Chambers UK 2020

Silks

Alan Boyle QC: "Fantastically focused and committed, he strikes a perfect balance between being sympathetic with clients and utterly combative when fighting for them in court." "His clear and authoritative advocacy is impressive."                 

Frank Hinks QC: "He's very responsive and we got a great result because of Frank's advocacy skills. He's very hard-working and very engaged."

Elizabeth Jones QC: "She is a hardcore trusts person and she's excellent." "She's a famously tenacious opponent and very strong on her trust knowledge."

Richard Wilson QC: "He's a delight to work with. He's obviously very bright, knows the law and can apply it. He's an able advocate." "He is a brilliant advocate and he gets to the point easily and quickly. He turns work around very quickly."

Dakis Hagen QC: "He's a very pleasant and articulate man. He is a clear and sensible advocate and he's the sort of silk you know will be very client-friendly."

Juniors

William Henderson: "He's absolutely first rate, with really super technical expertise. He has an excellent bedside manner in terms of breaking down complex issues for the client and being a reassuring and knowledgeable member of the team."

Giles Richardson: "He's really cornered the market as a senior junior. If I have a knotty issue with an international element and want a tough, bright junior, he's at the top of my list."

James Brightwell: "He's obviously technically very sharp, very down to earth and he doesn't waffle around. He's a genuinely nice person." "He has a very well thought through approach and particular expertise in Channel Islands matters."

Legal 500 2020

Silks

Alan Boyle QC: "A master tactician with highly polished client skills and a tenacity to get the right outcome."

Frank Hinks QC: "A highly experienced and very effective silk in the offshore trusts field."

Elizabeth Jones QC: "She takes no prisoners and it is comforting having her on your team in complex and tense matters."

Philip Jones QC: "His written work is first class; he is also calm and unflappable in court."

Dominic Dowley QC: "A hardworking silk of note."

Philip Jones QC: "He is experienced in offshore trusts."

John Machell QC: "Super user-friendly, commercial, practical and really knows his stuff"

David Blayney QC: "A very smart silk."

Jonathan Adkin QC: "His advice and advocacy are spot-on."

Richard Wilson QC: "An able and nimble advocate with excellent judgement."

Prof Jonathan Harris QC (Hon.): "Deep knowledge of the law; commercial, pragmatic advice; fantastic to deal with – the full package."

Constance McDonnell QC: "Is one of the most intelligent barristers at the Chancery Bar and identifies key points of law and factual issues which would be missed by other counsel."

Juniors

Andrew Francis: "A well-regarded junior practitioner."

William Henderson: "Is a calming presence who is great with clients and focused on achieving the best outcome for them."

Giles Richardson: "A silk in all but name, a complete workhorse with phenomenal ability to pick up a huge and complex case and master it overnight."

James Brightwell: "A go-to barrister for highly technical and tricky trust matters – he is a calm and reassuring presence."

Jonathan Fowles: "Has the ability to distil very complex concepts and make them accessible and understood by a lay client."

James Weale: "Is confident, robust and has formidable advocacy skills – he is all over the detail but never forgets the big picture."

Habberfield v Habberfield [2019] EWCA Civ 890:

Judgment was handed down on Thursday 23rd May 2019 after the judge ruled in favour of the Respondent, Lucy Habberfield, in an inheritance dispute. The court heard that Lucy Habberfield had been promised that the family dairy farm would be bequeathed to her by her late father. However, following a fight with her sister, Sarah, Lucy left the family home and subsequently brought a legal claim for the farm she was promised. 

Lord Justice Lewison, who sat with Lord Justice Moylan and Lady Justice Rose dismissed the appeal and acknowledged that Jane Habberfield (Appellant) will need to pay her daughter £1.1million to compensate for her devotion to the family holding.  Richard Wilson QC acted for the Appellant (instructed by Wilsons Solicitors).

Davidson v Davidson:

A high-profile family trust dispute over the ownership of more than £17m of jewellery, paintings and objets d’art.

Barker v Baxendale Walker:

A professional negligence action concerning a fiscally ineffective employee benefit trust.
 

Gupta v Gupta:

Proceedings concerning knowledge and approval of a will made by an Indian testatrix.

Tatiana Akhmedova v Farkhad Teimur Ogly Akhmedov:

A multi-million pound marital dispute concerning the yacht M/V "Luna" (worth US$487m and formerly owned by Roman Abramovich).

Lehtimaki v Children’s Investment Fund Foundation:

A case which reached the Court of Appeal where it was held that the independent member of a charitable company limited by guarantee owed fiduciary duties to the charity; but that in the circumstances off the case the court could not and would not direct the independent member how to exercise his fiduciary powers.

Khan v. Gany Holdings:

A case involving allegations that a trustee had wrongfully failed to account for trust assets worth $100m and that an appointment by trustees should be set asset.

Crociani v Crociani:

A massive breach of trust litigation in Jersey brought by Cristiana Crociani and her daughters against the trustees and former trustees of two related structures; the Grand Trust and the Fortunate Trust.

