The Insurance Act 2015, Section 13A provides:

‘(1)      It is an implied term of every contract of insurance that if the insured makes a claim under the contract, the insurer must pay any sums due in respect of the claim within a reasonable time.

(2)      A reasonable time includes a reasonable time to investigate and assess the claim.

(3)      What is reasonable will depend on all the relevant circumstances, but the following are examples of things which may need to be taken into account—

(a)      the type of insurance,

(b)      the size and complexity of the claim,

(c)       compliance with any relevant statutory or regulatory rules or guidance,

(d)      factors outside the insurer’s control.

(4)      If the insurer shows that there were reasonable grounds for disputing the claim (whether as to the amount of any sum payable, or as to whether anything at all is payable)—

(a)      the insurer does not breach the term implied by subsection (1) merely by failing to pay the claim (or the affected part of it) while the dispute is continuing, but

(b)      the conduct of the insurer in handling the claim may be a relevant factor in deciding whether that term was breached and, if so, when.

(5)      Remedies (for example, damages) available for breach of the term implied by subsection (1) are in addition to and distinct from—

(a)      any right to enforce payment of the sums due, and

(b)      any right to interest on those sums (whether under the contract, under another enactment, at the court’s discretion or otherwise).’

It is therefore an implied term of an insurance contract that a valid claim will be paid within a reasonable time following notification of loss, including any consequential loss that is not too remote, e.g. loss of use.

Where prima facie, a valid claim has been properly notified, unless the insurance company can prove that Section 13A(4) of the Insurance Act is engaged, then by parity of reasoning, they are liable for breach of contract in refusing indemnity, because they have no technical defence to breach of Section 13A(1) of the Insurance Act 2015, and in these circumstances, it is axiomatic that a refusal of indemnity is a material breach of Contract. That is because a contract of insurance is a contract of indemnity.

In other words, in proceedings where breach of s.13A has been alleged, the onus of proof will shift to the insurance company to prove that there were reasonable grounds for disputing the claim. If the insurance company cannot discharge the burden of proof at trial on that issue, unless grounds exist for vitiating the contract, their defence to the entire claim will fail. 

In which case, in addition to damages and interest, an order for costs to be awarded against the Defendant insurers on the indemnity basis, may reasonably be sought where the court finds that insurers did not have:

• a valid ground for disputing the claim; and
• any reason to believe that the claim was invalid, i.e. because they were incompetent in their investigation of the claim and in consequence had proceeded upon a false assumption, or e.g. by refusing to comply with a pre-action protocol, had behaved with cynicism, in material breach of the CPR.

This issue has arisen in a commercial case in which I am appearing for the claimant.

British cultural heritage diplomacy post-BREXIT

A strategic consequence of BREXT which appears to have been almost entirely overlooked, is that post-BREXT, Britain will cease to have any influence in shaping European cultural heritage diplomacy. Since ‘soft’ power is a strategic tool in international relations and British Foreign Policy, then post Brexit, as the UK makes its own way in the World, what is our policy?

Without a coherent and practical plan Britain is likely to fall behind the rest of Europe because the EU have recently placed cultural relations at the heart of international relations, and are evolving a unified strategic policy.

What are we doing?

EU international relations policy

On 8 June 2016, the EU High Representative and Vice-President Frederica Mogherini and Commissioner Navracsics put forward a proposal to develop an EU strategy to support international cultural relations. The aim was to put cultural cooperation at the centre of the EU’s diplomatic relations with countries around the world.

In February 2017, the ministers’ deputies adopted the Recommendation CM/Rec(2017)1 to member States on the ‘European Cultural Heritage Strategy for the 21st Century’, which was officially launched in Limassol, Cyprus in April 2017. 

‘On 6 April 2017 the Council of Europe (CoE) launched their “European Cultural Heritage Strategy for the 21st century” at a high-level conference in Limassol (Cyprus) in the presence of senior policy makers and stakeholders from CoE member states. The Strategy 21 pursues an inclusive approach and involves not only local, regional, national and European public authorities, but also all heritage stakeholders including professionals, (I)NGOs, the voluntary sector and civil society. The Strategy is a state of the art document inspired by the efforts the Council of Europe in shaping the heritage policies of many European countries and repositioning them.’ https://www.europanostra.org/european-cultural-heritage-strategy-21st-century-launched-limassol/

See also:

·       ‘Cultural heritage in EU policies: ‘https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/621876/EPRS_BRI%282018%29621876_EN.pdf

·       ‘European Heritage Strategy for the 21st Century’ : https://www.coe.int/en/web/culture-and-heritage/strategy-21

·       ‘Toward an EU strategy for international cultural relations’’: https://ec.europa.eu/culture/policies/strategic-framework/strategy-international-cultural-relations_en

·       ‘A new strategy to put culture at the heart of EU international relations’: https://ec.europa.eu/commission/presscorner/detail/en/MEMO_16_2075

·       ’Recommendation of the Committee of Ministers to member States on the European Cultural Heritage Strategy for the 21st century’: https://rm.coe.int/16806f6a03

·       ‘Cultural heritage in EU discourse and in the Horizon 2020 programme’: https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/642803/EPRS_BRI(2019)642803_EN.pdf

In May 2019 the Berlin Policy Journal observed,

‘The EU’s principal values of democracy, human rights, and the rule of law are being challenged both internationally and within Europe itself, by populist governments. Faced with such threats to its cultural identity, the EU needs to respond, including by cultural diplomacy.

The international system is undergoing rapid change. Power is shifting from Western states to rising powers; Russia and China are working to discredit civil and political rights; populists are eroding democracy by stealth; and America appears to be losing interest in upholding the liberal international order. The European Union, whose principal purpose is to protect human dignity by means of democracy, human rights, and the rule of law, finds itself increasingly challenged in the realm of ideas.

Faced with threats to its cultural identity, Europe needs to mount a cultural response. EU member states have long practiced cultural diplomacy as a form of “soft power,” and EU ministers have stated that culture must also be an integral part of the EU’s international relations. Under EU law, cultural policy is primarily a national competence, but the EU may support it, including in foreign affairs.

For many years the European Commission has subsidized mostly short-term cultural development projects in various regions of the world. However, it has set neither geographical nor thematic priorities, and current spending patterns do not amount to an integrated strategy. In practice, the EU operates not one, but three foreign cultural approaches that reflect the geographical and budgetary logic of the relevant Commission Directorates General, with one responsible for culture, another for development, and a third for relations with the EU’s Eastern and Southern neighbors.

