The S Settlement

JurisdictionJersey
CourtRoyal Court
JudgeDeputy Bailiff
Judgment Date24 July 2001
Neutral Citation[2001] JRC 154
Date24 July 2001

[2001] JRC 154

ROYAL COURT

(Samedi Division)

Before:

M.C. St. J. Birt, Deputy Bailiff, and Jurats Le Breton and Quérée

In the Matter of the S Settlement

Advocate J. A. Clyde-Smith for the Trustee.

Advocates J.P. Speck, C.G.P. Lakeman, A.J.D. Winchester and S.J. Young for the various convened parties.

Authorities

The Public Trustee v Cooper (20th December, 1999) Unreported Judgment of the High Court of England.

Matters to be considered by Court when asked to approve Trustees' proposed course of action: (1) is it within Trustees' power; (2) if so, is it a proper exercise of that power; (3) surrender of discretion; (4) where Trustees have already taken action.

Matters to be considered under (2) [proper exercise of Trustees' power]: (a) has Trustees' opinion been formed in good faith; (b) is opinion one of a reasonable Trustee; (c) is opinion vitiated by actual/potential conflict of interest.

EXTRACT FROM A JUDGMENT DELIVERED IN CAMERA AUTHORISED FOR RELEASE BY THE DEPUTY BAILIFF
Deputy Bailiff

THE

1

We turn next to consider the role of the Court in this application. The Trustee has asked the Court to authorise it to enter into the various deeds which have been produced to us and which are intended to achieve the objectives which we have described. We wish first to consider exactly what the Court is being asked to decide. Mr. Clyde-Smith has cited to us an extract from the English case of The Public Trustee v Cooper, an unreported decision of Hart J dated 20 th December, 1999. That judgment in turn cites from a judgment of Robert Walker J in an unnamed case which took place in chambers in 1995. We think that the extract is extremely useful and is to be taken as reflecting the position under Jersey Law just as much as under English Law, and we would therefore like to take the opportunity of setting it out. Robert Walker J said this:

“At the risk of covering a lot of familiar ground and stating the obvious it seems to me that when the court has to adjudicate on a course of action proposed or actually taken by trustees there are at least four distinct situations and there are no doubt numerous variations of those as well.

(1) The first category is where the issue is whether some proposed action is within the trustees' powers. That is ultimately a question of construction of the trust instrument or a statute or both. The practice of the Chancery Division is that a question of that sort must be decided in open court and only after hearing argument from both sides. It is not always easy to distinguish that situation from the second situation that I am coming to.

(2) The second category is where the issue is whether the proposed course of action is a proper exercise of the trustees' powers where there is no real doubt as to the nature of the...

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10 cases
  • Y Trust
    • Jersey
    • Royal Court
    • 4 August 2011
    ...In the matter of the R.E. Sesemann Will Trust [2005] JLR 421. In re the Exeter Settlement [2010] JLR 169. In Re the S Settlement [2001] JRC 154. Public Trustee -v- Cooper [2001] WTLR 903. Jones -v- Firkin-Flood [2008] EWHC 2417. Lewin on Trusts (18th Edition). Re Manisty's Settlement [197......
  • Northern Trust Fiduciary Services (Guernsey) Ltd v Dejan Devic, Authorised Representative of the Republic of Serbia
    • Jersey
    • Royal Court
    • 6 May 2019
    ...P. Mackereth for the Representor Advocate E. B. Drummond appeared as amicus curiae Authorities Trusts (Jersey) Law 1984 Re S Settlement [2001] JRC 154 Republic of Croatia v Girocredit Bank [1996] 36 ILM 1520 S v Bedell Cristin Trustees Limited [2005] JRC 109 Lewin on Trusts HSBC Trustee (CI......
  • M v W
    • Jersey
    • Royal Court
    • 4 April 2019
    ...the Third, Fourth, Fifth, Sixth and Seventh Respondents. Advocate J. Harvey-Hills for the Ninth Respondent. Authorities Re S Settlement [2001] JRC 154 Public Trustee v Cooper, an unreported decision of Hart J dated 20th December 1999 Jersey Evening Post Limited v Al Thani [2002] JRC 227 G v......
  • E Trust Company Ltd v Mrs B and C and D
    • Jersey
    • Royal Court
    • 28 January 2014
    ...its “momentous” decision to refuse disclosure of information to Mrs B, applying the well-known principles set out in the case of In re S [2001] JRC 154, by which the Court has to address the following (i) Is the Court satisfied that the trustee has in fact formed the opinion in good faith t......
  • Request a trial to view additional results
2 firm's commentaries
  • No Alternative: When May A Trustee Surrender Its Discretion To The Court?
    • Jersey
    • Mondaq Jersey
    • 3 September 2015
    ...the Agreement. Relevant Principles The test applied in applications to surrender discretion to the Court is set out in In re S Settlement [2001] JRC 154. This provides "[T]he court will only accept a surrender of discretion for a good reason, the most obvious good reasons being either that ......
  • Resolution Of Family Disputes And Payments To Non-Beneficiaries - Y Trust [2015] JRC 059
    • Jersey
    • Mondaq Jersey
    • 8 May 2015
    ...being where two trustees of the same trust are deadlocked or where the trustees are disabled by a conflict of interests [Re S Settlement [2001] JRC 154]. However, a trustee "was not entitled to hand over performance of the trusteeship to the court". A surrender of discretion was a "last res......

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