To view my new article please click on this link:

https://academic.oup.com/tandt/advance-article/doi/10.1093/tandt/ttab101/6464191?guestAccessKey=247ea00c-f63d-4359-aa69-60b7e4bf3b5a

Title: ‘Electing between equitable remedies’.

Date of publication worldwide: 16.12.2021.

Abstract

‘Carl Islam explains the operation of the principle of election, and concludes that in a breach of fiduciary duty claim, before an election between equitable remedies must be made by the claimant beneficiary, the judge should first consider the duties and powers of the defendant fiduciary. Because that exercise is inseparable from determination of breach, the author further submits that the exercise should be undertaken by the judge at the same time, i.e. at trial, before making a finding about breach.’

At the end, I also discuss Executors’ and Trustees’ duties in relation to land, and conclude that under English law,

‘the duties of executors, trustees, and trustees of land are the same in relation to land, see Byrnes v Kendle [2011] HCA 26, (2011) 243 CLR 253, at paragraphs 67 and 119, which was cited in Brudenell-Bruce v. Moore [2014] EWHC 3679 (Ch), by Mr Justice Newey at 88.’

I also explain that because of s.2 of the Trusts Of Land And Appointment of Trustees Act 1996 (‘Abolition of doctrine of conversion’), an executor is not under a duty (i.e. any legal compulsion), to sell land.

‘Trusts & Trustees‘ is a rigorously peer reviewed journal published by Oxford University.

‘Trusts & Trustees is the leading international journal on trust law and practice, and the official journal of the International Academy of Estate and Trust Law. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers.’ About | Trusts & Trustees | Oxford Academic (oup.com)

1.     Introduction

(a)    The choice of law rules for England and Wales, Northern Ireland and Scotland are set out comprehensively in the Hague Convention on the Law Applicable to Trusts and on their Recognition (the ‘Convention’), as implemented and extended by the Recognition of Trusts Act 1987 (‘RTA 1987’).

(b)    Preliminary issues relating to the validity of wills or transfers of assets to trustees fall outside the scope of the Convention.

(c)    In practice, three questions typically arise:

(i)     technically, does the English Court have jurisdiction to entertain the claim;

(ii)     which legal system will the Court apply to resolve the dispute on the merits; and

(iii)    will the English Court recognise and enforce a judgement.

(d)    The convention:

(i)     harmonises the choice of law rules applicable in contracting states (and other states subsequently acceding to or implementing the Convention); and

(ii)     expressly provides for the recognition of trusts falling within its scope.

(e)    Section 1(1) of the RTA 1987 states that ‘The provisions of the Convention set out in the Schedule … shall have the force of law in the United Kingdom’.

(f)     Under English law, questions involving the administration of a trust and the personal liability of the trustees to the beneficiaries for breach of trust are governed by the law applicable to the trust (Article 8 of the Convention as implemented by section 1(1) of the RTA 1987). The applicable law is either the law chosen by the settlor (Article 6) or, if there is no choice, the law of the country with which the trust is most closely connected (Article 7).

2.     Preliminary issues

‘In the case of a voluntary testamentary or inter vivos trust, there is an important preliminary issue to be faced, namely whether the instrument which creates the trust, i.e. the will or settlement, is valid according to the relevant governing law. Article 4 of the Convention makes it quite clear that this preliminary issue as to validity falls outside the scope of the Convention. The relevant choice of law rules will be those governing, for example, the formal or essential validity of wills or, in the fairly rare cases where there is a settlement, those governing the validity of contracts or deeds. In the case of a testamentary trust it will also be for the law governing the validity of the will to determine, for example whether the testator is required to leave a fixed portion of his estate to his or her spouse or children rather than on trust for other beneficiaries … Not only does a voluntary trust depend on there being a valid instrument of creation, it is also necessary that the transfer of the trust assets is valid. This further preliminary issue is also excluded from the Convention by reason of Article 4, as being an act “by virtue of which assets are transferred to the trustee”. The choice of law issue as to whether a trustee has effective legal title to the assets to hold them for the beneficiaries will normally be governed by the general rules applicable to the transfer of property, e.g. the law of the situs in the case of tangible movables and of immovables. If the instrument of creation of the trust is valid under its governing law, the trust will, nevertheless, fail if the law of the situs does not permit the transferee to alienate the property at all, but once the property can be alienated in some way it is for the law applicable to the trust to govern the validity and effect of the declaration of trust.’ (Cheshire, North & Fawcett – Private International Law, edited by Paul Torremans, 15th edition (2017), Oxford University Press, at p.1385).

3.     Capacity

Capacity to make an inter vivos gift is governed by the law of domicile of the donor at the time of the gift. In the case of real property, the lex situs will determine what level of capacity applies. Under English law, in order to put property into trust the settlor must not be:

(a)    a person who lacks capacity in accordance with the MCA 2005;

(b)    a minor; or

(c)    someone who is legally disbarred from owning or disposing of legal or equitable title to property.

4.      Validity and enforceability

(a)    In Akers & Ors v. Samba Financial Group (Rev 1) [2017] UKSC 6, at [17],[18],[20],[24] to [28],[32] to [34], and [36] to [40], Lord Mance stated the following principles:

(i)     At common law, the nature of the interest intended to be created by a trust depends on the law governing the trust.

(ii)     The governing law determines whether the intention is to give a beneficiary either an equitable proprietary interest in an asset held on trust, or a mere right against the trustee to perform whatever functions the trust imposes upon him with regard to the use and disposal of the foreign asset and income derived from it.

(iii)    Where the intention is to create an equitable proprietary interest, then the common law position is as stated in Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] AC 669, per Lord Browne-Wilkinson:

‘Once a trust is established, as from the date of its establishment the beneficiary has, in equity, a proprietary interest in the trust property, which proprietary interest will be enforceable in equity against any subsequent holder of the property (whether the original property or substituted property into which it can be traced) other than a purchaser for value of the legal interest without notice.’

