Review of my book the Contentious Trusts Handbook in Trusts & Trustees (Oxford University Press)
Carl Islam
LLM (Exon), Diploma in Art Law (Institute of Art & Law) (London), TEP, Barrister (Lincoln's Inn) & CMC Registered Mediator - Trust & Estate Disputes, Art & Cultural Heritage Law - 1 EC Barristers, Inner Temple.
A review of my book the 'Contentious Trusts Handbook - Practice and Precedents' published by the Law Society in July 2020 has been published in the current edition of Trusts & Trustees by Oxford University Press (08.06.2021):
The Review was written by Jacob Meagher, and I would like to take this opportunity to thank him for undertaking and writing this review.
J. J. Meagher Review of Carl Islam?Contentious Trusts Handbook: Practice and Precedents (Law Society, London, 2020)
‘There are a few key texts often found within easy reach of every contentious trusts or estates practitioner, be they barrister or solicitor. Often you will find the?Chancery Guide, a copy of?Lewin?or?Snell?(depending on one’s preference), usually a book on?Drafting Trusts and Will Trusts?(perhaps by Kessler QC), then one of the texts on the laws of probate, and a copy of the?White Book.?In terms of the actual practice of and preparation for the contentious area of Chancery litigation, specifically practice and precedents one would then turn to?Chancery Practice and Procedure?or?Chancery Litigation Handbook, published by Jordans in 2001 and 2005.1?Now, a much needed and updated text has been commissioned by the Law Society and authored by barrister Mr Carl Islam of 1 Essex Court,?Contentious Trusts Handbook: Practice and Precedents.2?This soon to be indispensable new work is sure to be staple not only for the preparation of contentious matters, but also for those who wish to pre-empt and ward-off problems arising in the administration of trusts and the relationship with beneficiaries and the courts supervisory jurisdiction.
As explained by Toby Graham, who provides the forward to this work, the publication of Mr Islam’s text reflects the fact that the risk of trustees, beneficiaries and their advisors ending up in court is ever on the rise. Of necessity “[t]his handbook provides the busy practitioner with a practical overview of themes that are commonly encountered. It will guide them through every stage of proceedings, from pre-action action protocols through discovery to settlement and trial”.3?What is perhaps even more valuable, is that the work provides the tools to head-off and anticipate potential contentious proceedings as well as to litigate and manage them, thus this work proves itself to be both a guide in times of crisis and gives the non-contentious private client practitioner the benefit of hindsight before the event. Examples of this forward-thinking analysis can be found at various stages throughout the text, which sets out in plain language the equitable principles and the leading cases which may be cited in reliance to further your cause. This handbook can also be used as a guide for trustees to take action (or to take pause) but also to draft from the included CD of precedents.
The chapter on Claims4?covers areas which other texts do not, and is exceedingly thorough in its coverage and application. For example, under the heading ‘Declaration of a Beneficial Interest in Property’5?the author considers the various constructive trust claims and how they can be made out—this is a results focused text. Equally useful, and under the discussion of a claim for removal of trustee appears the heading ‘Trap for the unwary’ along with the warning that “removal [of a trustee] does not automatically ensure that the trust property will be vested in the remaining and any new trustees”.6
The chapters on Equitable Remedies, Litigation, Costs, ADR and Settlement, are particularly relevant to private client and contentious trust practitioners as they place those subjects within the context of trust and Chancery practice—something which general texts do not. That is, “The particular features of trusts can make it difficult to analyse whether privilege attaches to any given communication”,7?those features are then analysed along with a discussion of?Dawson-Damer v. Taylor Wessing LLP.?Costs are always a factor of concern, to both trustee clients, and or beneficiaries in distress, the work clearly outlines the cost implications to all parties in the context of a trust dispute and it is useful to see the cost implications of Beddoe orders spelt out clearly along with reference to the accompanying precedent.8
For some this text will hold value in its specialised precedents which for the purposes of this area of practice are in my mind superior to more general works on precedents and pleadings.9?These stretch from Beddoe application, Calderback offers (equitable compensation), all the way to a Confidential note to the mediator, Particulars of Claim for: Breach of Trust, Tracing, Breach of Fiduciary Duty, Accessory Liability, as well as TOLATA applications. The work also includes specialist notes by experts Pandora Mather-Less on Art and heritage assets and the duties of trustees, Hector Robinson QC on Trust litigation in the Cayman Islands, and A meditator’s view by Anthony Trace QC.
Mr Islam concludes his preface by observing that “[t]he 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.” The author hopes that his text will be of value to all “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” or contemplated.10?I can indeed confirm that his?Contentious Trusts Handbook?fits that description and is sure to be a staple text found within easy reach of every Equity and Trusts practitioner.'
Footnotes
2. (Law Society, London, 2020) – available for ￡100, CD of precedents included.
