, consider the following claim made against Sotheby’s for a ‘sleeper’ (i.e. work of art that is unrecognized, whose true nature has not yet been revealed and is ’dormant’). Ernest Onians, a British businessman and art collector, bought a painting at a country house auction in the 1940s which he stored in a chicken shed. He thought it was the ‘The sack of Carthage’ by the Italian artist Pietro Testa (1611-1650). Following his death, the painting was presented to Sotheby’s, by which time it was covered by a thick layer of dust and dirt, but was otherwise in good condition. The auction house offered the painting for sale attributing it to Pietro Testa with an estimate price range of £10K-15K. At the auction the painting reached a hammer price of £155K. Leading art historian Denis Mahon advised the winning gallery that the auction house had potentially misattributed the painting as it might be a work by the French master Nicholas Poussin (1594 to 1665). After the sale the painting underwent restoration for two years after which Mahon and the director of the Louvre Museum, Pierre Rosenberg, confirmed that the painting was indeed by Poussin and once owned by the Cardinal Richelieu. In 1998, the gallery sold the painting under its accurate attribution title, ‘The destruction and the sack of the temple of Jerusalem’ to the philanthropist Jacob Rothschild and the Rothschild Foundation for £4.5 million. Dismayed by the significant undervaluation, Onians’ heirs brought suit against Sotheby’s, which the parties ultimately settled for an undisclosed amount. Please note that nearly all such cases settle in negotiation or through mediation. The difference between £4.5 million and £155K = £4,345,000.

‘Upon consignment, an in-house specialist or external expert appraises each lot in order to generate a description for the sale catalogue. In appraising an art object, the expert identifies attributes, namely its creator or the respective place of origin or discovery, the date or period of creation and provenance. The final result of that assessment is expressed in the art object’s attribution. When a sleeper is offered at auction, the expert has failed to correctly determine the valuable attribution of the art object. As a result the art object is sold for a considerably underestimated price. [In other words a sleeper is] an artwork or antique that has been undervalued and mislabelled due to an expert oversight and consequently has undersold at auction. The auction house’s misattribution is printed in the sale catalogue as well as displayed on its website, communicated to potential clients and to those attending the sale. Accordingly, the art object is introduced into the public art market under a wrong label.’ The sale of misattributed artworks and antiques at auction by Anne Laure Bandle (2016).

Sleepers are often Old Master drawings and paintings. Sleepers are often Old Master drawings and paintings. Determining the attribution of Old Masters is challenging, because they are often unsigned. Authentification is also difficult, because at the time of creation, pupils and assistants may have been working closely with the Master painter.

An example of the importance of properly dating consigned antiques is a jug given an estimated price range of £100-£200 by a regional auction house, which was sold to an anonymous buyer for £220K, and following cancellation of the sale, was consigned at Christie’s and sold for its new estimate of £3 million. The regional auction house had not spotted that the crystal ewer originated from the early high Middle Ages. Christie’s described it as ‘a carved rock crystal ewer made for the court of the Fatimid rulers of Cairo in the late 10th or early eleventh century.’ ‘Holy grail’ jug they valued at just £100 is sold for £3m | Daily Mail Online

I am currently studying PIL in relation to misattribution claims as part of my diploma course.

Speakers and topics:

  • Dr Donna Yates (Associate Professor, Maastricht University), ‘Sotheby’s and the stolen statue: The normalisation of deviance in antiquities sales’
  • Dr Andrea Wallace (Senior Lecturer, Exeter University), ‘Article 14 of the Copyright in the Digital Single Market Directive and new questions around digital heritage collections’
  • Dr Kristian Jensen (former Head of Collections and Curation, British Library), ‘The British Library’s return of three stolen charters to Greece’
  • Azmina Jasani (Partner, Constantine Cannon LLP), ‘Covid, force majeure and the art market’
  • Rudy Capildeo (Partner, Charles Russell Speechlys LLP), ‘Brexit and the art market’
  • Tim Maxwell (Partner, Charles Russell Speechlys LLP), ‘The recent “business interruption” insurance case at the UK Supreme Court’

 See: Next IAL Study Forum – virtual event – 6 February 2021 | Institute of Art and Law

Striking-out a Defence for being ‘Equivocal’

In a contract claim, if the Defence to an allegation of breach, is predicated upon dishonesty by the claimant, e.g. where an insurance company (Defendant) has refused indemnity, then logically the Defence cannot be based upon innocence. That however, is fatal, if the Defence as drafted, is ‘equivocal’. Consequently, the Defence is at risk of being struck-out under CPR, r. 3.4(2).