(iv)   The initial inquiry is whether an equity subsists, which it will prima facie do at common law, so long as the relevant property (original or substitute) does not pass into the hands of a transferee for value of the legal interest without notice of the equity.

(v)    In addition, where under the lex situs of the relevant trust property, the effect of a transfer of the property by the trustee to a third party, is to override any equitable interest which would otherwise subsist, that effect should be recognised as giving the transferee a defence to any claim by the beneficiary, whether proprietary or simply restitutionary.

(vi)   The English Courts have regularly stated their willingness to enforce in personam trusts in respect of property abroad. As the Earl of Selborne LC said in Ewing v. Orr Ewing [1883] LR 9 App Cas 34, ‘The Courts of Equity in England are, and have always been, Courts of conscience, operating in personam and not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilii within their jurisdiction.’

(vii)   The English Court has exercised such jurisdiction, applying the principles of English law to enforce trusts relating to foreign property, even though the lex situs did not recognise such principles.

(viii)   Peter Gibson LJ, giving the lead judgment, applied the Earl of Selborne’s words in Ewing and endorsed the statement by Parker J in Deschamps v. Miller [1908] 1 Ch 856, that the Court would act where there was ‘some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in a view of a Court of Equity in this country, would be unconscionable’ and that whether it would do so did not depend ‘on the law of the locus of the immovable property’.

(ix)   Peter Gibson LJ also recognised that the lex situs can, under the principle recognised in Macmillan v. Bishopsgate, have a significance in the case of a third-party transfer. He said, at (p 38), that the English Court had,

‘not unnaturally regarded English law as applicable to the relationship between the parties before it in the absence of any event governed by the lex situs destructive of the equitable interest being asserted.’

(x)    The English Court will accept jurisdiction and apply English law as the applicable law, even though the suit relates to foreign land.

(xi)   However, if the equity which is asserted does not exist between the parties to the English litigation (e.g. where there has been a transfer of the property to a third party with notice of an equity but by the lex situs governing the transfer the transfer extinguished the plaintiff’s equity), the English Court cannot give relief against the third party even though he is within the jurisdiction.

(xii)   These authorities were recently and instructively examined by Roth J in Luxe Holding Ltd v. Midland Resources Holding Ltd [2010] EWHC 1908 (Ch) who engaged in the following analysis:

‘It is trite but nonetheless important to recall that equity acts in personam … Unless precluded by authority, it seems to me that as a matter of principle where the parties have expressly chosen English law and the exclusive jurisdiction of the English Court, they have voluntarily subjected themselves to the English system of remedies.’

(xiii)  After considering British South Africa Co v. De Beers Consolidated Mines Ltd and Lightning v. Lightning Electrical Contractors Ltd, Roth J continued:

‘I do not consider that the reasoning in Lightning is confined to the particular case of a resulting trust. On the contrary, it seems to me of general application.’

(xiv) Therefore, in the eyes of English law, a trust may be created, exist and be enforceable in respect of assets located in a jurisdiction, the law of which does not recognise trusts in any form.

(xv)  To regard a trust as falling outside the Convention under article 4, simply because its assets consist of assets in a jurisdiction which does not recognise a division between legal and equitable proprietary interests, is wrong.

(xvi) There is nothing in the Convention to suggest that it was intended to be inapplicable to a trust simply because the trust was in respect of assets in a jurisdiction which does not recognise some form of separation of legal and equitable interests. Rather, the contrary – since one object of the Convention was to provide for the recognition of trusts in jurisdictions which did not themselves know the institution.

(b)    In ‘The Hague Trusts Convention after Akers v. Samba’, Trusts & Trustees, Vol 24, No.4, May 2018, Professor Jonathan Harris QC, concluded that, ‘clarification as to the applicability and application of the Hague Trusts Convention at Supreme Court level will have to wait for another day. In the meantime, their Lordships obiter remarks on the scope and application of the Convention arguably raise as many questions as they answer. [In particular]:

(i)     The scope of Article 4 on preliminary matters excluded from the ambit of the Convention remains elusive.

(ii)     It remains unclear precisely what the role of the law of the situs is.

(iii)    It is clear from the judgements that Article 15 is not the favoured route to determine the effects of the transfer of property held on trust to a third party. But the judgements otherwise provide little guidance as to the proper ambit of Article 15.

(iv)   Perhaps above all, the Supreme Court proceeded to determine the case entirely on the basis of English domestic law.’ 

5.     Transfer of trust assets

The choice of law issue as to whether a trustee has effective legal title to the assets to hold them for the beneficiaries will normally be governed by the general rules applicable to the transfer of property, e.g. the law of the situs in the case of tangible movables and immovables. (See Torremans, pp. 1267 to 1278).

6.       Exclusive jurisdiction clauses

(a)    The effectiveness of an exclusive jurisdiction clause in a trust deed was decided in Crociani v. Crociani [2014] UKPC 40.

(b)    Lord Neuberger stated at [33] to [37] that:

(i)     in the context of contractual exclusive jurisdiction clauses, the approach of the Court to a claim brought in another jurisdiction was authoritatively described by Lord Bingham of Cornhill in Donohue v. Armco Ltd [2001]: 

‘If contracting parties agree to give a particular Court exclusive jurisdiction to rule on claims between those parties, and a claim falling within the scope of the agreement is made in proceedings in a forum other than that which the parties have agreed, the English Court will ordinarily exercise its discretion … [But] where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party’s prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case.’

(ii)     The defendant to such a claim has a contractual right to have the contract enforced and his right specifically to enforce his contract can only be displaced by strong reasons being shown by the opposite party why an injunction should not be granted. Thus, where a claim has been brought in a Court in breach of a contractual exclusive jurisdiction clause, the onus is on the claimant to justify that claim continuing, and to discharge the onus, the claimant must normally establish strong reasons for doing so.

(iii)    In the case of a clause in a trust, the Court is not faced with the argument that it should hold a contracting party to her contractual bargain … The Court [has] a power to supervise the administration of trusts, primarily to protect the interests of beneficiaries, which represents a clear and … significant distinction between trusts and contracts.

