Disclosure

Question 1

Q1: What does Article 29 of the Trusts (Jersey) Law say about the Court’s role in disclosure?

Answer 1

A1: Article 29 makes clear that while trustees have rights to refuse disclosure, the Court has overriding discretion to make a different order and enforce accountability.

Question 2

Q2: What can a beneficiary do if a trustee refuses to disclose trust information?

Answer 2

A2: The beneficiary can apply to the Court, which may overrule the trustee’s refusal using its supervisory jurisdiction.

Question 3

Q3: Should a trustee apply for directions or a blessing when refusing disclosure?

Answer 3

A3: There’s debate. Some say yes, following the directions/blessing procedure. Others argue the Court has discretion to decide directly due to its supervisory role.

Question 4

Q4: What was held in In the Matter of the Y Trust regarding refusal to disclose?

Answer 4

A4: The Court generally won’t substitute its discretion for the trustee’s, only overturning irrational decisions. However, it left open whether it might exercise its own discretion in cases involving refusal to disclose.

Question 5

Q5: What did the Court decide in Re The L Trust [2017] JRC168A about the Court’s role in disclosure decisions?

Answer 5

A5: The Court preferred to exercise its own discretion rather than defer to the trustee’s. It found it inappropriate for outcomes to depend on who applies to the Court first.

Question 6

Q6: What factors guide the Court’s discretion when deciding whether to order disclosure?

Answer 6

A6: Factors include:
Nature of the beneficiary’s interest
Possible harm to the trust
Effectiveness of Court measures
Type of documents sought
Impact on trustee accountability
Proportionality of the request

Question 7

Q7: What is the cost consequence for trustees who fail to disclose information and force beneficiaries to go to Court?

Answer 7

A7: Trustees may be personally liable for the costs, especially if the Court deems disclosure should have been made without litigation.

Question 8

Q8: What happened in James v Newington regarding trustee costs?

Answer 8

A8: The trustee failed to provide accounts and did not respond properly. The Court found proceedings necessary and ordered costs against the trustee on a standard basis.

Question 9

Q9: When might a trustee be ordered to pay costs on the higher, indemnity basis?

Answer 9

A9: In especially bad cases of refusal or delay. For example, in Bhandher v Barclays, the Court found the trustees’ conduct unhelpful and ordered indemnity costs.

Question 10

Q10: Does a beneficiary need permission to apply to the Court under Art 51 of the 1984 Law?

Answer 10

A10: No, a beneficiary can apply directly for relief such as an account without needing the Court’s permission.