I am proof-reading the 2nd Ed of my book, the ‘Contentious Probate Handbook’, which is scheduled for publication by the Law Society in mid to late February 2025.

I have updated the manuscript to refer to the principles stated in El Haddad v. Rostamani [2024] EWHC 448 (Ch) at [177] – [182] & set out below a short extract. I will ask my editor to reproduce the entire text of these paras in the book:

Mr Justice Fancourt stated:

[178]          Rule 16.4(1) of the CPR requires a claimant to include in their particulars of claim a concise statement of the facts on which the claimant relies. In this regard, the Chancery Guide states that the particulars of claim must be ‘as concise as possible’ (para 4.2(a)), and that in rare cases, where it is necessary to give lengthy particulars of an allegation, these should be set out in schedules or appendices (para 4.2(k). It also imposes a page limit … The court will expect a party to be able to justify the need for any statement of greater length.’
[179]          The Practice Direction to Part 16 of the CPR provides that
‘8.2   The claimant must specifically set out the following matters in the particulars of claim where they wish to rely on them in support of the claim (1) any allegation of fraud; (2) the fact of any illegality; (3) details of any misrepresentation; ….’
It is well-established in the case law that the requirement to set out an allegation of fraud means that particular facts relied upon as demonstrating the fraud must be pleaded.
[180] The Chancery Guide explains what is required at para 4.8 … [NB the book will set out the text of the revised para 4.9 in full, which refers to the El Haddad principles].
[181] The last sub-paragraph is of particular significance. In a claim where there are no available facts that directly prove dishonesty or fraud, a claimant relies on inferences to be drawn from other facts. These facts must be stated, including those on the basis of which it is to be inferred that a defendant knew that what they or someone else said was false. As para 4.9 of the Guide says, a party must not make allegations of fraud or dishonesty unless there is credible evidence to support the allegation.
[182] The more serious is the allegation of wrongdoing, the greater the need for particulars to be given that explain the basis for it: Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1, per Lord Hope at [51]. The inference of dishonesty from the primary facts pleaded must be more likely than one of innocence or negligence: JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm), approved by the Court of Appeal in Sofer v Swissindependent Trustees SA [2020] EWCA Civ 699; [2020] WTLR 1075, per Arnold LJ at [23].

The prime asset in CP claims is usually the family home & other property.

As I explain in my forthcoming book, the 2nd Edition of the Contentious Probate Handbook (which is on schedule for publication by the Law Society in mid to late February 2025), the following are not CP claims:

– Proprietary estoppel claims (‘PE’); and
– Constructive Trust Claims (‘CT’).

However they are associated with CP, and therefore are bound-up with the administration of justice in these claims.

So, where e.g. a beneficial interest in property (‘BP’) bypasses the estate of the deceased testator (‘T’) on death because T made a lifetime gift of BP to e.g. his daughter (‘B.1.’), then in parallel with a CP claim e.g. by T’s son (‘B.2’) i.e. challenging the formal and/or substantive validity of T’s will, can B.2 apply to the FTT for the setting aside of the lifetime transfer of land to B.1 e.g. on the grounds of: PE/CT/lack of mental capacity (‘LMC’)/undue influence (‘UI’)?

If B.2 can, does & succeeds, then the BP falls back into T’s residuary estate. There may also be a failed PET for IHT – so can that thereby be rendered a nullity?

‘Standing’ – Para 26(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (2013 No. 1169) states:

‘… an application must … unless a practice direction makes different provision, include — … (f) the applicant’s connection with the premises or property … (h) the result the applicant is seeking; (i) the applicant’s reasons for making the application; … (k) the name and address of every person who appears to the applicant to be an interested person, with reasons for that person’s interest …’

As the 1st task for a party asserting a beneficial interest is in the application, to clearly set out the basis upon which the beneficial interest is said to have arisen, then in a PE or CT claim the answer logically is yes.

Is ‘laches’ available as a defence? In principle – Yes.

