Mark Herbert QC

"one of the most eminent practitioners in the field"

"although trust law is his first love he is such a brilliant lawyer he can turn his hand to anything, including charity law."

"his “wonderful experience” means he is often described as “the archetypal safe pair of hands.”

Chambers UK

Practice

Mark Herbert QC is an experienced specialist in the law of trusts and tax.  He has been in practice since 1975 and became a QC in 1995.

Mark’s practice covers all aspects of the law relating to settlements, wills, charities and occupational pension schemes, including probate, family provision and breach of trust litigation as well as less contentious applications under the Trustee Acts and the Variation of Trusts Act 1958. He has particular experience in capital taxation, the taxation of settlements and estates, off-shore trusts and estate planning.

Mark has experience overseas, assisting with trust litigation in Jersey, the Caymans and elsewhere. He has represented the Inland Revenue of Hong Kong in an appeal concerning the General Anti-Avoidance Rule, assisted in a successful appeal in Barbados on the construction of trust instruments, and has given expert evidence of English law in a Canadian arbitration.

Trusts and their taxation have always been at the heart of Mark’s practice, and he has had a great deal of experience in advising settlors, trustees and beneficiaries, and in trust drafting.  At the same time the breadth of his practice is shown by some of the cases in which he has been involved as counsel.  He also sits as a deputy High Court judge of the Chancery Division.

Professional Reputation

He has been ranked as a leading silk in both Chambers and Partners and Legal 500 directories for his work in Trust and Probate and Charities.

Notable Cases

These include :

• acting as junior counsel for the trustees in Mettoy Pension Trustees v Evans (1990), in which the ‘rule in Re Hastings-Bass’ was first given a positive formulation
• junior counsel in Fitzwilliam v IRC (1993) in the Court of Appeal and the House of Lords
• Hamar v Pensions Ombudsman and R v OPRA ex parte Littlewoods (both 1997), relating to ‘cash equivalent’ payments from pension schemes
• Public Trustee v Cooper and Edge v Pensions Ombudsman (both 1999) in which the High Court and the Court of Appeal restated the grounds for approving or attacking the exercise of discretions by trustees
• Sieff v Fox (2005) in which the modern development of the rule in Re Hastings-Bass was thoroughly reviewed

Mediation

Mark has been an accredited mediator since 2002, with certification from the School of Psychotherapy and Counselling.  He has acted as mediator mainly in trust and probate disputes.

Professional Memberships

Mark is a member of the executive committee of the Trust Law Committee.