Links with the EU’s foreign policy priorities are tenuous. The European External Action Service, the EU’s diplomatic and foreign service, is short of cultural expertise and largely depends on the commission to fund external actions. Fragmented, under-resourced, and lacking a sense of direction, EU cultural diplomacy is in need of reform. Foreign cultural policy should be integrated with other policy domains, including human rights, development, and citizenship.’

The UK faces the same geopolitical reality and challenges as the EU. However, as we diverge from the EU will we co-operate or compete in applying soft power through cultural heritage diplomacy?

While counter-intuitive, realpolitik requires co-operation in order to compete, e.g. to enjoy equal market access. That is a paradox of BREXIT, because in the real world before e.g. China, India, and the United States can conclude, ratify and implement an FTA with the UK, they must know the extent to which the UK remains integrated with the EU. Otherwise, how can they evaluate preferential access and agree terms? Therefore, the UK must first conclude a trade deal with the EU. Since trade negotiations are linked to existential issues that are the raison d’etre for the EU as a community, the question we need to ask ourselves is not ‘who are we?’ (i.e. what is our tribe), but ‘what is our community?’ (i.e. who are our strategic partners). The answer to the second question is the natural policy imperative that will shape our future relationship with Europe and the rest of the World. Therefore, our cultural heritage policy can be a foundation stone in building a bridge between post-BREXIT Britain, the EU, and the rest of the World, or it can cast us adrift from continental Europe, and suffocate the negotiation of trade deals.

What is the UK’s Cultural Heritage Policy in the event of a no-deal BREXIT? Is there a strategy?

See also:

· ‘BREXIT & Heritage’ – Report ESRC Funded Workshop (July 2017): https://eprints.ncl.ac.uk/file_store/production/239847/36F25C4A-7098-49A8-BC0B-5BC900655031.pdf

· ‘UK to end creative Europe participation post-BREXIT’ (March 2020): https://heritagetribune.eu/unitedkingdom/uk-to-end-creative-europe-participation-post-brexit/ 

No-deal BREXIT

A no deal BREXIT is almost certain unless the UK agrees to an extension (which the EU have offered and the Government have rejected).

‘If negotiators fail to reach a deal, the UK faces the prospect of trading with the EU under the basic rules set by the World Trade Organization (WTO).

If the UK had to trade under WTO rules, tariffs would be applied to most goods which UK businesses send to the EU. This would make UK goods more expensive and harder to sell in Europe.

Having WTO terms would also mean full border checks for goods, which could cause traffic bottlenecks at ports.

And the UK service industry would lose its guaranteed access. Qualifications would no longer be recognised and it would be much harder for workers to travel to the EU.

This would affect everyone from bankers and lawyers, to musicians and chefs.’

Brexit: What trade deals has the UK done so far?: https://www.bbc.co.uk/news/uk-47213842

The political calculation the Government is making is comparable to spinning the wheel in a game of roulette.

‘To Sanjay Raja, an economist at Deutsche Bank AG, a no-deal Brexit would halve the pace of growth next year to 1.5%. The U.K. in a Changing Europe, a research group, estimates gross domestic product could be crimped by 8% over 10 years as trade barriers and a reduction in productivity hit output.

“It may be less politically costly for the U.K. to do no deal in the midst of a pandemic, but economically I’m not sure about that at all,” said Jonathan Springford, deputy director of the Centre for European Reform. “It might be that they’re able to get away with it — but I don’t think it changes the view that no deal would impose quite sizable economic costs.”

Intergroup Inc. says the size of the shock could even force the Bank of England to take the controversial move of cutting interest rates below zero because fiscal policy and other tools may not be enough.

The additional debt firms are carrying will make adjusting to Brexit more difficult, according to Alan Winters, director of the U.K. Trade Policy Observatory at the University of Sussex.’

https://www.bloomberg.com/news/articles/2020-06-02/-no-deal-brexit-threat-looms-over-pandemic-ravaged-u-k-economy

Judicial ENE

I am writing a new article for publication by Trusts & Trustees (Oxford University Press): https://academic.oup.com/tandt in September, which is provisionally entitled,

‘When is it appropriate for the court to order Judicial ENE in a contested application?’

The basic structure of the article is: 

• It is not a question of whether the court can order Judicial ENE in a contested civil application, but of when – Lomax v Lomax. [2019] EWCA Civ 1467;
• Jurisdiction – i.e. the power to order;
• Logistics and timing – the application procedure;
• Is the candle worth the flame? – carrying out a preliminary costs and other litigation risks analysis;
• Merits – factors to be taken into account by the court; and
• Conclusions.

I recently calculated that Judicial ENE can (depending upon mediator fees and the length of the mediation) cost 91.7% less than mediation. The power of the court to order Judicial ENE (without consent) is not limited to contentious probate and trust disputes. Because a Judicial ENE hearing/appointment can be dealt with partly on paper, and partly as a virtual hearing, given the restrictions placed upon travel globally by COVID-19, the power of the court to order Judicial ENE in an appropriate case could result in the early settlement of cases involving parties locked-down in different jurisdictions. I am appearing for the Claimant in an application for Judicial ENE that has been listed to be heard in mid-July (although this may now be re-listed). The Defendants have opposed the application. So the question of when it is appropriate to order Judicial-ENE will be before a court of first instance once again quite soon.

Based upon the method of dispute resolution called ‘Guided Settlement’, discussed in paragraph 10.8 of my book the ‘Contentious Probate Handbook’, published by the Law Society, I am also developing and will set out at the end of my article, a new method of ADR, which I call ‘Judicial Guided Settlement’. This is a hybrid of Judicial ENE and evaluative mediation.

For more about evaluative mediation, see also the recent article by Anthony Trace QC published in the Lawyer monthly in April, ‘The Difficulties Posed in Mediating Cases Relating to Fraud and How to Overcome Them’: www.lawyer-monthly.com/2020/04/the-difficulties-posed-in-mediating-cases-relating-to-fraud-and-how-to-overcome-them/

A new guide has been signed off by the Chancellor, and been issued. The County Court at Central London (“CCCL”) is the venue for the Business and Property work done in London and the South East outside the High Court. It does not have the force of law and is not a substitute for the Civil Procedure Rules (“CPR”) and Practice Directions (“PDs”). The Guide is accompanied by 3 annexes. For a Precedent Draft Directions please visit the Central London County Court page at www.ihtbar.com

The Guide states (amongst other things):

‘Scope of Business & Property work

4.    The Business & Property work undertaken at CCCL includes the following:

4.1  Work of the type within the Property, Trusts and Probate List of the High Court such as:

Real property

Landlord & tenant (both residential and commercial). The most complex/valuable business tenancy renewal cases will proceed as Business & Property work

Trusts

Contentious probate claims

4.2  Work of the type within the Business List of the High Court such as:

Contractual disputes

Claims for specific performance, rectification and other equitable remedies 

Professional negligence (for example, claims against solicitors and surveyors).

