The C Trust

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Kerley,Nicolle
• Judgment Date: 14 May 2012
• Neutral Citation: [2012] JRC 98
• Date: 14 May 2012

[2012] JRC 98

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, andJurats KerleyandNicolle.

IN THE MATTER OF THE REPRESENTATION OF A (A MINOR) AND B (A MINOR) BY MARK HOWARD TEMPLE (GUARDIAN AD LITEM)

AND IN THE MATTER OF THE C TRUST

AND IN THE MATTER OF ARTICLE 51 OF THE TRUSTS (JERSEY) LAW 1984 AS AMENDED.

Between

A and B (represented by their guardian ad litem Mark Howard Temple

Representors

and

Verite Trust Company Limited

First Respondent

George Machan

Second Respondent

D

Third Respondent

and

E

Fourth Respondent

Advocate M. H. Temple for himself.

Advocate R. J. MacRae for the First and Second Respondents.

Advocate P. D. James for the Fourth Respondent.

Authorities

Trust (Jersey) Law 1984.

Re S Settlement [2001] JLR N 37 .

Children (Jersey) Law 2002.

JEP -v- Al Thani [2002] JLR 542 .

In the matter of the representation of the Sanne Trust Company Limited [2009] JRC 025B .

In the matter of DD [2010] JRC 193 .

In re H Trust [2006] JLR 280 .

Trust — submissions by the trustee and the widow regarding publication of judgment handed down on 25 April, 2012.

THE COMMISSIONER:

1 The Court's judgment on this matter (“the judgment”) was handed down on 25 ^th April, 2012, when it heard applications from Mr MacRae for the first and second respondents and Mr James for the fourth respondent as to the anonymisation and redaction of the judgment. Having heard the submissions, the decision of the Court was reserved. We will adopt the same definitions as in the judgment.

2 In the judgment, the Court set aside the instrument of appointment by which the grandchildren (aged 5 and 7) had been excluded from the Trust during the lifetime of the widow, and this on the ground that the decision was one at which no reasonable trustee could have arrived. The judgment is critical of the widow, the father, the trustee and the protector.

3 It was common ground that although the application was brought under Article 51 of the Trust (Jersey) Law 1984 as amended, these were hostile proceedings which came within the fourth of the categories described in Re S Settlement [2001] JLR N 37, namely hostile litigation to be heard and decided in open court. Indeed, there was no application for the matter to be heard in private and it was heard and the judgment handed down in public. It was also common ground that the judgment will need to be anonymised in order to prevent the grandchildren being identified.

4 Originally the proceedings had been brought by the mother (who is not a beneficiary of the Trust) as guardian ad litem of the grandchildren. The trustee raised concerns about documents being disclosed to her which might be used by her in the English proceedings. In order to get round this, it was proposed between the parties that Mr Temple should become the guardian ad litem, and he gave an undertaking, which was noted by the Court on 11 ^th January, 2012:-

“1. Noted the undertaking given by Advocate Mark Howard Temple that any documents served by the Trustee and/or Protector and/or [the widow] and/or [the father] will not be sent out of the jurisdiction and in particular, will not be sent or shown to or any of the contents revealed to either the mother or her advisers by quoting the contents of the same and/or that such disclosure will not be able to be used in any proceedings in Jersey, England & Wales or any other jurisdiction other than the Representation (such undertaking being subject to any further order of the Court which provides otherwise) save that such undertaking is not intended to prohibit such communication that may be required to be had between Mourant Ozannes and [the mother] or her advisers in order to respond to the evidence of the Trustee and/or Protector and the disclosure provided by [the widow] and [the father] save that, as undertaken, the disclosure shall not be sent or shown to [the mother] or the contents revealed to her by quoting from the same;”

5 That undertaking remains in force and Mr Temple has confirmed that it has been complied with but of course it does not extend to the judgment which contained extensive references to confidential information in relation to the Trust, such as letters of wishes, legal advice given to the trustee and the protector and communications between the widow and the trustee and protector.

6 Mr MacRae submitted that in addition to the anonymisation required in order to prevent the grandchildren from being identified, the judgment should either not be published at all or should be heavily redacted, and this upon grounds which we would summarise as follows:-

• (i) Although the High Court has issued its final order, the mother is entitled to nominal maintenance and could apply at any time to have that maintenance varied. If she were to do so, it would be wrong that she could use confidential information in relation to the Trust gained through these proceedings which would not ordinarily have been available to her.

• (ii) Jersey courts have attached considerable importance to the confidentiality of private trusts and the privacy of the parties (including the trustee) in this case and the confidentiality of the relationship between the beneficiaries and the trustee should be protected by the Court. It was essentially a family dispute in which there was no real public interest and there was a fear that in a few years time, the mother will show the judgment to the grandchildren in order to further damage their relationship with the widow. He stressed that this was not about sparing the blushes of the director of the trustee involved and the protector, but about maintaining the privacy and confidentiality of this family.

• (iii) It would be wrong for the judgment to be used against the father, who he informed us did not have the means to appear before us and in respect of whom adverse findings have been made in his absence by the Court, which could potentially put him in contempt of the High Court.

7 If the Court was not prepared to withhold publication of the judgment altogether, then he recommended a middle course by which the judgment would be heavily redacted to remove information confidential to the Trust. This, he said, could be done by the agreement of counsel, and would not be a difficult process.

8 Mr James, for the widow, supported the trustee's application. He questioned what public interest there was in publishing the judgment. We needed, he said, to look to the interests of the family and ask whether it was in the interests of the grandchildren to be shown this judgment. It would potentially destroy any opportunity that there might be to repair the already damaged relationships. In essence, he submitted that any public interest in seeing the judgment was outweighed by the interests of the grandchildren.

9 It was accepted by both Mr MacRae and Mr James that whatever order the Court made today, the grandchildren would be entitled to require sight of the full form of the judgment once they had come of age, as they are parties to the proceedings. It transpired in discussion that Mr Temple's firm had already e-mailed a copy of the draft judgment to the mother and it was therefore in her...