Guernsey litigation Investec Trust (Guernsey) Limited v Glenalla Properties Ltd:

Long-running Guernsey litigation which involved a claim by companies controlled by Kaupthing’s liquidators to around £180 million worth of loans allegedly owed within the Tchenquiz Discretionary Trust.

Ilott v The Blue Cross and others:

(1) Gany Holdings (PTC) SA (2) Asif Rangoonwala (Appellants) v Zorin Khan v Others (Respondents):

Alan Boyle QC, Richard Wilson QC and Zahler Bryan of Serle Court acted for the successful Respondents in this important Privy Council appeal from the BVI concerning the vesting of trust assets and challenges to the exercise of trustees’ discretion under the so-called ‘rule in Re Hastings-Bass’.

In its judgment (delivered by Lord Briggs), the Privy Council clarifies the correct approach to identifying beneficial interests arising from a gratuitous transfer of property and in particular the limited role presumptions should play in modern times.

The claim was brought by discretionary beneficiaries seeking information about the extent of the trust assets after the death of the settlor. The Board has rejected the approach taken by both of the courts below and concluded that the appropriate inference from the limited evidence available is that property vested by the settlor in the corporate trustee had been transferred with the intention that these assets should be held subject to the trust, rather than (as held at first instance) for the settlor beneficially. Time-honoured presumptions such as the presumption of resulting trust should only be resorted to when there is no evidence from which a common intention as to beneficial ownership may be inferred and therefore as a last resort. There is no legal presumption that when a settlor vests assets in a trustee of a previously established trust those assets will be held subject to that trust, but gratuitous transfers of property between the settlor and the trustee of such a trust will frequently form a powerful contextual basis for a common sense inference that that was the intention of the settlor as well as the trustee.

This case also confirms that the rule in Re Hastings-Bass as formulated in Pitt v. Holt [2013] 2 AC 108 forms part of the law of the BVI. More significantly, it resolves the debate left open by the Supreme Court in Pitt v Holt as to whether it is necessary in order to set aside an exercise of discretion to show that the trustee ‘would’ have acted differently had he not committed a breach of duty or merely that he ‘might’ have done so. In Pitt, Lord Walker declined to lay down a rigid rule of either ‘would’ or ‘might’ on the grounds that to do so would inhibit the court applying the rule in Re Hastings-Bass from seeking the best practical solution in a variety of different factual situations. In this case involving a family trust the Privy Council has decided that the question of whether, if properly informed, the trustees (or reasonable trustees) would or might have acted differently will be relevant, but not decisive, to the court’s exercise of its discretion whether to set aside the challenged disposition. There is therefore no specific separate requirement of showing that a trustee ‘would’ or ‘might’ have acted differently but for the breach of trust.

To read the full summary of the case, click 'download document' to the right hand side of the page.  To read the JCPC summary, please click here.

Guernsey litigation Investec Trust (Guernsey) Limited v Glenalla Properties Ltd:

On 23 April 2018, the Privy Council handed down its advice in the weighty and long-running Guernsey litigation of Investec Trust (Guernsey) Limited v Glenalla Properties Ltd [2018] UKPC 7, involving a Jersey proper law trust. The advice was given by Lord Hodge on behalf of the Board (Lord Mance dissenting on two points, and Lord Briggs on one aspect of the reasoning).

The case is significant firstly for its treatment of the public international law issues arising from Article 32 of the Trusts (Jersey) Law 1984 (“TJL”). Where a trustee is a party to a transaction or matter affecting the trust and if the other party knows that the trustee is acting as trustee, Article 32(1)(a) restricts that party’s claims to the trust property. The question for the court was whether this local limitation should be recognised as applying where the obligations themselves were non-Jersey obligations, being adjudicated on outside of Jersey. The Board by a majority upheld the decision of the Guernsey Court of Appeal that in such a situation, the Jersey law should nonetheless apply. They were not persuaded that Article 32 should be characterised as partially discharging the trustee’s obligation to the third party (which would have suggested that the proper law was that of the underlying obligation rather than the trusteeship). Rather, they considered that the Article did not work any discharge of liability but, together with the definition of a trust in Article 2, should be understood as creating a special status for Jersey trustees. However, the decision went wider: see paras 88ff of the judgment: “… in the Board’s opinion, the time has come to recognise that as a general rule the common law will recognise and give effect to limitations of liability which arise under an entity’s constitutive law by reason of the particular status or capacity in which its members or officers assume an obligation…. The Board would not confine this rule to entities which have separate legal personality but would apply it to partnerships … associations of persons without legal personality and also a Jersey or Guernsey trust… “ (the Trusts (Guernsey) Law 2007 (“TGL”) having similar provisions in sections 1 and 42). The Board gave two other reasons for its conclusion, first, by construing section 65 of the TGL as obliging the Guernsey court to apply the entire law of Jersey, including Article 32, to the question, and secondly, by applying Jersey law seemingly for policy reasons as a concomitant to insulating trust assets from exposure to personal transactions. Lord Mance provided a powerful dissenting opinion in relation to all of these reasons, and Lord Briggs on the first of those.