4.3  Insolvency and Companies work. This includes personal insolvency cases, company insolvency work transferred from the High Court or other County Court hearing centres, disqualification of directors, and company cases (for example, unfair prejudice petitions, claims to restore companies to the register, to rectify the register, and to extend time for the registration of charges).

5.    That list is not exhaustive. A full definition of Business & Property work in the County Court can be found in para. 4.2 of CPR PD 57AA – Business and Property Courts. 

Case management

11.  Cases are usually transferred to CCCL by the High Court at an early stage. They are listed for a costs and case management conference (Part 7 claims) or for directions or disposal (Part 8 claims). These first hearings are short, usually between 30 minutes and an hour, and are not a trial. They are used to move the case towards trial where there is any substantial dispute. 

12.  All cases, whether transferred to CCCL or issued here, will normally be retained by the judge dealing with the case at the first hearing. That judge will, if at all possible, hear the trial and any pre-trial review.

13.  Unless otherwise ordered, there should be sent to the Court by email 3 days before the first hearing the following documents (agreed if possible): a brief case summary (of not more than 500 words), a list of issues, and proposed directions (using our template – see the next paragraph).

14.  Case management directions in Part 7 claims will normally be given by adapting the draft directions template attached at Annex A to the particular case. Parties should therefore use such template when agreeing and submitting proposed directions. Part 8 claims are typically decided without cross examination or disclosure.

16.  The subject heading of the email must start with the claim number. Business & Property cases are given a case number taking the form G10CLxxxx, where the initial letter indicates the year (F having been used for 2019, and G being used for 2020), 10 designates the case as Business & Property work, CL refers to CCCL, and there is then a unique 3 or 4 digit number.

17.   The directions will normally provide for the listing of the trial and will do so by (a) setting a 3-month trial window, and (b) directing a telephone listing appointment. That appointment will usually be around 3 weeks after the case management hearing. The standard order for the telephone listing appointment forms part of the template at Annex A.

Interim applications

Normal business

18.  An interim application may be issued by (a) sending an Application Notice in form N244 by email to enquiries.centrallondon.countycourt@justice.gov.uk if the legal representative has a fee account or payment is to be made by card, (b) leaving the application in the dropbox located by the first floor counter, or (c) sending the application by post to the court at County Court at Central London, Royal Courts of Justice, Thomas More Building, Royal Courts of Justice, Strand, London WC2A 2LL, or by DX to DX 44453 Strand.

19.  The Court staff aim to put applications in Business & Property cases before a judge within 5 to 10 working days of receipt. But if the case has been assigned to a particular Circuit Judge at the first hearing, the parties are encouraged to email a copy of the issued application to the judge’s clerk in order to bring it to the judge’s early attention.

20.  The Circuit Judges generally hear Business & Property applications each Friday. An application will normally be listed on the first convenient Friday after two weeks. Applications to be heard by District Judges will be listed for a convenient date.

Urgent business

21.  There is, however, a process for applications that cannot wait. It is to be used only for applications that are genuinely urgent. An example is an application affecting a trial that is less than four weeks away.

22.  The urgent Application Notice should be submitted by email to centrallondonurgentbandp@justice.gov.uk . The body of the email should contain a succinct statement of reasons as to why the application is urgent and cannot wait to be heard in due turn. The email and attachment will be shown to either HHJ Dight CBE or HHJ Johns QC as soon as possible so that arrangements can be made for the application to be heard.

23.  If the application has yet to be issued, an urgent appointment for issue at the first floor counter in the Thomas More Building should be made using the appointments telephone number 0207 947 7502.

24.  There is no out of hours service. Any parties requiring such a service should use the Royal Courts of Justice emergency telephone number, 020 7947 6000/6260, and request the Duty Chancery Judge’s clerk.

Trials

28.  In order to avoid disruption to other litigants and to ensure that each case does not take more than its proper share of court resources, parties will be required to complete each trial in the time allotted save in exceptional circumstances.

29.  It is therefore important that time estimates for trial are realistic. Such estimates need not include time for preparation of judgment (as this will be added by the judge as appropriate) but should include time for judicial pre-reading. For guidance, parties will often be required to attend only from 11 am in a 3 day case, from 12 noon in a 4 day case and from 2 pm in a case of 5 days or more.

30.  Skeleton arguments should, unless otherwise ordered, be sent to the Court at least 2 days before the trial to centrallondoncjskel@justice.gov.uk (to reach a Circuit Judge) or centrallondondjskel@justice.gov.uk (to reach a District Judge).

31.  An indexed and paginated bundle of documents for the trial should, unless otherwise ordered, be delivered to Court at least 3 days before the trial. Parties should arrange delivery of the trial bundles directly with the judge’s clerk if possible. Otherwise, they can be lodged at the first floor counter in the Thomas More Building between 9 and 10 am.

32.  If settlement or some other development means that a trial listing can be vacated or shortened, the parties must inform the Court immediately (by emailing the trial judge’s clerk if possible) so that the time saved can be used for the benefit of other litigants.

33.  Robes will be worn for trials, appeals, applications for committal, and directors’ disqualification hearings. Robes are not otherwise worn.

Orders

34.  If a draft order is requested by the Court following a hearing such will normally be required within 2 working days and should be sent by email (to the Circuit Judge’s clerk if the case has been heard by a Circuit Judge) and be in Word format. Like other documents in the case, orders should be marked “Business & Property Work”.

Mediation

39.  CCCL has an independent mediation service administered by CEDR available to all parties to help them resolve their disputes. Each mediation takes place in the court buildings after court hours, is confidential, without prejudice and is conducted by an accredited mediator. The total cost to the parties is £900 plus VAT, usually shared equally. A party in receipt of legal aid may recover his/her share of the cost as a permitted disbursement. Further details of the mediation service and an application form are available at https://www.cedr.com/solve/clcc/’

I am delighted to announce that my new, and seventh book, the ‘Contentious Trusts Handbook’ has been accepted for publication by the Law Society in 2020.
The book currently runs to 146,610 words, and the Preface and List of Contents are set out below.

