Edoarda Crociani; Paul Foortse; BNP Paribas Jersey Trust Corporation Ltd; Appleby Trust (Mauritius) Ltd v Cristiana Crociani; A (by her Guardian ad Litem, Nicolas Delrieu); B (by her Guardian ad Litem, Nicolas Delrieu

JurisdictionJersey
CourtCourt of Appeal
JudgeThe Hon. Michael Beloff,Sir John Nutting,Bt.,John V. Martin
Judgment Date07 April 2014
Neutral Citation[2014] JCA 89
Date07 April 2014

[2014] JCA 89

COURT OF APPEAL

Before:

The Hon. Michael Beloff, Q.C., President; Sir John Nutting, Bt., Q.C., and; John V. Martin, Q.C..

Between
(1) Edoarda Crociani
(2) Paul Foortse
(3) BNP Paribas Jersey Trust Corporation Limited
(4) Appleby Trust (Mauritius) Limited
Appellants
and
(1) Cristiana Crociani
(2) A (by her Guardian ad Litem, Nicolas Delrieu)
(3) B (by her Guardian ad Litem, Nicolas Delrieu
Respondents

Advocate R. J. MacRae for the Appellants.

Advocate A. D. Robinson for the Respondents.

Authorities

Crociani -v- Crociani [2013] JRC 194A .

Glazebrook -v- Housing Committee [2002] JLR Note 43 .

United Capital Corporation -v- Bender [2006] JLR 269 .

Cotterill v Ozanne (2) 2011–12 GLR 1 .

Warren -v- Attorney General [2012] (2) JLR 286 .

McNamara v Gauson 2009–10 GLR 387 .

Court of Appeal (Jersey) Law 1961.

Spiliada Maritime Corporation v Cansulex Limited (“The Spiliada”) [1987] 1 AC 460.

Gheewala v Compendium Trust [2003] UKPC 77 .

Oakley v Osiris [2008] UKPC 2 .

Lewin on Trusts 18th ed.

Lutterman “Jurisdiction Clauses in Trust Instruments”, Trusts and Trustees Vol 17 no 2.

Cloutte v Storey [1911] 1 Ch 18 .

Underhill on Trusts 18th Ed.

Pitt v Holt [2013] UKSC 26 .

Dicey Morris and Collins Conflict of Laws 15th ed.

Bols Distilleries BV v Superior Yacht Services [2007] 1 WLR 12 .

Konkola Copper Mines v Coromin [2006] 1 All ER (Comm) 432 .

Marley v Rawlings [2014] UKSC 2 .

Rainy Sky S.A. v Kookmin Bank [2011] UKSC 50 .

Chelleram v Chelleram 1985 Ch 409 .

In the Matter of the Shinorvic Trust [2012] JRC 081 .

What is a Trust Jurisdiction Clause? Professor Paul Matthews (2003) JGLR 2.

Practical Trusts Precedents, Withers.

Drafting Trusts and Will Trusts a Modern Approach Kessler and Sartin, 119 ed.

Drafting Trusts and Will Trusts in the Channel Islands Kessler and Matthams, 2nd ed.

Dymonds Death Duties 15 ed.

Chellaram v. Chellaram [1985] Ch 408 .

The Jersey Law of Trusts Matthews and Sowden, 3rd Ed.

Hague Trusts Convention.

Alsop Wilkinson v Neary [1996] 1 WLR 1220 .

Tolley Administration of Trusts.

Encyclopaedia of Forms and Precedents (1921 ed) Vol 20.

Re Wrightson (1908) 1 Ch. 789 .

Koonmen -v- Bender 2002/218 .

State of Qatar -v- Al Thani [1999] JLR 118 .

Harris The International Trust.

Encyclopaedia of Forms and Precedents 1991 ed Vol 40.

Green v Jernigan 2003 BCSC 1097 .

Helmsman Ltd v Bank of New York Trust Co. Ltd. 2009 C.I.L.R 490 .

Representation of AA in re the D Discretionary Trust [2010] JRC 164 .

Re A Trust [2012] SC (Bda) 72 .

Schmidt v [Rosewod] Trust (2003) 2 AC 709 .

Investec Trustees -v- BC et al. [2013] JRC 181 .

Trusts (Jersey) Law 1984.

Mauritius Trusts Act 2001.

Green -v- Jernigan (2003) BCSC 1097 .

Donahue v Armco [2002] 1 All ER 749 .

Bank of New York Mellon GV Films (2009) EWHC 2338 (Comm) .

EMM Capricorn Trustees Ltd -v- Compass Trustees [2001] JLR 205 .

Glasson the International Trust.

Trendtex Trading Corp -v- Credit Suisse (1982) AC 679 .

MacMillan Inc -v- Bishopsgate Investment Trust plc and Ors (No 3) [1996] 1 All ER 585 .

Pacific International Sports Clubs [2009] EWHC 1879 (Ch) .

Judgment Regulation (Council Regulation) (EC) 44/2001.

Re S [2011] JRC 117 ; 14 ITELR 663.

Carlyle Capital Corporation Ltd -v- Conway and Ors CA Guernsey 5 March, 2012.

In Re Wilson 1985 AC 750 .

Trust — application for leave to appeal the Royal Courts decision to refuse application to stay proceedings on the grounds of forum non conveniens.

