Extract from the new mediation Chapter of the 2^nd edition of the Contentious Probate Handbook.

‘Irrespective of the fact specific legal merits of a dispute, the settlement of a Contentious Probate Dispute invariably involves a trade-off between ten inter-connected variables along a spectrum of needs, resources, priorities, and ‘Red-line’ dealmaker/breaker imperatives, i.e. each participant’s [P’s] BATNA.

The Deal Making Zone [‘DMZ’] exists in the space between two interacting parallel dynamics which may converge in the consciousness of each P:

– Relative Gains v. Relative Losses [‘P.1 – P.2’].

– Common Ground [‘CG’].

P.1 – P.2 [Relative Gains v. Relative Losses]:

• Declaration & vindication of legal rights.
• Control.
• Property & Money.
• Costs.

CG [Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes]:

• Preserving the capital value of the estate.
• Engineering a tax-efficient distribution of estate assets.
• Avoiding litigation risk and thereby saving costs, time, energy.
• Avoiding publicity.
• Avoiding further stress and anxiety.
• Preserving a relationship and goodwill if worth saving.

The author posits that the gap between P1. and P.2 is reduced by the convergence of CG with P.1 – P.2. In other words, the closer P.1 – P.2 is to the underlying CG, the smaller the gap is between P.1 and P.2. That is the DMZ. Visually this can be represented as follows:

Pre- Convergence

P.1 —————————————————————————P.2

CG?

Convergence

P.1 ————-P.2

          CG

In contrast to Litigation, in Mediation the possibilities are only limited by the imagination of the participants and their legal representatives. Whilst not infinite, ‘doable’ deals that ‘are enough’ are invariably possible.’

This morning I signed an authorship contract with the Law Society for the 2^nd Edition of the Contentious Probate Handbook. The first topic I am tackling is ‘Undue Influence & Fraudulent Calumny.’ Later in the year I will revise and update the Chapter on Litigation. As any Barrister who is worth their salt will tell you – ‘Justice is barely on nodding terms with the law’. To survive in the litigation jungle, you must not make things worse by taking any step in litigation which can result in the law being used against your client. My own view for what it is worth, is that unless your client has to, they should not go anywhere near the courts. To understand why, you only have to read two of my blogs:

• ‘Making an educated guess in any case is an unreliable method of quantification, because a belief may subsequently turn out to be based upon a false premise. By contrast with an empirical method, “best thinking” based upon supposition is both subjective and arbitrary. Consequently, it is prone to bias, which could result in an appeal. Has this decision increased the litigation risks involved in these claims, by adding yet another element of uncertainty into what is already a rather muddled, incoherent and unstable equation? Has the court just pushed up the price of doing a deal in mediation, i.e. where mediation is preceded by the making of a Part 36 Offer? I think it has. The problem now, is working out in any given case, “by how much?” Therefore, the earlier parties proceed to mediation, the better.’ – ‘CFA fees in Inheritance Act claims’ | Carl’s Mediation Blog (wealthplanning.tv)
• ‘Where e.g. in a substantial e.g. £1m + self-dealing claim there has been no allocation to track prior to the first CMC, and prior to the hearing property is voluntarily transferred back to the estate by the fiduciary without making any admission of liability, i.e. by the allegedly self-dealing executor, this may provide the executor’s counsel will a specious argument that because what else remains in the claim appears to be relatively modest by comparison – and of course where an inventory and account is being sought, it will be an unknown and indeterminate value, that the Fast/Intermediate Track is per se appropriate, and therefore in relation to a claim for the recovery of costs regarding the self-dealing element of the claim, which will require a finding at trial of breach of fiduciary duty unless admitted, that only fixed costs should be awarded.- ‘New Fixed Recoverable Costs in Litigation Regime’ | Carl’s Mediation Blog (wealthplanning.tv)

Estate disputes should be mediated. The working draft already has a new chapter about Mediation and Mediating Estate Disputes – which is no place for amateurs because this is linked to complex tax-efficient settlement. Next year I will tackle:

• Removal of executors.
• Construction & rectification.
• Lack of capacity.
• Lack of knowledge & approval.
• Forgery.

I am aiming to complete the writing of my article about this subject by next Wednesday. The working draft is available to view on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk.