I would like to thank:
• Toby Graham, Head of Farrer & Co’s contentious trusts and estates group, who is writing the Foreword;
• Pandora Mather-Lees, who is a distinguished Art Historian: https://www.artonsuperyachts.com/;
• Hector Robinson QC, who is a partner in the international offshore law firm Mourant, and is Head of the Cayman Islands Practice Group for International Trust and Private Client Litigation. www.mourant.com; and
• Anthony Trace QC, 4 Pump Court, Temple, England, who won ‘Mediator of the Year’ in the Innovation & Excellence Awards 2019.
for their expert contributions.

Preface
Trust litigation takes place within a sophisticated theoretical and policy framework in which the legal principles governing: (i) the exercise of powers; (ii) the performance of duties; (iii) the rights of beneficiaries; and (iv) the equitable remedies and defences available on a specific set of facts, have been formulated, applied, and developed by courts of equity in England and throughout the common law world, for centuries. Consequently, the building blocks of equity are almost monolithic. The Contentious Trusts Handbook aims to provide a clear practical and comprehensive exposition of the English law principles that apply in commonly encountered trust disputes, and of the practice and procedure governing trust litigation in the English courts. The book also discusses mediation and arbitration in trust disputes, and is accompanied by a suite of precedents.
My aim throughout, has been to write a practical, accessible and authoritative handbook for the busy practitioner, which is a portable reference that covers all aspects of the law and practice governing trust disputes in the English courts. The book contains a comprehensive bibliography of current research sources, and practitioners should note that the new 34th edition of Snell’s Equity has just been published, and the 20th edition of Lewin on Trusts is due to be published in January 2020.

Many of the principles discussed in this book also apply to commercial disputes involving allegations of breach of fiduciary duty/trust. This has recently been illustrated by:
(i) Faichney & Anor v. Aquila Advisory Ltd & Ors [2018] EWHC 565 (Ch), a breach of fiduciary duty/constructive trust claim in which the judge applied the law of illegality and the doctrine of ex turpi causa to breach of fiduciary duty claims following the recent Supreme Court cases of Bilta v Nazir [2016] AC 1 and Patel v Mirza [2017] AC 417;
(ii) Credit Agricole Corporation and Investment Bank v. Papadimitriou (Gibraltar) [2015] UKPC 13, in which the proceeds of an antique collection worth $15 million was misapplied in breach of trust, and the claimant pursued a proprietary claim against the bank which received the money; and
(iii) Stobart Group Ltd v. Tinkler [2019] EWHC 258 (Comm), in which Judge Russen QC found that the former Chief Executive of the infrastructure group Stobart, had acted in breach of his fiduciary duties in: speaking to Stobart’s investors; criticising management; and agitating for the removal of the company’s chairman.
(See also, ‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’, by Carl Islam, Trusts & Trustees, Volume 25, Issue 2, March 2019, pp 237–265).
As Lord Briggs of Westbourne said in the 2018 Denning Society Annual Lecture, ‘Equity in Business’, delivered in the Old Hall at Lincoln’s Inn, ‘There can be no general principle which ring-fences all commercial dealings from equitable intervention. Nor is it right that there is less need for the intervention of equity in business rather than personal or family relationships. Business people can be just as abusive, unconscionable and plain beastly to each other as members of a family.’
Company and commercial disputes (including joint-venture and shareholder disputes) that hinge upon proof of breach of fiduciary duty, are on the increase. The bridge that fuses the traditional technical skill-set of company and commercial lawyers with that of trust lawyers (who in solicitors firms used to live in separate boxes), is however, a relatively recent phenomenon outside of the Chancery Bar. I therefore hope, that this book will also be of value to Solicitors who need to apply first principles when confronted with complex and novel facts that engage the ‘super-highway’ of equitable remedies and principles, when proceedings are issued in any of the lists and courts that constitute the Business and Property Courts of England and Wales. That is how equity evolves. Furthermore, for fiduciary disputes, the Rolls Building in London, is used by litigants as the venue to determine high value disputes, worldwide.
Carl Islam
1 Essex Court
Middle Temple, London
Michaelmas Term 2019

Contents

Foreword
Acknowledgments
Preface
CHAPTER 1 – INTRODUCTION
1.1 Aim
1.2 Introduction
1.3 Classification of trust claims
1.4 Trusteeship
15 Trusts and powers
1.6 Terms of the trust
1.7 Irreducible core of the trust
1.8 Duties
1.9 Decision making
1.10 Breach
1.11 Rights to information
1.12 Equitable jurisdiction
1.13 Remedies
1.14 Liability of trustees
1.15 Standing
1.16 Case preparation
1.17 Letter before claim
1.18 Proof
1.19 Disclosure
1.20 ADR
CHAPTER 2 – SUPERVISORY JURISDICTION OF THE COURT
2.1 Introduction
2.2 Supervisory jurisdiction
2.3 Limits
CHAPTER 3 – POWERS OF TRUSTEES
3.1 Introduction
3.2 Administrative or managerial powers
3.3 Dispositive powers
3.4 Powers of appointment
3.5 Simple general powers
3.6 Special powers
3.7 Duties of donees
3.8 Delegation
3.9 Failure to exercise a power
3.10 Fraud on a power
3.11 Rule in Hastings-Bass
CHAPTER 4 – DUTIES OF TRUSTEES
4.1 Introduction
4.2 Fiduciary duties
4.3 Fiduciary relationships

4.4 Scope and content
4.5 Self-dealing rule
4.6 Fair dealing rule
4.7 Statutory duty of care
4.8 Investment

CHAPTER 5 – BREACH
5.1 Introduction
5.2 Breach of trust
5.3 Breach of fiduciary duty
5.4 Quiet fiduciary thesis
5.5 Wrongful distribution
CHAPTER 6 – THIRD PARTY LIABILITY
6.1 Introduction
6.2 Trustee de son tort
6.3 Unconscionable receipt
6.4 Accessorial liability
6.5 Summary
CHAPTER 7 – CLAIMS
7.1 Introduction
7.2 Personal and proprietary claims for breach
7.3 Construction
7.4 Directions
7.5 Benjamin order
7.6 Removal of a trustee
7.7 Declaration of a beneficial interest in property
7.8 Sham trusts
7.9 Illusory trusts
7.10 Capacity
7.11 Undue influence
CHAPTER 8 – EQUITABLE REMEDIES
8.1 Introduction
8.2 Personal and proprietary remedies
8.3 Election
8.4 Rescission
8.5 Equitable compensation
8.6 Account in common form
8.7 Account of profits
8.8 Tracing
8.9 Injunctions
CHAPTER 9 – DEFENCES
9.1 Introduction
9.2 Limitation
9.3 Laches
9.4 Exemption clauses
9.5 Section 61 TA 1925
9.6 Consent
9.7 Set-off
CHAPTER 10 – LITIGATION
10.1 Introduction
10.2 CPR
10.3 Chancery Division
10.4 County Court
10.5 Transfer
10.6 Claim
10.7 Defence
10.8 Case management
10.9 CPR compliance and sanctions
10.10 Disclosure
10.11 Pre-action disclosure
10.12 Non-party disclosure orders
10.13 Norwich Pharmacal Orders
10.14 Bankers Trust Orders
10.15 Privilege
10.16 Part 18 Requests
10.17 Presumptions
10.18 Inferences
10.19 Trial
10.20 Adducing evidence at trial

