The Sanne Trust Company Ltd

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: The Bailiff
• Judgment Date: 16 February 2009
• Neutral Citation: [2009] JRC 25B
• Date: 16 February 2009

[2009] JRC 25B

ROYAL COURT

(Samedi Division)

Before:

Sir Philip Bailhache, Kt., Bailiff, and Jurats Tibbo and Bullen.

In the Matter of the Representation of Sanne Trust Company Limited

Advocate R. J. MacRae for the Representor.

Advocate M. C. Goulborn, guardian ad litem of the minor child.

Authorities

Re the Representation of Saffery Champness Trust Corporation [2005] JRC 052.

Jersey Evening Post Limited -v- Al Thani [2002] JLR 542.

Trusts (Jersey) Law 1984.

The Bailiff

1 On 25th September, 2008, the court considered an application by Sanne Trust Company Limited (“the Trustee”) seeking the rectification of a settlement (“the C family settlement”) created by Declaration of Trust made on 5th July, 1999. At the conclusion of the hearing we granted the prayer of the representation and indicated that we would give our reasons at a later date. This we now proceed to do. The C family settlement is in the fairly standard form of a discretionary Jersey trust. The submission of the trustee was that the establishment of the settlement in this form was a mistake, and that it should have been established as an interest in possession settlement (“an IIP Trust”) in accordance with tax advice received at that time.

2 Before turning to the merits of the application Mr MacRae for the Trustee asked us to deal with a preliminary matter dealing with the identification of the beneficiaries and de facto settlor of the settlement. Counsel drew attention to an unreported decision of this court in Re the Representation of Saffery Champness Trust Corporation [2005] JRC 052. In that case the court had declined to sit in private but had agreed that the identities of the beneficiaries of the trust in question could be withheld by a redaction of the judgement to that end. The principles in question are important, and the court's policy in this area bears re-statement.

3 The first principle is that justice must be done in public. The principle is conveniently encapsulated in the second paragraph of the headnote to the report of Jersey Evening Post Limited -v- Al Thani [2002] JLR 542 at 544 in the following terms:-

“ The principle of open justice had not yet found statutory expression in Jersey but formed part of the law and an order for proceedings to be heard in camera was only to be granted when it was necessary to do justice in the exceptional circumstances of the case e.g. to protect specific individuals or prevent the destruction of the subject matter in issue. Public proceedings ordinarily deterred inappropriate behaviour on the part of the court, maintained public confidence in the impartial administration of justice, made uninformed and inaccurate comment on the proceedings less likely, and could result in additional evidence becoming available. The burden lay with the party seeking an order for hearing in camera to prove that it was the only way in which justice could be done; convenience, potential embarrassment and the parties' preference were in themselves insufficient justifications”

4 The second principle, which might be thought to conflict with the first, is that in this jurisdiction, considerable importance is attached to the confidentiality of private trusts. It is for that reason that administrative applications under Article 51 of the Trusts (Jersey) Law 1984 are customarily heard in private.

5 An application for the rectification of a settlement or other trust document is not however an administrative matter of that kind. Applications for rectification involve the commission of a mistake by someone, and the exercise of a judicial discretion as to whether that mistake can be put right. There is no public interest in sparing the blushes of professional advisers who have made mistakes in or about the drafting of trust deeds or related documents. On the contrary, there might be said to be a public interest in ensuring that such errors are put into the public domain so that clients can be made aware of them. Furthermore, the exercise of the court's discretion may affect others, particularly tax authorities; as a matter of generality there is no justification for sitting in private to hear an application for the rectification of a trust document, and the application to sit in private at an earlier...