Guernsey Royal Court. (omissis)

Transcription

1 Guernsey Royal Court Royal Court (Ordinary Division), Day (Deputy Bailiff), 16 marzo 2001 [Stuart-Hutcheson v Spread Trustee Company Limited, Re The Peter Acatos No 2 Settlement] (omissis) The Applicant s Application The applicant seeks an order, by virtue of ss 22 and/or 63 of the 1989 Law, or the inherent jurisdiction of the court, directing the respondent to deliver up to him the trust instruments and other, allegedly, formal trust documentation relating to the settlement, being all minutes of Cedar Investments Ltd (Cedar) a company half owned by the settlement, all accounts of the settlement and Cedar from 1 January 1990 and copies of all invoices raised by the respondent or associated entities against the settlement and Cedar. Section 22 provides: '22. (1) Subject to the terms of the trust, a trustee shall, at all reasonable times, at the written request of any beneficiary (including any charity named in the trust) or of the settlor, provide full and accurate information as to the state and amount of the trust property. (2) In its application to a trust arising from a document or disposition executed or taking effect before the commencement of this Law, subsection (1) shall only operate for the benefit of a beneficiary whose interest in the trust property becomes vested before the commencement of this Law, but this subsection shall not prejudice any rights that the beneficiary may have under the terms of the trust.' Section 63 provides: '63. (1) On the application of any person mentioned in subsection (2), the court may: a) make an order in respect of: i) the execution, administration or enforcement of a trust; ii) a trustee, including an order as to the exercise by a trustee of his function, the removal of a trustee (if, for example, he refuses or is unfit to act, or is incapable of acting, or is bankrupt or if his property becomes liable to arrest, saisie, or similar process of law), the appointment, remuneration or conduct of a trustee, the keeping and submission of accounts, and the making of payments, whether into Court or otherwise; iii) a beneficiary, or any person connected with a trust; iv) any trust property, including an order as to the vesting, preservation, application, surrender or recovery thereof; b) make a declaration as to the validity or enforceability of a trust; c) rescind or vary an order or declaration under this Law, or make a new or further order or declaration. (2) An application under subsection (1) may be made by Her Majesty's Procureur, a trustee, a settlor, a beneficiary...' The present case, as is accepted by both parties, relates to a trust which was created many years before the 1989 Law carne into force, and it s a trust under which the beneficiaries, including the applicant, are all discretionary beneficiaries, none of whose interests in the trust property became vested before the commencement of the 1989 Law. Additionally, the trust deed is silent as to any limitation on the duties of the trustee to provide information. The crucial issues of principle in this case are as follows: What rights do beneficiaries enjoy in Guernsey to see trust documents? Do such rights arise from the 1989 Law, or from customary law, or both? What is the effect, if any, of s 22(2) on this application, on its particular facts? (omissis) Guernsey Trust Law Prior to 1989 I have no doubt, as Mr Robilliard argues (and Mrs Allen does not disagree) that the concept of trusts was, in principle, recognised in Guernsey prior to Without undertaking any comprehensive review of what I believe is overwhelming evidence for such a statement, one need only look at a variety of facts: the large number of statutory trusts, either-created or envisaged on subjects ranging from testamentary matters in the 19th century to social insurance matters in the 1970s (coincidentally, the Law immediately following the 1989 Law in vol XXXI of the Ordres en Conseil is the Saint Peter's Church Hall (Trust) (Guernsey) Law 1989); the number of trusts administered by the Royal Court itself; the widespread practice of many decades, at the least, of creating trusts, either testamentarily or inter vivos; and (perhaps most pertinently) the jurisprudence of the Royal Court itself in recognising the existence of trusts (for recent examples of which, see the observations of Frossard DB in C K Consultants (Plastics) Ltd v Vines and Barnett Christie Finance Ltd (1982, unreported) and Frossard B in Beachcomber Hotels Ltd v The Beaucette Yacht Marina Ltd (1989, unreported)). It is equally clear that, prior to 1989, our case law on trusts was extremely limited (as it still is). Apart from the general