CHAPTER 11 – COSTS
11.1 Introduction
11.2 Beddoe Orders
11.3 Non-party costs orders
11.4 Security for costs against a non-party
11.5 Part 36 Offers
11.6 Calderbank Offers

CHAPTER 12 – ADR & SETTLEMENT
12.1 Introduction
12.2 Methodology
12.3 Communication
12.4 Mediation
12.5 Arbitration

APPENDICES
A Precedents
A1 Beddoe Application – Details of Claim
A2 Benjamin Order
A3 Calderbank Offer (Equitable compensation)
A4 Calderbank Offer (Rescission)
A5 Confidential Note for Mediator
A6 Draft CMC Directions Order
A7 Draft Order (Interim application)
A8 Initial Disclosure List
A9 Mediation Position Statement & Offer
A10 Norwich Pharmacal Order
A11 Particulars of Claim (Breach of Fiduciary Duty/Accessory Liability/Powers of Investment/Information)
A12 Particulars of Claim (Breach of trust)
A13 Particulars of Claim (Liability to account)
A14 Particulars of Claim (Tracing)
A15 Part 36 Offer (Equitable compensation)
A16 Part 36 Offer (Rescission)
A17 Request For Further Information (‘RFI’) – Letter
A18 Skeleton Argument
A19 Tomlin Order and Tomlin Schedule
A20 Trusts of Land and Appointment of Trustees Act 1996, section 14 Application

B Notes
B1 Art & Heritage Assets – Duties of Trustees, by Pandora Mather-Lees
B2 Trust Litigation In The Cayman Islands, by Hector Robinson QC
B3 A Mediator’s View by Anthony Trace QC, 4 Pump Court, Temple, England

C Bibliography

A ‘planning obligation’ may be made with a local planning authority (‘LPA’) or offered as a unilateral undertaking by a developer as an incident to the grant of planning permission, Town and County Planning Act 1990, s.106.

Any ‘planning obligation’ must be for a ‘planning purpose’, and can be challenged at a public enquiry. A public inspector can then determine whether or not any restriction or regulation of the development or use of land is ‘Wednesbury unreasonable’, e.g. because it is ‘nebulous’.

Each planning obligation contained in a s.106 agreement must serve a specific purpose related to the site and cannot be used for an ulterior purpose, such as to build more schools in order to accommodate the consequential increase in population arising from the development because that would be unlawful.

Therefore, prior to execution of any s.106 agreement, an adjoining owner of land has the standing to invite the LPA to provide:

·      a copy of the terms of each planning obligation contained in the proposed agreement; and

·       a record of the reasons for each contemplated planning obligation.

In Miller, R (on the application of) v The Prime Minister [2019] UKSC 41 (24 September 2019), Lady Hale and Lord Reed giving the unanimous judgment of the Supreme Court stated at paragraph 61,

‘It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.’

In default of disclosure, it may therefore be argued that each and every planning obligation contained in a s.106 planning agreement executed before adequate reasons have been provided, is prima facie unlawful and void.

Furthermore, unless the LPA confirm that any social landlord will be a signatory (i.e. in order to comply with the Law Of Property (Miscellaneous Provisions) Act 1989, s.2), then any s.106 agreement that contains an obligation to transfer land to a social landlord, e.g. a housing association, is technically invalid, and thus unlawful and void.

I refer to the legal principles decided in the following cases:

·      Good Energy Ltd v Secretary of State [2018] EWHC Civ 2102;

·      Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Ltd [2017] UKSC 66;

·      R (Thakenham Village Action Ltd) v Horsham District Council [2014] JPL 772;

·      R (Derwent Holdings Ltd) v Trafford Borough Council [2011] All ER (D) 216;

·      R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20; and

·      Jelson Ltd v Derby City Council [2000] JPL 2013; and

·      Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (the ‘governing principles’).

Applying the governing principles, unless the LPA also provide a statement (which may be relied upon as evidence at a public enquiry) specifying:

·      why it is not possible to address any unacceptable impact through a planning ‘condition’ instead of an ‘obligation’ (NPPF, paragraph 203);

·      why each obligation is necessary to make the application acceptable in planning terms (see Jelson);

·      how each obligation is directly related to the development (see Derwent Holdings); and

·      how each obligation is ‘fairly’ and ‘reasonably’ related in ‘scale’ and ‘kind’ to the development,

then it is axiomatic that no clear and adequate reasons have been provided to demonstrate fulfilment of each of the four legal tests enumerated above (the ‘legal tests’).

Therefore, because the legal tests have not been satisfied, any s.106 agreement that is signed before clear and adequate ‘reasons’ are provided is null and void. That is because in a vacuum, no planning obligation can constitute a valid reason for granting planning permission.

Hence, if the LPA elect to be silent, then the public inspector, as a matter of public law, may draw adverse and negative inferences from the failure of the LPA to provide clear and adequate reasons. On that basis alone, it is submitted that the inspector may conclude that in breach of statutory duty, planning permission was unlawful. Paragraph 7-115 of De Smith’s Judicial Review, Eighth Edition, (2018) states that ‘[u]sually, the remedy given in a case of breach of duty to give reasons or adequate reasons is an order quashing the unreasoned decision.’ (Flannery v Halifax Estate Agencies Ltd (T/A Colley’s Professional Services) [2000] 1 WLR 377).

Consequently, following the decision of the Supreme Court in Miller, any vendor of agricultural land, such as a registered Charity, who refuses to provide information about the reasons relied upon in support of a s.106 agreement, and any LPA, who acts in concert in withholding any reasons from local tax-payers, is likely to face a test case in the Supreme Court if they challenge either:

(i)     the jurisdiction of a public inspector to make a finding about whether planning permission for a development linked to a s.106 agreement was lawful; or

(ii)    any finding that it was unlawful, which results in judicial review, and an appeal to the Supreme Court.

