Adam Carvalho
Adam Carvalho has more than 15 years' experience as a contentious Private Client lawyer. Most recently, he was a Legal Director in the Contentious Trusts and Probate Team at Myerson, where he worked on complex and high-value contentious trust and probate matters.
Adam trained, qualified and worked as a senior associate and partner in a central London firm in the Tier 1 nationally for Contentious Trust and Probate work.
Adam has considerable experience of ultra-high value litigation, cross-jurisdictional matters and disputes in non-UK courts. Adam has litigated in the Supreme Court, Court of Appeal, and advised in relation to complex matters in courts from Bermuda to New Zealand.
Adam is known for his constructive, pragmatic advice, his down to earth approach, and his technical knowledge. Adam is a firm believer in focusing on the main issues and providing sound and accessible advice.
Practice Area
Panels
- Case Analysis Panel
- Contributing Author
- Q&A Panel
Qualified Year
- 2009
25 Contributions by Adam Carvalho
PRACTICE NOTES
Art law in the UK: a private client practitioner’s guide to transactions, disputes, provenance, export controls, bailment, heritage tax reliefs, and emerging issues (AI, NFTs)
Introduction to the art market and art law
Over the past three decades, the art market has altered markedly:
Key hubs are now London, New York and Hong Kong, with Paris the fourth largest centre, and domestic markets serving lower-priced art and collectables
Transactions have grown more opaque and anonymous
Values for iconic works have soared-Leonardo da Vinci’s Salvator Mundi achieved $450.3m in 2017
Leading auction houses exert ever greater power
Collectors engage art advisers for due diligence, access and guidance, though some are not suitably qualified
The past 20 years have seen the rise of ‘mega’ art fairs, appearing roughly every four months worldwide
Art is increasingly treated as an asset class-and promoted as an investment by auction classes
In an ever more global market, lawyers acting for collectors, businesses and not-for-profit organisations often encounter multi-jurisdictional matters
Rapid developments in AI now encompass AI-generated artwork
There is growing acceptance that art law has emerged as a specialist field in its own right...
Private Client
PRACTICE NOTES
Art market bailment: duties, deviation, burden-shifting, conversion, sub-bailment and distinctions from trusts (England and Wales)
Questions about bailment frequently surface within the art sphere. For instance, warehousing or freight operators may owe bailment obligations when holding and/or moving artworks or other chattels. Lending pieces and/or using artworks as security or collateral can also create bailment relationships. Claims founded on breach of contract and/or negligence often additionally plead bailment. Further illustrations appear throughout this Practice Note. Bailment is a nuanced field. This Practice Note concentrates on bailment issues in the context of art law. For a fuller outline of bailment law generally, see Practice Note: Bailment. See also Q&A: How are damages quantified when bailed goods have been negligently lost? For a summary of aspects of art law pertinent to Private Client practitioners, see Practice Note: Art law-introduction for Private Client practitioners. Additional examples are set out across this Practice Note.
What is bailment?
Put simply, a bailment may arise at common law where one party assumes temporary possession of another party’s goods, for example:
a collector, the bailor, delivers an artwork or other chattel to a second party, the bailee
the bailee voluntarily takes possession of the artwork
by taking possession, the bailee thereby acquires possessory rights together...
Private Client
PRACTICE NOTES
Art market negligence and contractual claims under English law: attribution/authenticity, standard of care (leading v provincial) for auction houses, dealers and valuers, and quantification of loss—key cases
This Practice Note considers negligence and contractual claims against auction houses and valuers in relation to artworks.
It reviews four decisions, drawing out how the courts have approached questions concerning the issues below: The focus is on how those issues have been dealt with judicially.
the attribution of artwork (see Practice Note: Art law-authenticity, provenance and attribution of artworks)
the duty owed and the appropriate standard of care in such cases
the assessment and quantification of damages
It should be noted that negligence claims about objects of art are highly fact-dependent. The terrain is complex in legal, evidential and related respects.