Secondly, the Board has confirmed that whilst Article 32 ensures that a Jersey trustee has no personal liability for trust obligations, and the creditor no claim in rem against the trust assets, it reversed the Guernsey Court of Appeal in three respects:

(a) the Board held that Article 32 offers the trustee no discharge once the trust fund is exhausted.

(b) Article 32 does not have the effect of enabling a creditor to seek payment from the trustee regardless of the state of the account between the trustee and the beneficiaries. The creditor has no right to the trust fund, other than through its right of subrogation to any entitlement the trustee might have to  indemnity from the trust fund for the obligation to the creditor. If there are any grounds for denying the trustee that indemnity in whole or in part, whether as a result of the obligations having been unreasonably incurred, or as a result of there being any cross-claim against the trustee for breach of trust  (whether related to the creation of the obligation or not), the creditor is affected too; their position is not improved by Article 32.

(c) Article 32 does not apply to costs orders made against trustees, which are always liabilities personal to the trustee.

Thirdly, the Board has determined that the availability of the statutory indemnity offered by Article 26(2) of the TJL falls to be assessed when the liability for which the indemnity is sought, is first incurred. There is no possibility of considering whether the indemnity should be available with the benefit of the facts known at the time it is claimed. Three reasons were given for this: the first relating to the limited ambition of the language of Article 26 itself (though Article 26 would sit alongside an indemnity under the general law), the second relating to the fact that events after the fact could best be responded to by claims for breach of trust, and the third being that otherwise a trustee exoneration clause may be in effect undercut by arguments about the unreasonable incurring or, as in this case, retention of liabilities.

The decision also confirmed that a claim in restitution cannot be maintained in the context of a contractual matrix, and dealt with various interlocutory matters.

Kathryn Purkis of Serle Court appeared as junior counsel for the current trustees, led by Lord Goldsmith QC. James Brightwell of Serle Court appeared as junior counsel for the former trustees, led by Simon Taube QC.

Tatiana Akhmedova v Farkhad Teimur Ogly Akhmedov and 6 others:

On 19th April 2018 Haddon-Cave J handed down his reasoned judgment in an attempt by Mrs Akhmedova to enforce the £453 million award obtained against her former husband Farkhad Akhmedov in  December 2016.  The award has hitherto remained almost entirely unsatisfied.  However, an opportunity  arose at the end of 2017 when Mr Akhmedova's yacht M/V "Luna" (worth US$487m and formerly owned by Roman Abramovich) sailed into Dubai waters and was placed in dry dock.  Mrs Akhemdova's lawyers obtained a freezing order in the Dubai International Financial Centre in aid of the English judgment and launched substantive proceedings to enforce it; she then successfully sought, in further support, a precautionary attachment in the local Dubai courts in effect arresting the vessel. 

At the time of the English judgment in 2016 Luna had been owned by a Liechtenstein Anstalt called Qubo 2, an entity which had been held jointly and severally liable to pay Mrs Akhmedova £350 million under the original judgment. But in breach of a Liechtenstein freezing order Luna had surreptitiously been transferred to a newly created Anstalt called "Straight Establishment" in March 2017.  The DIFC freezing order was then defended by Straight Establishment on grounds that there was no judgment against it in London.  It was against that backdrop that Mrs Akhmedova applied before Haddon-Cave J, who happened to be sitting in the Old Bailey, on 21 March 2018 under a variety of jurisdictions to obtain ownership of the vessel as well as orders directly against Straight.  The orders sought were made on that day, and the reasons are now published. 

The judgment will be of interest to civil/commercial fraud and contentious trusts lawyers for four reasons in particular.  First, it is thought to be the first judgment since Prest where the court has pierced the corporate veil applying the "evasion principle". Secondly, the court, having considered the conflict of laws position, was prepared to apply English law, the lex fori, to that question notwithstanding that Straight is a Liechtenstein anstalt.  Thirdly, the court declared, on grounds of privity of interest, that it had taken Straight to have submitted to the English court's jurisdiction owing to Mr Akhmedov's submission to the jurisdiction.  Fourthly, having made orders transferring the vessel to Mrs Akhmedova, the court made an order against Straight under s. 425(1)(d) of the Insolvency Act 1986 that, in default of its effecting the transfer, Straight had to pay Mrs Akhemdova a liquidated sum referable to the capital value of the vessel (US$487m).  

Serle Court's Dakis Hagen QC appeared on behalf of Mrs Akhmedova.  

Wooldridge v Wooldridge:

Richard Wilson QC acted with James Weale for the claimant, with Dakis Hagen representing the infant son.  This was one of the most high profile and high value 1975 Act claims in recent years.