It is submitted that following Miller there is a clear evidentiary presumption that where a vendor and/or the LPA remain silent, and refuse to disclose ‘reasons’ either ‘adequately’, or ‘at all’, that the decision about planning permission is prima facie void, unless and until the LPA demonstrate otherwise by satisfying the legal tests set out above, which is impossible if a s.106 agreement has been signed before adequate reasons have been stated.

This is likely to result in a boom in judicial review applications if the Government has made an irrational decision about whether or not the underlying economic rationale for a planning obligation, i.e. based upon need is lawful where it is based upon a demonstrable statistical error. For example where a LPA rely upon a projection about population growth that indicates growth when accurate and up to date data demonstrates that growth is falling (which is a matter of expert evidence and opinion).

Therefore any: (i) vendor (including e.g. a UK registered charity), (ii) purchaser/developer, and (iii) LPA, who does not provide ‘reasons’, is likely to face litigation if they are involved in a land transaction that is contingent or dependent upon any planning obligation contained in a s.106 agreement being lawful.

Because trustees are fiduciaries this may also result in civil litigation in the Chancery Division in parallel with proceedings brought in the administrative court, brought by litigants who have the standing to allege breach of fiduciary duty. That will engage disclosure remedies that are not available in the administrative court, including ‘train of enquiry’ applications under PD 51 U Disclosure Model E and imaginative applications for a Norwich Pharmacal order, which the author has been researching since May in connection with his forthcoming book about trust litigation.

The following is a comment I provided to a journalist at Channel 4 News who called to enquire about examples of the Police entering diplomatic and consular premises to save life in the aftermath of an incident which took place at the Bahrain Embassy in London. The incident was unprecedented on UK soil. Unlike the Libyan embassy incident which resulted in the death of PC Yvonne Fletcher, (see, http://newsite.diplomaticlawguide.com/ [articles page]) the Police were able to enter and intervene before murder was committed. Staff in the embassy were apparently and allegedly about to throw a protestor off the roof when the police forced entry into the embassy. The entry was made without the prior consent of the head of the mission.

See: https://www.channel4.com/news/police-break-down-door-of-bahrain-embassy-in-uk-after-roof-protester-threatened

(Link to the story provided 09.08.2019 by ITV News)

Further to your enquiry, Article 22 of the Vienna Conventions states, 

‘1.    The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.     The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3.     The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’ 

An embassy is therefore prima facie immune from entry by the Police under any circumstances, unless the Head of the Mission has granted his consent, or the status of the premises has been removed, see paragraph 8.11 of Satow’s Diplomatic Practice (6th ed) by Sir Ivor Roberts (attached). 

However, under paragraph 2 of Article 22 of the Vienna Convention, the receiving state is under a duty to ‘take all appropriate steps to protect the premises of the mission against any … impairment of its dignity.’ Therefore, in my opinion, if the Police judge that by throwing a protester off the roof (and possibly to his death), the dignity of the Bahrain embassy will be impaired, they may enter in order to prevent that act by removing the protester from the premises (i.e. to save life as violence by embassy staff would otherwise impair the dignity of the premises). The same principle presumptively applies to the death of Jamal Khashoggi in the consulate of Saudi Arabia in Ankarra, i.e. had the authorities been able to prevent the murder of this journalist.

Hard copies of the March 2019 edition of Trusts & Trustees (published by Oxford University Press) containing my new article ‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’ are now being sent out to subscribers worldwide.

To read the article please click on the link to the article on the ‘Publications’ page at: https://newsite.carlislam.co.uk/publications

On the same page you will also find a link to my article published in 2018 about equitable compensation.

As a practising Barrister, I am currently acting in several cases involving breach of fiduciary duty, and am developing my practice to include minority shareholder disputes, and civil fraud.

My forthcoming book, the ‘Contentious Trusts Handbook’, which I have been commissioned to write by the Law Society for publication in October, will also include detailed chapters about: (i) breach of duty; (ii) equitable remedies; and (iii) equitable defences.

As a registered Public Access Barrister, I can be instructed directly by members of the public (including executors and trustees) without the involvement of a solicitor.

I exercise rights of audience before every court in England and Wales in relation to all proceedings and principally appear inwill, trust, and inheritance disputes in the Business and Property Courts and Central London County Court. I also appear as an advocate in the Court of Protection (see my article the ‘Advocate and the Expert in the Court of Protection’ co-authored with Dr Hugh Series of Oxford University which is also available on the Publications page of my website).

I formerly practised as a solicitor, and am authorised by the Bar Standards Board to conduct litigation. In an appropriate case, this permits me to carry out day to day case management activities (including the issue of a Claim Form in any court in England and Wales) which are reserved to Solicitors. This enables me to offer a one stop shop litigation and advocacy service to members of the public, from evaluation of the merits, evidence, and remedies, through to trial or settlement of the claim.

To enquire about instructing me please contact my Clerk at 1 Essex Court: 

Tel: 020 7936 3030 or 020 7832 1010.

Tel out of hours: 07721 866 858.