This Practice Note provides a concise overview of select key themes; securing specialist advice at the earliest possible stage to navigate the complexities will almost invariably be sensible.
For an introduction to art law for Private Client practitioners, see Practice Note: Art law-introduction for Private Client practitioners.
For a survey of general negligence principles-existence and standard of duty of care, breach, causation and loss-see Practice Note: Negligence claims-illustrative decisions (2020–2024) [Archived].
See also Practice Note Contract disputes-key and illustrative decisions (2020–2023), which explains the general principles that apply in contractual dispute matters...
Private Client
PRACTICE NOTES
Art Restitution under English Law: unjust enrichment, limitation, Nazi-looted and colonial claims, the Spoliation Advisory Panel, ADR and museum guidance
For a primer on art law aimed at Private Client practitioners, consult Practice Note: Art law-introduction for Private Client practitioners.
Restitution is a nuanced field. For a detailed overview of the general law in England and Wales on this area, see: Unjust enrichment and restitution-overview.
This Practice Note examines restitution within an art law frame. Although it centres on English law, it touches on several core restitution issues of relevance to practitioners. As the subject is global in reach, continually developing and bound up with varied ethical and public policy concerns, this introductory note aims only to flag key features, without attempting an exhaustive treatment of every element or complexity that may arise.
Restitution in art cases
Historical context
War all too often brings widescale looting and pillage across territories caught up in the fighting. In earlier times, it was accepted that victors could take cultural and artistic objects-a so‑called ‘prize right’. Article 56 of the Hague Regulations concerning the Laws and Customs of War on Land (1907) sought to bar the seizure of works of art, yet that prohibition was widely flouted. Those rules were disregarded during the Second World War...
Private Client
PRACTICE NOTES
Artwork authenticity disputes: English courts on attribution, connoisseurship, provenance, technical analysis, misrepresentation, Sale of Goods Act claims and auction-house warranties
‘ The attribution of works of art to particular artists is often a matter of great controversy ’ (per Sir Raymond Evershed MR)
The art market’s value keeps rising, and linking a piece to a specific creator can dramatically influence its price. As Jordan Holland, a barrister working in art law, has noted, a sought-after attribution can lift a work from tens of thousands of pounds into the tens of millions. Combined with the arrival of new collectors, buyers and art investors, it is unsurprising that the court is increasingly called upon to address the attribution of art and cultural property. In doing so, it must confront questions unlike those it ordinarily faces. See: The approach of the English court to connoisseurship, provenance and technical analysis, Jordan Holland, Dec. 2012, Art Antiquity & Law (Vol. 17, Issue 4), Institute of Art and Law (not reported by LexisNexis®). This Practice Note examines disputes in...
Private Client
PRACTICE NOTES
Attorney General v Zedra (National Fund): construction of charitable trust, initial impossibility, and cy-près scheme to apply funds to reduce the National Debt under the Charities Act 2011
ARCHIVED: This key case on charity litigation has been archived and is not maintained.
The matter of HM Attorney General v Zedra Fiduciary Services provides a practical illustration of the following matters:
the court’s method for interpreting the scope of a charitable trust
the court’s preliminary review of various categories of schemes
procedural matters pertinent to charity litigation of this kind
See News Analysis, which includes a case summary: National debt fund worth £500m is held on charitable trusts (Attorney General v Zedra Fiduciary Services).
Key facts
In 1928 a donor placed an initial £500,000, together with income and gains, to be retained on trust until such time as-whether alone or combined with other monies available for that end-the fund became adequate to clear the national debt of the UK.
The prevailing view in 1928 was that the expense of the First World War should be met by the current generation rather than shifted onto future generations, and when the trust was created it was thought this might be achievable.
Yet later developments (including the Second World War) meant that, by 2020, the prospect of the monies held on trust-which by that stage were then described as...