‘The jurisdiction in relation to LMC & UI claims?’ – There does not appear to be much literature for practitioners about this, i.e. do such claims because of the burden of proof & complex factual matrix end up being referred upwards or side-ways, i.e. to the Upper Tribunal or to the High Court?

The interesting point is that if there is jurisdiction to entertain such applications, that they can be mediated by a FTT Judge/Mediator, in which case:

– no mediator & venue fees are payable;
– the style of mediation is both evaluative & facilitative;
– if settled, the incurrence of significant costs can be avoided;
– administration of the alteration of the register is dealt with efficiently.

I will research & untangle this for practitioners in an article that I will write & offer to Trusts & Trustees in early 2025. I will also discuss Mediation Advocacy skills in this context.

I have just watched an excellent Chancery Bar Association online talk about the work of the FTT Property Chamber. Hopefully for CHBA members, the recording and slides will appear on the CHBA website in due course.

Two of the speakers were Judge Michael Michell and Judge Simon Brilliant, who are the co-authors of ‘A Practical Guide to Land Registration Proceedings’ (which you can order online from Wildy’s bookshop in Lincoln’s Inn).

As judge Simon Brilliant mentioned, in a ‘boundary dispute’, costs can exceed the value of the land involved.

Where there is a significant disparity, a County Court judge might refuse to make a judicial determination. That does not happen in the FTT.

What I did not know was that FTT mediation (which can take place at any stage and possibly even before statements of case have been filed) is free. So, no Mediator fees and no venue fees. The FTT Mediator is a specialised property judge who is also a trained and accredited Mediator. So, you could not do better!

Mediation in the FTT which the judges encourage early, but as far as I am aware cannot mandate (and I did not ask and should have asked that question – so if you know the answer please comment), can even take place on site.

Since FTT Judges exercise the same powers as High Court judges and have a broad jurisdiction, then what is the point of litigating a boundary dispute in the County Court, i.e. before a judge who has no Chancery pedigree or detailed technical grasp of principles of property law?

As many practitioners can attest, the County Court (including the CLCC) is one of the most administratively frustrating courts in which to litigate any case. This in and of itself, can result in the unnecessary incurrence of significant costs, which could have been avoided altogether, had a more efficient method of dispute resolution been used by the parties, i.e. Mediation.

Since some County Court judges have no Chancery pedigree whatsoever,
why incur thousands of pounds in costs litigating a property dispute before a judge who is not a Chancery specialist?

Some CLCC judges do profess a Chancery pedigree. However, from my own experience,  I am not convinced that all of these CLCC Chancery specialist judges do in fact have a thorough grasp of property law, and of conveyancing law and practice. This should not come as a surprise if these judges have never practised conveyancing (as I did before coming to the Bar), i.e. who did not qualify and work as a solicitor (as I did).

I was very impressed by the calibre of the speakers, who are all experts, and by the relative informality of the FTT. I had the sense that an FTT Judge/Mediator can be highly effective, when required, in saving the parties from themselves.

I recommend that you watch the video of the talk if you are a CHBA member.

See also my blog – ‘Mediating a Boundary Dispute’ – Google ‘Carl’s Mediation blog’ and use the search bar at the top to find the blog.

Professor Barney Jordaan has kindly contributed the following comment to my forthcoming book, the 2nd Edition of the Contentious Probate Handbook. This will be inserted at the top of the 50 page section in the book in which I discuss ‘Mediation Advocacy’. I would like to take this opportunbity to thank him for providing this. The book is scheduled for publication by the Law Society in mid to late February 2025.

‘Lawyers who are accustomed to litigation and who are required to represent a client in a mediation process often face a steep learning curve. Unlike the case in litigation, in legal or business mediations the goal is not to win a case but to discover the hidden drivers of a conflict or dispute – the parties’ underlying needs, interests and concerns – and then to cooperatively work with the mediator and the other party to find an agreed solution that satisfies those. Whereas the legal algorithm goes something like this: Law + Facts = (objective) Justice, the mediation algorithm reads: Interests + Consensus = (subjective) Justice.

