Derek is a Barrister (called 1991) who is accredited by the English Bar Council for Public Access.  He is a Fellow of the Chartered Institute of Taxation ("CIOT"), Chairman of the Edinburgh Tax Network and CIOT Edinburgh & Lothians, and a past Scottish committee member of the Society of Trust & Estate Practitioners. He has a practice in both Scots and English jurisdictions specialising in high-end trust and estate work and (typically) related tax. It has always extended beyond that and he has advised and appeared in a range of tax matters, particularly in indirect tax cases. He has experience of and has recently spoken for CIOT on Family Investment Company IHT planning. He is regularly instructed to draft and revise trust documentation for IHT planning purposes, including precedent styles for leading firms in that field. He is involved in advice and litigation relating to pensions in both jurisdictions including regarding Imperial duty, that of fairness and estoppel by convention.  MFK Underwriting/Fayed legitimate expectations arising from HMRC Guidance and dealings loom large in tax and he has extensive experience of such cases. He is much published on such matters and a former member of the Editorial Board and Scottish Editor of Foster's Inheritance Tax.

Derek's practice is both advisory and contentious. In 2021 he framed proceedings in two tax-driven judicial variations - one running to several £10Ms - to postpone absolute entitlement of a person enjoying a beneficiary-taxed interest in possession relying on the Wyndham v Egremont line in the Chancery Division. He has advised in several others. He advised on variation of an English charitable trust with exclusively Scottish purposes and objects and associated tax issues.

He appeared for the Petitioners in Donald's A&M Trust (2015), an opposed application where the authorities were fully argued. There was at the time a serious issue whether such variation triggers either an IHT charge under s. 52(1) of the IHTA 1984 or a deemed disposal for CGT purposes (TCGA 1992, s.71). This involved extensive research and pre-application advice with settled assets c.£3M. The live issue in the case has been overtaken by the accord reached between HMRC and the ICAEW Tax Faculty. He is involved in several similar cases now.

In 2015/16, he advised one of the largest London private client firm re professional negligence and quantum of tax loss issues concerning a former partner's negligent failure to advise that timeous steps be taken to restructure a pre-5th April 2006 Accumulation and Maintenance settlement. Cases include Turner v Turner [2012] CSOH 41; 2012 S.L.T. 877; 2012 S.C.L.R. 329 - the leading Scots case on ademption of a special legacy by a continuing attorney's sale of the specially legated thing after the principal's incapacity.

Public trust variations which Derek has moved include Allan Glen's School Club Trusts 2012, hiving down a private (members' club) element which prevented the trusts from being exclusively charitable for tax purposes from a public trust with otherwise charitable purposes - avoiding CGT on several £10Ms gain. He drafted the Petition and Cy Pres Scheme and appeared in:-

• Sir Gabriel Wood's Asylum for Decayed Mariners
• The Highlanders (Seaforth, Gordon and Cameron) Regimental Merger - Service Funds and Fort George Collection
• The Highland Scanner Appeal
• The Stirling Smith Trust
• Glasgow Fishermen's Company
  
• Royal Aberdeen Workshop for the Blind and Disabled (the two last-mentioned cases involved Companies by Royal Charter & Privy Council strike off/dissolution procedure and the latter issues whether administration order could be made)
• Kilmarnock College Cy Pres Application

In Pattinson v Kelly & Others; Strath Discretionary Trust 2014, Commercial Court, Derek appeared in construction/ rectification proceedings relating to settlor-interested discretionary trusts with assets exceeding £2M, and in relation to a botched resolution aimed at excluding settlor and spouse from the discretionary class through partial release of power of appointment. There were very substantial IHT and CGT implications. Derek advised upon and settled a professional negligence claim against the solicitors responsible. The case culminated in a hearing on affidavit evidence with lengthy submissions in the rectification proceedings focusing on whether subjective, unimparted, convergent yet unilateral intention was sufficient in circumstances - as AMP v Barker suggests: it was.

In 2014 he advised and directed the evidence and submission made through HMRC's CGT clearance facility in relation to an anticipated dealing in land owned by an English company (PEL) which was a joint venture special purpose vehicle formed to assemble a development site from land acquisitions. Its shares were intended to be held equally by two corporate participators but left registered to PEL. The venturers wanted each to sell their respective interests. For PEL to have sold alone would have had disastrous CGT consequences. Averting these involved the establishment of bare/ bare constructive trust at English and Scots law by marshalling evidence, Opinions on both laws and HMRC extra-statutory clearance procedure, plus holding out the prospect of register rectification proceedings in the High Court. The landed interests were worth some £7M and pregnant with gain. The identity of the client is confidential.

He has acted in a wide spectrum of trust/fiduciary litigation; petitions for removal/appointment of trustees, actions of account, and petitions for directions.

He has appeared in trust and estate disputes without a tax content and still does so occasionally. Macdonald v Cowie (Exrx. of Hazel Moir dcsd) [2015] CSOH 101 was a case which went to a four day witness hearing before Lord Tyre relating to the question whether an informal writing made by a deceased was a deed of gift of her house to her grandson, the pursuer (claimant) or a mere expression of a wish. He acted for the defending executrix and was successful in having the writing recognised as a mere expression of a wish. It is the first case in Scotland in which the observations of Lord Neuberger PSC in Marley v Rawlings which suggests that the Investors Compensation Scheme v West Bromwich Building Society line of authority whereby evidence of the admissible background is liberally admitted as an aid to construction applies to testamentary and trust instruments - subject, no doubt, to his strictures in Arnold v Britten.

