Contentious Trusts Handbook

I have been commissioned by the Law Society to write a new book for practitioners entitled the Contentious Trusts Handbook – Practice and Precedents.

Trust litigation takes place within a theoretical and policy framework in which the legal principles governing duties, rights and remedies have been formulated and applied for centuries by courts of equity in England and throughout the common law world, notably in: Australia; Canada; New Zealand; and the United States. 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 handbook also contains detailed discussion of mediation and arbitration. The book will be accompanied by a set of current precedents.

My aim is to write a practical, accessible and authoritative handbook for practitioners which covers all aspects of the law and practice relevant to trust disputes litigated in the English courts.

The current list of contents (21.05.2019) is:

CHAPTER 1 – INTRODUCTION
• Aim
• Claim analysis
• Claims
• Safeguarding
• Terms of the trust
• Trusts and powers
• Trustee decision making
• Discretion
• Duty of care
• General duties in relation to the trust
• Fiduciary duties
• Breach
• Burden of proof
• Standing
• Beneficiaries’ rights to information
• Remedies
• Civil procedure
• ADR
• Strategy
• Case preparation
CHAPTER 2 – SUPERVISORY JURISDICTION OF THE COURT
• Introduction
• Supervisory jurisdiction
CHAPTER 3 – POWERS OF TRUSTEES
• Introduction
• Administrative or managerial powers
• Dispositive powers
• Powers of appointment
• Simple general powers
• Special powers
• Duties of donees
• Delegation
• Failure to exercise a power
• Fraud on a power
• Rule in Hastings-Bass
CHAPTER 4 – DUTIES OF TRUSTEES
• Introduction
• Equitable duty of care
• Statutory duty of care
• Investment
• Fiduciary duties
• Fiduciary relationships
• Hallmarks
• Scope and content
• Self-dealing rule
• Fair dealing rule
• Other duties arising out of trusteeship
CHAPTER 5 – BREACH
• Introduction
• Breach of trust
• Breach of fiduciary duty
• Quiet fiduciary thesis
• Wrongful distribution
CHAPTER 6 – THIRD PARTY LIABILITY
• Introduction
• Liability
• Trustee de son tort
• Dishonest assistance
• Unconscionable receipt
• Constructive trustee
CHAPTER 7 – CLAIMS
• Introduction
• Personal and proprietary claims for breach
• Variation
• Construction
• Directions
• Benjamin order
• Removal of a trustee
• Declaration of a beneficial interest in property
• Sham trusts
• Capacity
• Undue influence
CHAPTER 8 – EQUITABLE REMEDIES
• Introduction
• Personal and proprietary remedies
• Election
• Rescission
• Equitable compensation
• Account in common form
• Account of profits
• Tracing
• Injunctions
CHAPTER 9 – EQUITABLE DEFENCES
• Introduction
• Limitation
• Acquiescence
• Laches
• Consent
• Set-off
CHAPTER 10 – LITIGATION
• CPR
• Chancery Division
• County Court
• Transfer
• Claim form
• CPR compliance and sanctions
• Disclosure
• Part 18 Requests
• Part 36 Offers
• Calderbank Offers
• Judicial fact-finding
• Presumptions
• Inferences
• Credibility
CHAPTER 11 – COSTS
• Introduction
• Beddoe Orders
• Non-party costs orders
• Security for costs against a non-party
CHAPTER 12 – ADR & SETTLEMENT
• Methodology
• Communication
• Mediation
• Settlement
• Arbitration
PRECEDENTS
• Protocol Letter
• Part 36 Offer (Rescission)
• Part 36 Offer – Monetary Claim (where the amount in dispute has not been ascertained, e.g. undisclosed rent)
• Calderbank Offer (Rescission)
• Calderbank Offer – Monetary Claim (where the amount in dispute has not been ascertained, e.g. undisclosed rent)
• Request For Further Information (‘RFI’) – Letter
• Draft CMC Directions Order
• Draft Beddoe Application – Details of Claim
• Draft Tomlin Order and Tomlin Schedule
PRACTICE NOTES
• Draft Closing Speech Template
• Trial Preparation Check-List
• Art Disputes – by Pandora Mather-Lees (Art Historian)
• Trust Litigation in Cayman -by Hector Robinson QC (Mourant)
• A mediator’s view of mediation – by Anthony Trace QC (4 Pump Court)

The book is scheduled for publication in November 2019.