As Greg Williams states on p.111 of his excellent book – ‘A Practical Guide to TOLATA Claims’ (2019) – which I highly recommend to both solicitors and judges – ‘TOLATA is a developing area of law, and we may well be a few reported decisions away from certainty in all aspects of its intricacies.’

So, these cases are pregnant with litigation risk. They are also highly fact sensitive and therefore case preparation is expensive – e.g. as common intention may be ‘inferred’ from conduct – i.e. facts proven by contemporaneous documentary evidence. Some judges decide on the basis of ‘imputation’. However it is not entirely clear doctrinally – what the distinction is.

In spite of the intellectual brilliance of Lady Hale, Lord Walker and Sir John Murray Chadwick (retired) whose judgments I greatly admire, there is nearly always an unquantifiable element of litigation risk for all parties involved in this cases, as a procedural judge will invariably point out at the first CMC.

Where for example the conveyancer did not complete Box 10 in the TRI – which incidentally may amount to negligence – i.e. where the conveyancer has not advised the parties to complete it or set out clearly the potential effect of various options, then litigation risk is not limited to the parties.

Context if everything in these case and each case will turn on its own facts. At trial the primary search is for what the parties actually intended to be deduced objectively from their words and actions.

As Greg Williams states in his book – ‘It is hard, indeed usually impossible, tp know what was in the other party’s mind. The point of ascertaining the so-called common intention, however, is to find the intention which was reasonably understood by the other party to be manifested by that party’s words and conduct notwithstanding that he or he did not consciously formulate that intention in their own mind. Thus it is not necessarily essential to know what a person subjectively thought – their outward actions can still bind them.’

For a comprehensive discussion of Mediation and Mediation Advocacy in Trust and Estate disputes see my book the 2nd edition of the ‘Contentious Trusts Handbook’, published by the Law Society in 2025. See also my talk on YouTube – ‘Mediation Advocacy in Trust & Estate Disputes.’ There is a link on the ‘How I can help’ page at www.carlislam.co.uk