2 recognition of trusts, including the recognition specifically of constructive trusts (see the two cases to which I have just referred), the body of local jurisprudence is singularly undernourished, providing no guidance as to what I would have thought can only be described as fundamental issues, such as the duties of trustees and the rights of beneficiaries. Such issues have, of course, been the subject of extensive judicial development in many other jurisdictions, not least in England and Wales. Whether it is relevant for me, now, in the light of the enactment of the 1989 Law, to consider how our customary law might have developed on such issues but for that enactment, and/or whether it can or should so develop in tandem with the statutory provisions, and, if so, to what extent, are matters which I defer for later consideration in this judgment. The Present Position a) The 1989 Law The 1989 Law is divided into five parts and extends to some 76 sections. Part 1 relates to preliminary matters-the existence, validity and proper law of trusts and the jurisdiction of the Royal Court. Part 2 enacts provisions which are applicable only to a Guernsey trust and relate to: the creation, validity and duration of Guernsey trusts; the appointment, retirement and discharge of trustees; the duties of trustees; the general powers of trustees; liability for breach of trust; protective trusts, class interests and certain powers; failure, lapse and termination of trusts; powers of the court; variation, etc. of trusts; and permitted investments. Part 3 enacts provisions applicable only to a foreign trust. Part 4 enacts provisions of general application, including, relevant for present purposes, applications for directions (s 62), general powers of the court (s 63) and the nature of a trustee's interest (s 66). Part 5 makes provision for various supplemental matters, including, again relevant for this case, extensive savings provisions (s 74). Provision relating to the duties of trustees is made under ss 18 to 25 inclusive. The fundamental general fiduciary duties of a trustee are: '18. (1) A trustee shall, in the exercise of his functions, observe the utmost good faith and act en bon père de famille [a principle well known in Guernsey customary law]. (2) A trustee shall execute and administer the trust, and shall exercise his functions thereunder, in accordance with the provisions of this Law and, subject thereto: (a) in accordance with the terms of the trust; (b) only in the interests of the beneficiaries or charitable purpose, as the case may be.' The 1989 Law proceeds to identify certain specific duties, which in my view can be divided into two kinds, namely what I would describe as absolute duties and conditional duties. Examples of the former are: s 18(1) (which I have already quoted); the duty to keep accounts 'A trustee shall keep accurate accounts and records of his trusteeship'; and the duty to keep trust property separate (see s 23). Conditional duties are those which can be subject to other considerations, and I have specifically in mind duties which are subject to the terms of the trust itself (including s 22(1)). Sections 26 to 33, inclusive, make provision in relation to the general powers of trustees; and again those powers can be similarly subdivided. Section 33 provides: '33. A trustee is not (subject to the terms of the trust and to any order of the court) obliged to disclose documents which reveal: (a) his deliberations as to how he should exercise his functions as trustee; (b) the reasons for any decision made in the exercise of those functions; (c) any material upon which such a decision was or might have been based.' Even on such a brief review of its range, and of the particular sections most relevant to the issues with which I am concerned in this case, the 1989 Law would at least appear to be comprehensive and to have fulfilled the legislature's intention of providing a basic infrastructure of legal principles. b) Counsel's submissions The applicant requests that the respondent be ordered to deliver to him certain documents, as specified in his application. For present purposes, I am treating all those identified documents as being trust documents, and make no distinction, inter alia, between those of the trust itself and those of the underlying company (Cedar). I summarise Mr Robilliard's forceful submissions as follows. Section 22(1), by its very terms, relates purely to providing, and by necessary implication (I agree) receiving, information relating to the state and amount of the trust property. Information is not to be equated with, and does not include, documents. Any duties and rights regarding documents do not arise by virtue of s 22(1), and cannot therefore be subject to the limitations (whatever they may be) imposed by s 22(2). Moreover, the limitations imposed by s 22(2) apply only to s 22(1) and no other section (a further submission which is undeniably correct). In addition to the precise wording of s 22(1) itself, Mr Robilliard seeks assistance from other sources within the 1989 Law to sustain this argument. That duties and rights with regard to the disclosure of documents exist in Guernsey, is evident from s 33. That section, in distinction to s 22(1), makes specific reference to documents, and the kinds of which, and the circumstances in which, trustees are not obliged to disclose them. The only inference which can be drawn from the wording of s 33, he submits, is that there is a general duty on trustees to disclose documents, subject only to the limitations stated in that