Whereas in litigation lawyers are required to look after the client’s best interests through partisan, zealous promotion of the client’s case, as mediation advocates their task is to zealously pursue satisfaction of their client’s key interests through an understanding of all aspects of a dispute, and collaboratively working with the other party and the mediator to find a solution that represents a better alternative than pursuing a win-lose outcome in litigation. This requires, among others, familiarity with collaborative negotiation and joint problem-solving techniques and adopting a less adversarial attitude in favour of a more helpful, solution-focuses one.

While a lot has been written about mediation, mediation advocacy has been neglected, until now. This book goes a long way to filling that gap. It provides practical advice about how to become an effective mediation advocate from the author’s own rich experience as mediator and party representative. While its focus is on advocacy in trust and estate disputes, it has far wider appeal and relevance for mediation in other legal fields as well. It is an indispensable guide for lawyers who would like to expand their practice into the mediation space.’

(Barney Jordaan, LL.D (Stellenbosch University), Professor at Vlerick Business School, Belgium, Extraordinary Professor at Stellenbosch Business School, South Africa, Negotiation and Dispute Resolution Practitioner, Internationally Accredited Mediator, and author of ‘Negotiation And Dispute Resolution For Lawyers’ (2022), published by Edward Elgar Publishing).

The following principles were stated by Mr Andrew Sutcliffe KC in Armstrong v Armstrong & Anor [2024] EWHC 2989 (Ch) (22 November 2024): https://www.bailii.org/ew/cases/EWHC/Ch/2024/2989.pdf

• Testamentary freedom is firmly rooted in English law.
• It is a well established principle that a private individual is entitled to dispose of his property in any way he chooses: see Blathwayt v Baron Cawley [1976] AC 397.
• In order [for C] to establish his claim in proprietary estoppel, he must prove that [T] made him an unambiguous promise which reasonably appeared intended to have been taken seriously and which [C] could reasonably have understood as being one on which he could rely (the promise requirement); he reasonably relied on that promise and as a result of such reasonable reliance, he suffered substantial detriment (the reliance and detriment requirements).
• In order to fulfil the promise requirement [C] must prove that he believed the promises or assurances made to him by [T]  were binding and irrevocable. Neither statements made to [C]  as to [T’s]  current intention nor mere encouragement by [T]  to believe that he would inherit the farm would be enough.
• What is required is a promise which was intended to be taken as such.
• The stringency of the need for the relevant statement to be made with the intention of it being taken as a serious promise which could reasonably be relied on is illustrated by the decision in Cook v Thomas [2010] EWCA Civ 227, in which the Court of Appeal upheld the trial judge’s finding that words substantially along the lines of the property in dispute “all going to be yours when I am gone” were insufficient to constitute a promise on which an estoppel could arise but were rather an indication of the deceased’s then expectation that if all proceeded smoothly the defendants would be allowed to live at the farmhouse after the deceased’s death: see [35] and [36].
• Similarly, in James v James [2018] EWHC 43 (Ch), the court found that statements made to the claimant by his father that he would inherit the farm after his death were insufficient to fulfil the promise requirement as they were merely a statement of his then current intentions: see [24].
• That was so notwithstanding that the court accepted that the claimant, as the only son of a farming family, reasonably expected to inherit his father’s farm and that such expectation was shared by other members of the family: see [30].
• The question of how clear the promise or assurance must be is dependent on the context in which it was made. As Lord Walker said in Thorner v Major [2009] 1 WLR 776, HL at [56]: “I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough.
• What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context. I respectfully concur in the way Hoffmann LJ put it in Walton v Walton [1994] (in which the mother’s “stock phrase” to her son, who had worked for low wages on her farm since he left school at 15, was “You can’t have more money and a farm one day”). Hoffmann LJ stated, at para 16: “The promise must be unambiguous and must appear to have been intended to be taken seriously.
• Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made.”
• The relevant promise must be made by the person with the interest himself or with his actual authority. If that actual authority is missing, it makes no difference if a claimant believes that the person making the promise had such authority: see Fielden v Christie-Miller [2015] EWHC 87 at [25]-[26].
• The reliance and detriment requirements 12 13 14 15 Any detriment which a claimant suffers is only relevant to the issue of proprietary estoppel to the extent that it was carried out in reliance on the promisor’s promise.
• The reliance requirement therefore raises an issue of causation: see Snell’s Equity (34th Ed.) at (12-043). In order for the reliance element to be fulfilled it is necessary to establish that the course of action which is said to have given rise to the detriment was undertaken on the faith of the promise and not merely in its belief: see Taylor’s Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 at 156C.
• The reliance requirement is generally stated as requiring proof of a “sufficient causal link between the assurance relied on and the detriment asserted”: see Gillett v Holt [2001] Ch 210 at 232E-F.
• In practice, this amounts to the “but for” test (i.e. but for the promise would the claimant have acted in the way that is said to have given rise to the detriment): see Snell’s Equity (34th Ed.) (at 12-043) and The Law of Proprietary Estoppel (2nd Ed.) by Ben Macfarlane (at 3.112-3.113 and 3.174-3.187).
• As to detriment, this must result directly from the reasonable reliance: see Thorner v Major at [29]. It must also be detriment suffered by the claimant directly. Detriment suffered by parties related to him is not relevant: see The Law of Proprietary Estoppel (2nd Ed.) by Ben Macfarlane (at 4.107 to 4.112). Detriment is “not a narrow or technical concept.
• The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial”: see Gillett v Holt at 232D-E.
• In testing detriment, the court does not undertake an exercise in forensic accounting but must “stand back and look at the matter in the round”: see Gillett v Holt at 233H.
• In assessing whether the requirement of substantial detriment has been met, the court must take into account any countervailing benefits acquired by the claimant as a result of his reliance: see Snell’s Equity (34th Ed.) (at 12-044).
• This requires the court to weigh the disadvantages suffered by the claimant against any countervailing advantages: see Henry v Henry [2010] 1 All ER 988 at [53].