Email: clerks@1ec.co.uk

www.ihtbar.com 

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

My article, ‘Breach of Fiduciary Duty Claims and the Quiet Fiduciary Thesis’ has been published in Trusts & Trustees by Oxford University Press, and a link to the article has been posted on the Publications page at www.ihtbar.com.
My new book about Contentious Trusts (due to be published by the Law Society in October) will also contain an extensive chapter on breach of trust and breach of fiduciary duty claims.
The abstract of the article is as follows:
‘In arriving at the conclusion that a claim for fraudulent calumny can be brought on the grounds of breach of fiduciary duty where a fiduciary has been silent (the ‘Quiet fiduciary thesis’), the author examines:
· the approach of the court to breach of fiduciary duty claims—i.e. the framework of applicable legal principles;
· the hallmarks of a fiduciary—i.e. who is a fiduciary;
· the scope and content of fiduciary duties—i.e. the nature of the duties which define a fiduciary; and
· the equitable remedies available to the claimant which result—i.e. the remedial consequences of breach of fiduciary duty, which include: (i) the availability of the section 21(1) Limitation Act 1980 carve-out; (ii) equitable proprietary remedies, including tracing in equity, which is not defeated by the irretrievable mixing of property, Agip (Africa) Ltd v Jackson [1991] Ch 417; and (iii) the non-application of common law principles of remoteness in claims for equitable compensation based upon breach of fiduciary duty. (the ‘fiduciary principle’).
After applying the Fiduciary Principle to demonstrate the validity of the Quiet Fiduciary Thesis, the author discusses the operation of the fiduciary principle in the wider commercial and contractual context. Because rescission is a self-help remedy at common law, in equity the question that arises is, ‘can a contract be rescinded on the grounds of breach of fiduciary duty, by reason of silence/non-disclosure e.g. by a company director or co-venturer?’ The author concludes that it can. The principles applicable to breach of fiduciary duty claims in the context of a commercial joint-venture were recently examined in: Glenn v Watson & Ors [2018] EWHC 2016 (Ch) (31 July 2018) and Sheikh Al Nehayan v Kent [2018] EWHC 333 (Comm).’
I am currently acting in 3 breach of fiduciary duty cases, one of which is currently in the High Court in Cardiff where I appeared in January.
To enquire about instructing me in relation to a will, trust, or breach of fiduciary duty dispute please contact Ian Hogg at 1 Essex Court on 0207 936 3030.
www.ihtbar.com
‘Trusts & Trustees is the leading international journal on trust law and practice. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers … The journal is ideal for international trust lawyers working in both private practice and in-house in trust companies; trusts practitioners; and those working in trust companies. It will also be an essential source of reference for academics specializing in trusts; members of the judiciary; members of regulatory bodies; and institutional libraries.’ Oxford University Press.

It’s beginning to look a lot like Christmas, lawyers in every store, and to celebrate my anniversary of 4 years at 1 Essex Court, here is an early present just for you…

So let your heart be light and have yourself a merry little Christmas now.

Now, listen to what I say …

When planning the cross-examination of a witness, the starting point is to ask yourself what your cross-examination is directed at eliciting and proving, which in this case is the existence of Santa Claus. So, you better be good!

Even though it’s lovely weather for a sleigh ride with the witness, your aim should be to:
(i) destroy the material parts of his evidence – i.e. that NASA have found no evidence of the existence of dwellings at the North Pole sufficient to accommodate a colony of Elves that is large enough to manufacture at least one toy for every child in the world – ‘Of course not as my expert witness (Mr Kris Kringle of 34th Street New York, New York) has clearly stated in his report, ‘they only exist in the dream world’ – really I thought everyone knew that!’;
(ii) weaken the evidence where it cannot be destroyed – i.e. that reindeer cannot fly – ‘The case I shall advance on behalf of my Client is that Reindeer only fly at midnight on Christmas Eve’;
(iii) elicit helpful evidence, i.e. the Christmas albums of Bing Crosby, Frank Sinatra, the great Nat King Cole, Andy Williams, Perry Como, Johnny Mathis; Deano, Rod Stewart, Michael Bublé and Cliff – well why not it’s Christmas …;
(iv) to undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge, ‘I will demonstrate that Frosty the snowman has no peripheral vision whatsoever. I shall also prove that at all material times he was wearing woolen ear muffs.’

The ideal to be aimed at is to lead the witness to admit that his evidence was untruthful or mistaken. ‘How do you know that you saw Mummy kissing Santa Claus underneath the mistletoe?’

Cast doubt.

Bring in Schrodinger’s cat: https://whatis.techtarget.com/definition/Schrodingers-cat

Then distract and use as an opportunity to get the witness to prove another fact, e.g. that reindeer can fly.

‘My next question, as you no doubt correctly anticipated [flatter witness to disarm], is that outside, the snow is falling, and friends are calling, “yoo-hoo!” – Yes?’
Then get the witness to gradually agree.
‘There’s a birthday party at the home of Farmer Gray – Yes?
It’ll be the perfect ending of a perfect day?
We’ll be singing the songs we love to sing without a single stop?
At the fireplace while we watch the chestnuts pop, pop, pop, pop?
There’s a happy feeling nothing in the world can buy?
When they pass around the coffee and the pumpkin pie?
It’ll nearly be like a picture print by Currier and Ives?
These wonderful things are the things we remember all through our lives?
Do you hear those sleigh bells jingling, ring-ting-tingling, too?’
‘Sleigh bells ring – are you listening – Yes?’
‘Please turn to Bundle J, Tab 14 at page 300 Do you see exhibit …
‘It is a picture print by Currier and Ives isn’t it – yes?’
‘What is the reindeer doing?
‘It’s flying isn’t it!’

After the witness has said, ‘yes – I suppose so’ nod vigorously, flick a large wad of pages over in your file (any will do), and declare ‘so you have seen a reindeer fly!’ – then move on quickly to your next question.
In most cases, the objective is not so much to destroy the evidence outright, as to weaken it, i.e. to reduce the weight of the evidence and qualify the inferences which might be drawn from it. This objective is particularly important where the evidence is circumstantial, so that its damaging effect depends not so much on what is actually said as on what may be deduced from it. The witness may be induced to admit that other explanations are possible. Relentlessly probing into the details, as in cases where identification is in issue may show that there is a possibility of a mistake. The eliciting of fresh evidence may lead to a new topic altogether. More often, however, the new evidence simply consists of facts which put a new colour on the evidence in chief. If this is done successfully, the result is not only to help in the building up of one’s case, but also, at the same time, to weaken the other side. Undermining, if successful, destroys the assumptions on which the reliability of the evidence depends. ‘How can you be sure that reindeer don’t like heights? After all, don’t they bear an uncanny resemblance to mountain goats? – only with big red noses and antlers. Is it a coincidence that they both like carrots? What other possible explanation can there be – reindeer are an elevated species of mountain goat. QED, I believe.’
After enjoying the sight of the witness’ jaw dropping to the ground savour the silence as if you had just stepped into the winter wonderland (i.e. Harrods – pronounced ‘arrods’) and taken in a deep breath of refreshingly pure winter air. Smile – but for not more than 5 seconds.

It does not follow that because an individual’s evidence is unreliable in some respects it is must also be unreliable in others.’ i.e. just because Gloria Estefan said that ‘all she wanted for Christmas was me’ [NB what she actually said was ‘you’ but that’s not how I heard it], it is not axiomatic that she did not also want a copy of my latest book on Contentious Probate – which incidentally is very reasonably priced at £79.95 and ordering links appear on the Publications page at www.carlislam.co.uk. Spread the love at Christmas.

Cross-examination requires the greatest ingenuity:
· a habit of logical thought;
· clearness of perception in general;
· infinite patience and self-control;
· power to read men’s minds intuitively, to judge their characters by their faces, to appreciate their motives;
· ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and
· above all, the instinct to discover the weak point in the witness under examination.
By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, whilst his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself, it it is however, only with the matter of our cross-examination, that we can hope to destroy him.

