Mark Herbert QC

Called: 1974

QC: 1995

Mark Herbert QC

Mark’s practice at the Bar has been centred on the field of trusts and estates.  This has involved litigation in trust, probate and family provision actions, including variation of trust and similar applications as well as contested actions to remove trustees, and non-contentious work including advice for settlors, beneficiaries and trustees of many large English and overseas settlements and other trusts.  It has also included both contentious and non-contentious tax work, particularly capital taxation.  It has also extended to occupational pension schemes, including acting for and advising the Pensions Ombudsman, and defending a multi-claimant action alleging pension mis-selling; also, professional negligence cases in all of these fields.  This has included cases defending solicitor-trustees against breach of trust complaints to the Pensions Ombudsman.

Overseas work has included a tax appeal in Hong Kong (for the Inland Revenue) both at first instance and in the Court of Appeal, and assisting with probate, trust and estate litigation in Jersey, the Cayman Islands, Barbados and Hong Kong.  Work in Jersey included assisting advocates in the litigation leading to Rahman v Chase Bank (CI) Trust Co [1991] 1 JLR 103, but has consisted mainly of advisory work on Jersey trusts and taxation issues associated with them.

Reported probate, trust and tax cases include:  IRC v Fitzwilliam [1993] 1 WLR 1189 (HL), resisting the application of the Ramsay doctrine to a scheme for avoiding capital transfer tax;  Espinosa v Burke (1998, CA), relating to a claim under the Inheritance (Provision for Family and Dependants) Act 1975 by an adult child of the testator;  Yick Fung Estates Limited v IRC (1999, Hong Kong Court of Appeal), on the general anti-avoidance rule applying to profits tax;  Public Trustee v Cooper [2001] WTLR 901;  Sieff v Fox [2005] 1 WLR 3811, involving a re-statement of the rule in Hastings-Bass;  Shergill v Khaira [2015] AC 359, in which the Supreme Court re-established the circumstances in which questions of religious belief and practice are justiciable in the courts.

Pensions cases include:  Mettoy Pension Trustees v Evans [1990] 1 WLR 1587; Aitken v Christy Hunt [1991] PLR 1; In re Drexel Burnham Lambert UK Pension Scheme [1995] 1 WLR 32;  R v OPRA ex parte Littlewoods [1998] PLR 63;  Hamar v French [1998] PLR 321 (CA);  Edge v Pensions Ombudsman [2000] Ch 602 (CA);  In re Wedgwood Museum Trust Limited, on the effect of a PPF claim against an insolvent charity company.

  • Career

    1974: Called to the Bar (Lincoln’s Inn, Bencher 2004); Mansfield Scholarship

    Pupillage 1974–75:  Kenneth Farrow at 13 Old Square; Robert Walker (now Lord Walker of Gestingthorpe) at 17 Old Buildings; both Chancery sets in Lincoln’s Inn

    1975–77: 17 Old Buildings, Lincoln’s Inn (G A Rink QC)

    1977–91: Queen Elizabeth Building, Temple (Peter G Whiteman QC)

    1991–2016: 2 New Square and 5 Stone Buildings, Lincoln’s Inn (Henry Harrod)

    QC: 1995

    2002: Mediator (School of Psychotherapy and Counselling)

    2004-2014: Deputy High Court Judge

    2013 – to date: Commissioner of the Royal Court of Jersey

    2016 – to date: Editor of Private Client Business 2014

  • Education

    1967–70 King’s College, London; BA Classics (1st class honours)

  • Publications

    Co-editor of Whiteman on Capital Gains Tax (4th edition, Sweet & Maxwell 1988)

    The Drafting and Variation of Wills (Key Haven Publications Plc 1989)

    Contributor to Arbitration of Trust Disputes (editor Professor S I Strong, 2016 OUP)

  • Memberships

    Chancery Bar Association

    Revenue Bar Association

    The Society of Trust and Estate Practitioners (deputy chairman of the Charities special interest group)

    Association of Contentious Trust and Probate Specialists

    Trust Law Committee (and a member of its executive committee until 2016)

  • The Legal 500 says...

    Private Client: Personal Tax
    Ranking: Leading Silks

    ‘Adept at finding helpful and constructive solutions.’ (2016)

    Private Client: Trusts and Probate
    Ranking: Leading Silks, 1st Tier

    ‘He has a tremendous grasp of trust issues and case law.’ (2016)

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