Private Client
PRACTICE NOTES
Charitable legacies in wills: drafting options, IHT planning, identifying beneficiaries and managing merger, lapse and litigation risks (England and Wales)
A testator may have countless motives for earmarking a share of their estate for a charity within their will. Some intentions are simply altruistic; however, it is also fairly typical to use a charitable legacy to garner goodwill from relatives during one’s lifetime. Whatever the motive, leaving gifts to charities on death carries several fiscal advantages over non-charitable institutions and organisations. Notably, because such legacies are generally exempt from inheritance tax (see section 23 of the Inheritance Tax Act 1984 (IHTA 1984)), they can be a powerful tax-planning measure for many estates. The relief previously applied to EU charities, but from 6 April 2024 this is withdrawn, and protection will apply solely to UK-based charities in future. Qualifying organisations will appear on the central register of charities maintained by the Charities Commission. Note that not every charity is automatically exempt; HMRC’s position should be verified in the Inheritance Tax Manual at IHTM11101. For more detail on the inheritance tax treatment of charitable giving, see Practice Notes: IHT exemptions and reliefs on death and lifetime gifts, and IHT—reduced (36%) rate where 10% or more of the estate passes to charity for reference.
Preliminary investigations
Testators are often keen to ensure that...
Private Client
PRACTICE NOTES
Charity proceedings in England and Wales (CA 2011 s115): authorisation, standing, procedure, Charity Commission filter, Attorney General’s role, and test cases
Charity proceedings broadly concern a charity’s internal management and domestic matters. Such proceedings may only be begun:
by the charity, any of its trustees, any ‘person interested’, or, for a local charity, two or more inhabitants of the relevant area;
and only where the Charity Commission has authorised them by order.
Exceptions to these limits are:
proceedings by the Attorney General;
proceedings brought by the Charity Commission under powers conferred by the Charities Act 2011 (CA 2011);
proceedings concerning an exempt charity (except where the increased regulation of exempt charities applies to the charity or class in question).
What are charity proceedings?
Under CA 2011, s 115(8), “charity proceedings” are proceedings in any court in England or Wales brought either under the court’s jurisdiction over charities, or under its jurisdiction over trusts as it relates to administering a trust for charitable purposes.
Examples of charity proceedings include:
an action for the court’s administration of a charitable trust;
an application for a scheme.
...
Private Client
PRACTICE NOTES
Charity trustee conflicts of interest: duties, unauthorised benefits, Companies Act 2006 issues, case law and Charity Commission investigations (England and Wales)
Key principles
The core principles relating to conflicts of interest are:
A conflict of interest is any circumstance where a trustee’s personal interests or loyalties could, or could be perceived to, prevent them from acting solely in the charity’s best interests
Trustees must avoid any position in which their trustee duties may conflict with personal interests or loyalties, and must not allow private loyalties or interests to override their trustee duties and responsibilities
The Charity Commission’s Guidance places growing emphasis on the management and/or avoidance of conflicts of interest, and the number of Charity Commission investigations in this area has increased noticeably
When a potential conflict arises, it must be managed appropriately-for example, the relevant trustee should withdraw from the decision-making process
Charities should also draft and maintain a conflicts of interest policy that covers:
the types of conflict of interest addressed by the policy
when a trustee may take a benefit from the charity
the creation of a register of interests
how trustees notify their interest, eg in writing, prior to decisions...
Private Client
PRACTICE NOTES
Charity trustees' decision-making in England and Wales: fiduciary duties, relevant and irrelevant factors, conflicts, procedures, documentation, investments, risks, and Charity Commission approvals and advice
Over 800,000 charity trustees are thought to operate in England and Wales, with many serving on a voluntary basis. Trustees are the decision-makers, and every charity trustee-paid or unpaid-must use their decision-making authority in a way that satisfies legal obligations drawn from a range of sources. If they do not, they can, in the end, be held responsible for any failure. This Practice Note offers a summary of the principles that govern charity trustee decision-making in England and Wales.
Key principles
For general guidance on trustees’ powers and duties, see Practice Note: Charity trustees-duties and liabilities. The main principles for trustee decision-making are:
When making a decision, trustees owe fiduciary duties to:
operate within the powers conferred by the charity constitution
act in good faith
always act solely in the charity’s interests
In addition, trustees must:
ensure they are properly informed about the decision
take into account all relevant factors
disregard any irrelevant factors
exercise due prudence and care
...