Contents:
·       Introduction.
·       Mediation.
·       Benefits.
·       Deal Making Zone (‘DMZ’).
·       Enforcement under the Singapore Convention.
·       Mandatory Mediation.
·       Contractual Matrix.
·       Fiduciary Duties owed by Managers & their Companies to Artists.
·       Copyright.
·       Fair dealing & exceptions.
·       Moral Rights.
·       Undue Influence & Unconscionable Dealing.
·       Restraint of trade.
·       Mediator Questions.
·       Bibliography.
·       Cases.
Extract:
‘Deal Making Zone (‘DMZ’)’ –

Parking emotions, greed, ambition, and politics, and irrespective of the fact specific legal merits of a dispute, as the Table below illustrates, the settlement of a Music Dispute invariably involves a trade-off  between twelve inter-connected variables along a spectrum of needs, resources, priorities, and ‘Red-line’ dealmaker/breaker imperatives, i.e. each P’s BATNA. The DMZ exists in the space between two interacting parallel dynamics which may converge in the consciousness of each P:
– Relative Gains v. Relative Losses.
– Common Ground.
Relative Gains v. Relative Losses:
(i)         Legal rights.
(ii)        Creative control and Artistic Integrity.
(iii)       Money.
(iv)       Recognition, Reputation/ & Credibility.
Common ground in eliminating litigation risk by doing a deal instead of proceeding to trial includes:
(v)        Saving costs.
(vi)       Saving Time.
(vii)      Saving energy.
(viii)     Avoiding further stress.
(ix)       Avoiding publicity.
(x)        Avoiding the creation of a legal precedent.
(xi)       Preserving a commercial relationship and goodwill if worth saving.
(xii)      Maximising gain by transforming a conflict into a mutually beneficial commercial arrangement (a ‘Creative Commercial Opportunity’).
In contrast to Litigation, in Mediation the possibilities are only limited by the imagination of the participants and their legal representatives. Whilst not infinite, ‘doable’ deals that ‘are enough’ are invariably possible.

My essay ‘Mediating Cultural Property Disputes’  is available to view on the ‘Mediating Art & Music Disputes’ page at www.carlislam.co.uk.
Contents:
– Introduction.
– Ethics.
– Challenges & Opportunities.
– Unconscious bias.
– Loss aversion.
– Tools & Precedents.
– Issues for the Mediator to discuss during a Pre-Mediation Zoom call about preparatory steps and agreeing ‘criteria’ i.e., applicable ‘Principles of Restitution/Repatriation.’
NB: ‘A’ = artefacts which are the subject of a cultural property claim (i.e. both chattels & fixtures).
Amongst the issues I discuss is – ‘What is the cultural home of A? [‘H’] – which is linked to the concepts of:
·       a ‘Lex Originis’;
·       the ‘legitimacy’ of a place where A should be located (‘Patrie’ – i.e., the cultural ‘homeland’ of A);
·       the applicable law being that of H – and what state law applies in default if the law of H is not a unified, i.e., recognised body of law in jurisprudence;
·       the sovereignty of indigenous peoples and their human rights; and
the concept of the creation for public display, i.e., in a museum/gallery, of a ‘unity of art.’

