As I wrote in my article ‘Downton revisited – Mediating estate disputes involving art and heritage property’ [published in Taxation (Tolley) 14.12.2023]:
‘ … “The existence of a dispute over ownership raises a practical problem for anyone seeking to sell the artwork. … Unless the owner is able to successfully challenge the ownership claim, potential buyers … may well be put off
buying the artwork.” (Art Law And The Business Of Art by Martin Wilson (2022), Edward Elgar Publishing, page 361). Where an artwork appears to be an estate asset (A) and there is a dispute about the formal or substantive validity of the deceased testator’s (T’s) will, or a claim is made in equity on the grounds of proprietary estoppel, then until the dispute has been resolved, T’s executors/trustees (E/Ts) will not in practice, be able to:
● appoint A to a beneficiary under the terms of T’s will; or
● sell A to realise liquidity, eg to pay inheritance tax or convert it into cash for distribution to beneficiaries under a will/trust. …
[and a] recipient beneficiary will not be able to sell A.
This is a lose/lose outcome all around.
The financial costs of the impasse to the estate are further compounded by the costs of preservation and insurance of A throughout this time, because E/Ts are fiduciaries. …
[However] the existence of art in an estate is a tool whereby a mediator can steer the participants in dispute toward a mutually satisfactory settlement on terms which enable them to re-structure the testamentary disposition of qualifying estate assets so as to ensure the retention and preservation of A for the benefit of the nation by using a tax-incentive scheme, and thereby to expand the size of the estate pie for distribution, resulting in a win/win outcome all round. Thus, by analogy to the famous voiceover slogan for Carlsberg Lager by Orson Welles broadcast in 1983 – mediation ‘reaches the parts that’ litigation ‘cannot’, ie because the court does not have the power to order what the parties can creatively agree to engineer post T’s death. That is why mediation is ‘probably the best’ form of dispute resolution ‘in the world’ for an estate which includes art.’ The article contains a Table of Mediator Tools, including two novel tax-efficient post-death estate re-structuring ideas which occurred to me as I was researching the article.

If you have been reading my recent posts you will know that I am currently writing a section about ‘Trial’ for inclusion in the 2nd Edition of the Contentious Probate Handbook for publication by the Law Society, and every week I am posting a short extract. In that section of the book I set out my ‘Golden Rules of Advocacy.’ My 1st Golden Rule is ‘Concise presentation – Keep it short and Sweet!’ –

‘A concise advocate is a demonstrably prepared, organised, clear, confident, and persuasive advocate. Do not use adverbs. In cross-examination questions should be put in less than seven words. At all times think “precision”, “accuracy”, and “impact”. These are all hallmarks of efficient and effective advocacy. Less is more.’

I am currently writing a section about ‘Trial’ in the 2nd Edition of the Contentious Probate Handbook for publication by the Law Society. In that section I recently wrote, 

‘Know the bundles inside out. If you are not on top of the Bundles you are not on top of the case. Make sure that the name of any electronic bundle corresponds with that of a hard copy bundle. Remember that the first few minutes of any hearing are crucial because first impressions count. So if you are wasting valuable daylight labelling a bundle because there is an inconsistency between the electronic and hard copy, you will appear to the judge to be disorganised, in which case you will have planted a seed of doubt in the judge’s mind about the coherence of your client’s case, i.e. its veracity in law on the facts and evidence. In court the Barrister is a General. If a General does not know where his troops are deployed, the conduct of the battle is likely to end in catastrophe because of incompetence. Demonstrating incompetence from the start is not how to make a good first impression. Nor is fumbling around trying to find where a point is dealt with in your papers, or suddenly stopping in mid-sentence, because your papers are out of order. These are hallmarks of lack of preparation. Having to apologise to the court for anything in the first five minutes is not good. Having to do so because you are not on top of your own case is worse.’

The following is an extract form a 15 pages note about ‘Advocacy in Contentious Probate Cases’ that I am currently writing for inclusion in the Litigation chapter of the 2^nd Edition of the Contentious Probate Handbook, which I am writing for publication by the Law Society.

‘A Contentious Probate case will be proved by the documents and witnesses, not by the advocate. The advocates will later argue over whether the witnesses have succeeded against the burden and standard of proof.

‘In Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), later cited in Rainey v Weller & Ors [2021] (a Will forgery claim),Mr Justice Leggatt set out the difficulties of recollection based oral evidence, and the importance of documentary evidence. “An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. … Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”

While an advocate cannot win a case using logic alone, assisting the judge to make findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, is the metier of advocacy in contentious probate trials, and an essential technique in drafting a Skeleton Argument, and delivering a compelling final speech at trial.