AF v MF:

Emma Hargreaves acted for the Husband and Jonathan McDonagh acted for the Husband’s father in financial remedy proceedings giving rise to issues including the extent to which a Liechtenstein foundation worth over £60m established by the Husband’s father was a “resource” available to the Husband and whether the court had jurisdiction to transfer outright to the Wife certain assets owned by the foundation by way of variation of a “nuptial settlement”.  

Miles v Miles:

Successful appeal concerned with the correct approach to the divorce cross-check and testamentary wishes under the Inheritance (Provision for Family and Dependants) Act 1975

Grupa Ozarow v Clean Energy Trading CL:

Acted for the defendant company trading in Carbon Credits in successfully discharging an ex parte injunction obtained in support of Polish proceedings on the basis, inter alia, that the relevant EU jurisdiction rules were arguably infringed.

Moreno de la Hilja v Lee:

Acting for widow and estate of Sir Christopher Lee to resist claim to lift stay of enforcement of purported Spanish judgment and European Enforcement Order (led by Jessica Simor QC, Matrix Chambers).

Rawlinson & Hunter Trustees SA (Trustee of the Tchenguiz Settlement) v ITG Ltd and Bayeux Trustees Ltd (Trustees of the Techenguiz Discretionary Trust):

Successfully opposing the claimant's application for permission to serve proposed re-amended particulars of claim out of the jurisdiction on the basis that the application was barred by issue estoppel or amounted to an abuse of process.  Subsequent argument about whether the court should order an immediate assessmet of costs.

Pitt v Holt:

Will represented Mrs Pitt in the High Court, Court of Appeal and the Supreme Court.  Some say this is the most important trust case of the 21st century.  The Supreme Court set aside a settlement created by Mrs Pitt as her husband’s Court of Protection receiver by reason of her having been seriously mistaken as to the Inheritance Tax effects or consequences of the transaction.  The Supreme Court also reviewed the so-called rule in re Hastings-Bass and held that it did not apply in a case such as Mrs Pitt’s, where the fiduciary had acted on the basis of apparently competent advice which was in fact incorrect.

Joint Stock Company Aeroflot - Russian Airlines v Berezovsakaya:

Administration of estates; Confidential information; Confidentiality agreements; Court-appointed receivers; Creditors' rights; Executors; Insolvency.

Attorney General v Charity Commission for England and Wales:

Attorney General’s reference in respect of trusts for relief of poverty amongst family members or employees. 

Gudavadze v Kay:

Summary judgment on basis that alleged testamentary documents were forgeries.  A combination of consequential orders were made which avoided there being a possible gap in the active representation of the estate in England and Wales.

Barclays Wealth Trustees (Jersey) Ltd v Equity Trust (Jersey) Ltd:

Acted for Barclays as as trustee and manager in c.50m Euro proceedings against former trustee of unit trusts investing in Eastern European property developements for alleged breaches of trust.  The case raised novel issues as to the legal responsibilities of trustees and managers of unit trusts.  The case successfully settled in 2015.

Re Tadros:

Acted for and advised the second defendant, a multi-million probate claim which related to, among other things, real property in central London, the Netherlands, and Sudan.  The case was the subject of a decision of Morgan J ([2014] EWHC 2860 (Ch)), on an anti-suit application contested at the hearing by the claimant and the ninth defendant charity.

Lemos v CIBC:

A claim alleging gross negligence by professional trustees in the Cayman Islands in relation to the sale of shipping investments and the time taken for reinvestment of the proceeds (instructed by Mourant Ozannes).  Settled shortly before trial in May 2015.

Manjeet Rai & ors v Jog Ahir & ors:

Powers of trustees of charitable unincorporated assocation; and indemnity costs on 06.08.14.

Khan v Crossland:

Application for sale under section 14 of the Trust of Land and Appointment of Trustees Act 1996

Trilogy Management v YT:

Serle Court members also advised various parties which concerned the proposed alteration of a charitable structure worth approx US$0.5bn.  Robin Rathmell advised the principal trustee while Dakis Hagen and Jonathan McDonagh were instructed by another corporate trustee within the structure.

CR v MZ:

A sham trust/forgery case relating to the ownership of a substantial London property and its holding company.

Tchenguiz-Imerman v Imerman:

In an important decision, Moylan J overrode the wishes of the Jersey court and ordered that documents generated for the purposes of a Jersey trustee's Beddoe application held by beneficiaries intervening in English proceedings should be disclosed to him in those proceedings.

L v K (Freezing Orders: Principles and Safeguards):

Clarified freezing injunction principles in a case involving trusts and foundations noting (among other things) that the presence of an offshore structure was on its own insufficient evidence of a risk of dissipation. 

Stiftung Salle Modulable v Butterfield Trust (Bermuda) Limited:

Instructed on behalf of the Plaintiffs in a high value dispute as to the contractual liability of a Bermuda trust to fund the construction of an opera house in Lucerne.