‘Centre for Geopolitics at Cambridge University Panel Event about the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).’ [04.08.2023]. My Q. was:
‘What are the geopolitical implications & potential consequences of the UK withdrawing from the CITPP in order to rejoin the EU as a full member?’
The recording has been posted on the ‘Geopolitical Challenges’ page at www.diplomaticlawguide.com. To listen to the answers provided by the panel of expert speakers fast forward to 38.15. What I picked up listening to the panel discussion and answers to my Q were:
·     CPTPP will add £1.8bn/year to the UK economy after 10 years = less than 1% of UK GDP (around 0.8%).  
· It is unlikely that the UK will rejoin the EU for at least another 10 years [i.e. because of: domestic issues; ‘they do not want us back’; & conditional on acceptance of the Euro].
·       China & Taiwan are unlikely to join the CPTPP.
·       There appears to be an Achilles heel in the CPTPP – Cyber-Security & Data Regulation. This is an obstacle to certain states being allowed to join. If rules were relaxed the UK might have to withdraw.
·       There is no obvious security dimension/benefit of the UK being a member of CPTPP.
·       Labour have no appetite to take the UK out of the CPTPP & to protect the image of ‘Global Britain’ as a totem are likely to maintain the Pacific tilt.
·       A geopolitical consequence of withdrawing is that in Asia the UK would appear to be ‘going back to its European home’ i.e. being in geopolitical retreat.
·       The world has changed. The conventional orthodoxy of the past about a rules-based global order eventually dominating & regulating international trade & competition between nation states no longer reflects reality.
·       Perhaps there is an opportunity to design a new world order for international trade but that remains to be seen.
·       Perhaps the CPTPP has a role to play in shaping that order?
·       Meanwhile Britain & a future Labour Government who will want to get as close as they can to Europe, will have to make the most of what we have got, i.e. the situation we are in post-BREXIT.
My overall & abiding impression is that in relation to political rhetoric, theory & ideology about achieving economic growth through international trade, the reality is that the UK is drifting on the high seas almost entirely at the mercy of competing ‘geopolitical’ trade winds over which we have little or no control & influence, & that steering economic growth will be a very slow & gradual process. Who knows what lies ahead? As a nation, we must decide who we are & what our values are in the post-BREXIT world of international trade. Otherwise, we have no political compass. For future Prime Minister Sir Keir Starmer – the biggest challenge will be to keep the ship upright & afloat in the perfect economic storm that BREXIT has brought about. Not the direction of travel. So expect a long & turbulent journey back to Europe.

Google ‘Extending Fixed Recoverable Costs: a note on the new rules’. NB:

• From 1 October 2023, fixed recoverable costs (FRC) will be extended across the fast track1 , and in a new intermediate track for simpler cases valued up to £100,000 damages.
• There have been substantial changes to Part 45 (Fixed Costs), which has been largely re-written. A new Practice Direction (PD) 45 sets out the relevant tables of costs. Changes have been made to Part 26 (Case Management – Preliminary Stage) and PD 26, as well as Part 28 (The Fast Track) and PD 28; changes have also been made to Part 36 (Offers to Settle). Consequential changes have also been made to other Parts.
• There will be a separate intermediate track, as recommended by Sir Rupert. The MoJ 2021 consultation response had envisaged intermediate cases being part of an expanded fast track. Instead, however, the fast track will remain as it is, and less complex multi-track cases under £100,000 damages will be allocated to a separate intermediate track.
• In the intermediate track, there will be four complexity bands (1 to 4 in ascending order of complexity) with associated grids of costs for the stages of a claim (see Table 14 in PD 45). The stages of intermediate track claims have been revised from those proposed by Sir Rupert, to provide greater clarity and better reflect the stages of cases, particularly because the costs for each stage include costs for earlier stages. As with the fast track, the figures of FRC costs for the intermediate track in the 2017 Jackson report (which were fixed at July 2016) have been uprated for inflation using the January 2023 SPPI.
• The normal bands for different types of case are set out in the rules (at rule 26.15 and rule 26.16). There will be new standard directions for the intermediate track.
• The new FRC will apply to claims where proceedings are issued on or after 1 October 2023.
• FRC in claims for or including non-monetary relief (NMR): Most FRC claims will be for damages, and the tables of FRC recognise this by incorporating a percentage of damages recovered. Sir Rupert recognised that not all claims are for damages; his 2017 report noted the need for the court to assign a value to non-monetary relief in claims for, or including, non-monetary relief. 5 It has now been agreed that there will be fixed assigned values for individual bands, and that, in mixed claims (involving both monetary and non-monetary relief), FRC will be calculated in part by reference to the damages awarded, and also the assigned value for non-monetary relief, taken together.
• FRC where there is more than one claimant represented by the same lawyer: Under rule 45.5, each claimant will be entitled to the costs of their own claim except: (i) where the claim is for a remedy to which the claimants are jointly entitled, and they are joined to the proceedings to comply with rule 19.3; or (ii) where the court orders that additional claimants are each entitled only to 25% of the principal claimant’s FRC. In respect of the second exception, the court may make such an order if it considers that it is in the interests of justice to do so, having regard to whether the claim of each claimant arises from the same or substantially the same facts and gives rise to the same or substantially the same issues. The court shall consider making such an order at allocation or assignment (see rule 26.7(9))
• Part 36 offers: the arrangements for Part 36 offers to settle in low value personal injury cases already subject to FRC have been updated to cover all FRC claims.