I completed the Diploma in Art Law Course at the Institute of Art & Law in London on 13 December (ial.uk.com). This has been a fascinating three years, and I would like to thank my Tutor Alexander Herman, Director of the Institute of Art & Law and author of, ‘Restitution’ and ‘The Parthenon Marbles Dispute’ (Hart)(2023), and all the teaching staff at IAL’s for their excellent teaching an guidance throughout the journey. I have been commissioned by Trusts & Trustees (Oxford University Press), to contribute an in-depth article during the final quarter of 2024 entitled, ‘Deaccessioning & Repatriation – Duties & Powers of Museum Trustees.’  In the article I will discuss section 331A of the Charities Act 2022 – ‘Limited power for charity trustees to make ex-gratia payments. I will also develop the idea of a ‘trust’/’fiduciary’ custodial solution for restitution requiring a collaborative relationship between national museum trustees in the UK, and national museum trustees in the ‘source‘ i.e. claimant’s country. See the ‘Cultural Property Claims, Museum Deaccessioning & Restitution of Art’ page at www.carlislam.co.uk. In January 2025, i.e. after I have completed writing the 2nd edition of the ‘Contentious Probate Handbook’ for the Law Society in 2024, I am planning to research and write a new book entitled, ‘Islamic Art & Cultural Heritage from Andalucia to Afghanistan – A journey into the past about the present.’ One of the themes of the book, is what we can learn from surviving art and cultural heritage about peaceful co-existence and prosperity, through collaborative engagement in international trade and a constructive exchange of ideas. The roadmap for the book is therefore the ancient trade-routes between East and West in the Golden Age of Islam, which stretched from Granada, Cordoba and Seville, all around the Mediterranean, throughout what is now MENA, and along the Silk Road, passing by the Minaret of Djam in Afghanistan, and beyond into India and China. Meanwhile, may I take this opportunity to wish all readers of my posts this year a very Happy and Peaceful 2024. May your wishes all come true!

My article ‘Downton revisited – Mediating estate disputes involving art and heritage assets’ has been published in Taxation (Tolley) online and will be published in print for worldwide distribution tomorrow. I will put up a link on the ‘Publications’ page of my website when I receive this from the editor. See https://lnkd.in/eeP3-vCY.
My article ‘Commercial Mediation of Music Disputes’ was published in the Law Society Gazette – Google ‘Music Dispute Mediator’ to find (NB today the article appears near the top of page 1 worldwide), or here
is a link: https://lnkd.in/e2BDGGfZ
The article will also feature in a forthcoming Newsletter of the Society of Mediators in London (of which I a member), and be distributed to thousands of members worldwide. There is also a link on the ‘Publications’ page and ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk. Both articles, like all of my publications this year (which you will find on the ‘Publications’ page of my website), are written for legal and mediation practitioners. They are not academic. They are practical. ‘Downton revisited’ also includes the outline of two post-death estate re-structuring strategies which I pioneered whilst writing the article. As far as I am aware, these specific tax-efficient strategies, have not been discussed in any previous literature published by Tolley. They appear at the end of the article in a Table headed ‘General questions for mediators’, where these mediator tools are outlined under the sub-headings:
– ‘Private treaty sale’; and
– ‘Engineering restitution.’
To find the article click in the ‘Taxation’ image below, which contains a link to the home page of Taxation, which is the UK’s leading source of information for tax and tax law practitioners in the UK.
In my free time, I am currently researching and writing the 2nd edition of the ‘Contentious Probate Handbook’ for publication by the Law Society in 2024. The draft book is currently on schedule for publication and contains a brand new chapter about Mediation, Mediation Advocacy, and Mediating Estate Disputes, including digital mediation by Zoom/TEAMS. Over the next 6 weeks I am writing up a Practice Note to appear as an Appendix in the Book about ‘Advocacy in Contentious Probate Hearings and Trials’. I have also been commissioned by Trusts & Trustees (Oxford University Press), to contribute an in-depth article after I have completed the book entitled, ‘Deaccessioning & Repatriation – Duties & Powers of Museum Trustees.’ This follows on from the Diploma in Art Law Course that I have been undertaking at the Institute of Art & Law in London since 2021, and am now in the final stage of completing. Meanwhile, let me take this opportunity to wish all readers of my posts a Joyful Christmas and a Happy and Peaceful New Year! As a CMC Registered Mediator I cannot stress the word ‘Peaceful’ enough, so let’s hope that is how it turns out for you and your clients.
Merry Christmas!
Carl

As I write a ‘Case Preparation & Advocacy’ Practice Note for the 2^nd edition of the Contentious Probate Handbook, which I am working on over the next 6 weeks, I will put up a series of short extracts from the Practice Note as posts. Today’s post is about one of the most formidable challenges for any advocate in a Contentious Probate Trial – cross-examination of an eminent experts. Note also that in this context, Dr Hugh Series who is a NHS Consultant in old age psychiatry and a member of the Faculty of Law at the University of Oxford, is contributing a separate standalone Practice Note for inclusion in the book as an Appendix about ‘Mental disorders.’ The extract from the Practice Note I am currently drafting is: –

‘Experts

1. The weight to be attached to expert evidence is entirely a matter for the trial judge.
   1. An advocate who can state the opposing expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions better than the opponent’s expert witness can, is standing on the mountain top and looking down, for the purposes of:

1.2.1 distinguishing his own expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions; and

1. conducting a devastating ‘top down’ forensic critique of the opposing expert’s evidence, in order to: cast doubt; demonstrate falsity; tarnish; ridicule; and comprehensively devalue the weight to be attached to that evidence.

