Representation of Q Limited

The Court (M. J. Thompson, Commissioner, sitting alone) considered issues of discovery in these proceedings by which, in connection with a blessing application by a trustee, certain beneficiaries are seeking to challenge the decision and also certain earlier conduct of the trustee.

• The position of the trustee was that it should only provide direct discovery held by the trustee or its directors “as directors”. In relation to discovery by the Trustee, the Master ruled that it was not appropriate to limit the discovery to be provided by the trustee through its directors to information held by those directors as directors. On the facts, a fair trial could not take place without the trustee providing discovery showing the extent of their knowledge in relation to complaints about the First Respondent and the damage said to have been caused to an underlying company. The trustee was therefore required to provide discovery of all documents in the possession of each of the directors falling within paragraph 6 of Practice Direction 17/07 in whatever capacity they had received or held such documents.

• At paragraph 41 of the RBC Trust Company (Jersey) Limited v E and Fifteen Others [2010] JLR 653 (the “BCD Judgment”) the Court stated the following in relation to making discovery orders in Article 51 proceedings: “This being the purpose of the article it is clear that the power to make an order concerning a beneficiary is confined to cases where the order affects the beneficiary in his capacity as such – that is to say, in his capacity as a beneficiary of the trust whose administration the court is supervising. The foundation of the jurisdiction lies in the nexus between trustee and beneficiary arising out of the trust relationship. The fact that a person is a beneficiary is not of itself sufficient justification to justify the making of an order: the order must be made for the purpose of vindicating or at least promoting some right or interest arising directly out of the trust relationship.” On the facts, the learned Commissioner was satisfied that there was a clear nexus which justified the order being made. It was also a direct connection as referred to in para 42 of the BCD judgment.

• In Re R v RA Trusts 25/2014, the Court of Appeal of Guernsey comprising the Honourable Michael Beloff, Sir John Nutting and Sir Michael Birt, where Birt JA gave the lead judgment, doubt was cast on whether the approach taken in the BCD Judgment was too rigid. At paragraph 78, the R v RA Trusts decision therefore stated: “In my judgment in order to justify an order against a beneficiary there must be a sufficiently close connection between the position of the beneficiary as a beneficiary of the trust whose affairs are being supervised and the relief sought as to justify the exercise of the court’s supervisory the jurisdiction.” To the extent that this statement represented the law of Jersey, in this case, the Commissioner was also satisfied that there was such a sufficiently close connection for the reasons already given above.