So where in accordance with the CPR a Contentious Probate claim is properly/necessarily issued in the High Court, and following service is transferred by a Master to the CLCC, and no allocation to track is directed until the hearing of the first CMC – then from 1 October there appears to be a very real litigation risk that:
– The Judge may allocate the case to the Fast/Intermediate track.
– For costs incurred, only fixed costs can and will be awarded – which may amount to only a small fraction of case-preparation costs and the costs of any interim applications made up to that point in strict conformity with the CPR.
– If at the CMC, the judge, who may be a Circuit Judge, technically mischaracterises e.g. a breach of fiduciary duty claim by an executor as being a simple ‘sibling’ dispute, that the case will be treated for ‘costs as being a ‘simple’ case. The Judge could be appealed, but the Claimant may not want to incur further costs and litigation risks and may decide to settle, in which case the other party will only agree to payment of fixed costs in settlement.
The litigation risk uncertainty this new regime creates therefore ought to focus parties minds early about entering into Mediation.

Where in a substantial claim, e.g. a £1m + self-dealing claim, there has been no allocation to track prior to the first CMC, and prior to the hearing property is voluntarily transferred back to the estate by the fiduciary without making any admission of liability, i.e. by the allegedly self-dealing executor, this may provide the executor’s counsel will a specious argument that because what else remains in the claim appears to be relatively modest by comparison – and of course where an inventory and account is being sought, it will be an unknown and indeterminate value, that the Fast/Intermediate Track is per se appropriate, and therefore in relation to a claim for the recovery of costs regarding the self-dealing element of the claim, which will require a finding at trial of breach of fiduciary duty unless admitted, that only fixed costs should be awarded.

‘It’s the climactic conclusion of the 2023 Proms season. On stage, superstar cellist Sheku Kanneh-Mason and world-renowned Norwegian soprano Lise Davidsen join the BBC Symphony Orchestra and Maestro Marin Alsop for a mix of classical favourites, lesser-known gems and a dash of the new. Presented by Katie Derham, with special guests Sandi Toksvig and Danielle de Neise, this first half of the night’s celebrations includes music by Verdi, Wagner, Bruch and Mascagni – and there’s a world premiere from rising star James B Wilson, specially commissioned to commemorate the BBC’s centenary last year. The night kicks off with Richard Strauss’s swashbuckling Don Juan. [on BBC 2 at 7pm]. The concert continues on BBC One at 9pm’. ‘Last Night of the Proms (bbc.com). Enjoy!
Last year my favourite Prom was Prom 47: Aretha Franklin – Queen of Soul – which is available to watch on BBC i-Player. Jules Buckley conducted what was then his all-new orchestra in a symphonic tribute, featuring singer-songwriter Sheléa. It was sheer joy! See also by Googling – ‘Shelea Sings “Until You Come Back to Me (That’s What I’m Gonna Do)” at NAMM 2018.’ To listen to a wonderful Jazz & Blues medley Google – ‘Sheléa – Live At The Aretha Franklin Tribute Acoustic -sidney marques.’
This year, and I discovered this concert by accident, it was Northern Soul at the Proms. Google the following on YouTube ‘Darrell Smith Northern Soul Prom There’s A Ghost In My house’. You are in for a treat! Look out in particular for the synchronised flowing arm movements of the back-up singers – who incidentally are all lead solo artists in their own right. Now that’s what I call collaboration! See also by Googling – ‘R Dean Taylor – Ghost in my house – New HD version (with lyrics)’ – which is set to dancing by Fred Astaire.
[Picture – taken in 2016 is of an unknown artist (not me if that is what you are wondering – although I bought a guitar just like that on Charlotte Street with my first wage) – who suddently appeared in a restraurant where I was having lunch with my Mother. He sang a repertoire of Tom Jones hits and I persuaded him to do a couple of Elvis numbers. Everyone in the restaurant – well most of us – joined in. Loud applause followed plus demands for More! I congratulated the restaurant staff – ‘you must feel so proud!’ but they urged me not to encourage him – ‘Senor – You do not have to listen to him everyday – sometimes three times a day’ said one – which I think was unfair. The music business can be so fickle. Play on Maestro! – Incidentally beyond the rocks is where I used to spear-fish in the sea as a little boy].