Case summary:

A farmer [‘C‘] succeeded in his proprietary estoppel claim against the estate of his late father (Armstrong v Armstrong, 2024 EWHC 2989 Ch). The testator [‘T‘] made a new will in January 2020 only months before his death, thereby repudiating his son’s reasonable expectation of inheriting his farm in accordance with promises made to him for more than 35 years. The High Court also concluded that T failed to make reasonable financial provision for his son in his will.

Extract from the judgment:

The Proprietary Estoppel Claim

6                 Testamentary freedom is firmly rooted in English law. It is a well established principle that a private individual is entitled to dispose of his property in any way he chooses: see Blathwayt v Baron Cawley [1976] AC 397. Alan was fully entitled to change his will shortly before his death by leaving the farm to his grandson and nothing to Richard, unless Richard is able to establish that Alan was prevented from doing so by the doctrine of proprietary estoppel or that he has a claim on Alan’s estate by virtue of the provisions of the 1975 Act. I consider first Richard’s proprietary estoppel claim because it is his primary claim. His claim under the 1975 Act is only brought in the alternative.

The law on proprietary estoppel

7                 In order to establish his claim in proprietary estoppel, Richard must prove that:

7.1           Alan made him an unambiguous promise which reasonably appeared intended to have been taken seriously and which Richard could reasonably have understood as being one on which he could rely (the promise requirement);

7.2           he reasonably relied on that promise and as a result of such reasonable reliance, he suffered substantial detriment (the reliance and detriment requirements).

The promise requirement

8                 In order to fulfil the promise requirement, Richard must prove that he believed the promises or assurances made to him by Alan were binding and irrevocable. Neither statements made to Richard as to Alan’s current intention nor mere encouragement by Alan to Richard to believe that he would inherit the farm would be enough. What is required is a promise which was intended to be taken as such.