(iv)   Accordingly, the Board considers that, while it is right to confirm that a trustee is prima facie entitled to insist on and enforce an exclusive jurisdiction clause in a trust deed, the weight to be given to the existence of the clause is less (or the strength of the arguments needed to outweigh the effect of the clause is less) than where one contracting party is seeking to enforce a contractual exclusive jurisdiction clause against another contracting party.’

7. Exercise by the court of its discretion to permit service of the claim form outside the jurisdiction

Once the claimant has shown a good arguable case that his claim falls within a sub rule of CPR, PD 6B, para 3.1, he must persuade the court to exercise its jurisdiction to permit service of the claim form out of the jurisdiction. The constituent factors of this discretion were reviewed by the House of Lords in Seaconsar (Far East) Ltd v. Bank Markazi Jomhouri Islami Iran [1994] 1 AC 348. See further, paragraph 1.138 of The International Trust, edited by Mr Justice David Hayton, Third edition 2011, Jordan Publishing, which states:

‘(1)   The claimant must show that England is clearly or distinctly the natural forum. This requirement, previously a matter of common law authority, is now stated in CPR, r.6.37(3), which provides that,

“The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”

The factors which would be relevant to establishing this are those considered in relation to the first limb of the stay test; the only difference is the reversal of the burden of proof. However, even if England is not the natural forum, the claimant might, in very exceptional circumstances, be able to demonstrate that England is the proper place in which to litigate, on the basis that justice cannot be obtained elsewhere.

(2)    Permission will nonetheless not be granted if it would be unjust for the defendant to be sued in England. It is suggested that the burden of proof on this point should transfer to the defendant, though the matter is by no means clear. The relevant factors ought to be those which apply under the second limb of Spiliada Maritime Corp v. Consulex [1987] AC 460 in the stay context.’

[See also paragraph 5.80 of International Trust Disputes, edited by Steven Kempster, Morven McMillan and Alison Meek, Decond Eidtion, 2020, Oxford University Press].

(3)    There must be a serious issue to be tried on the merits. At common law, it was established that the claimant’s prima facie case must be strong enough that the defendant could not successfully have struck it out. CPR, r.6.37(1)(b) now also requires the claimant to assert in his application that he believes that he has a reasonable prospect of success on the merits. However, it must be recalled that English law will not necessarily govern on the merits. It might be contended that whether there is a serious issue should be determined by applying the governing law on the merits of the dispute; although this would be somewhat inconvenient at the jurisdiction stage.’

8. PD 6B para 3.1

‘The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where –

General Grounds

(1) A claim is made for a remedy against a person domiciled within the jurisdiction.

(2) A claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction.

(3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –

(a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.

(4) A claim is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.

(4A) A claim is made against the defendant  in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts. …

Claims about trusts etc.

(12) A claim is made in respect of a trust which is created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, and which is governed by the law of England and Wales.

(12A) A claim is made in respect of a trust which is created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, and which provides that jurisdiction in respect of such a claim shall be conferred upon the courts of England and Wales.

(13) A claim is made for any remedy which might be obtained in proceedings for the administration of the estate of a person who died domiciled within the jurisdiction or whose estate includes assets within the jurisdiction.

(14) A probate claim or a claim for the rectification of a will.

(15) A claim is made against the defendant as constructive trustee, or as trustee of a resulting trust, where the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction.

(16) A claim is made for restitution where –

(a) the defendant’s alleged liability arises out of acts committed within the jurisdiction; or

(b) the enrichment is obtained within the jurisdiction; or

(c) the claim is governed by the law of England and Wales.’

9. Extracts from the Hague Convention

Article 1

This Convention specifies the law applicable to trusts and governs their recognition.

Article 2

For the purposes of this Convention, the term “trust” refers to the legal relationships created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose. A trust has the following characteristics –

a) the assets constitute a separate fund and are not a part of the trustee’s own estate;

b) title to the trust assets stands in the name of the trustee or in the name of another person on behalf of the trustee;

c) the trustee has the power and the duty, in respect of which he is accountable, to manage, employ or dispose of the assets in accordance with the terms of the trust and the special duties imposed upon him by law. The reservation by the settlor of certain rights and powers, and the fact that the trustee may himself have rights as a beneficiary, are not necessarily inconsistent with the existence of a trust.

Article 3

The Convention applies only to trusts created voluntarily and evidenced in writing.

Article 4

The Convention does not apply to preliminary issues relating to the validity of wills or of other acts by virtue of which assets are transferred to the trustee.

Article 5

The Convention does not apply to the extent that the law specified by Chapter II does not provide for trusts or the category of trusts involved.

Article 6

A trust shall be governed by the law chosen by the settlor. The choice must be express or be implied in the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case. Where the law chosen under the previous paragraph does not provide for trusts or the category of trust involved, the choice shall not be effective and the law specified in Article 7 shall apply.

Article 7

Where no applicable law has been chosen, a trust shall be governed by the law with which it is most closely connected. In ascertaining the law with which a trust is most closely connected reference shall be made in particular to –

a) the place of administration of the trust designated by the settlor;

b) the situs of the assets of the trust;

c) the place of residence or business of the trustee;

d) the objects of the trust and the places where they are to be fulfilled.

Article 8

The law specified by Article 6 or 7 shall govern the validity of the trust, its construction, its effects, and the administration of the trust. In particular that law shall govern –

a) the appointment, resignation and removal of trustees, the capacity to act as a trustee, and the devolution of the office of trustee;

b) the rights and duties of trustees among themselves;

c) the right of trustees to delegate in whole or in part the discharge of their duties or the exercise of their powers;

d) the power of trustees to administer or to dispose of trust assets, to create security interests in the trust assets, or to acquire new assets;

e) the powers of investment of trustees;

 f) restrictions upon the duration of the trust, and upon the power to accumulate the income of the trust;

g) the relationships between the trustees and the beneficiaries including the personal liability of the trustees to the beneficiaries;

h) the variation or termination of the trust;

i) the distribution of the trust assets;

 j) the duty of trustees to account for their administration.