3 section. As that general obligation does not arise under the provisions of s 22(1), and as no basis for it can be found elsewhere in the 1989 Law, it must accordingly exist outside the parameters of the 1989 Law. That the obligation can so exist finds support from s 74(2), which states: 'Nothing in this Law derogates from the powers of the court which exist independently of this Law:...(b) in respect of trusts, trustees or trust property...' This saving provision, says Mr Robilliard, demonstrates that the 1989 Law is not a self-contained code, but that it can ride in tandem with customary law principles. That same conclusion can be reached from drawing the necessary and proper inferences from s 10 (the nature of the interest of a beneficiary) and s 66 (the nature of a trustee's interest), which jointly and severally acknowledge the proprietary interest of a beneficiary in the trust property. Additionally, Mr Robilliard seeks assistance from s 63(1)(a)(ii) and its reference to the keeping and submission of trust accounts. The power of the court to make orders in that regard would not arise unless a beneficiary had the right to see such documents, thus giving full meaning and effect, by way of particular example, to s 21 (the duty of a trustee to keep accurate accounts and records). Mr Robilliard emphasises that the English jurisprudence has developed separate conceptual bases with regard generally to information and documents, namely beneficiaries' proprietary interests and rights to information (for which see, for example, O'Rourke v Darbishire [1920] AC 581, [1920] AlI ER Rep 1, Re Londonderry's Settlement [1965] Ch 918, [1964] 3 All ER 855, Re Murphy's Settlements, Murphy v Murphy [1998] 3 All ER 1, [1999] 1 WLR 282 and Chaine- Nickson v Bank oflreland [1974] IR 393). Whilst the right to information is now statutorily based in Guernsey on s 22(1), there is no similar statutory basis for beneficiaries' proprietary interests, though their existence is recognised by necessary inference from the relevant provisions of the 1989 Law to which he referred me. Those interests, and thus the right to inspect documents, can only be founded on customary law principles, in respect of which the court can exercise its inherent powers 'independently of this Law'. Whilst the respondent, as already indicated, takes a neutral stance, Mrs Allen has very properly advanced contrary arguments to those of Mr Robilliard. In brief summary, they are to the effect that a full statutory regime is created by the 1989 Law with regard to the duties and rights in respect of trust documents (and information), so that it is unnecessary, and would be wrong, to look elsewhere to establish their existence and extent. The fact that I do not propose to review her submissions in more depth must not be taken as any discourtesy to her; it is for the simple reason that, for the most part, I concur with them, and certainly with her conclusions. Conclusion I would make two initial general observations. Firstly, one would expect, as a matter of basic principle, that any duty imposed upon somebody be complemented by a reciprocal right, to ensure the accountability of those on whom the duty is placed; as illustrated, for example, by the development of judicial reasoning in England and Wales, and elsewhere, during the 20th century. Secondly, on the other hand, it should not be forgotten that beneficiaries are 'merely volunteers, the recipients of the settlor's bounty' (as Mrs Allen would describe them), and that the trusts assets were originally those of the settlor. Due regard should therefore be paid to the wishes of the settlor as to what should happen to his property, who may have, and to what extent, an interest therein, and who may be entitled to receive information and documents regarding such assets. In my opinion, the regime established by the 1989 Law regarding the duty of trustees to account for their stewardship of a trust is clear. They must, without limitation, act 'en bon père de famille', must keep accurate accounts and records of their trusteeship and must keep the trust property separate from any other property. Further general, but potentially conditional, duties are imposed upon trustees. The crucial one, for present purposes, is the provision of full and accurate information as to the state and amount of the trust property. Those duties and rights arise, now, solely from the provisions of the 1989 Law, the primary source for which is s 22(1). With regard to the meaning and effect of s 22(1), information must, when appropriate, include relevant trust documents. In logic and common sense, and as a matter of law, it could not be otherwise. A document is something which, in writing, provides information. Information must include the primary evidence for it, when available, not some alternative digest of it, however accurate. The greater-information-must include the lesser-the supporting documentsand/or vice versa. Those entitled to receive such information/documents are the beneficiaries and the settlor (a wider category than in England, I believe). Ignoring for the moment any effect of s 22(2), the duty, with its reciprocal rights, is subject only to the terms of the trust and s 33. The court does not have any general discretion in determining any limitations on the extent of that duty, unlike in Jersey, apparently, where it exists on an equitable basis (see Re the Rabaiotti 1989 Settlement (2000) 2 ITELR 763, [2000] JLR 173). That does not exclude, it must be emphasised, judicial involvement with the application of s 22(1). In any particular case, it may be necessary to determine what may be the terms of the trust, and what information/documents may or may not be relevant in providing a full and accurate picture as to the state and amount of