1.3    ‘Research, as much as technique, lies at the heart of expert witness cross-examination. Counsel cannot conduct an adequate cross examination without first thoroughly investigating all of the technical aspects of the expected testimony. It is often said that you cannot cross-examine an expert without first becoming an expert yourself. Moreover, your research should extend beyond the expert’s subject matter area and into the witness’s own professional background … There is nothing so effective as impeaching an expert with his own prior assertions.’ (Lubet).

The UK government has decided to sign the Hague Convention of 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the 2019 Hague Convention). ‘The Government will move to sign the Convention as soon as possible, as an important signal of its commitment to multilateral Private International Law instruments and to help improve legal certainty for businesses and consumers involved in cross-border litigation. The Convention will enter into force for the UK 12 months after the date it deposits its instrument of ratification.’ (Para 82 Government response to the Hague Convention of July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (Hague 2019) updated 23.11.2023): Google ‘Government response to the Hague Convention of July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (Hague 2019).’

See:

• UK to sign 2019 Hague Convention as soon as possible | STEP
• Government response to the Hague Convention of July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (Hague 2019) – GOV.UK (www.gov.uk)
• UK to sign Hague Convention 2019 on cross-border enforcement of judgments (pinsentmasons.com)

Extract from a Practice Note – ‘Case Preparation & Advocacy’ I have been drafting today for inclusion as an Appendix in the 2nd edition of the Contentious Probate Handbook:
‘1. Introduction
As the late Mr Justice Hunt said, in a lecture to the South Eastern Circuit Bar Mess entitled, ‘The Art of Advocacy’,
‘Don’t [embark] on your case like Christopher Columbus, who on his voyage of discovery, didn’t know:
– where he was going;
– when he arrived, where he was; and
– and 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.’ …

2. Case theory
2.1     ‘The case theory is a clear, simple story of “what really happened” from your point of view which puts all the evidence together into a coherent whole. It must be consistent with the undisputed evidence as well as your version of the disputed evidence and the applicable substantive law. It must not only show what happened, but also explain why the people in the story acted the way they did. It should be consistent with the fact finder’s beliefs and attitudes about life and how the world works. It must be a persuasive story that will be the basis of your evidence and arguments throughout the trial.’ (Mauet). You should be able to state this in a single ‘strapline’ sentence.
4. Case preparation
4.1       The case will be proved by the documents and witnesses, not by the advocate. The advocates will later argue over whether the witnesses have succeeded against the burden and standard of proof.
4.2       Once you have an approximate idea of what a new case is about, sit down and write your ideal final speech. Then interrogate it. To what extent does the available evidence discharge the burden of proof i.e. prove what you need in order to persuade a Judge (‘J’) to grant the order?
4.3       This will highlight gaps in the evidence.
4.4       Striving to close the gaps is the preparation of your case.
4.5       Sit down and write your opponent’s final speech.
4.6       This will concentrate your focus on weak points you need to address before anybody else does.
4.7       Then perfect your final speech. This is the blueprint for trial. The evidence you need and how you need to present it stares straight at you from this final plan.
5. Advocacy
5.1       Always try to think like the judge and not the client. …’

My article ‘Commercial Mediation of Music Disputes’ is scheduled for publication both online and in print in the Law Society Gazette on Friday 1st December – see also the ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk. Taxation (Tolley) are also publishing an article I have written about mediating estate disputes which include art and heritage assets, in their special Christmas edition on 14 December. I will post links to the articles on the ‘Publications’ page at www.carlislam.co.uk following publication. I am currently researching cases and material for the 2nd edition of the Contentious Probate Handbook, for publication by the Law Society in 2024, and am on schedule to complete that phase by the end of February. There have been significant changes in litigation practice and in mediation which I will discuss in detail in the book, along with drafting and advocacy in contentious probate hearings and mediation. So you wait for one London Bus and two come along at once! My essay – ‘Mediation of Cultural Property Disputes’, which I wrote and have submitted for the Diploma in Art Law course that I am in the final stages of completing at the Institute of Art & Law in London, is also available to view on the ‘Cultural Property & International Humanitarian Law’ page of my website.