See also my blog ‘Trust Litigation after Brexit’: Trust Litigation after BREXIT | Carl’s Wealth Planning Blog – Just Google ‘Carl’s Wealth Planning Blog and use the search box. There is a link to the blog on the left hand side at www.ihtbar.com

‘Transformative Mediation – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions.’
The following is the draft introduction to a 1 hour pre-recorded talk I am developing to present globally to lawyers, trustees, and family offices during the second half of 2022. Please email any comments to carl@ihtbar.com. I will be completing the draft outline for submission to the seminar provider in mid-January. (www.ihtbar.com).
Draft Introduction – If:
(i)     participants in mediation can use the paradigm of a ‘store of value’ to perceive and re-configure the attributes and worth to each of them of an asset; and
(ii)     the wishes, needs, and priorities of each participant are asymmetrical,
then it may be possible to design a bespoke solution to the problem of reconciling their competing and potentially conflicting claims and priorities, by re-structuring: (a) the legal and beneficial ownership; (b) management and control; (c) use; enjoyment; and commercial exploitation, of the asset, to their mutual advantage.
While this will require compromise, if a practical and sustainable plan is developed and implemented as a result of the process, this may avoid a dispute following a monumental event, i.e. loss of capacity or death of the head of the family.
There may also be hidden value in the form of unutilised tax, regulatory, privacy, asset-protection, and governance efficiencies. Transformative Mediation can therefore also be used to explore how the estate/trust fund pie can be expanded.
Instead of investing in litigation and incurring escalating costs, family members in dispute over an asset, can invest in an estate and business succession planning process that costs each of them nothing, i.e. if the Mediator’s and professional advisors’ costs are paid out of a trust fund or by a Family Office. Therefore, if an international business family does not know where to go, and how to start an inter-family dialogue about how to put their house in order before a monumental event occurs, then a pre-emptive process of Transformative Mediation can also be used to create a safe space in which each key family member is empowered to:
1.     voice their individual: needs; concerns; hopes; expectations; and priorities, to a non-partisan and disinterested person, who is bound by confidentiality and has the soft skills to talk to them, i.e. a mediator; and
2.     speak through the mediator, to a multi-disciplinary team of professional advisors appointed by the Family Office,
in order to jointly develop and agree bespoke practical solutions to the problem.
In other words, Transformative Mediation can be used as an estate and business succession planning process in order to put the family’s house in order and avoid a dispute.

Many thanks to Jonathan Dingle, Zoey White, Steven Malcolm OBE, and Lord Strathcarron at the Society of Mediators, for running the SOM Mediation CPD Day 2021 yesterday. I thought this was an excellent opportunity for all members of the Society of Mediators to road-test new techniques in the safe environment of mock mediations with their peers, and to observe different styles of mediation. I thoroughly recommend the course to everyone who practices as a mediator. I think that the more you mediate the more you learn and grow as a mediator. So, for those who like myself are just starting out in their mediation practice, you can gain insights into the psychology of mediation, and develop mediator knowhow by attending these training days. In the case study I mediated (which was a probate dispute about a testamentary gift of a luxury asset),  I road-tested various techniques I have been developing to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions. The dispute settled with three minutes left to go before the Mediation was scheduled to end. Even though there was some initial hostility and resistance to the idea that a luxury asset can be viewed as ‘a store of value’ to which different participants may attach asymmetrical values in relation to what they each want and need, that can be re-structured so that one participant gets e.g. the orange peel and the other the orange pulp, in theory these Mediator techniques can work.

Zoom Mediations (www.ihtbar.com) – The Government is poised to announce ‘Plan B’ rules including working from home as early as today.
‘It comes after experts warned Covid cases could hit 90,000 a day by Christmas, as hospital admissions begin to increase even before the more transmissible omicron variant takes hold across Britain.
The emergence of the omicron variant of the coronavirus in southern Africa last month is causing concern around the world, not least because it is thought to be highly transmissible and because the 32 mutations of its spike protein suggest it might be able to resist current vaccines.’ Source: The Independent (08.12.2021).

STEP published an online review of my book the ‘Contentious Trusts Handbook – Practice and Precedents’ today. For all reviews of the book, which was published by the Law Society, please visit the ‘Contentious Trusts Handbook’ page at www.ihtbar.com. For reviews of my previous book, the ‘Contentious Probate Handbook’ please visit the ‘Contentious Probate Handbook ‘ page at www.ihtbar.com.

I am currently developing a three hour seminar to present next year by Zoom called, ‘Transformative Mediation’ – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions.

The pie can be expanded by e.g.

(a) using estate/trust funds to pay for professional advice about estate planning and asset-re-structuring, instead of paying for escalating litigation costs;

(b) re-directing testamentary gifts to enhance tax-efficiency (and I am also currently co-writing an article with Stephanie Churchill CTA for Taxation about this); and

(c) re-structuring the holding of estate assets. It recently occurred to me that the application of estate planning principles through a process of transformative mediation can also be used to develop and implement a holistic plan for putting a family’s house in order before a dispute arises.

This might include e.g.

(i) reviewing and re-drafting a family trust deed that is not fit for purpose; and

(ii) altering the share capital structure of a family owned company, and re-drafting the articles and shareholders’ agreement/LLP Members Agreement for succession planning.

Where a business family does not know where to go, and how to start, a facilitated discussion about the joint development of a bespoke plan for:

(i)     business succession; and

(ii)    estate planning/ asset ownership structuring and fiduciary management, then as a process undertaken before a dispute has arisen, Transformative Mediation may be used to create a safe space in which each key family member can:

(a)    voice their individual: needs; concerns; hopes; expectations; and priorities, to a trusted neutral, and disinterested person, who has the soft skills to talk to them, i.e. a mediator; and

(b)    to speak through the mediator, to a multi-disciplinary team of professional advisors acting for the family, to jointly develop a bespoke and holistic plan designed to achieve defined objectives, with the flexibility to adapt to changes in circumstances. 