3. Ibid., xiii
4. Chapter 7.
5. 115.
6. At 7.6.10: the author goes onto explain the deed requirements under the TA 1925 s40(1).
7. 208.
8. At 11.2.3 per?Green v Astor?[2003] EWHC 1857 (Ch).
9. Included in hard copy in the Appendices and also included on CD.
10. xv.
Jacob J. Meagher?is a barrister and academic, a Partner at Aria Grace Law and a Lecturer in Law at the University of Brighton. Specialising in contentious chancery matters, banking & finance, and governance he is a TEP, FGP, MCIArb, Ch MCSI, Ch ALIBF, Ch MCBI. Jacob also mediates and arbitrates civil and commercial disputes and can be contacted professionally at?[email protected]?or academically at?[email protected]
My seventh book, the?‘Contentious Trusts Handbook’?was published by the Law Society in July 2020, and can be ordered from the Law Society and Wildy’s Bookshop in London online. For more information about the book and purchasing links please visit the?‘Contentious Trusts Handbook’?page at?www.ihtbar.com
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Other Book Reviews
‘This practical overview of contentious trusts sets out a clear route from letter before claim to costs orders. Its logical and helpful structure enables readers to find what they want to know exactly where they would expect to do so. The case analyses are cogent and commendably concise. The reviews of the law on liability for ‘dishonest assistance’ and Beddoe orders are models of their kind. The author is to be commended on succeeding in providing a portable reference work covering all aspects of the law and practice governing trust disputes in the English courts.’
Ian Mayes QC, Head of Chambers,?1 Essex Court, London EC4Y 9AR
'Carl Islam has an impressive set of credentials and has much experience in advising on all aspects of contentious trusts. In his work Contentious Trusts Handbook, he has produced a practical reference guide for practitioners, enabling them to undertake litigation in this complex and specialist area of law. As a practical and comprehensive reference work for busy practitioners, the author is to be commended.'
Henry Frydenson LLB MBE TEP CTAPS
'This book gives the reader what they need to know when arguing – or defending – a contentious case. Overall, the book admirably meets the authors aims. It fills a clear need for a simple guide to the principles and conduct of trust litigation and should be a welcome addition to all practitioners’ libraries.'
Richard Dew, Barrister, Ten Old Square.
Book Review by Sangeeta Rabadia published in the Law Society Gazette 28.06.2021:
Foreword to the Contentious Trusts Handbook (2020)
'Sir John Baker explains that the publication in 1837 of “A Practical Treatise on the Law of Trusts” authored by Thomas Lewin signified a shift away from perceiving trusts as principally an adjunct of conveyancing of land towards an institution in their own right. Trusteeship shifted from being a relatively passive office ancillary to landed settlements towards a more general and demanding role. Trusts ceased to be the exclusive preserve of the aristocracy also becoming a vehicle for the wealth of Victorian England’s middle classes. The book is now known as Lewin on Trusts. It continues to dominate the English texts.
Similar observations might be made of the Contentious Trusts Handbook commissioned by the Law Society and written by Carl Islam (who like Thomas Lewin is a leading barrister practicing in the field). This is because its publication reflects the unfortunate fact that the risk of trustees becoming involved in court proceedings appears to be on the increase. Such proceedings are increasingly hostile and hard fought. This handbook provides the busy practitioner with a practical overview of themes that are commonly encountered. It will guide them through every stage of proceedings, from pre-action protocols through discovery to settlement and trial. It contains a detailed discussion of mediation and arbitration and it is accompanied by a set of useful precedents and contributions from an art expert (Pandora Mather-Lees), an expert in trust litigation in the Cayman Islands (Hector Robinson QC) and a mediator (Anthony Trace QC).
The handbook will enable practitioners to anticipate and head off problems, thus hopefully reducing the risk of litigation, as well as providing guidance if and when proceedings are necessary. As with its non contentious cousin, authored by Gill Steel, Mr Islam’s handbook will become a well established staple on our bookshelves. The author and the publishers are to be congratulated.'
Toby Graham
Partner and Head of the Contentious Trusts and Estates Group at Farrer & Co LLP
Co-editor of Trust & Trustees (Oxford University Press)
To read reviews of my book the?‘Contentious Probate Handbook’?please visit the ‘Publications’ page at?www.ihtbar.com
I would like to take this opportunity to thanks each of the reviewers for their time in reading and reviewing my new book.
With my kindest regards,
Carl
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3 年Very cool Carl - I didn't know you had written a book on this, I'll be certain to grab a copy.
Superyacht Art Consultant | Director @Pandora Art Services | ArtOnSuperyachts.com | Senior Editor Family Office Magazine
3 年Excellent Carl Islam of interest to you Jessica Broxup
Senior Lecturer in Law and Management/ Company Director
3 年Warmest congratulations Carl