Earl of Durham v Lady Lucinda Lambton & Ors:

Instructed by the claimant in a dispute between siblings as to the succession to their father's estate.  The Earl of Durham was the sole beneficiary under his father's will.  His father died domciled in Italy.  Three of his sisters claimed shares of their father's assets under Italian law and asserted that the value of their shares should include valuable English land disposed of during the deceased's lifetime.  The Earl of Durham sought declaratory relief in England that the sisters had no claim on the English assets.  The challenge by the three sisters to the jurisdiction of the English courts was dismissed.  The case was widely covered in the national press.

Finch v Hall:

Proceedings under section 14 of the Trust of Land and Appointment of Trustees Act 1996 in which the Judge followed the decision in Re Buchanan-Wollaston's Conveyance [1939] Ch 738, decided under the now repealed section 30 of the Law of Property Act 1925.

Ullah v Ullah:

Andrew Bruce successfully represented the Defendants in a substantial High Court claim brought by a family member seeking an interest in a portfolio of properties based upon a constructive trust

C v D:

Certain beneficiaries of a civil law Foundation and a Bermuda trust purportedly settled by the Foundation brought proceedings in two jurisdictions seeking declarations that the Foundation and the trust were invalid ab initio.  In the Bermuda proceedings the claimant beneficiaries also made a number of alternative claims, including breach of trust claims, claims for declarations as to the fiduciary nature of certain powers, a claim for the removal of the trustees from office and a claim seeking to force a reorganisation of the structure.  The Foundation was joined as a party to the Bermuda proceedings but sought a stay of those proceedings and, in the alternative, disputed jurisdiction.  Before the Foundation's application came to be heard, a settlement was reached between the various beneficiaries.  An application was then made to the Supreme Court of Bermuda for approval of the settlement and such approval was granted.  Frank Hinks QC and Paul Adams acted for the claimant beneficiaries.

This case was unusual in that the structure which the claimants were seeking to have declared invalid had been in existence for a great many years. It also raised interesting issues as to the interplay between civil and common law. Then, once a settlement had been reached, the parties had to grapple with difficult issues as to (i) how the settlement could be approved notwithstanding that there were persons who might have been interested in the assets if the structure was invalid who had not signed up to the settlement, and (ii) how the settlement as approved by the court could be made fully binding on the Foundation notwithstanding that the Foundation was not willing to enter an appearance in Bermuda.

Re Nina Wang Dec’d:

Acted for a charitable foundation in proceedings brought by the Hong Kong Secretary for Justice to determine the true construction of a homemade Chinese will of the woman who was by repute the wealthiest woman in Asia.

Re The F Trust:

The corporate trustee of a Jersey trust decided that the trust should be wound up with the assets being distributed among certain of the beneficiaries in particular proportions.  One of the beneficiaries, K, objected to the size of her share as determined by the trustee.  The trustee made an application to Court for approval of its decision and the application was opposed by K.  Subsequently, K amended her pleading so as to introduce breach of trust claims against the trustee.  K also argued that the trustee ought to be removed from office.  The matter then proceeded as contested litigation until shortly prior to trial, when a negotiated settlement was reached.  The trustee subsequently applied to the Court for approval of the settlement.  The Court granted approval and also acceded to an application that its judgment be fully anonymised.

Thursfield v Thursfield:

Involves the enforcement of a US$5.7m judgment of the Michigan courts for breach of a settlement agreement following a divorce.  Lance acts for the wife.  The husband has been committed to prison for 2 years for failure to give information and subjected to disclosure order based on the North Shore Ventures decision in respect of a family trust established by the husband in which he claims to have no beneficial interest. 

Labrouche v Frey:

A Claim for an account and for breach of trust against the former trustees of a will trust including in relation to the conversion of the founder's rights in a Liechtenstein Anstalt.

Tchenguiz-Imerman v Imerman:

Jersey trustees faced with a hostile variation of trust claim in English divorce proceedings had refused to submit to the jurisdiction. There being substantial trust assets in England, certain beneficiaries of the trusts intervened instead to resist the English claim. The applicant in England sought disclosure from the intervener beneficiaries of non-privileged but 'sensitive' documents served on them during the trustees' Beddoe application where the decision not to submit had been approved. The documents were said to give insight into the trustees' internal thinking. Before the English court could hear that disclosure application, the Jersey court handed down a supplemental judgment urging the English court not to order disclosure and to respect the privacy of Jersey trustee directions hearings. The English court, though aware of the judgment, made the disclosure order anyway, holding that since the trustees had not submitted and were not giving evidence, and given that the English court had to make findings as to how the trustees would behave in certain hypothetical situations, any evidence of the trustees' internal thinking was better than none.  Dakis Hagen appeared for the successful applicant.

AB Jnr v MB:

Acted for the Plaintiffs in the Grand Court of the Cayman Islands.  The Chief Justice's judgment is a landmark decision on the fair dealing rule and the availability of equitable compensation as a remedy for breach of trust.