See also my blog: ‘We are all in this together!’ | Carl’s Wealth Planning Blog

My new article ‘Electing between equitable remedies’, has been approved for publication by Oxford University Press for Publication in Trusts & Trustees, and is scheduled for publication in Issue 2 of the current volume (28).

Abstract

Carl Islam explains the operation of the principle of election, and concludes that in a breach of fiduciary duty claim, before an election between equitable remedies must be made by the claimant beneficiary, the judge should first consider the duties and powers of the defendant fiduciary. Because that exercise is inseparable from determination of breach, the author further submits that the exercise should be undertaken by the judge at the same time, i.e. at trial, before making a finding about breach. To request a copy of the article following publication, please send an email to carl@ihtbar.com

‘Trusts & Trustees is the leading international journal on trust law and practice, and the official journal of the International Academy of Estate and Trust Law. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers.

Our distinguished editors Toby Graham (Partner, Head of the Contentious Trusts and Estates group, Farrer & Co., UK) and David Russell QC (barrister, and Deputy Chair of STEP Worlwide 2019 – 2020) lead a superb Editorial Board and team of Country Correspondents, including Lord Peter Millett, Richard Pease, and Nicholas Le Poidevin QC, who are well placed to provide unparalleled international coverage.

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.’

About | Trusts & Trustees | Oxford Academic (oup.com)

About the author

Carl Islam LLM (Exon)(International Business Law), of Lincoln’s Inn and the Middle Temple, Barrister-at-Law (practising), TEP, SCMA accredited mediation advocate, MSoM, Certified Mediator and Panel Member of the Society of Mediators in London. Dual qualified as a Solicitor of the Supreme Court. Registered Public Access Barrister and authorised by the Bar Standards Board to conduct litigation. Chambers of Ian Mayes QC, First Floor, 1 Essex Court, Temple, London (www.1ec.co.uk). Author of the ‘Contentious Probate Handbook – – Practice and Precedents’ (published by the Law Society in October 2016); the ‘Contentious Trusts Handbook – Practice and Precedents’ (published by the Law Society in July 2020); and of ‘Tax-Efficient Wills Simplified’ (Amazon Kindle book). As a practising Barrister and Mediator, Carl specialises in Contentious Probate, Inheritance Act, and Trust Disputes (including Co-Habitation and Ownership of Property). Carl is also a contributor to Taxation (Tolley), and is developing the outline of a six hour course to present by Zoom from May 2022 entitled, ‘Trust Disputes, Litigation & ADR’.. For more information please visit, www.ihtbar.com. I am currently co-writing an article with Stephanie Churchill CTA for publication by Taxation early next year entitled, ‘The use of DOV’s, s.142 appointments with reading-back under s.144, and disclaimers, in settling a contentious probate dispute.’ I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled, ‘Transformative Mediation’ – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions.

Mediation breakthrough tool – Recognition by e.g. executors, trustees, and beneficiaries, that ‘We are all in this together’. Recognition = shared generosity = fairness – which opens the door to principled negotiation, and settlement. The key that opens this door is empathetic listening, which is taught as a voice technique by Patsy Rosenberg to politicians and businessmen.

The ability to nurture this dynamic is a skill that is particularly helpful where participants and their advisors are from different cultures, e.g. when mediating an international family trust dispute.

‘As we look at our own blocks it is also very creative to empathetically notice others. This generous act can actually free our own blocks. The more we allow others to return to their natural voices the more we are empowered. Listening and focusing on others and giving them their rights can also facilitate our own survival. Recently, I have been employed to train overpowering Western leaders to be attentive and sensitive in their communication with Eastern leaders. The hard facts are that an overpowering Western style of backslapping, jovial communication is losing businesses billions of dollars as this style is obnoxious to the East. I train these very successful leaders to observe and listen to their Eastern clients and drop the habits that don’t work. If they don’t they cannot do business in the new and powerful Eastern markets.. Generosity will create their ability to survive. It seems very obvious, but forceful communication never works. Powerful expression does. What can change the world is dialogue and negotiation. … Dialogue requires generosity and generosity requires respect. If in your mind you can consider anyone you are having a dialogue with as an equal respect has a chance to thrive. Both parties have to remain present with each other and give each other the right to speak and be a generous listener. As passion rises in any dialogue, shouting and vocal pushing is a constant threat. No one can listen to shouting or pushing, you can be heard but not received. The vocal tension disturbs the ear and we switch off. It is counter-productive. Speaking quietly but not fully audibly is also very annoying to the other person. They are having to work harder than necessary. Also counter-productive is rushing, mumbling or sounding flat and boring. The key is to think about what helps to change the other person and how you would like to be spoken to. … Listening attentively is an act of survival as is speaking with your rights. … Dialogue is about joint transformation and the sharing of knowledge.’ The Right to Speak’ by Patsy Rosenberg, 2nd edition (2015), pages 106 and 107.

In mediation a claimant can use their voice and be heard. In litigation, except as a witness, they do not have a voice. Paradoxically, while a claimant may have gone to court or threatened to issue proceedings, because they are being ignored or stonewalled, the voices in the court room are not those of the parties, but of disinterested lawyers and indifferent judges. Consequently, how participants speak to each other in mediation, either directly, or through their legal representatives or the Mediator, is an opportunity to show respect by allowing the other to be heard. That can move the parties along from deadlock about their respective positions to doing a deal in their mutual interests.

The skill of allowing a participant in mediation their voice, i.e. the right to be heard, is linked to both ‘how you talk’, and to ’empathetic listening’, because to switch the dynamic from confrontation to collaboration, you must first show that person that: (i) they have been heard; and (ii) you understand their position and the underlying reasons. That is where a Mediator can add value and open a door to dialogue.

I think that these skills are essential when mediating an international family trust dispute, because the participants and their advisors are not only located in different time zones, but culturally may be from different worlds.

