Representation of SG Kleinwort Hambros Trust (CI) Limited and Others 06-Jun-2023 [2023] JCA 088 – The Court of Appeal (Jonathan Crow KC,  Lord Anderson of Ipswich KC and David Perry KC) observed that the “non-intervention” principle, applied in blessing applications in category 2 cases (as categorised in Public Trustee v Cooper), whilst justified by sound policy reasons, is not a rigid principle in all cases and admits of exceptions; and  that there may be variations within each category – and a particular application may straddle more than one category so that some caution needs to be exercised before assuming that there is always a bright-line distinction between the case where trustees surrender their discretion (category 3) and the case where they do not.

The Court of Appeal went on to consider whether Article 51 of the Trusts (Jersey) Law 1984 superseded and replaced the Court’s inherent jurisdiction in relation to the matters dealt with in Article 51.    There was considerable force in the view that once something is given statutory form it is the statute that is decisive.  It was unnecessary, however, to decide the point.  The order of the Royal Court under appeal, giving directions for a hearing at which the Court would express its “non-binding observations” on a proposed restructuring of certain trusts, was a case management decision within the Royal Court’s powers. In particular, in a case of this scale there was every reason to adopt an iterative approach to the management of the case.

The Court of Appeal’s view in this case of the effect of judicial blessing of a trustee’s decision – in so far as it is said that it “obviates” the risk of proceedings against the trustee – on the face of it takes the conventional global view rather than that which was taken by the English Court of Appeal in Denaxe Ltd v Cooper & Rubin [2023] EWCA Civ 752.  In Denaxe (albeit not a trust case) it was considered that a trustee would only be protected if res judicata or an abuse of process could be established against the subsequent claimant.  Denaxe was decided later in the same month and therefore was not before the Jersey Court of Appeal in S G Kleinwort Hambros.