In my free time over the next 30 days I am writing a draft article entitled –  ‘All I Want For Christmas Are Damages – Mediating Music Disputes’

The current working draft appears on the ‘Mediating Art & Music Disputes’ page at www.carlislam.co.uk. One of the remedies available in a management contract dispute is breach of fiduciary duty by the manager. This is connected to recovering copyright and back-royalties and obtaining a declaration that the contract is void e.g. for undue influence. The current structure of the article is:

• Introduction.
• Music Business.
• Fiduciary Duties owed by Managers to Artists.
• Constructive Trust?
• Artists’ Rights.
• Copyright in Music.
• Fair dealing & exceptions.
• Remedies.
• Questions for the Mediator to ask each Participant in a Pre-Mediation Zoom /TEAMS Call and on the Mediation Day.
• Bibliography.
• Cases.

‘Heal the pain!’ – I have started to write a short 900 word article for publication in the Law Society Gazette later in the year entitled, ‘All I Want For Christmas Are Damages – Mediating Music Disputes.’ The full length version will eventually appear on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk along with a Bibliography. ‘Artists Rights’ was one of the modules for the Art Law Diploma course I have been undertaking since 2020. The article is based upon an essay I was drafting for the course earlier in the summer, which I put to one side in order to write about ‘Mediation of Cultural Property Disputes’, ‘Taxation of Heritage Assets’, and ‘Repatriating the Parthenon Marbles using a Trust’. My three essays for the course have now all been written and submitted, and are available to view on the ‘Mediation of Art & Music Disputes’ page at www.carlislam.co.uk. This frees me up in my spare time this month to return to ‘Music and Digital Copyright Law’. When I practised as a commercial Solicitor, prior to practising at the Bar, my clients included a start-up record label, an Asian TV channel, and a leading UK school of performing arts. So, I am no stranger to the complex legal world of how music content, and rights in IPR and knowhow are acquired and exploited in the Music, Publishing, and Entertainment Business. This is a global industry, and it feels good to be back, albeit wearing a different hat this time, i.e. writing as and from the perspective of a ‘CMC Registered Mediator’, rather than that of a contract draftsman and commercial negotiator. I am aiming to complete the first draft withing the next 30 days. After that I will be on schedule to commit my free time to writing the second edition of the ‘Contentious Probate Handbook’ for the Law Society from December. Did I mention Christmas in August! I think it will be here before we know it.

I am in the final days of writing as essay entitled –‘The case for repatriating the Parthenon Marbles [‘PM’] using a trust’, for the Diploma in Art Law course I am undertaking at the Institute of Art & Law in London (https://ial.uk.com/).
An original argument which occurred to me this morning as I was writing about the legal merits of the claim by Greece [‘G’] for the repatriation of the PM runs as follows:
·     If the PM were/are ‘fixtures’, then they are not chattels.
·     Thus, the remedy of conversion in Tort is not available to G.
·     Axiomatically the Limitation Act 1980 provisions applicable to claims in conversion do not apply.
·   G may be able to make a novel application to a court of equity for: (i) a declaration about the existence of a ‘Constructive Trust’; and (ii) for the recovery of trust property in the possession of the British Museum [‘BM’], which has been converted into their use.
·     There is no limitation period for such an application.
·     Therefore G is not out of time for bringing a claim in the Chancery Division of the Business & Property Courts in London.
·     The Limitation Act 1980, s.21 provides:
‘Time limit for actions in respect of trust property.
(1) No period of limitation prescribed by this Act shall apply to
an action by a beneficiary under a trust, being an action—
(a) in respect of any fraud or fraudulent breach of trust to
which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds of
trust property in the possession of the trustee, or previously received by the
trustee and converted to his use.’
·  The definitive legal pronouncement of what is a fixture is found in Berkley v. Poulett [1977] EGLR 86. Whether an article or chattel is a fixture, depends upon:
(i)                 the degree to which the article in question could properly be said to be annexed to the building; and
(ii)                the purpose for which it was put there.
·       While this will need to be researched, the fact that the PM were unlawfully removed, cannot and does not, convert them into chattels – not least, because logically, they belong as part of the Monument from which they were taken – which if the Monument had been sited in England, would mandate their return and re-unification. As far as I am aware, nobody has ever advanced and developed this novel legal theory – not even the Government of Greece.