See also my blogs:

Carl Islam – Fully Accredited as a Commercial Mediator 28.10.2021 | Carl’s Wealth Planning Blog

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

How to expand the pie when settling a will dispute | Carl’s Wealth Planning Blog

Higgins v Morgan & Ors [2021] – 27.5% reasonable provision award included part of a CFA success fee | Carl’s Wealth Planning Blog

I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled, ‘Transformative Mediation’ – How to transform a Contentious Probate, Inheritance Act and Trust Dispute, into an opportunity to expand the pie by applying estate planning principles to develop bespoke and holistic family wealth structuring solutions.  For more information please visit the ‘About Carl’ page at www.ihtbar.com

The Society of Mediators in London confirmed to me today that I am now a fully qualified and accredited MSoM panel member. For information about my services as a Commercial Mediator please visit the ‘Mediator – Contentious Probate, Inheritance Act, & Trust Disputes’ page at www.ihtbar.com.

See also:Carl Islam: Fully Accredited Commercial Mediator – Advisory Excellence

As a practising Barrister, TEP, MSoM, Certified Mediator and Panel Member of the Society of Mediators in London, I provide a niche service as a Mediator in relation to Contentious Probate, Inheritance Act, & Trust Disputes (including Co-Habitation and Ownership of Property).
I am attending the Zoom Mediations (i.e. controls) course provided by the Society of Mediators in January 2022, and from January 2022 will be conducting all pre-mediation meetings, and mediations by Zoom from my home office in Leicestershire.

To request a copy of my Mediation Agreement and to arrange a free preliminary consultation Zoom call, please either call my Clerk on 0207 936 3030 or send an email to carl@ihtbar.com.

I am also developing the outline of a six hour course to present by Zoom from May 2022 provisionally entitled,

‘Trust Disputes, Litigation & ADR.’

As a practising Barrister and Author, I specialise in Contentious Probate, Inheritance Act, and Trust Disputes, and as a Certified Mediator, can be appointed to act as either a solo or co-mediator in a Zoom mediation about a dispute anywhere in the world, including the following trust law jurisdictions: Australia; Bahamas; Bermuda; BVI; Canada; Cayman;  China (http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/12/content_21907980.htm); Dubai; Guernsey; Gibraltar; India; Jersey; Malaysia; New Zealand; Northern Ireland; Pakistan; Republic of Cyprus; San Marino (The Court for Trusts and Fiduciary Relations – Corte Trust) (i.e. for trusts holding art, cultural heritage, and luxury assets located in Italy); and the United States.

As a newly qualified and Certified Mediator, I charge a fixed fee (the ‘basic fee’) for a mediation starting at 9.30am and ending at 5.30pm (GMT), and for time incurred after 5.30pm at my fully inclusive hourly rate of £300 (‘additional time’). The basic fee allows for 8 hours pre-reading time (i.e. position papers and one lever arch file of documents), and a pre-mediation meeting with each participant. There is no refund if a mediation ends for any reason before 5.30pm (GMT). The basic fee is payable in advance, and the mediation will only proceed if all participants and any observers have signed my standard Zoom Mediation Agreement. If the basic fee is payable by representatives of the estate, they are also contractually obliged to pay for any additional time incurred after 5.30pm (GMT). If a participant’s internet connection fails for any reason they agree to carry on by telephone, and bear all corresponding telephone charges.

For appointment as a Co-Mediator I will charge one half of the basic fee and at half of my hourly rate for additional time, so the total fees payable by the participants for either solo or co-mediation are the same.

As a Mediator my role is to manage a process that enables the parties to come out of their trenches and in a safe environment to walk side by side in jointly exploring and developing a commercial solution of their own design which takes into account: the facts presented in their position statements and agreed bundle; legal merits; litigation risks (including the judge); the time value of money; and the benefits of ‘doing a deal’ now instead of incurring further legal costs by resuming trench warfare.

The unifying factor in all contentious probate and trust cases is the composition of the estate/ trust asset pool, and its value. It is not uncommon for litigation costs to exceed the value of an estate, therefore participants are more likely to walk away from mediation with a slice of a larger cake (i.e. of the estate/trust fund) if they mediate before proceeding to litigation. Thus, the first item of business when I visit each participant in their camp (i.e. their Zoom break-out room), is to clarify and confirm the composition of the estate/trust asset pool, and values, which may have gone up or down since e.g. an IHT 400 was filed. Each participant should also apply for up to date Office Copies and valuations for any land in dispute in advance of the Mediation Day.

A Mediator must not only be impartial, but must also be seen to be impartial. The focus of a Mediator is therefore on the process and not on the outcome.

Mediation is a confidential process, and I cannot repeat anything said to me by a participant in their private Zoom break-out room to anybody outside that room unless authorized/told to do so.

The ‘without-prejudice’ rule applies to and protects all communications, see: Without prejudice | Practical Law (thomsonreuters.com)

At the end of the mediation the only document I will keep is the Mediation Agreement. All other documents provided to me and electronic files will be destroyed/deleted.

The golden rule in all mediations – which has always been and continues to be my advice to Clients when representing them as a Barrister in mediation, is that because mediation is essentially a form of facilitated negotiation, success (however that is measured by the participants), depends upon movement and momentum, which requires compromise on all sides, i.e. flexibility – otherwise if the parties stay in their trenches the mediation will fail. This requires courage, trust, and realism. My job as a Mediator is to empower the parties to begin and progress a difficult conversation. This requires counter-intuitive thinking and behaviour and can result in a paradigm shift which results in a creative solution that a court cannot impose. It therefore also requires a commercial rather than a forensic legal mind-set, and some imagination.

Prior to entering private practice I worked in-house for Rolls-Royce and Alstom (in Paris) structuring, drafting, and negotiating deals in multiple jurisdictions around the world. As a Mediation Advocate, I approach doing a deal in settlement of a dispute with the benefit of that commercial experience. Now as a Mediator, I can use my antennae to help parties re-frame their dispute as an opportunity. For example, where family wealth is held in a complex international ‘dynastic’ trust structure with underlying asset holding companies, and a dispute arises out of a critical event such as the death or loss of capacity of the wealth creator, if the overarching trust instrument was drafted using a standard form precedent that is no longer fit for purpose (i.e. because it was not carefully drafted as a bespoke document in the first place), or if the Deed has not been reviewed periodically, mediation of the dispute is an opportunity to re-draft the instrument on tax-efficient terms that a court could not direct. In other words, mediation is an opportunity to re-structure the trust as the end product of doing a ‘deal’ in settlement of the dispute, which may turn out to be a  win/win solution for both the beneficiaries and the trustees.