‘Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen – are all professional dancers on ‘Strictly Come Dancing’ [which incidentally was very good this year, and I am voting for Stacey] – yes?
So, you stay in on Saturday nights?
You also stay in on Sunday nights to watch the results show – don’t you!
And yet here you stand today telling us that your field of expertise is ‘jingle bells’.
Not very likely is it?
In fact, you have never been conveyed in a one-horse open sleigh, have you?
Ever!’

There are three principal techniques for undermining credibility. An advocate may suggest that a witness is:
(i) being dishonest;
(ii) inaccurate or inconsistent; or
(iii) biased.

Alternatively, the advocate may seek to suggest some combination of (i) to (iii).
In cross-examination an advocate may either:
(i) confront the witness with evidence that is inconsistent with their account;
(ii) insinuate another version of events; or
(iii) probe the witness’s evidence for flaws.
‘Your childhood hero was Ebenezer Scrooge – was he not?
you worshiped his work ethic – didn’t you.
So, you espouse thrift as a core value?
Your friends – if you had any, might call you ‘thrifty’ – is that not so?
Scroogle knew about Tiny Tim – didn’t he! [note I have got the fact at which my question is directed down to only 5 words].
Charity does not feature in your vocabulary – does it?
In the hierarchy of moral values – Scrooge comes first doesn’t he?
Neither of you shed a tear for poor Tiny Tim before the midnight chimes ran out through your empty house – which until then had been as quiet as a mouse. [NB not a moose!].
So why should we believe you when you say that you were visited by Muppets at midnight on Christmas Eve?
Your evidence is nothing more than fantasy is it!’

Confrontation, as the name indicates, consists of confronting the witness with a great mass of damaging facts which he cannot deny, and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening. Probing consists of inquiring thoroughly into the details of the story to discover flaws. It may be used either to weaken or destroy, or open up a lead to something new. Insinuation is a many-sided technique. In essence, it is the building-up of a different version of the evidence-in-chief, by bringing out new facts and possibilities, so that, while helping to establish a positive case in one’s own favour, at the same time it weakens the evidence-in-chief by drawing out its sting. Insinuation may take the form of quietly leading the witness on, little by little: alternatively, it may be necessary to drive him. Thus, there are two main forms of the technique, gentle insinuation and firm insinuation. The object of undermining is not to break down the evidence by inquiring into the facts, but to take away the foundations of the evidence by showing that either: (i) the witness does not know what he is talking about; or (ii) if he does know the truth, he cannot be trusted to tell it.

‘Santa Claus is also known by other names isn’t he?
[Santa anoraks please visit: https://www.wordhippo.com/what-is/the-meaning-of/swahili-word-106819fed9cd37eab541002dcf4e23899c833f98.html]
In Swahili Santa Claus means Santa Claus!
That is right isn’t it!
The evidence is therefore overwhelming, and without doubt points to only one conclusion – namely that there is a Santa Claus, because during the holidays he parties with the Zulus.
Surely you are not suggesting that the Zulus invented Santa Clause – and if I were you I really wouldn’t go there, because as Michael Caine will tell you (see film on boxing day), it’s not a smart move to upset the Zulus – they are very sensitive about things like that.
So you better watch out
You better not cry
You better not pout
I’m telling you why
Santa Claus is coming to town
He’s making a list,
Checking it twice,
Gonna find out who’s naughty or nice.
He sees you when you’re sleeping
He knows when you’re awake
He knows if you’ve been bad or good
So be good for goodness sake
With little tin horns, little toy drums
Rooty toot toots and rummy tum tums
Santa Claus is coming to town
And curly head dolls that toddle and coo
Elephants, boats, and kiddie cars too
Santa Claus is comin’ to town
Then kids in Girls and Boy land will have a jubilee
They’re gonna build a Toyland town
all around the Christmas tree
So! You better watch out, you better not cry
Better not pout, I’m telling you why
Santa Claus is comin’ to town – Yes?’
Then pause for silence and throw in a splattering of latin phrases, whilst looking meek – as if praying for the salvation of the soul of the witness.
‘En grege relicto
Humiles ad cunas,
Vocati pastores adproperant,
Et nos ovanti,
Gradu festinemus.
Venite, adoremus!’

An expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.
Move in for the kill …

‘I notice that your CV does not mention ‘walking in the winter wonder-land.’
You live in a village, don’t you?
So how do you know that Santa Clause ‘is not coming to town’?
You have never heard sleigh bells in the snow have you?
In fact, you were not even dreaming of a white Christmas when you gave your evidence were you?
Examine your conscience.
Can you tell us truthfully whether you have you been naughty or nice this year?
Finally [the five golden rings question!]
Please turn to Bundle A, Tab 4 at page 108 – do you see what I see? – an exhibit as big as a kite? – a receipt marked ‘all items we supply have been certified as complying with Elf and Safety.’
Listen to what I say …
‘on the fifth day of Christmas DHL, who bring goodness and light, delivered –
Five golden rings!
Four calling birds,
Three French hens,
Two turtle doves,
And a partridge in a pear tree?’
What did DHL bring on the 12th day of Christmas?
You don’t know! … ’

Look astounded and shake head 3 times in disbelief.
Then pull yourself up by lapels on gown, look judge straight in the eye and gently say in re-assuring voice …

‘My Lord, I bring tidings of comfort and joy.
The only question you have to ask yourself is ‘do I believe?’
I submit that there is only one conclusion which can be reached on the facts in this case – and please think of the little children when you deliver your ruling, silver bells, presents on the tree, and bonuses in the City …
and that conclusion is that Santa Clause does exist, and that he exists in the person of my expert witness Kris Kringle!’

Then whilst opposing counsel’s head slumps into his papers as he thumps the table with his right hand, spread the joy! – and don’t hold back – it’s Christmas:
‘So, deck the halls with boughs of holly, strike the harp and join the chorus …
May your days always be merry and bright!
Joyeux Noël et bonne année
Frohe Weihnachten und neues Jahr, Glückliches
Buon Natale e felice anno nuovo
Feliz Navidad, Próspero año y Felicidad’.

Result.

Then do a high five with the court usher – but only in an American court!

Disclaimer

This is a work of pure fiction. Any similarity to actual persons, living or dead, or actual events, is purely coincidental, and that includes Zulus.

May all your future cross-examinations be well-mannered and polite!
Merry Christmas and a Happy New Year to one and all wherever you may be.