North Shore v Anstead:

Acted for the appellants on two occasions. The first hearing concerned the duty of disclosure by prospective guarantors to sureties and conclusive evidence clauses ([2012] CH 31); and the second concerned the Court's power under CPR 31 to compel a beneficiary to disclose documents held by his trustee.

Credit Suisse Trust Ltd v Nemni:

Acted for the prinicpal beneficiaires of a substantial Guernsey Trust, a dispute involving the recovery of around 4 million euros from a former fidicuary agent of the trust.

Re: Williams:

The claimant sought to challenge a will over 10 years after the estate of the deceased had been fully administered, alleging undue influence and proprietary estoppel.  The defendant succesfully applied to have the claim struck out.  The claimant then applied to set aside the order striking out his claim but that application was successfully resisted by the defendant.  Paul Adams acted for the defendant.

Spread Trustee Co Ltd v Hutcheson & Ors:

In a landmark decision, the Privy Council has upheld a Guernsey trustee exoneration clause.

In Spread Trustee Co Ltd v Hutcheson & Ors [2011] UKPC 13, the Privy Council (by a majority of 3:2) overturned the decision at first instance and the decision of the Court of Appeal of Guernsey, holding that the customary law of Guernsey which preceded the coming into force of the Trusts Law 1989 s34(7) was to the same effect as the legislation and, accordingly it was permissible for a trust to contain a term excluding liability for gross negligence as a matter of Guernsey customary law. The Privy Council held that the Guernsey courts would have looked to English law rather than Scots law, but that English law would have yielded to Guernsey customary law. Philip Jones QC and Jonathan Harris appeared for the appellant trustees.

Trustee exoneration clauses are of critical importance to trustees in all jurisdictions. However, the approach to be followed in deciding whether settlors were able to exonerate their trustees' negligence was not clear. The case has implications for jurisdictions with similar law, not only in relation to trustee exoneration clauses, but in relation to the extent to which English law is to be applied.

BQ v DQ:

Ground CJ accepted that two inter vivos trusts were void as testamentary dispostiions with a consequential tax saving.

Pitt v Holt:

The Court of Appeal allowed an appeal by HMRC against the setting aside of a settlement on Hastings-Bass grounds. The Court of Appeal also held that the settlement could not be set aside on the ground of mistake. Permission has been granted to appeal to the Supreme Court and the appeal is likely to be heard in March 2013. The outcome of the Supreme Court appeal is eagerly awaited by trust and estate practitioners because it will be the first time for some years that the fundamentals of these principles have been examined by the Supreme Court. Will Henderson acts for Mrs Pitt, Philip Jones QC and Ruth Jordan act for HMRC.

Re Q Trusts:

After the death of his first wife a businessman declared two family trusts governed by the law of Bermuda.  During his lifetime he was the sole beneficiary.  After his death the trusts funds were to be held on trust for his children, grandchildren and remoter issue.  He then remarried.  After his death proposals were put forward for the rearrangement of the two trusts and his testamentary trust.

When first instructed, Frank Hinks QC identified the issue as to whether the family trusts were invalid as testamentary dispositions revoked by the second marriage, and representing members of the family successfully argued before the Chief Justice in support of invalidity, thereby causing the trust funds to fall into the testamentary trust with highly satisfactory tax consequences.

Lady Henrietta St George et al v Sir Jack Hayward et al:

Edward St George and Sir Jack Hayward owned and ran Freeport (the second largest port in the Bahamas) in a quasi-partnership with shares in the Port Group being held through various offshore companies.  After the death of Edward St George disputes arose as to the size of the respective holdings in the Port Group (the essential issue being whether shares in a company which owned the Port Group were owned by the company beneficially or on bare trust for Edward St George) and the right of the St George Estate to participate in management.

Frank Hinks QC and Jonathan Adkin acted for the exectuors of Edward St George from the commencement of proceedings in November 2006 until their final resolution after an 8 day hearing in the Bahamian Court of Appeal in February 2010.

Re: Q Trusts:

The trustees of a Bermuda trust made an application to the Supreme Court of Bermuda for approval of a proposed division and reorganisation of the trust.  The application was heard in two stages and at each stage evidence and submissions were presented on behalf of various adult beneficiaries and the guardians ad litem to certain minor beneficiaries.  Paul Adams, led by Robert Ham QC, acted for one of the guardians ad litem.

Cawdron v Merchant Taylors’ School:

Members of Chambers appeared for all the various parties in which issues as to the nature of trusts created during the First World War were resolved to enable the land to be sold for development and replacement sports facilituies to be provided for the benefit of the School and its Old Boys.  Philip Jones QC and Dakis Hagen QC appeared for the applicant trustees, Will Henderson appeared for HM Atthorney General, Jonathan Adkin QC for the school, James Mathers for the Merchant Taylors' Livery Company and Robin Rathmell for a representative old boy.