Prior to practising at the Bar I practised as both a commercial and private client solicitor drafting: shareholders agreements; IPR licence agreements; wills; and trusts, and am the author of ‘Tax-Efficient Wills Simplified’:

Tax-Efficient Wills Simplified eBook : Islam, Carl: Amazon.co.uk: Kindle Store.

I am therefore familiar with both the form and terms of most wills, trusts, and corporate governance documents, including LLP members’ agreements. In my practice as a Barrister I have also advised and written about fiduciary duties, see:

Breach of fiduciary duty claims and the quiet fiduciary thesis | Trusts & Trustees | Oxford Academic (oup.com)

Equitable compensation arising out of sale of a property ordered under section 14 TLATA | Trusts & Trustees | Oxford Academic (oup.com)

In the methodologies I have pioneered for mediation advocates, which are set out in my books the ‘Contentious Probate Handbook’ (published by the Law Society in 2016); and the ‘Contentious Trusts Handbook’ (published by the Law Society in 2020), I recommend that participants do not have an opening plenary session.

Instead, ground-rules and a broad and flexible structure (or direction of travel) are agreed during pre-mediation meetings individually with each participant. This is also an opportunity to test the link if the mediation is being conducted by Zoom.

The business of doing a deal can then get under way within the first hour. Participants therefore need to come to the table with the pragmatic resolve to do a deal, and be ready to make offers and counter-offers.

To discover and close the gap somebody has to get out of their trench and walk into the place in between. When the howitzers have stopped pounding and the smoke clears, each side can then see where a settlement zone exists, and gradually move forward in incremental steps toward closing the gap which divides them. This means they need to calculate their BATNA (best alternative to a negotiated settlement) i.e. what they are likely to end up with at the end of a trial.

Litigation is binary, and nobody ever recovers all of their costs. On the standard basis, as rule of thumb a party is unlikely to get more than two thirds of costs actually incurred, and in reality much less following a detailed assessment. If the losing party cannot pay the winner cannot recover, and this can result in bankruptcy for the losing party. That is why lawyers often liken contentious probate and trust litigation to a game of high stakes poker.

In these cases, ‘doing a deal’ is almost always better than going to court, and the Civil Justice Council have recently confirmed that the English court can order parties to litigation to mediate without the consent of all the parties. If a party refuses and wins, this is likely to turn out as a pyrrhic victory, because costs sanctions are likely to be applied for refusing to mediate.

Costs are the elephant in the room, and during the pre-mediation meetings I will ask each participant what costs they have incurred to date (including costs of the Mediation), and what their projection is if the case proceeds to trial, and ask for permission to inform the other participant, because at the end of the day, one of them will be ordered to pay a heavy price if the Mediation fails.

I will also check that the legal representatives have full authority to agree costs in the terms of a settlement agreement.

In contentious probate and trust cases it is not uncommon for costs at the end of a trial to exceed the value of the estate. Costs typically mount in tranches of around £10K for each stage in litigation, and pre-issue base costs and disbursements frequently exceed £25K. If there is a CFA, then part of the success fee can be taken into account as a debt in making an award for maintenance under the Inheritance Act, see: Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

See also: CFA Costs Allowed in second 1975 Act Claim | News and Events | Parklane Plowden Chambers

Re-H-in-the-CA-2021.pdf (radcliffechambers.com)

Adding costs incurred to the financial outcome a participant wants defines the outer limits of the potential zone of settlement, i.e. the gap between them at the outset.

As a Mediator I am always working with incomplete information and do not give any legal advice, although I may ask reality-testing questions about the basis and legal merits of a participant’s position and the corresponding real-world litigation risks if a deal is not done – i.e. by playing Devils advocate.

I will also probe for any element of double counting in the calculation of an offer, e.g. in the capitalisation of income needs in an Inheritance Act claim using Duxbury Tables, see:

Family Law Week: Capitalisation of income needs in Inheritance Act claims: Duxbury or Ogden?

It is the participants who will design, agree, and document their deal and not me They must and consequently will own it.

While my Mediation Agreement states that nothing is agreed until a settlement agreement has been executed, it is up to the participants to decide whether and how to document the terms of a settlement agreement, and usually one of the solicitors will have a worked up template/draft ready for mediation. It is not my job to advise any participant about whether they have agreed a good or bad deal, and how can a Mediator possibly know?

However, where for any reason a claimant’s solicitor proposes or requires that a payment be made either to their firm to hold for the benefit of trustees, or directly to trustees (i.e. instead of to their firm to hold for the benefit of their client after subtracting their fees), then that proposal or requirement should be clearly stated before a deal is agreed. Otherwise, it may not be possible for the participants legal representatives to draft and execute a settlement agreement on the day of the mediation where the Settlement Agreement incorporates complex trust provisions that need to be carfefully considered before they can be agreed.

Please note that as a Mediator I do not give any legal or tax advice whatsoever about the drafting and tax-efficiency of settlement agreements. While I take no part in drafting and recording terms of settlement, before ink is put to paper I will read the document, and if it does not appear to clearly state what has been agreed in principle, I will ask the participants to clarify whether or not the settlement agreement as drafted accords with their wishes and understanding. What they do next is up to them.

Likewise, I will only communicate an offer or counter-offer during the mediation if the participant has written it down and either emailed it to me or put it into the chat box for his break-out Zoom so that with his /her permission I can cut and paste it into the chat box for the other participant’s break-out room.