9                 The stringency of the need for the relevant statement to be made with the intention of it being taken as a serious promise which could reasonably be relied on is illustrated by the decision in Cook v Thomas [2010] EWCA Civ 227, in which the Court of Appeal upheld the trial judge’s finding that words substantially along the lines of the property in dispute “all going to be yours when I am gone” were insufficient to constitute a promise on which an estoppel could arise but were rather an indication of the deceased’s then expectation that if all proceeded smoothly the defendants would be allowed to live at the farmhouse after the deceased’s death: see [35] and [36]. Similarly, in James v James [2018] EWHC 43 (Ch), the court found that statements made to the claimant by his father that he would inherit the farm after his death were insufficient to fulfil the promise requirement as they were merely a statement of his then current intentions: see [24]. That was so notwithstanding that the court accepted that the claimant, as the only son of a farming family, reasonably expected to inherit his father’s farm and that such expectation was shared by other members of the family: see [30].

10             The question of how clear the promise or assurance must be is dependent on the context in which it was made. As Lord Walker said in Thorner v Major [2009] 1 WLR 776, HL at [56]:

“I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context. I respectfully concur in the way Hoffmann LJ put it in Walton v Walton [1994] CA Transcript No 479 (in which the mother’s “stock phrase” to her son, who had worked for low wages on her farm since he left school at 15, was “You can’t have more money and a farm one day”). Hoffmann LJ stated, at para 16:

“The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made.”

11              The relevant promise must be made by the person with the interest himself or with his actual authority. If that actual authority is missing, it makes no difference if a claimant believes that the person making the promise had such authority: see Fielden v Christie-Miller [2015] EWHC 87 at [25]-[26].

The reliance and detriment requirements

12              Any detriment which a claimant suffers is only relevant to the issue of proprietary estoppel to the extent that it was carried out in reliance on the promisor’s promise. The reliance requirement therefore raises an issue of causation: see Snell’s Equity (34^th Ed.) at (12-043). In order for the reliance element to be fulfilled it is necessary to establish that the course of action which is said to have given rise to the detriment was undertaken on the faith of the promise and not merely in its belief: see Taylor’s Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 at 156C.

13              The reliance requirement is generally stated as requiring proof of a “sufficient causal link between the assurance relied on and the detriment asserted”: see Gillett v Holt [2001] Ch 210 at 232E-F. In practice, this amounts to the “but for” test (i.e. but for the promise would the claimant have acted in the way that is said to have given rise to the detriment): see Snell’s Equity (34^th Ed.) (at 12-043) and The Law of Proprietary Estoppel (2^nd Ed.) by Ben Macfarlane (at 3.112-3.113 and 3.174-3.187).

14              As to detriment, this must result directly from the reasonable reliance: see Thorner v Major at [29]. It must also be detriment suffered by the claimant directly. Detriment suffered by parties related to him is not relevant: see The Law of Proprietary Estoppel (2^nd Ed.) by Ben Macfarlane (at 4.107 to 4.112).

15              Detriment is “not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial”: see Gillett v Holt at 232D-E. In testing detriment, the court does not undertake an exercise in forensic accounting but must “stand back and look at the matter in the round”: see Gillett v Holt at 233H.

16              In assessing whether the requirement of substantial detriment has been met, the court must take into account any countervailing benefits acquired by the claimant as a result of his reliance: see Snell’s Equity (34^th Ed.) (at 12-044). This requires the court to weigh the disadvantages suffered by the claimant against any countervailing advantages: see Henry v Henry [2010] 1 All ER 988 at [53].

‘Skeleton Arguments for interim applications should not exceed 15 pages’: –

The updated version of the Chancery Guide specifies that Skeleton arguments for interim hearings should not normally exceed 15 pages. Paragraph 6.57 states:

‘Skeleton arguments should be no longer than is necessary. They should normally not exceed 15 pages. Even in the heaviest cases they should not exceed 25 pages (including any appendices and schedules). Should a party wish to file a longer skeleton argument, the senior legal representative whose name appears at the end of the skeleton argument must file a letter along with the skeleton argument explaining why this has been necessary. A desire to be of greater assistance to the court is rarely a good reason: overly long skeletons do not assist. If the Master or HCJ is not satisfied by the explanation the party may be required to re-draft the skeleton argument and/or costs sanctions may be imposed. For further guidance on skeleton arguments generally see Appendix Y.’