Axiomatically, this principle and litigation risk applies to every kind of civil claim based upon fraud or intentional wrongdoing where the statement of case as drafted, allows for the possibility of an innocent explanation. That is the achilles heel in such a claim.

In Mullarkey & Ors v Broad & Anor [2007] EWHC 3400 (Ch), Mr Justice Lewison explained the litigation risk as follows: 

‘Pleading and proving intentional wrongdoing

41.   In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd. [1979] Ch. 250, 268 Buckley L.J. said:

An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.” …

43.   In Paragon Finance plc v D B Thakerar & Co he said on the question of pleading:

“It is well established that fraud must be distinctly alleged and distinctly proved, and that if the facts pleaded are consistent with innocence it is not open to the court to find fraud.”’

See also my December blog ‘Striking-Out a Hopeless Defence’ .

My article ‘Judicial Early Neutral Evaluation and the New Normal’ was also published by Trusts & Trustees (Oxford University Press) in December 2020: Trusts & Trustees | Oxford Academic (oup.com)

Abstract

The author’s premise is that in claims allocated to the multi-track, Judicial-Early Neutral Evaluation (‘JENE’) is the new normal. He discusses: the rationale; jurisdiction; and powers of the court to order JENE; its benefits; and the procedure. He concludes that, except where a claim involves the interests of minors and unborn beneficiaries, use of this case management tool is likely to become increasingly routine at the first case management conference where, for example, one party has proposed JENE, and the other has refused consent because he prefers mediation. Whereas mediation requires consent, JENE does not, and the court has the power at the first Case Management Conference to order a stay during which the parties must: (i) take stock and (ii) each carry out a reality check, i.e. before substantial costs are incurred in preparing for trial. Therefore, in an appropriate case, where a binary outcome on liability can open the door to settlement in relation to quantum, relief, and costs, JENE should be considered.

To view the article please visit the ‘Publications’ page at www.ihtbar.com

During the first quarter of this year I am planning to write an in-depth article about duties and powers of executors and trustees in relation to property and investments, which will be co-authored with a leading trust law academic at Cambridge University.

My new book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, see:

Contentious Trusts Handbook – Law Society Bookshop

Wildy & Sons Ltd — The World’s Legal Bookshop : Islam, Carl

In addition to my mainstream private client litigation work, I also undertake commercial contract and tort disputes, and am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled‘Fiduciary Duties, Art and Cultural Heritage’.

For more information please visit the ‘Art & Antiquities Dispute’ page at www.ihtbar.com

Striking out a hopeless defence

CPR, r. 3.4(2) states:

‘The court may strike out a statement of case if it appears to the court –

(a)    that the statement of case discloses no reasonable grounds for … defending the claim;

(c)    that there has been a failure to comply with a rule, practice direction or court order.’

The power may be used by the court of its own ‘initiative’, and in a hopeless case the court can exercise the power at the first CMC, i.e. without requiring an application to be made for striking-out prior to the CMC.

The power is exercisable for failure to comply with CPR, r.16.5 (Content of defence).

A related use of the power is where it is alleged that a statement of case, even if its contents are assumed to be true, does not amount to a sustainable defence as a matter of law.

In Monsanto plc v. Tilly [2000] Env LR,Stuart-Smith LJ said that r.24.2 ‘gives a wider scope for dismissing a defence . The court should also look to see what will happen at the trial and, if the case is so weak that it has no reasonable prospects of success, summary judgment should be entered.’

Some allegations will be factually weak and aptly described as disclosing no reasonable grounds within the meaning of r. 3.4.

Procedural judges are under a duty to narrow the issues as part of their case-management functions under Part 1, and have the power to treat an application to strike out as one for summary judgment in order to dispose of issues or claims that do not deserve full investigation at trial (Three Rivers District Council v. Bank of England (No.3) at [88].

Therefore, because the power to strike-out is exercisable by the court of its own initiative, so is the corollary power to summarily dismiss a hopeless Defence.