Private Client
PRACTICE NOTES
Civil litigation by charities: trustee duties, proportionality, costs, ADR, and Charity Commission considerations (England and Wales)
Charity trustees who are thinking about bringing or resisting legal proceedings must reflect on several matters arising from the duties they owe: as trustees; under charity law; and, where applicable, under company law.
This Practice Note outlines points for charity trustees—whether CIOs, corporate bodies, trusts, membership organisations or otherwise—who are involved in, or considering, civil litigation. It does not deal with criminal proceedings, challenges to Charity Commission decisions, or the drafting and settling of schemes.
General principles—charity trustee decision making
Litigation is costly and carries risk. Any litigant, charitable or not, should:
weigh potential downsides against likely gains. Downsides include representation costs, the danger of an adverse costs order, the time and effort absorbed by the process, and the risk of unfavourable publicity. Gains may include the value of relief sought from the court, stopping an adverse claim, or the negotiating leverage that a strong claim or defence can provide; and
then decide whether to take part in the proceedings
Charity trustees may, at different points during their trusteeship, need:
to decide whether
...
Private Client
PRACTICE NOTES
Compromise and settlement of charity litigation: trustees’ powers, duties, ADR, ex gratia payments, land disposals and Attorney General consent (England and Wales)
Charity trustees involved in litigation must continually assess prospects of settlement with the other side(s), aiming to meet some aims of the proceedings while cutting off legal spend and reducing exposure where that serves the charity’s best interests. Striking a compromise is frequently intricate, so expert guidance should be sought as early as possible. Matters such as any tax implications that could arise fall outside this brief overview.
The general requirement on litigants to attempt to settle disputes
In England and Wales, the Civil Procedure Rules oblige parties to consider alternative dispute resolution (ADR); penalties may follow for a refusal. Charities are treated no differently. For instance:
a court may halt charity proceedings until ADR has been attempted. In Muman v Nagasena the judge remarked: ‘In this case very substantial sums of money have been spent on litigation without achieving a resolution. The spending of money on this kind of litigation does not promote the religious purpose
...
Private Client
PRACTICE NOTES
Contempt and enforcement in the Court of Protection: committal, civil restraint, CPR methods and procedural safeguards (England and Wales)
Orders issued by the Court of Protection do not invariably need enforcing—for instance, a declaration about P’s capacity, or lack of capacity, or a ruling that a specific course of conduct is lawful or unlawful. Nevertheless, there are many situations in which enforcement of the court’s orders becomes necessary, such as where P’s property and financial affairs have suffered financial abuse, or where personal contact with P has to be regulated, as appropriate in the circumstances. The Court of Protection (CoP) holds wide-ranging powers to enforce its orders, by the court when required, under the Mental Capacity Act 2005 (MCA 2005) and the Court of Protection Rules 2017 (COPR 2017), SI 2017/1035. Under s 47(1) MCA 2005, the CoP is given enforcement powers equivalent to those of the High Court. In the same way as the Civil Procedure Rules 1998 (CPR 1998), the COPR 2017 adopt an overriding objective, enabling the CoP to deal with cases justly and at proportionate cost, and they require the court to promote that objective by actively managing cases at all times (including when considering enforcement steps, such as committal). Before the COPR 2017 took effect on 1 December 2017, the COPR 2007 contained very...
Private Client
PRACTICE NOTES
CPR Part 57: Probate, Will rectification, personal representative substitution/removal and Inheritance (Provision for Family and Dependants) Act 1975 claims—procedure and practice (England and Wales)
STOP PRESS : The 149th Update—Practice Direction Amendments includes a modification to Practice Direction 57—Probate from 1 October 2022 as follows:
From 1 October 2022, the 149th Update—Practice Direction Amendments revises Practice Direction 57—Probate. In the Annex, a sentence is added immediately after ‘I believe that the facts stated in this witness statement are true.’ It confirms that contempt of court proceedings can be commenced against any person who makes, or procures the making of, a false statement in a document verified by a statement of truth without an honest belief in its accuracy.