Note also that para 14.43 states:

‘Skeleton arguments for ordinary applications should be no longer than is necessary. They should not exceed 15 pages (including any appendices and schedules) and should be skeletons, not full written arguments. Should it exceptionally be considered necessary to file a longer skeleton argument, the legal representatives whose names appear at the end of the skeleton argument must file a letter along with the skeleton argument explaining why this has been necessary. A desire to be of greater assistance to the court is rarely a good reason: overly long skeletons do not assist. If the Master or HCJ is not satisfied by the explanation, the party may be required to re-draft the skeleton argument and/or costs sanctions may be imposed. For further guidance on skeleton arguments generally, see Appendix Y.’

Paragraph 12.51 further states that Trial Skeleton Arguments, should not normally exceed 25 pages. ‘Even in the heaviest cases they should not exceed 50 pages in length, including appendices and schedules (minimum font size of 12 point and 1.5 line spacing).’

In paragraph 5.26.1 (Legal argument and reasoning), of my forthcoming book, the 2nd Edition of the Contentious Probate Handbook, which is scheduled for publication by the Law Society in mid to late February 2025, I write:

‘As the late and great Mr Justice Hunt remarked in a lecture to the South Eastern Circuit Bar Mess entitled, ‘The Art of Advocacy’:

Do not embark on your case like Christopher Columbus, who on his voyage of discovery, did not know:

(i)      where he was going;
(ii)     when he arrived, where he was; and
(i)      after he had been there, where he had been!

Know where you are going, and when you have got there sit down.

Set out what you want in paragraph 1 of your skeleton argument, “the Claimant’s case is …” Set out your stall, what you are asking for and want the judge to do.

Say to yourself – “what am I doing here? What is my case?”

Your opening is the route-map for your case containing the clearest sign-posts to point the judge in the right direction.

Thus, the first Golden rule of advocacy is that before starting out know where you are going, how you are going to get there, and what you need to say and prove, so that the Judge will follow you to your planned destination!’

Your Skeleton Argument is the route-map for winning your application/case at trial. So do not turn it into a travel almanac! The judge is not going on holiday to Italy. What he needs is a succinct summary of what you are asking him to order, and of why he should grant the directions/remedies you seek. Thus in written advocacy, less is more. In other words, the acme of persuasion is brevity.

Today my editor at the Law Society approved the inclusion in the book of a 50 page section about Mediation Advocacy.

As far as I am aware, this will become the first comprehensive published literature anywhere in the world, on the subject of Mediation Advocacy in Trust and Estate Disputes.

This section is based upon the webinar I presented at 4pm GMT on Thursday 24 October 2024, to members of the SCMA worldwide.

My next book is entitled, ‘Dealing With Conflict Constructively’, and I am planning to start work on the book on 1st March 2025.

This will be written as both a course textbook for law undergraduates, and as a handbook about dispute resolution negotiation for legal practitioners.

See the ‘My next book’ page at www.carlislam.co.uk.

This will be supported by material that I will post on my new YouTube Channel, see the ‘My YouTube Channel’ page of my website and the link to the recording of my recent talk about Mediation Advocacy on that page.

During the Institute of Art & Law Training Day today I had the opportunity to speak to a leading UK Law Professor who confirmed that ‘Negotiation’ theory & practice is not taught to Law undergraduates in the UK. In her University, she runs two modules about negotiation for postgraduates. She is from Canada, where apparently ‘negotiation’ forms an integral part of a law undergraduate’s formal education. When she came here she was shocked to find what I have been saying for months on LinkedIn, i.e. that ‘Dispute Resolution Negotiation Theory & Practice’, including ‘Mediation Advocacy’ is not taught to law undergraduates in the UK.

What I also discovered today is the enormous space that exists for specialised training to be provided about the ‘Mediation of Art Disputes’ and ‘Mediation Advocacy’ in these disputes. As far as I am aware nobody is providing this niche training to mediators and mediation advocates. So, there is a huge gap in the market for these courses.