4 the trust property; and on a generallevel, judicial interpretation will, I am sure, be required in the future as to whether the description 'any beneficiary' includes all discretionary beneficiaries. That is not an issue which falls for my determination on the facts of this case; I would merely observe that it seems to me, as presently advised, that the phrase would indeed extend to all beneficiaries. Section 22(1) provides the machinery by which all those entitled to do so can call the trustee to account for his trusteeship by the provision of information, including documents. The outstanding example must relate to his keeping of accurate accounts and records, a duty imposed by the immediately preceding section. Section 33 merely provides a gloss on s 22(1), it does not relate to a separate self-standing duty to disclose, and right to receive, documents. The fact that there are ten sections between the two under comparison does not in my view in any way weaken the link between them. The distance between those sections in the 1989 Law results merely from the way in which it has been drafted, ss 18 to 25 relating to the duties of trustees, with ss 26 to 33 logically following thereafter. Section 33 dilutes the trustee's obligation to disclose documents, the extent of which dilution is subject to the terms of the trust and, additionally in this instance, to any order of the court. It is both valid and useful, in my view, to recall the, albeit bland, recommendations which the States approved when directing the preparation of the draft Projet de Loi, namely that it should follow the general pattern of the Jersey Law, and should draw upon many, but not all and not necessarily without modification, of the principles of English trust law. On any comparison, the 1989 Law clearly follows the general pattern of the Jersey Law. It is divided into the same number of parts, each with the same heading. Though the 1989 Law contains more sections, it almost entirely follows the order of the Jersey sections, the contents of which are, additionally, very similar, when they are not the same. One area in which the 1989 Law appears to be more comprehensive than that enacted in Jersey, is in the number of sections devoted to the duties of trustees. The Jersey Law contains no provisions similar to s 22 of the 1989 Law, a fundamental and deliberate Guernsey addition. In view of that, it is inconceivable, in my opinion, that the draftsman, whilst deliberately creating the statutory duties, with reciprocal rights, to provide full and accurate information as to the state and amount of the trust property, would not have included within the parameters of information all trust documents which were relevant to such provision. As already stated, the greater must include the lesser. Or to put it another way; it is inconceivable that the draftsman, taking into account the existing English principles and the terms of the Jersey Law, and the requirement to provide a satisfactory statutory infrastructure, would seek to provide that an ill-defined nonstatutory regime on a crucial trust issue should run, and be developed separately from, but in tandem with, the proposed new Law. It is also interesting to note the similarities, and differences, between our s 33 and the equivalent section of the Jersey Law, s 25. The latter contains similar provisions to those contained in paras (a), (b) and (c) of s 33, but adds a further provision (25(d)) to the effect that, subject to the terms of the trust and to any order of the court, a trustee shall not be required to disclose to any person any document which relates to or forms part of the accounts of the trust, unless that person is a beneficiary. It is in that way that the Jersey Law gives statutory recognition to the requirement of a trustee to disclose such accounting documents, with the reciprocal right of a beneficiary to receive them (a construction which the Jersey Royal Court gave to this somewhat convoluted section of the Jersey Law in Re the Rabaiotti 1989 Settlement (2000) 2 ITELR 763 at 774, [2000] JLR 173 at 184, para 30, which I respectfully adopt). In Re Rabaiotti the Jersey Royal Court was concerned with an application which related to the duties and powers of trustees in relation to disclosure to beneficiaries of (i) trust documents, such as trust deeds, accounts, etc and (ii) a letter of wishes given by the settlor to trustees, in connection with a discretionary settlement. The Jersey Royal Court approached the questions, firstly, as to the duties and powers of trustees in relation to disclosing trust accounts, and, secondly, the court's discretion to override those general duties and rights, by applying what it described as general equitable principles, as well as the statutory limitation on that duty as provided by s 25(d) of the Jersey Law. At the risk of stating the obvious, and with due respect to the Jersey Royal Court, in what other way could it have addressed the questions which it was required to answer, in the absence of any statutory provisions comparable to s 22(1) of the 1989 Law? The reasoning of the Jersey Royal Court in Re Rabaiotti prompts this further thought. If Mr Robilliard's contention is correct-that s 22(1) ofthe 1989 Law imposes on a trustee only a duty in respect of information and not to the disclosure of trust documents, and that therefore the latter solely arises on a non-statutory basis-then the following situation could, and I believe would, arise. The general duty of a trustee to provide information would be subject only to the terms of the trust deed, there being no further specific provision in the section that it would also be subject to any order, or discretion, of the court. On the other hand, a non-statutory duty to disclose documents, relevant to the trust, would be additionally subject, if the court were to apply general equitable principles as in Jersey, to the discretion of the court (regardless of the further limitation on disclosure in relation to s 33 documents). This would mean that, in certain cases, the powers of the court in relation to disclosure would depend upon whether an item was classified as information or as a document. Such a distinction would be absurdly artificial, and unsatisfactory, and lead to uncertainty and confusion, a result which I am sure the draftsman was not intent on creating. At the same time as following the general pattern of the Jersey Law, with the notable exception stated above, the Guernsey draftsman has, in my view, incorporated the fundamental principles of English trust law, with regard to the