Van Dalfsen v Caversham:

A seven figure breach of trust claim in relation to negligent shipping investment cases. 

Stow v Stow:

The trustees brought a claim for declaratory relief to which they joined HMRC and the widow on the basis of their intimated claims against the estate.  HMRC's challenge to the High Court's jurisdiction on the basis that the fact sought to be decided was also in issue in disputed tax assessments raised against the trustees directly, was rejected by Warren J on the basis that the case fell outside the exclusive jurisdiction of the Special Commissioners.

David Drake appeared as junior counsel representing trustees whose administration of a settlement had been paralysed by their anticipation of claims, inter alia from a potentially insolvent estate of which there were no personal representatives.

Organ and another v McKechie and others:

The deceased testatrix had three sons and one daughter. The claimants were two of her sons. The first defendant was her daughter and the second defendant her remaining son. On 6 February 2002, the testatrix had a meeting with P, the managing director of a company (CLG) providing will drafting services, with a view to having a will drawn. CLG's operation involved the completion of a standard form questionnaire. The information given was then entered into a computer employing software which produced a will corresponding to the answers given in the questionnaire. During the meeting, G recorded the testatrix's answers to the questionnaire. Although G himself was not a qualified lawyer, the testatrix was given advice to the effect that the creation of a nil-band discretionary trust held potential benefits for the purposes of inheritance tax. Subsequently, the testatrix was sent a draft will. It was common ground that that will was never executed. Between 27 February and 11 March 2002, CLG received a letter, written by the first defendant purportedly at the request of the testatrix, and purportedly signed by the latter, which changed the terms of the draft will. A second will, reflecting the terms of that letter, was subsequently executed. The effect of that will was effectively to disinherit the claimants save for the provision of fixed pecuniary legacies. The will contained clauses relating to the intended discretionary trust. However, the manner in which those clauses were drafted was such that no such trust could properly take effect. In any event, the trust would not have conferred the intended tax benefit. The defendants were appointed executors of the will. The testatrix died on 20 March 2003. Subsequently, the claimants issued proceedings alleging that the will was invalid for want of knowledge and approval on the part of the testatrix and alleging that the testator’s signature on the letter changing the direction of the will had been forged. Alternatively, they sought rectification of the clauses pertaining to the creation of the discretionary trust, thereby giving them a beneficial entitlement to the residuary estate.

Two principal issues fell to be determined, namely: (i) whether the signature, purporting to be that of the testatrix, on the letter of instruction, had been forged; and (ii) whether the failure of the discretionary trust had resulted in the will failing to reflect the testamentary wishes of the testatrix.
The claim was dismissed. Held by HHJ Pelling QC that on the evidence, the claimants had failed to establish to the required standard of proof that the signature on the letter purportedly stating the testatrix's testamentary wishes had been forged. Furthermore, the purpose of the discretionary trust had been to obtain potential tax benefits, not to enable the claimants to take a beneficial interest in the residual estate.The clauses dealing with the creation of the trust had been drafted in such a way so as to fail. However the hoped-for tax advantages had not in fact been available. In those circumstances it could not be said that the will had failed properly to reflect the testamentary wishes of the testatrix, nor that the will had been executed with want of knowledge and approval on her part.

Brown v Executors of HM Queen Mother and HRH Princess Margaret:

A Jersey accountant, Mr Brown, believes that he is the son of the late HRH Princess Margeret and applied for the unsealing of the wills of HM Queen Elizabeth, The Queen Mother and HRH Princess Margaret on two grounds : the first on the basis that he is the son of HRH Princess Margaret and the second on the basis of the public interest in making the wills open to inspection.

Frank Hinks QC and Jonathan Adkin acted for the Executors of both HM Queen Elizabeth The Queen Mother and HRH Princess Margaret on their application to strike out both grounds of claim. Such application was successful before the Presdient of the Family Division. On Mr Brown's appeal the strike out of the claim based on his asertion that he is the son of HRH Princess Margaret was upheld, but his claim on the basis of the public interest was allowed to proceed to trial.

Alhamrani v Alhamrani:

The case revolved around a very substantial family trust and involved extensive allegations of breaches of trust and fiduciary duty.  The litigation involved innumerable interlocutory hearings over a number of years which ruled on significant trust law issues, including the availability of 'dog leg' claims [2007] JRC 026 and trustees' rights to indemnification for legal costs incurred by them [2007] JLR 527. 

Barnes & Ors v Tomlinson & Ors:

The claimants claimed against former trustees for breach of trust. Two of the defendants successfully defended the action (the claimants did not pursue the action against the third, who had died, leaving his estate insolvent).

The claimants were ordered to pay costs assessed on the standard basis. The judge ordered that the costs should also be assessed on the indemnity basis and that the defendants were entitled to recover any shortfall in the costs assessed on the indemnity basis from the trust fund.

Re C Trust:

Due to an unfortunate misunderstanding, the principal beneficiary was excluded from a trust of very substantial value.  These proceedings were brought by the trustees to put matters right.