Derek has advised and appeared in company matters arising out of unfairly prejudicial conduct, including Jesner v Jarrad Properties Ltd 1993 SC 34, just and equitable (and other) winding-up, wrongful trading and misfeasance applications and in several pensions matters, including litigation relating to surpluses, equalisation and mis-exercise of fiduciary powers. He is experienced in dealing with share valuation evidence.

Derek chairs the Edinburgh Tax Network ('ETN'), a cross-disciplinary CIOT, ICAS, ICAEW, STEP and TrustBar sponsored CPD talk organiser for the tax profession. As well as a regular programme of events in Edinburgh, through ETN he has promoted events at the Inner Temple - in February 2016 at which the Rt. Hon. Lord Reed JSC spoke on domestic and European anti-avoidance principles with particular focus on UBS, Deutsche Bank and Pendragon principles and in February 2017, when the Rt. Hon. Lord Drummond Young spoke on Murray Group Holdings v HMRC (approved in the Supreme Court), in which he gave the leading judgment.

His personal interests and hobbies include French literature, cycling and hill walking. He speaks good French and bad Italian.

• Fellow of the Chartered Institute of Taxation.
• Member of the Society of Trust & Estate Practitioners.
• Barrister, accredited by the Bar Council for Public Access: Member of the Honourable Society of Lincoln's Inn.
• Member of the Trusts, Fiduciaries and Executries Group of the Faculty of Advocates (‘TrustBar').
• Chairman, Edinburgh Tax Network.
• Past member of the Editorial Board of Foster's Inheritance Tax.

• ‘IR35: why (and when) mutuality of obligation matters', Tax Journal : Tax J. 2020, 1496, 14-17
• ‘IR35: chasing a moving target - Part 2': Scots Law Times: S.L.T. 2020, 14, 81-84
• 'IR35: chasing a moving target: Part 1': Scots Law Times: S.L.T. 2020, 13, 75-79
• ‘Missing, and other, co-owners and their remedies: Pt II': Scots Law Times : S.L.T. 2020, 11, 63-68
• ‘The missing co-owner and jurisdiction: Part 1': Scots Law Times: S.L.T. 2020, 10, 57-61
• ‘Tacit assumptions and rectifications': Scots Law Times: S.L.T. 2017, 19, 87-98
• ‘Voyage of discovery - Discovery Assessment': Taxation: Tax. 2015, 176(4530), 16-19
• ‘Commercial leases: consents to assignation and reasonableness of refusal': Scots Law Times: S.L.T. 2013, 28, 195-200
• ‘Personal injury trusts - the PITs? (Pt 2'): Scots Law Times: S.L.T. 2011, 16, 95-101
• 'Personal injury trusts: Part 1 - the PITs?': Scots Law Times: S.L.T. 2011, 15, 89-92
• ‘The bonfire of the charities - winding up unregistered entities': Scots Law Times: S.L.T. 2011, 63-71
• ‘The bonfire of the charities - winding up unregistered entities': Insolvency Intelligence: Insolv. Int. 2011, 24(3), 38-44
• ‘Hastings-Bass and his Scottish friends: Scots Law Times: S.L.T. 2008, 24, 161-165
• 'Voyage of Discovery', Taxation, 9th December 2015
• 'Personal Injury Trusts - the PITs?' Part 1, S.L.T. 2011, 15, 89-92; Part 2 S.L.T. 2011, 16, 95-101.
• 'The Bonfire of the Charities - winding-up unregistered entities' S.L.T. 2011, 12, 63-71 Insolv. Int. 2011, 24(3), 38-44, with Roger Laville of Addleshaw Goddard's City Office corporate fraud team. He appeared in such a winding-up in 2009/10; Royal Aberdeen Workshop for the Blind and Disabled and in the Glasgow Fishermen's Company in the 1990s.
• 'Hastings-Bass and his Scottish Friends' S.L.T. 2008, 24, 161-165

Talks and Papers

Derek has spoken on tax subjects at the Scottish and English national conferences of the Chartered Institute of Taxation and at STEP, Scotland conferences. In 2014 he and Andy Finch of HMRC Specialist Investigations spoke on Contractors' Off-shore Loan Schemes and Discovery Assessments. The talk was also given to various CIOT branches in Scotland and England.

Derek is a regular speaker and chairman at tax and trust conferences in Edinburgh and London organised by commercial promoters (Informa/ IBC, MBL, Longmark, Solicitors Group and CCPD) and the profession.

• Tax Avoidance Schemes and Fiscal Liability
• Voyage of Discovery
• Commercial Leases - Consents to Assignation and Reasonableness of Refusal
• Butlers Ship Stores Ltd & Ors v HMRC 2012 UKFTT 371 (TC)
• Personal Injury Trusts - The PITs? (part 2)
• Personal Injury Trusts - The PITs? (part 1)
• The bonfire of the charities - winding up unregistered entities
• Directors Duties & Responsibilities
• Hastings-Bass & his Scottish Friends
• Variation of Private Trusts

• Butlers Ship Stores Ltd v HMRC [2012] UKFTT 371 (TC)
• Turner v Turner [2012] CSOH 41; 2012 S.L.T. 877; 2012 S.C.L.R. 329
• Allan Glen's School Club Trusts cy pres scheme 2012
• Kilmarnock College cy pres scheme 7th November 2006, Lord Drummond Young
• The Highland Scanner Appeal cy pres scheme
• The Stirling Smith Trust cy pres scheme
• Highland Council v HMRC Value Added Tax & Duties Tribunal VATDTr 10 April 2006
• Davidson v Trimco Coolair Ltd & Lovat's Catering Ltd (5th December 2005 Sh. Principal Dunlop QC, unreported; a modern application of the Ticket Cases)Balfour Beatty Ltd. v Gilcomston Ltd. & Ors. [2006] CSOH 81 (concerned with construction of the insuring provisions of the New Engineering Contract).