Application for leave to appeal the Royal Courts decision to refuse application to stay proceedings on the grounds of forum non conveniens.

THE PRESIDENT:
INTRODUCTION
1

By notice dated 24 October, 2013 the Appellants (collectively “As”) have applied for permission to appeal against the decision of the Royal Court dated 2 October, 2013 (“the Decision”) to refuse As’ application to stay these proceedings on the ground of forum non conveniens.

2

On 24 September, 2013 this Court directed contingently that any appeal by As be heard simultaneously with the permission application and the matter has accordingly come before us as a rolled up hearing.

3

These proceedings emanate, as their title suggests, from a feud within a family about which branch of the family should enjoy the fruits of substantial trusts. The family protagonists are, on the one hand, A1, and on the other hand, Cristiana (R1), one of two daughters of A1, the other being Camilla, and R1's two daughters Delia (R2) and Livia (R3), (collectively “Rs”).

4

The contest between the parties for present purposes is whether the substantive issues should be determined in Jersey, the forum preferred by Rs, or Mauritius, the forum preferred by As.

5

As assert that Clause Twelfth of a trust known as the Grand Trust, as activated, confers exclusive jurisdiction on the courts of Mauritius. The Royal Court upheld Rs' contrary contention that clause Twelfth does not on its true construction purport to dictate the locus for these proceedings but that, even if it did, there existed “good reason” and “exceptional circumstances” to refuse to stay the Jersey proceedings; and it would, if necessary, have exercised its discretion to do so on that alternative basis.

Background to Rs' claim
6

By a trust agreement dated 24 December 1987 made by A1, as settlor, and herself and two other former trustees (not party to the proceedings), as trustees a settlement (“The Grand Trust”) was created.

7

The preamble to the trust deed provided as follows:–

“The Settlor wishes to record that she intends by this Agreement to have set aside a separate trust for each of her children Camilla (aged sixteen (16) years as of the date of this Agreement) and [R1] (aged fourteen (14) years as of the date of this Agreement). The Trustees shall receive as the initial Trust Fund the Secured Term Note (the “Note”) described in the annexed Schedule A. The Trustees shall retain the Note until its maturity or until its prior redemption, without regard to rules concerning diversification of investments or theories or principles of investment for fiduciaries. The Trustees shall collect the income from and proceeds of the Note when due, but shall not be required to institute litigation to enforce payment or to enforce any right which the Trustees may have as owner of the Note. The Trustees shall divide the property described in the annexed Schedule A into two (2) substantially equal (as to value) separate trusts, one of which shall be identified by the name of CAMILLA and one of which shall be identified by the name of [R1]. Each such separate trust shall be disposed of as hereafter directed in this Agreement.”

8

The Note settled into the Grand Trust was issued to A1 by Croci International BV, under which it promises to pay 75 billion lire in full together with accrued interest on the 30th anniversary of the date of its issue. It still remains an asset of the Grand Trust and is due to be redeemed in 2017. Rs say that further substantial sums were settled upon the Grand Trust by A1.

9

Under the principal trust provisions of the Grand Trust, the trustees have the power in respect of each fund that bears (as the case may be) the name of Camilla and R1 to pay income to each of Camilla and R1 respectively during their lifetimes, together with a company which Rs say is beneficially owned by A1 and known as Camillo Crociani Foundation Limited (“the Foundation”), and to pay capital to each daughter respectively during their lifetimes, with the remaining capital passing as they may appoint or failing appointment to their children on their respective deaths. In the event of both daughters dying without leaving living issue A1 is the default beneficiary and failing her, the Foundation.

10

R1's children (R2 and R3) are, Rs assert, but As do not concede, entitled to R1's Fund on her death. (This particular issue to be resolved at any trial appears to turn on the consequence of the marriage of R1 and Nicolas Delrieu, the father of R2 and R3, in 2012, and whether it legitimated the children.)

11

Rs assert, but As dispute, that the Grand Trust was not created with the purpose or intention of providing any benefit to A1 other than as a default beneficiary if her line of descendants through Camilla and R1 was extinguished. A1 asserts that it was always her intention to be able to benefit from the assets which she settled in to the Grand Trust, being assets which she had created.

12

Under Clause Eleventh (A) the trustees have the overriding power to transfer the whole or any part of the trust fund to other trusts:–

“Notwithstanding any of the trusts, powers and provisions herein contained the trustees shall have power at any time or times before the Distribution Date at the absolute discretion of the trustees to raise and pay or transfer the whole or any part of the Trust Fund freed and discharged from the trusts and powers and provisions of this instrument to the trustees of any other trust not infringing the rule against perpetuities applicable to these trusts and approved by the trustees and in favor or for the benefit of all or any one or more exclusively of the others or other of the beneficiaries (other than the settlor) and whether or not the trustee or trustees of such other trust is or are resident within the jurisdiction applicable at the time to that trust and thereupon the property so paid or transferred shall be subject to the trusts, powers and provisions of the other trust and be governed by the proper law of that other trust whether or not such proper law is the proper law of this Agreement”.

13

Under Clause Twelfth, which falls primarily to be construed for the purposes of this application the trustees have the power to appoint new trustees outside the jurisdiction and to...

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