If participants are willing to walk down the road less travelled I am confident that a deal can be done, and the proportion of cases that settle on the day is around 74%, see:

Reviewing the 2018 Eighth CEDR Mediation Audit – by Joseph Mulrooney (mediatelegal.co.uk)

I suspect that in the majority of those cases, Mediation worked because the participants had invested in the process by preparing to do a deal instead of going to war, i.e. by thinking about: the settlement zone; the gap between what each participant wants; their BATNA’s; and how to close the gap and come away with a win-win solution compared to the costs and risks of litigation, which to an extent is always a lottery depending upon who the judge is.

Where parties and their legal and tax representatives are located in different time zones, while some parties will be participating late into the night, or early in the morning, a Zoom mediation may be particularly effective if the distance between participants has the advantage of avoiding face to face venting in a highly acrimonious dispute, as participants are not physically in the same room. In fact, they do not have to meet and can stay in their own Zoom break-out rooms throughout the mediation, which is not uncommon in domestic contentious probate and Inheritance Act mediations. In 2022 I am planning to write an article provisionally entitled, ‘Tools and Strategies for Mediating International Family Trust Disputes’,

I had the great privilege and honour of carrying out my mandatory mediation observations to qualify and obtain full accreditation as a mediator, with one of the top five Contentious Probate, Inheritance Act and Trust Mediators practising in England and Wales today – Mr Mark Keeley of Freeths.

What I learned is that there are in reality three types of offer a participant can make:

(i)   an ‘unacceptable’ offer that will be rejected and may result in the other participant walking out and ending the process;

(ii)  an ‘acceptable’ offer which is so high that the other participant will bite your hand off – which is why an offeror will not want to make such an offer; and

(iii) an ‘interesting offer’ that makes the other party really think, and start to work with that proposal, as a starting point for opening a discussion that results in a final settlement as the gap narrows.

Before a participant can make an ‘interesting offer’  there has to be reciprocal clarity about the elements of the claim and corresponding values – i.e. the mediation maths.

The challenge for a Mediator is to get each participant to identify (in strict confidence) what is actually at stake. The Mediator can then ask questions in order to get each participant to work out their range of best and worst outcome scenarios, which will identify the gap between their positions.

To help the parties to narrow and eventually close the gap, a Mediator can then ask reality testing questions which get each participant thinking about what a judge is likely to decide on the facts in the real world.

There is always an element of risk in civil litigation, and where the law is unsettled the outcome cannot be predicted with any high degree of certainty.  For example, in certain Inheritance Act claims, if the relief sought was argued before ten different judges, it is possible that each could make a different order.

In the Courts of England and Wales, as a general rule, judges at all levels are also required to assess costs summarily at the end of a trial on the fast track or at the conclusion of any other hearing lasting less than one day, i.e. on the spot at the end of the trial/hearing, see: See, ‘Guide to Summary Assessment of Costs’: Guide to Summary Assessment of Costs 2005 edition (publishing.service.gov.uk), therefore the earlier participants enter into mediation (which the court has the power to order without consent at the first CMC), the less risk there is of incurring a costs liability early on in the proceedings that could have been avoided altogether had the participants had the sense to go to mediation sooner rather than later.

From the outset, my compass as a Mediator is to help the parties to appreciate and think hard about: (i) the litigation risks and costs involved in proceeding to trial, and (ii) the mutual benefits of settling by doing a deal on terms that no judge has the power to order (i.e. a creative and practical solution).

In my experience, nearly all contentious probate and trust disputes eventually settle. The wonder is, why the participants did not mediate earlier instead of after significant costs had been incurred and the Frankenstein creature they  created, i.e. their claim, had taken on a life of its own.

See also my blogs:

Financial provision claim by adult child – Miles v. Shearer [2021] | Carl’s Wealth Planning Blog

Mediation in the Court of Protection | Carl’s Wealth Planning Blog

Mediation Strategies | Carl’s Wealth Planning Blog

Mediation of Will, Inheritance, Probate, and Trust disputes | Carl’s Wealth Planning Blog

Zoom Mediation of International Trust Disputes | Carl’s Wealth Planning Blog

and my articles:

The Advocate and the Expert in a Testamentary Capacity Claim | Expert Witness Journal

The Advocate and the Expert in the Court of Protection | Expert Witness Journal

Please note that my Mediation Agreement provides that Mediation continues until a settlement agreement has been executed by the participants, and that if a settlement agreement is not executed by the participants before 8pm (GMT) on the day of the mediation, the participants may either elect to adjourn the mediation until a settlement agreement has been executed, or to end the  mediation without a settlement agreement having been executed. If the participants elect to adjourn the mediation, they each agree to proportionately share the cost of paying my fees charged at my standard hourly rate, in advance of any further meeting to conclude the mediation, i.e. on another full or half day.

Anecdotally, I had the great privilege of meeting with the late Professor Roger Fisher for two hours in his study at Harvard Law School during an academic visit from King’s College London in 2002, and his parting advice was,

‘Appreciate their point of view:

• understand it – it’s very important to appreciate the way they see it,
• even if you don’t agree, say that it merits serious consideration, don’t say that they are wrong.

Appreciate their self-esteem.

Acknowledge that the other person has been heard.

Be prepared to argue their case better than they can before you answer it.’

By the end of the Bar Council Mediator Training Course, I understood the wisdom that Professor Fisher (co-author of ‘Getting to Yes’ and a founding Father of principled negotiation) had imparted to me.

The secret or acme of mediation is authenticity, empathy, and active listening (without making matters worse!), which develops trust and enables the Mediator to create a safe space into which the participants feel empowered to enter and start a conversation that can lead to a solution of their own design and making, i.e. to a ‘deal’ that they own. This requires counter-intuitive thinking and behaviour, and is a lot harder to actually do than you might think.

Facilitative Mediation can be used to solve almost any kind of dispute, and does not require any legal, economic, business, social, political, or diplomatic knowledge and subject-matter expertise/experience by the Mediator. What it demands is skill in managing a process.

At the end of our meeting Professor Fisher went up to his bookshelf and handed me a copy of his book ‘Beyond Machiavelli’ which he inscribed, ‘To Carl – Another set of ideas!’

It is one of my greatest treasures.