This mirrors the 6 April 2020 revision to the statement of truth verifying a witness statement—see CPR PD 22 and Practice Note: Drafting witness statements—formalities and dealing with problematic witnesses—Statement of truth (available subject to subscription).
CPR 57 sets out rules concerning probate, inheritance, death and missing persons. It covers the following claims and proceedings:
probate claims
claims for the rectification of Wills (under section 20(1) of the Administration of
...
Private Client
PRACTICE NOTES
England and Wales: Court jurisdiction over charities—High Court, Charity Commission and Tribunal powers; charity proceedings authorisation, validity, administration, schemes (administrative and cy-près), and limits on directing fiduciary discretions
Who has jurisdiction in respect of charities?
The Crown, in its role as parens patriae, has the principal authority over the application of charitable assets, exercised through the Attorney General, although this authority has been widely devolved over time and in practice. The High Court retains inherent jurisdiction regarding charitable matters, as explained below in outline only. While this note addresses only the court’s jurisdiction, it should also be noted that:
the Charity Commission exercises jurisdiction concurrent with the High Court for various purposes
the First-tier Tribunal (Charity) may review a limited category of Charity Commission decisions and hear appeals against many others, with the Upper Tribunal determining appeals from the First-tier Tribunal
for certain charities, jurisdiction may additionally be exercised by Visitors
Jurisdiction of the court
The court’s inherent jurisdiction in relation to charity is exercised in the High Court within the Chancery Division, as a matter of course. Charity proceedings are ordinarily heard in the Business and Property Courts, in the Property, Trusts and Probate List, where such cases are listed.
Types of application
Issues relating to the validity of charitable dispositions
In practice, although the court continues to hold jurisdiction over these matters,...
Private Client
PRACTICE NOTES
Evidence in the Court of Protection (England and Wales): Witness Statements, Summaries, Admissibility, Section 49 Reports and Expert Evidence under COPR 2017, PDs 14A/15A and MCA 2005
This Practice Note sets out a concise overview of the rules governing witness and expert evidence in Court of Protection (CoP) proceedings. It cross-refers to Parts 14 and 15 of the Court of Protection Rules 2017 (COPR 2017), as well as to Practice Direction 14A: Written evidence (PD 14A) and Practice Direction 15A: Expert evidence (PD 15A) to the COPR.
Witness evidence
Under COPR 2017, r 14.3(1), the default position is that any fact requiring proof through a witness must be established:
at a final hearing, by the witness’s oral testimony, or
at any other hearing, or where there is no hearing, by the witness’s written evidence.
When a witness is called to give oral evidence at a final hearing, their witness statement will stand as their evidence in chief unless the court orders otherwise.
If the court considers there is good reason not to limit the witness’s evidence to the statement, it may allow the witness to (a) amplify their statement and (b) address any new issues that have arisen since it was prepared...
Private Client
PRACTICE NOTES
Fraudulent calumny in will challenges: legal test, dishonesty, purpose/causation, procedure, evidential hurdles and overlap with undue influence (England and Wales)
This Practice Note concerns the doctrine of fraudulent calumny in disputes contesting the validity of a Will. It deals with the following matters in particular:
the test for fraudulent calumny
whether the ‘purpose’ and ‘causation’ requirements must be satisfied to succeed with a claim
procedure
the particular challenges inherent in fraudulent calumny claims
The test for fraudulent calumny
What is fraudulent calumny, and how does it relate to other attacks on validity within this context? A Will is valid only if it satisfies the relevant formalities, the testator had testamentary capacity, understood and approved its contents, and it was not secured by undue influence or coercion. See: Probate actions (probate claims)—overview for further context. In appropriate circumstances, it may likewise be alleged that the provisions of the Will resulted from ‘fraudulent calumny’—that is, that one beneficiary deceitfully poisoned the testator’s mind against another beneficiary.