5 duties and rights relating to the disclosure of trust documents (and, of course, more widely, general information about the trust). It is interesting, I believe, to note art 47 of the 1904 (6th) edition of Underhill on Trusts and Trustees which states: '(1) A trustee must- (a) keep clear and accurate accounts of the trust property; and (b) at all reasonable times, at the request of a beneficiary, give him full and accurate information as to the amount and state of the trust property, and permit him or his solicitor to inspect the accounts and vouchers, and other documents relating to the trust. (2) A trustee is, nevertheless, not bound to supply copies of accounts or trust documents, or to supply information which necessitates expenditure, except at the cost of the beneficiary requiring the same.' The provisions of ss 21 and 22(1) of the 1989 Law are strikingly similar, in my view, to the English common law position even as it was in the early 20th century. Our statutory provisions equally reflect the English principles as they had been judicially developed and refined by the late 1980s. Whatever the genesis of, and judicial reasoning for, the development of those principles in England and Wales (equitable proprietary rights and the separate right to make the trustees account for their trusteeship), a single composite duty and right has now been established as part of our trust law by virtue of s 22(1). Nor can Mr Robilliard derive any assistance from the provisions of ss 10 and 66-they do not help to construe s 22(1); nor s 63(1)(a)(ii) (the keeping and submission of accounts)-s 21 imposes the absolute duty to keep accurate accounts and s 22(1) imposes the duty to disclose them, but subject to the terms of the trust; nor s 74(2)(b)-the provisions of which regarding duties and rights relating to disclosure of trust documents can only start to come into play if they are not provided for elsewhere in the 1989 Law, which theyare. The 1989 Law has removed previous uncertainties and provided a satisfactory infrastructure of legal principles. Additionally, in my view (for what it is worth), it satisfactorily balances the respective rights of beneficiaries (howsoever to be defined) and settlors. In the circumstances of this case, but for the enactment of s 22(2), I have no doubt that by virtue of s 22(1) the applicant would be entitled to receive some, at least, of the documents he requests. Which of these documents might be so disclosable is a matter, deliberately, upon which I have not heard argument, and upon which I accordingly express no opinion. However, in my view, the provisions of s 22(2) are clear and unambiguous. The reciprocal duties and rights regarding the provision of information (including documents) created by s 22(1) in respect of a trust created prior to the commencement of the 1989 Law, only operate for the benefit of a beneficiary whose interest in the trust property, under such trust, became vested before that commencement date, but without prejudice to any rights which may have been created on behalf of the beneficiary under the terms of the trust deed itself. Should there be any lingering doubts in respect of the clarity of that subsection, they must be dispelled by the fact that in 1988 the States of Guernsey made a deliberate and conscious decision that, notwithstanding the proposed enactment of the general principles as to disclosure, those principles would have no application to a pre-1989 trust, unless the interest of the beneficiaries thereunder had become vested before the commencement date of the new Law. The applicant cannot find assistance from the words used by H M Procureur in explaining the amendment to insert a new ci22(2) in the draft Projet, namely that the right of beneficiaries to receive information was to be limited, in the case of existing trusts, to the existing rights, to mount an argument that these existing rights would include those enjoyed by discretionary beneficiaries. Whether or not this was the customary law position, at that time, is immaterial, and not for me to decide. The 1989 Law itself provides the pertinent answer; the only persons exempt from the strict provisions of s 22(2) were, and have to be, beneficiaries whose interests had become vested by the date of the enactment of the 1989 Law. Section 22(2) covers precisely the circumstances of the applicant in this case, and his application must fail. If the provisions of s 22(2) are considered to be unsatisfactory or unfair- and both counsel have identified circumstances in which they might be-any rectification must be a matter for the legislature alone, as it sees fit. The reasoning in Morton (formerly Champion) v Paint (Guernsey Civil Appeal219) (9 February 1996, unreported) and interstitial judiciallegislation can have no application in this case.