Franks Hinks QC acted for the trustees. The City of Justice remedied matters by approving a compromise based on the principle in Hastings-Bass.

Mackinnon v The Regent Trust Company Limited & Ors:

A plaintiff beneficiary tried to set aside three family settlements on sham-like grounds but refused to plead an intention to mislead on the parts of the settlor and the original trustees. The incumbent corporate trustee maintained that the Plaintiff's pleading disclosed no reasonable cause of action in this regard. The Jersey Royal Court and the Jersey Court of Appeal found for the trustee on its strike-out application. Douglas Close and Dakis Hagen advised the trustee.

Mackinnnon is a leading case on the doctrine of sham, consolidating the developments which took place in the earlier Jersey authority of Esteem. The Plaintiff failed in the Privy Council to win leave to appeal.

Shuck v Loveridge, Re Lamb (deceased):

The claimant executrix (S) sought to prove the 1996 will of the deceased (X) with two codicils from 1998 and 1999. The defendant minor (L) asked the court to pronounce for the force and validity of a codicil executed eight days prior to X's death in 2000. The 2000 codicil had allegedly been dictated by X to L's mother during his final stay in hospital and she had organised the attendance of witnesses the following day. By the 1996 will and the 1998 and 1999 codicils, X had made bequests to some 14 people, with the balance of the estate to go to L. By the 2000 codicil X purported to leave his entire estate to L, with the exception of one bequest, thereby revoking the gifts made by the previous testamentary dispositions. S submitted that X lacked knowledge and approval of the contents of the 2000 codicil and that the circumstances in which the codicil came to be executed were sufficient to excite the suspicion of the court, thereby shifting the evidential burden to L.

Held, giving judgment for L, that the suspicion of the court was excited because L was the beneficiary under the 2000 codicil and her mother had written the document and organised the attendance of the witnesses. Accordingly, the burden fell on L to dispel the suspicion that the will was not the product of X's free will, Barry v Butlin (1838) 2 Moo. P.C. 480 applied. However, in the absence of an allegation of undue influence, the court would not presume such undue influence. L's mother was not a dishonest witness. X had dictated the words of the 2000 codicil. X knew exactly the extent of his estate and executed the codicil of his own free will and without pressure. There were a number of factors that explained X's change of mind, including the facts that X was clearly estranged from his blood relations, that he had an extremely close relationship with L, that he had turned against S's family by the time of his final admission to hospital, and that he had a strong personality. The 2000 codicil represented X's free and informed decision and genuine wishes.

Cromwell v Copley:

The settlor claimed rectification of a declaration of trust made on 7 April 1996. The declaration of trust created discretionary trusts for the benefit of a wide body of beneficiaries. The settlor sought an order that his wife should be included within the class of beneficiaries. The defendant was appointed to represent all those beneficially entitled under the declaration of trust and did not oppose the claim. The settlor contended that the omission of his wife in the declaration of trust resulted from a drafting error on the part of his solicitors.

The court declared that the declaration of trust be rectified.
It was well established that voluntary settlements could be rectified or set aside as a result of ignorance or mistake. There was 'strong irrefragible evidence' that the settlor's wife was mistakenly excluded from the class of beneficiaries intended to be benefited under the declaration of trust contrary to the intention of the settlor and the instructions given to his solicitors. Further, there was clear contemporaneous evidence in support of the claim for rectification. Accordingly the basis, both factual and legal, for the claim for rectification was made out.

Driver v Yorke and another:

This was a claim that the principle asset of the Claimants' father's estate was held on constructive trust, and that it had been wrongfully sold by the executor, who had proceeded to distribute the proceeds.

The claim failed. In particular, the assertion that there was a common understanding as to any beneficial interest was inconsistent with the terms of the father's successive wills.

Fazio v Rush:

Successful defence of an action by a child of Caitlin Thomas to share in the trusts of the copyrights of the poet Dylan Thomas.

Re: Carapiet:

Successful action to determine that a trust for the establishment in life of Armenian children is a valid charity.

Topham v Charles Topham Group Ltd:

The claim was brought to save a tax freezer scheme involving onshore and offshore settlements which had gone wrong due to negligent advice.

Frank Hinks QC acted for the Claimant. The claim succeeded in saving the freezer scheme.

Re: Shelton - Agar:

Highly contentious will construction (part of a long running family dispute) in relation to a landed estate.

Wight v Olswang:

Validity and effect of trustee exemption clauses

Jahre:

The estate's claim that the defendants had dishonestly misappropriated assets from trusts causing loss in excess of US$150m. The action was compromised shortly before trial in the Grand Court of the Cayman Islands, bringing what promises to be an end to litigation which has been active since the death of Anders Jahre in 1982.

Justin Higgo was acting for the plaintiffs in what promised to be the final chapter of the Jahre litigation, the estate's claim that the defendants had dishonestly misappropriated assets from trusts causing loss in excess of US$150m.