I also had the opportunity to ask a speaker about how in the mediation of a ‘misattribution’ claim, the true value of the disputed artwork can be determined to the satisfaction of the art market, i.e. because the underlying methodology for arriving at and agreeing upon the value is unknown to the market. One speaker acknowledged the problem. Another opined this was not a problem in the primary art market. Mediation is popular in these disputes, as discussed by Anne Laure Bandle in her leading textbook for Art Law practitioners – ‘The Sale of Misattributed Artworks And Antiques At Auction.’ I wonder if the solution is a hybrid process of expert determination and mediation?

An original idea also occurred to me during another excellent talk given by Lauren Gowler. It is this – ‘Can crowdfunding be used to raise funds for mediation in a campaign for the repatriation of ancient art, i.e. Mediation Crowd Funding?’

Is there a precedent?

I recently read ‘Negotiation – Things Corporate Counsel Need to Know but Were Not Taught’, by Michael Leathes. He posits that mediation can be used to facilitate the negotiation of contracts. I vividly recall when this would have been helpful in overcoming deadlock in the negotiation of a power project contract about how sensibly the risk of a latent defect could be shouldered. In my article – ‘Back to the future’ – Part 2 – Mediation and Estate/Business Succession Planning. Taxation (Tolley) I also argued for mediation in lifetime planning. So, I asked a speaker whether mediation is used in the US to facilitate expansion of the commercial pie during the negotiation of artist contracts. It isn’t.

You know when speakers are good because the day passes fast. 7 hours today went by in a flash. So, my personal thanks as a delegate to IAL’s and to all of the speakers for their excellent presentations and for allowing me to pose so many questions!

Proprietary Estoppel & Constructive Trust claims are not Contentious Probate claims. These claims are discussed in detail in my book, the ‘Contentious Trusts Handbook’, published by the Law Society in 2020.

A ‘Proprietary estoppel’ claim typically consists of asserting an equitable claim against the conscience of the ‘true’ owner. The claim is a ‘mere equity’. It must be satisfied by the minimum award necessary to do justice, which may sometimes lead to no more than a monetary award.

By contrast, a ‘common intention’ constructive trust claim, involves identifying the true beneficial owner or owners, and the size of their beneficial interests.

English law provides no clear and all-embracing theory of constructive trusts.

The boundaries have been left perhaps deliberately vague so as not to restrict the Court by technicalities in deciding what the justice of a particular case might demand.

There are established categories of circumstances in which it has been held that a constructive trust will arise. The categories are not closed. The categories include constructive trusts arising from:

(i)      impugned transactions/payments (without a prior fiduciary relationship);
(ii)     a prior fiduciary relationship; and
(iii)    a prior agreement or understanding.

The constructive trust is not a rigid doctrine. Instead it is deliberately built on a flexible, high level principle of ‘good conscience’.

The current orthodoxy in English law for constructive trusts is whether a proprietary interest exists is not dependent on property per se, but rather when:

(a)  it is unconscionable to deny the beneficial interest of another; or
(b) if there is fraud.

For a ‘common intention’ constructive trust to arise, the parties must have had a ‘common intention’ to share the property beneficially, upon the faith of which the claimant then acts in reliance to his/her detriment.

It is the ‘detrimental reliance’ that makes it ‘unconscionable’ for the defendant landowner to resile from their otherwise unenforceable agreement.

The court has no power to impute an ‘agreement’ or ‘common intention’ to the parties based upon what it considers would have been fair or reasonable.

When the court is considering what the parties actually intended, it looks at the objective phenomena available for consideration, and not into their minds themselves.

The assessment is thus an objective rather than a subjective one.

Pleading these claims in association with a Contentious Probate claim is often a sign of desperation. That is because these cases are highly fact-sensitive, and most fail at trial. Thus, they are perceived to be ‘high costs’ claims of last resort which are pregnant with litigation risk. That is why during the first CMC in such cases, a judge is likely to order a stay for ADR, i.e. Mediation without consent.