This route to setting aside a Will has affinities with, but is distinct from, coercion. It is a species of fraud. The test for fraudulent calumny was articulated in Re Edwards (Deceased), where Lewison J summarised the constituent elements of fraudulent calumny. The test for fraudulent calumny is addressed. In Christodoulides v Marcou the court confirmed...
Private Client
PRACTICE NOTES
Interpreting nil rate band gifts in wills: leading cases, TNRB/RNRB, APR/BPR, NRB discretionary trusts and drafting points (England and Wales)
In disputes concerning how documents are to be read, including a claim about construing a Will, the court’s task is to identify the sense a Will would communicate to a reasonable reader equipped with all background knowledge reasonably available to the testator when the Will was made, as explained by Lord Hoffman in the Investors’ Compensation Scheme Ltd case. For a summary of the courts’ overall approach to construction disputes, see Practice Note: Will interpretation—principles of construction. This Practice Note centres on the construction of nil rate band (NRB) legacies in Wills and, in particular, the manner in which the courts will determine the value of assets passing to the legatee(s), which assets pass to the legatee, and how the residue of the estate is therefore constituted. The Practice Note also reviews precedent wording for NRB legacies and practical points that may arise following the testator’s death in practice.
What is the NRB?
Every individual’s estate is free of inheritance tax (IHT) up to a defined threshold known as the basic NRB. The NRB is at present fixed at £325,000 until 5 April 2031. For further additional detail regarding the NRB, please see Practice Note: IHT—nil rate band (NRB)...
Private Client
PRACTICE NOTES
Lehtimäki v Cooper (CIFF): Supreme Court on court-directed member votes, members’ fiduciary duties and conflicts in charitable companies
ARCHIVED: This key charity litigation case is archived and is not being maintained. The Supreme Court matter of Children’s Investment Fund Foundation (UK) v Attorney General illustrates how a substantial philanthropic trust can become entangled in matrimonial disputes and engage a range of charity litigation issues.
Key facts
The Children’s Investment Fund Foundation (UK) (CIFF) was a charity and a company limited by guarantee, incorporated and registered in 2002 by a husband (H) and his then wife (W). H and W acted as trustees of the charity and were also members of the company. The company’s only other member was Dr Marko Lehtimäki. After the breakdown of their marriage, H and C agreed that W would resign as a member and trustee of CIFF. In return, CIFF would provide a grant of $360m to a new charity founded by W.
First instance judgment and appeal
A company cannot make a payment for loss of office to a director (as contemplated by the agreement) unless it is authorised by a resolution of the members (sections 215 and 217 of the Companies Act 2006 (CA 2006)). Accordingly, an application was made, first to the Charity Commission and...
Private Client
PRACTICE NOTES
Managing charity litigation costs in England and Wales: CPR principles, Attorney General and relators, trustee indemnities, Beddoe/Charity Commission authorisations, and First-tier Tribunal authorised costs orders
Costs
The expense of contested litigation in England and Wales can be substantial. Under the Civil Procedure Rules 1998, there is a risk that the court will require one party-typically the unsuccessful side-to pay some or all of the other party or parties’ costs. Charities that are involved in, or thinking about becoming involved in, litigation face a series of interlinked considerations. This potential exposure to adverse costs can be a pivotal factor. Careful assessment is vital before taking any matter to court now.
Civil litigation cost rules in England and Wales The default position-subject to specific exceptions and the provisions of the Civil Procedure Rules 1998-is that the court has discretion over the costs of civil proceedings, whether or not a charity is a party. See Overviews: Principles of costs recovery-overview and Costs orders-overview (available subject to subscription).
Cost rules where the Attorney General and relators are concerned If the Attorney General must be joined to proceedings, the court must consider the nature of the claim and the character and circumstances in which the Attorney General appears and, exercising its discretion, may order any other party to pay the Attorney General’s costs whatever the outcome. However, the Crown is not...
Private Client
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