Public Access Barrister & Mediator – Contentious Probate, Inheritance Act, & Trust Disputes

New enquiries

I work on a fixed fee basis for claims worth up to £2.5 million (including costs), and do not undertake CFA work.

To enquire about my availability and to arrange for an initial free Zoom call to discuss your case, please either send an email to carl@ihtbar.com or 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

For Solicitors my standard terms of engagement are based upon the draft contractual terms agreed by the Commercial Bar Association with the City of London Law Society (the ‘COMBAR CLLS’ terms) as approved by the Bar Mutual Indemnity Fund.

Before a Barrister can act for a member of the public, and agree to conduct litigation, certain ground rules must be discussed and understood, and to read my Guide to Instructing a Public Access Barrister’ please click on this LINK .

Please also see the information about ‘Costs’ below.

In my experience, the best starting point for a lay client is to assume no knowledge of the law and civil procedure rules, to focus of facts, and to instruct their professional advisor to advise whether or not they have a case, what that is, and what further information needs to be provided and issues investigated to properly evaluate merits. Otherwise the claim will not have been properly analysed.

Case preparation

Preparation for a  County Court or High Court trial in a Contentious Probate, Inheritance Act, or Trust case involves:

  • taking your detailed instructions;
  • analysing the issues of law and fact in the case (which requires reading time);
  • drafting a chronology of facts;
  • taking witness statements;
  • investigating and assembling documentary evidence;
  • drafting and filing statements of case and a skeleton argument;
  • the assembly, agreement (if possible), and filing of a bundle of documents with the court;
  • agreement of a fixed fee structure after the work to be undertaken has been accurately scoped and defined;
  • signature of a Public Access Agreement; and
  • compliance with the Money Laundering Regulations (which is a strict legal requirement before any practitioner can act).

It may also be necessary to take urgent action to protect property and the estate.

Following our initial Zoom call, in order to instruct me to provide legal advice about: remedies; procedure; and legal merits, you will need to prepare and email me:

  • a concise and accurate statement about the background to the dispute (i.e. to set the scene);
  • a list of persons involved in the case (and who they are);
  • a brief chronology of events;
  • a list of documents in your possession (including correspondence);
  • HM Land Registry Office copies (in the dispute involves property);
  • the Will and any Codicil;
  • copies of any Caveat and Appearance;
  • a copy of the IHT 400 (in draft form or as filed);
  • copies of any asset valuations; and
  • copies of any statements of case and witness statements.

However, please do not email any documents to me until I ask you to. 

Excluded advice

Please note that I do not provide any:

  • advice about conveyancing;
  • advice about Land Registry practice and procedure;
  • investment advice;
  • financial advice;
  • accounting advice;
  • advice about any law other than English law;
  • advice about litigation funding options, insurance (including without limitation ATE insurance), legal aid; and
  • tax advice.

The provision of such advise is expressly excluded under the terms of my retainer.

Costs

I will advise generally about costs risks during the first conference. Please note that I do not make commercial decisions for my clients, therefore the making of any decision by you to propose, accept, or reject an offer of settlement will be expressly stated to be outside my retainer in the Public Access Agreement.

Where a party wins a court action an order for costs is likely to be made in their favour. However, there are three potential problems with this. First, your opponents may not actually be able to pay the costs awarded against them either in full or at all. Second, because the costs would be assessed by the court in a process called taxation, by which the court only allows the recovery of certain costs  (even though you may have had to pay more) you will not get all of your fees paid even if your opponents are able to pay them. In practice you are unlikely to recoup more than 60% of your actual costs unless costs are awarded by the court in its discretion on the indemnity basis, which is exceptional, e.g. for intentional wrongdoing and breach of fiduciary duty by a solicitor, and where breach of fiduciary duty is alleged it must be pleaded in accordance with CPR, r. 16.4 and PD 16, paragraph 8.2, which requires  that,

‘The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:

(1) any allegation of fraud,

(2) the fact of any illegality,

(3) details of any misrepresentation,

(4) details of all breaches of trust,

(5) notice or knowledge of a fact,

(6) details of unsoundness of mind or undue influence,

(7) details of wilful default, and

(8) any facts relating to a claim for mitigation expenditure.’

Third, if your opponents are legally aided, you may not be able to recover your costs in any event; needless to say, we will let you know immediately if they get legal aid.

Should you lose a court action or if an order is made against you at the hearing of an interim application, then an order for costs is likely to be made against you in respect of the costs of the other side. This means that you will have to pay your opponents’ legal costs, or a proportion of them, in addition to your own legal expenses.

As a general rule, judges at all levels are required to assess costs  summarily at the end of a trial on the fast track or at the conclusion of any other hearing lasting less than one day, i.e. on the spot at the end of the trial/hearing, see: See, ‘Guide to Summary Assessment of Costs’: Guide to Summary Assessment of Costs 2005 edition (publishing.service.gov.uk)

Following the recent court decisions in Higgins and Hirachand (see below), it is not clear how the court expects a Defendant to estimate the amount of a potential success fee that might be awarded at trial (i.e. as a component of financial provision), for inclusion in either a Part 36 or Calderbank Offer.

See my blogs:

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

Inheritance Act – 25% CFA cases – Hirachand v Hirachand (CA)(2021) | Carl’s Wealth Planning Blog

Therefore, to contain the risk of a judge making an award of financial provision which includes an element of a CFA success fee that is impossible to calculate with any precision, and unless there are overwhelming grounds for applying to strike out the claim, my recommendation is to enter into mediation early. While, in an appropriate case, mediation and judicial early neutral evaluation can be ordered without consent, depending upon the judge and the facts, there is a risk, particularly in the County Court, that an application for Mediation or JENE will be refused. Therefore, it is important to have Part 36 and Calderbank protection in place early, in an amount that is sufficient to beat a potential award at trial, and to keep all settlement offers under review, as costs increase. Mediation may also be an opportunity to expand the estate pie, by jointly developing a tax-efficient settlement of the dispute, see my blog: How to expand the pie when settling a will dispute | Carl’s Wealth Planning Blog . This requires the application of estate planning knowledge and techniques. I discuss this in Chapter 10 of my book the ‘Contentious Probate Handbook’ published by the Law Society in 2016: Wildy & Sons Ltd — The World’s Legal Bookshop Search Results for isbn: ‘9781784460600’, and in my earlier book, ‘Tax-Efficient Wills Simplified’Tax-efficient Wills Simplified 2014/15: Amazon.co.uk: Carl Islam: 9781852527396: Books. I and am co-writing an article with Stephanie Churchill CTA for publication by Taxation early in 2022 about, ‘The use of trusts, DOV’s, and s.142 appointments in the tax-efficient settlement of a contentious probate dispute.’

Remote Hearings and Mediations

For the time being all of my meetings and hearings are  taking place by telephone or Zoom.

Remote hearings guidance to help the Business and Property Courts | Courts and Tribunals Judiciary

*     Please note that you will need a suitable pdf reader to view the document, if you need to download the software please click your choice of link below: