sinels’ sixth annual channel islands trusts law conference 2010

SINELS’ SIXTH ANNUAL

CHANNEL ISLANDS

TRUSTS LAW CONFERENCE 2010

2

TRUSTS

AND THE OPERATION OF THE NO

REFLECTIVE LOSS PRINCIPLE

by

Victor Joffe QC

33

What if the Trustee acts in Breach of Trust or Breach of Fiduciary Duty?

1. Removal as Trustee?

2. Personal Liability : Art 30(1)

3. Equitable compensation – the restoration of the Trust

Fund : Art 30(2)

4. Litigation

44

How can Trustee liability be avoided or mitigated?

1. Exemption and anti-Bartlett clauses (Art 30(10) saving for

trustee’s fraud, wilful misconduct or gross negligence)

2. Release or indemnity by beneficiary: Art 30(6) and (7)

3. Relief by Court: Art 45

4. Prescription: Art 57

55

Reflective loss – Another Way to Avoid Liability?

The paradigm fact situation:

1. Trustee: X Trust Co Limited

2. Holds shares in ABC Limited

3. Whose directors Mr D and Ms E cause ABC to enter into a transaction

4. Which causes loss to ABC

5. Which in turn causes value of Trust’s shares in ABC to fall in value

66

What is reflective loss?

1. G Limited is a company owned by H, its shares worth £250,000.

2. It buys a piece of land for £100,000 to build on, but its Advocate

negligently fails to notice a covenant prohibiting development

3. Land is in fact worth only £10,000 – G Limited suffers loss

4. Consequently, shares in G Limited worth only £160,000 and it

can no longer pay dividends to H.

5. H’s loss reflects that of G Limited

77

General Rule: Shareholder cannot sue the wrongdoer for reflective

loss – ONLY the company can sue: Johnson v Gore Wood & Co [2002] 2 AC 1

Exceptions:

1. Company has no cause of action

2. Shareholder suffers separate and distinct loss caused

by breach of duty owed to him independently

3. [Quaere] Wrongdoer disables company from suing

88

Why a Rule Preventing Recovery of Reflective Loss?

1. To prevent double recovery: protection of the Defendant

2. To protect the company’s creditors: protection against the

Plaintiff extracting value from the company

99

Position where Shares are Held by Trustees of Trust

Exactly the same as the General Rule:

The Trustee (as shareholder), director (even if he is the Trustee or is appointed by the Trustee) and the beneficiary cannot sue for the loss suffered by the Company – ONLY the Company can sue

1010

Where the Trustee is the Wrongdoer

Example: Trustee/director of Trust-owned company causes it to enter improvident transaction.

The conventional position: Gardner v Parker [2004] 2 BCLC 554, 565:

“…it appears clearly to have been determined in [Shaker v Al-Bedrawi [2003] 1 BCLC 157] that, even when the claim is brought by a beneficiary against a trustee for breach of fiduciary duty, it can be barred by the [no reflective loss principle]. ”

11

Trustee Failure to Supervise the Directors of Trust-Owned Companies

Example: Trustee fails to prevent directors of trust-owned company from misusing company’s assets or diverting them to third parties

Position in England:

Walker v Stones [2001] QB 902: Beneficiary can sue Trustee where1. He can establish Trustee’s conduct has constituted a breach of

some legal duty owed to him personally;2. The breach of duty has caused Beneficiary personal loss, separate

and distinct from any loss that may have been occasioned to any corporate body in which he may be financially interested.

12

Is Jersey any Different?

Freeman v Ansbacher Trustees (Jersey) Ltd [2009] JLR 1

The facts:

Assets of a discretionary trust held by a company, SDR, the shares in which were all held by the Trustee. The plaintiff beneficiaries alleged Trustee failed to supervise SDR in respect of three transactions which caused it loss.

Trustee sought to have the claim struck out, relying on the no reflective loss principle. The Royal Court proceeded on the basis that the claims raised were reflective of SDR’s losses, and held at that the principle formed part of the law of Jersey.

13

Does the No Reflective Loss Principle Apply to a Jersey Discretionary Trust?

Birt DB:

“I accept that, if the [no reflective loss] principle applies to the present case, the order of justice should be struck out. However, I am by no means convinced that the principle should necessarily be applied to a situation such as the present involving a discretionary trust. I think it is not entirely clear that the principle would necessarily be applied in England; but even if it were, I consider that there are strong grounds for believing that Jersey law should follow a different path…”

14

Possible Bases of Action against Jersey Trustee

1. Beneficiaries ask Trustee to replace directors so new directors can cause company to sue former directors

2. If Trustee refuses to replace directors, beneficiaries bring action against it for new breach of trust

3. Derivative action by beneficiaries

15

The DB’s Solution?

Where Plaintiff seeks reconstitution of the trust fund, the remedy is at the discretion of the court: the court could arguably direct the Trustee to reimburse or refinance the trust-owned company.

Thus the company would no longer have suffered any loss and could not bring any claim against its directors, thereby removing the danger of double recovery.

16

The Lesson to be Learned?

1. The no reflective loss principle may not protect a Trustee from action where it has failed properly to supervise the directors of a trust-owned company.

2. The Trustee should check its PI policy.

17

Stephen Whale

Director - Private Wealth

Qualifications: FCA, FCCA

T: +44 (0) 1534 816 275F: +44 (0) 1534 700 007E: [email protected]

Channel Islands Trusts Law Conference 2010

Trusts and the operation of the no

reflective loss principle: commentary

Advocate Paul Tracey

25 November 2010

What is the English position?

• Walker v Stones [2001] QB 902 at 927:

- defendants’ conduct breached a duty owed to

plaintiff personally

- that breach caused plaintiff loss separate and

distinct from any loss suffered by company in

which plaintiff has an interest

- what is meant by a separate loss?


• But see now:

Shaker v Al-Bedrawi [2003] Ch 350;

Gardner v Parker [2004] 2 BCLC 554;

Barnes v Tomlinson [2007] WTLR 377;

Ellis v Property Leeds (UK) Limited [2002] EWCA

Civ


All following Johnson v Gore-Wood & Co [2002] 2 AC 1 and

authorities for the propositions that, first, “[t]he fact that the

beneficiaries‘ claim may be a claim for breach of fiduciary

duty is not a reason why the reflective loss principle should

not apply” (Lewin at para 39-38) and “… the reflective loss

principle normally does prevent the beneficiaries from

recovering the diminution in the value of the trusts

shareholding in a breach of trust action caused by a breach

of duty by the trustee as a director of the company

concerned for which the company has a claim against the

director” (ibid; emphasis mine)


• But see also:

Giles v Rhind [2003] Ch 618:

Reflective loss principle does not apply if the

defendant’s/s’ actions have stripped the relevant company of

funds such that the company is unable to pursue action

against the directors

• and cf.

Waddington Limited v Chan [2008] HKLR 1381

What is the nascent Jersey position?

• Freeman v Ansbacher [2009] JLR 1

• The case’s facts:

- “at all material times the shares in [the company] SDR

were the sole significant asset of the Trust and all the

underlying assets were owned by SDR or its

subsidiaries.”

(id at 8)

- application to strike out an order of justice on ground,

in part, “that the losses claimed … were merely reflective

of the losses suffered by SDR and were not therefore

recoverable at the instance of the beneficiaries”

(id at 28)


• The Bailiff’s judgment and reasons:

“None of the English cases has had to consider the position where

there is a discretionary trust. It seems to me strongly arguable that

the two reasons for the principle may have no application in a case

such as the present. …. [The plaintiff] is merely seeking

reconstitution of the trust fund. It seems to me strongly arguable that

the remedy, were breaches of trust on Ansbacher’s part proved, is at

the discretion of the court and, being an equitable remedy, may be

moulded to suit the circumstances of the case. Thus, in the event of

the breaches of trust being proved, the court could arguably order

Ansbacher to reconstitute the trust fund exactly by reimbursing that

particular part of the


trust fund which had been primarily affected by the breach of trust.

Thus, the court could order Ansbacher to reimburse SDR from where

the funds had been lost in the first place. Alternatively, if it was felt

that the court could only order Ansbacher to reimburse the trust fund

itself by putting the appropriate moneys into the trust fund, it seems

to me arguable that the court could nevertheless direct as a term of

such relief that the funds be used to acquire new shares in SDR, so

that the funds eventually find their way in to SDR. This would have

the effect of exactly reconstituting the trust fund because it would

take the value of the shares in SDR back to what they had been

previously and the financial position of SDR back to what it had been.

Such remedies may not be available in all cases but it seems to

me strongly arguable that they are available where the company

in question is wholly owned by a discretionary trust.” (id at 37-8)


Further:

“It is of the first importance that beneficiaries of a trust

whose assets have been mismanaged should have a simple

and effective remedy available to them, whether such assets

are held directly by the trustee or through a wholly-

owned company. I consider that it is strongly arguable

that the law of Jersey provides this simple and effective

remedy in a case such as the present by enabling the court to

order the defaulting trustee to reconstitute the trust fund by

reimbursing the company for its losses, thereby

removing both reasons for the application of the

Prudential principle.” (id at 42)

Should Jersey follow England here?

• Lewin: “… it is necessary to consider whether the reasons

for exclusion of recovery of reflective loss outside of a trust

context apply also in the trust context” (para 39-40)

• Trust investments and/or trading all but invariably carried

out through companies

• Obvious injustice arises from rigid and unbending

application of principle

• Any justification for not applying principle or applying it

with greater discrimination where there is also loss to a trust

estate?

Should Jersey follow England here?

• Mischief at which principle directed can be prevented

otherwise in a trust context (at least, where relevant

company’s shares wholly owned on the trust)

• How convincing is the Bailiff’s reasoning in Freeman v

Ansbacher?

• How much weight do the English authorities have in Jersey

compared with the Bailiff’s decision in Freeman v Ansbacher?

• Where in English authorities is the reasoning for an

unbending application of the principle in a discretionary trust

context?


Identifying and assessing the remedial

consequences of a Jersey trustee’s liability

for breach of duty to exercise reasonable care


25 November 2010

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care

1 The questions

2 The statutory provisions in Jersey and England

3 The content of the duty

4 The fiduciary nature of the duty

5 Breach of duty and its remedial consequences

6 Limiting liability

7 Conclusions and checklist


1 The questions

• What is breach of trust under Jersey law? and what do we

mean when we use that phrase?

• What are the duties of a trustee under Jersey law?

• Does a Jersey trustee have a duty to exercise reasonable

care and skill in carrying out his or her office?

• Is a breach of duty by a Jersey trustee always a breach of

trust?



• art.1(1), Trusts (Jersey) Law 1984 (“TJL”):

“ ‘breach of trust’ means a breach of any duty

imposed on a trustee by this Law or

by the terms of the trust”

• art.1(2) TJL:

“This Law shall not be construed as a codification of

laws regarding trusts, trustees and persons

interested under trust.”



• What is a Jersey trustee liable to do? See art.21(1), TJL:

“A trustee shall in the execution of his or her duties

and in the exercise of his or her powers and

discretions –

(a) act –

(i) with due diligence,

(ii) as would a prudent person,

(iii) to the best of the trustee's ability and skill; and

(b) observe the utmost good faith.”



• art.21(3), TJL:

“Subject to the terms of the trust, a trustee shall

–

(a) so far as is reasonable preserve the value

of the trust property;

(b) so far as is reasonable enhance the value

of the trust property.”



• What do the English equivalent provisions say?

• s.1, Trustee Act 2000:

“(1) Whenever the duty under this subsection

applies to a trustee, he must exercise such

care and skill as is reasonable in the

circumstances, having regard in particular –

(a) to any special knowledge or experience that he

has or holds himself out as having, and



(b) if he acts as trustee in the course of a business

or profession, to any special knowledge or

experience that it is reasonable to

expect of a person acting in the course

of that kind of business or profession.

(2) In this Act, the duty under subsection (1) is

called ‘the duty of care’.”



• s.4,Trustee Act 2000:

“(1) In exercising any power of investment, whether

arising under this Part or otherwise, a trustee must have

regard to the standard investment criteria.

(2) A trustee must from time to time review the

investments of the trust and consider

whether, having regard to the standard

investment criteria, they should be varied.”



“(3) The standard investment criteria in relation

to a trust, are –

(a) the suitability to the trust of investment of the

same kind as any particular investment proposed to be

made or retained and of that particular investment

as an investment of that kind, and

(b) the need for diversification of investments of the

trust, in so far as is appropriate to the

circumstances of the trust.”



• s.5,Trustee Act 2000:

“(1) Before exercising any power of investment,

whether arising under this Part or

otherwise, a trustee must (unless the

exception applies) obtain and consider proper

advice about the way in which, having regard to the

standard investment criteria, the power should

be exercised.



(2) When reviewing the investments of the trust, a

trustee must (unless the exception applies)

obtain and consider proper advice about

whether, having regard to the standard

investment criteria, the investments should be

varied.

(3) The exception is that a trustee need not obtain

such advice if he reasonably concludes that in all

the circumstances it is unnecessary or

inappropriate to do so.



(4) Proper advice is the advice of a person who is

reasonably believed by the trustee to

be qualified to give it by his ability in

and practical experience of financial and other

matters relating to the proposed investment.”


3 The content of the duty

• a professional trust company? See Midland Bank Trust

Co (Jersey) Ltd v. Federated Pension Services [1994] JLR

276 at 290:

“There is, in our view, a higher duty imposed on those

who … claim a long and detailed expertise in the

field in which they practise.”

• contexts: trust investments (funds, bonds, listed shares

etc.), wholly owned private companies, partially owned

private companies

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care3 The content of the duty

• general investment power a usual provision in trust powers; trustee

will also usually be empowered to trade, to borrow, to give guarantees

and indemnities, to give security and to exercise voting rights

• The classic statement:

“[W]hat is the liability of a trustee who undertakes an office which requires him to make

an investment on behalf of his cestui que trust[?] It seems to me that on general

principles a trustee ought to conduct the business of the trust in the same

manner that an ordinary prudent man of business would conduct his own, and

that beyond that there is no liability or obligation on the trustee. In other words, a

trustee is not bound because he is a trustee to conduct business in other than the ordinary

and usual way in which similar business is conducted by mankind in transactions of their

own. It never could be reasonable to make a trustee adopt further and better precautions

than an ordinary prudent man of business would adopt, or to conduct the business in any

other way. If it were otherwise, no one would be trustee at all”: Speight v Gaunt (1883) 2

Ch 727, 739-40 per Jessell MR

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care3 The content of duty

• An objective, external standard independent of the trustee’s

personal special skill and prudence?

• What would a reasonably prudent and careful person have

done in like circumstances? Trustees’ behaviour tested by

this standard or else “[i]n every case where neglect of duty is

imputed to a body of trustees, it would necessitate an

exhaustive inquiry into the private transactions of each

individual member, - the interest of the trustee being to show that

he was a stupid fellow, careless in money matters: and that of

his opponents to prove that he was a man of superior intelligence

and exceptional shrewdness.”: Knox v Mackinnon (1888) 13 App

Cas 753 per Ld Watson at 766-767


3 The content of duty

• Past performance of trustees judged by standards of the

relevant period and not judged by “what the trustee

then did or failed to do by the light of later events that could

not then have been surely foreseen. They are relevant in

determining what loss resulted from the breach if there was

one. They do not help to determine whether or not there

was one”: Elder’s Trustee and Executor Co Ltd v Higgins

(1963) 113 CLR 426 at 448; see also Re Hurst (1892) 67 LT

96 at 99 and Nestle v National Westminster Bank [1994] 1 All

ER 118 per Staughton J at 134: “the trustees’

performance must not be judged with hindsight”.



• a duty to act positively?: trading trusts or where

active management of trust assets needed

• a duty of supervision?: investment managers, agents,

private companies in which the trustee has an interest

(possibly a controlling interest)

• a duty to provide trading and financial information to

the beneficiaries? See now The Cats’ Protection

League v Deans & Anor [2010] NZHC 130


• a duty of supervision: the particular position of a controlling

interest in a private company: see Re Lucking’s Will Trusts

[1967] 3 All ER 726 per Cross J at 733:

“Now what steps, if any, does a reasonably prudent man who finds himself a

majority shareholder in a private company take with regard to the management of the

company's affairs? He does not content himself with such information as to the

management of the company's affairs as he is entitled to as shareholder, but

ensures that he is represented on the board. He may be prepared to

run the business himself as managing director or, at least, to become a

non-executive director while having the business managed by someone else.

Alternatively, he may find someone who will act as his nominee on the board and

report to him from time to time as to the company's affairs. In the same way

trustees holding a controlled interest ought to ensure so far as they can

that they have such information as to the progress of the company's affairs

as directors would have. If they sit back and allow the company to be run by

the minority shareholder and receive no more information than

shareholders are entitled to, they do so at their risk if things go wrong.”


• a duty of supervision: the particular position of a controlling interest in a private company:

see also Bartlett v Barclays Bank Trust Co Ltd [1980] Ch 515 per Brightman J at 533-534:

“[Cross J] was merely outlining convenient methods by which a prudent man of

business (as also a trustee) with a controlling interest in a private company can place himself

in a position to make an informed decision whether any action is appropriate to be taken

for the protection of his asset … Alternatives which spring to mind are the receipt of

copies of the agenda and minutes of board meetings, the receipt of monthly

management accounts in the case of a trading concern or quarterly

reports. Every case will depend on its own facts … The purpose to be

achieved is not that of monitoring every move of the directors, but of making it

reasonably probable … that the trustees or one of them will receive an adequate

flow of information in time to enable the trustees to make use of their controlling

shareholding should this be necessary for the protection of their trust asset, namely the

shareholding … It was not proper for the bank to confine itself to the receipt of the annual

balance sheet and profit and loss account, detailed annual financial statements and the

chairman's report and statement, and to attendance at the annual general meetings

and the luncheons that followed, which were the limits of the bank's regular sources of

information. Had the bank been in receipt of more frequent information it would have

been able to step in and stop, and ought to have stopped the board embarking on the

Old Bailey project.”



• a duty of supervision

judged by performance of portfolio overall or by reference to individual component parts? (see Nestle v National Westminster Bank (1993) 1 WLR 1260)

Remember art 30(3), TJL: “[w]here there are 2 or more breaches of trust, a trustee shall not set off a gain from one breach of trust against a loss resulting from another breach of trust.”


• Do we have any conclusions as to the content of the Jersey trustee’s duty

to exercise reasonable care? What should a trustee do to discharge

this duty?

• Remember the absolute key words: “due diligence”, “a prudent person”,

“to the best of the trustee’s skill and ability”, “the utmost good faith”

• What else?: “[s]ubject to the terms of the trust … so far as reasonable

preserve … [and] enhance the value of the trust property”

• But, it remains the case that “[e]ssentially, to succeed in a claim that

negligent or unfair investment of the trustees caused loss, a claimant

beneficiary has to prove that no trustee, acting with the requisite

minimum care and skill and suffering from the bad luck that can affect

investors, could possible have ended up with a trust fund of the

complained-of value.”: Underhill & Hayton, 17th ed’n at para. 53.71



• Is the duty a fiduciary duty/trust duty?

• That is, is a breach of the duty a breach of trust? (cf. a

fiduciary's breach of duty not necessarily a breach of

fiduciary duty)

• Are a trustee's duties in Jersey all necessarily duties of trust?

• If not a breach of trust, what sort or kind of duty has been

breached?



• the content of a trustee’s duty to exercise reasonable care in

common law (and England?) compared with the Jersey statutory

formulation; a duty outside equity’s exclusive jurisdiction or not?

• In Jersey, a trustee’s breach of any duty imposed upon him by art

21, TJL, the trust or by common law) constitutes, by reason of art

1(1), a breach of trust. By comparison, it is contended in England

that not all breaches of duty by a trustee are breaches of trust:

see Tito v Waddell [1977] Ch 106 per Megarry V-C at 247-50

and Millett LJ in Bristol and West Building Society v Motthew

[1998] Ch 1 at 16-17.



• The answer in Jersey? Remember art.1(1), TJL:

“ ‘breach of trust’ means a breach of any duty

imposed on a trustee by this Law or by the

terms of the trust”.

• Elsewhere, no explanation in the cases why a duty owed

by a trustee is not a fiduciary duty; linked to attempts to

limit equitable compensation by common law analogy



• why it matters that the duty is a trusts duty (or, better

put, that breach of the duty is a breach of trust)

• causation and remoteness limits for compensation;

limitation and (conceivably) proprietary remedies

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care5 Breach of duty and its remedial consequences

• Having defined what the trustee was required to do, the next question is: did the

trustee fail to do what he was required to do?

• First, consider the definition of when a trustee shall be liable for breach of trust in

Jersey.

• See art.30(1), TJL:

“Subject to this Law and to the terms of the trust, a trustee shall be

liable for a breach of trust committed by the trustee or in which the trustee

has concurred.”

• Remember - a breach of trust is a breach of any duty imposed on a trustee by the

TJL or by the terms of the trust: art 1(1) TJL.



• Next, consider the consequences of being liable for breach of trust in

Jersey.

• See art.30(2), TJL:

“A trustee who is liable for a breach of trust shall be liable for –

(a) the loss or depreciation in value of the trust property

resulting from such breach; and

(b) the profit, if any, which would have accrued to the trust

property if there had been no such breach.”

• Relevant causation test: would the loss have occurred or would a

profit have been made if there had been no breach?



• Last, art. 30(3), TJL:

“Where there are 2 or more breaches of trust, a trustee shall not

set off a gain from one breach of trust against a loss resulting from

another breach of trust.”

• Cases show some difficulty in applying this principle

• Breach of trust is a breach of an equitable obligation and creates a

liability to make good the loss of trust property caused by the

wrongful act or omission; that is, an obligation to put the trust estate

in the same position as if the breach of trust had not been

committed.



• Consider of the nature of equitable compensation; as to

this remedy, the fundamental rule is a simple one:

“The obligation of a defaulting trustee is essentially one

of effecting restitution to the estate. The obligation is of a

personal character and its extent is not to be limited

by common law principles governing remoteness of

damage.”: Re Dawson; Union Fidelity Trustee Co Ltd

v Perpetual Trustee Co Ltd [1966] 2 NSWR 211 per

Street J at 214



• The defaulting trustee’s obligation, is “to place the trust estate in the

position as it would have been in if no breach had been committed”: id

at 215.

• It is an “obligation to restore to the estate the assets of which he deprived

it…. tantamount to an obligation to effect restitution in specie”. Thus,

“[t]he form of relief is couched in terms appropriate to require the

defaulting trustee to restore to the estate the assets of which he

deprived it” and “[t]he obligation to restore to the estate the assets

of which [the defaulting trustee] deprived it necessarily connotes that,

where monetary compensation is to be paid in lieu of restoring assets,

that compensation is to be assessed by reference to the value of the

assets at the date of restoration and not at the date of deprivation”: ibid.



• The House of Lords has confirmed this reasoning in terms that:

“The basic right of a beneficiary is to have the trust duly administered in

accordance with the provisions of the trust instrument, if any, and the

general law. Thus, in relation to a traditional trust where the fund is held in

trust for a number of beneficiaries having different, usually successive,

equitable interests, (e.g. A for life with remainder to B), the right of each

beneficiary is to have the whole fund vested in the trustees so as to be

available to satisfy his equitable interest when, and if, it falls into

possession. Accordingly, in the case of a breach of such a trust involving the

wrongful paying away of trust assets, the liability of the trustee is to

restore to the trust fund, often called ‘the trust estate’, what ought to have

been there.” : Target Holdings v Redferns [1996] 1 AC 421 per Ld Browne-

Wilkinson at 434

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care5 Breach of duty and its remedial consequences

• His Lordship continued:

“The equitable rules of compensation for breach of trust have been largely

developed in relation to such traditional trusts, where the only way in which

all the beneficiaries' rights can be protected is to restore to the trust fund what

ought to be there. In such the basic rule is that a trustee in breach of trust must

restore or pay to the trust estate either the assets which have been lost to the

estate by reason of the breach or compensation for such loss. Courts of Equity

did not award damages but, acting in personam, ordered the defaulting

trustee to restore the trust estate: see Nocton v. Lord Ashburton [1914] A.C. 932,

952, 958, per Viscount Haldane L.C. If specific restitution of the trust

property is not possible, then the liability of the trustee is to pay sufficient

compensation to the trust estate to put it back to what it would have been

had the breach not been committed: Caffrey v. Darby (1801) 6 Ves.488;

Clough v. Bond (1838) 3 M. & C. 490. Even if the immediate cause of the loss is the

dishonesty or failure of a third party, the trustee is liable to make good that loss

to the trust estate if, but for the breach, such loss would not have occurred.”

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care:


• “[c]onsiderations of causation, foreseeability and

remoteness do not readily enter into the matter”: Re Dawson

at 214

• “ … the common law rules of remoteness of damage and

causation do not apply. However there does have to be some

causal connection between the breach of trust and the loss to

the trust estate for which compensation is recoverable, viz.

the fact that the loss would not have occurred but for

the breach”: Target Holdings at 434

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care:


• But compare:

“Equitable compensation for breach of the duty of

skill and care resembles common law damages in that it

is awarded by way of compensation to the plaintiff

for his loss. There is no reason why the common law

rules of causation, remoteness of damage and measure

of damage should not be applied in such a case”: Bristol

& West Building Society v Mothew [1998] Ch 1 at 18

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care:5 Breach of duty and its remedial consequences

• There is very good reason for distinguishing between the rules for

compensation for breach of a common law obligation and the rules for

compensation for breach of trust (or, for that matter, breach of some other

fiduciary duty).

• Given TJL provisions, no reason in Jersey not to make the distinction; see

also Australian cases which support this position – Youyang P/L v Minter Ellison

Morris Fletcher (2003) 212 CLR 484 and Maguire v Makaronis (1997) 188 CLR

449:

“… there must be a real question whether the unique foundation and

goals of equity, which has the institution of the trust at its heart,

warrant any assimilation … with the measure

of compensatory damages in tort and contract. It may be thought

strange to decide that the precept that trustees are to be kept by

courts of equity up to their duty has an application limited to the

observance by trustees of some only of their duties to beneficiaries in dealing

with trust funds.”



• art.30(1), TJL:

“Nothing in the terms of a trust shall relieve,

release or exonerate a trustee from

liability for breach of trust arising from the

trustee's own fraud, wilful misconduct or gross

negligence.”



• What are the usual provisions in trust deeds limiting

liability?



• An example:

“In the purported execution of this trust no Trustee or delegate of or

person connected with a Trustee shall be liable for any loss or loss

of profit to the Trust Fund arising in consequence of the failure

depreciation or loss of any investments made or retained in good

faith or any failure to enhance or preserve the value of the Trust

Fund or any part thereof or by reason of any act or omission

made in good faith or of any other matter or thing except fraud

wilful misconduct or gross negligence on the part of the Trustee or

delegate of or person connected with a Trustee who is sought to be made

liable and in the case of a corporate Trustee or corporate delegate of or

corporate person connected with a Trustee all references in

this clause thereto shall include the directors officers

and employees thereof.”



• exclusion of liability clause to be restrictively construed,

particularly if trustee is professional trustee company;

trustee to show case falls within ambit of clause; and,

doubts and unclear expression resolved against trustee:

Midland Bank Trust Co. (Jersey) Ltd. v. Federated

Pension Servs [1995] JLR 352

• explanation/notification of relevant clauses in trust

declaration to settlor or beneficiaries? cf proposed position

in English law

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care6 Limiting liability

• what does “gross negligence” mean?

• a serious or flagrant degree of negligence beyond ordinary

negligence (whatever that is for a professional trustee);

questions of intentional or reckless behavior irrelevant:

Midland Bank Trust Co. (Jersey) Ltd. v. Federated Pension

Servs [1995] JLR 352

• not a separate cause of action from negligence but merely a label

for the degree of culpability (therefore plaintiff pleading negligence

[sic] by trustee may amend to plead gross negligence on the same

facts, even if this defeats a defence based on prescription/

time limitation, because such an amendment is not pleading new

cause of action): Freeman v. Ansbacher Trustees (Jersey)

Ltd. [2009] JLR 1



• “anti-Bartlett” clauses

• Bartlett v Barclays Bank Trust Co Ltd (Nos. 1 and 2) [1980] 1 All

ER 139; [1980] 2 All ER 92: trustees held nearly all the shares in a

company although never had a representative on the board

of directors; company had sent totally inadequate reports to the

trustees who never sought any further information; company

entered disastrous property speculations and trustees held liable

to account for failure to monitor adequately the company’s

activities (and implicitly failure to take action)



• An example (seeking to limit liability of company directors,

officers and employees):

“Without prejudice to the generality of the foregoing provisions

of this clause [ ] and without prejudice to any other provisions of this

trust for the purposes of this clause [ ] any director officer or

employee of a trustee who acts as a director

officer or employee of any company or body any of

whose shares or securities directly or indirectly form part

of the Trust Fund shall be deemed to be a person connected

with a Trustee and in respect of acts or omissions made in

connection with such company or body:



shall (mutatis mutandis) have the benefit of the

exemptions from liability contained in the

foregoing provisions of this clause [ ]; and

shall be entitled to be indemnified out of the trust

fund to the extent not prohibited by the constitution

of the relevant company or body or the governing

law of such company or body (in each case from time to

time) in respect of all other liabilities other than

those arising out of fraud or wilful misconduct incurred

in connection with the relevant company or body.”

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care6 Limiting liability

• And attempting to restrict the scope of the trustee’s duty:

“If the trust fund shall include any shares or other interests in

a company the ownership of which gives to the Trustees the

right in any circumstances to control the affairs of the

company or of any of its subsidiaries the trustees shall

be under no liability or duty to appoint any

representative to the Board of the said company or

any of its subsidiaries and further shall have no responsibility

to enquire into oversee or take part in the management

or affairs or business of the company or any of its

subsidiaries.”



• “no duty to balance or diversify investments”? For example:

“The Trustees shall not be bound to maintain a balance between

income and capital nor shall they be under any obligation

to diversify the investments in the Trust Fund.”

• Are the more specific clauses purporting to limit liability or restrict duty

more effective than the general limitation of liability clause? Any purported

restriction of duty has a similar effect on a trustee’s potential liability

and, so, will be subject too to art 30(1)’s minimum standard.

• What if the trustee involves itself formally or otherwise with the

company’s/ies’ affairs notwithstanding an “anti-Bartlett” clause?



• the role of the no reflective loss principle?:

Freeman v. Ansbacher [2009] JLR 1



• Conclusions

- A breach of any duty owed by a Jersey trustee is a

breach of trust: art 1 (1) TJL

- A Jersey trustee is liable if he/she commits or concurs in the breach: art 30(1) TJL

- A Jersey trustee is liable to restore the trust to the position it would have been in if no breach had occurred: art: 30(2) TJL)

Identifying and assessing the remedial consequences of a Jersey trustee’s liability for breach of duty to exercise reasonable care7 Conclusions and checklist

• When these governing principles are expressed in these simple

terms, the serious issue of breach of trust becomes a deceptively

simple one.

• When these issues arise in practice, there will ordinarily be a

company involved and the trust deed will contain the usual well

drafted protective provisions.

• That being so, invariably the trustee will confidently point to his

anti- Bartlett clauses, his indemnity clauses, his exoneration clauses

and, perhaps a little more rarely, the reflective loss principle to

assist him in saying that there has been no breach of duty.

• The reality is that it is far from clear that the trustee will be able to

rely on these provisions.



• A checklist for trustees (look at from other side if a beneficiary):

Identify beneficiaries’ goals/ wishes for the trust estate (and reconcile them to reality)

Records! In writing!

Independent appointments of managers and agents on merit

Regular reviews and monitoring (again, in writing)

If there is a problem, do something (useful)

If you think your duty to your beneficiaries conflicts with other legal obligations (e.g. to prevent money laundering), nothing could be simpler than to seek the directions of the Court

Don’t be afraid to communicate with beneficiaries and involve them, where sensible, in decision making (remember art 30(6), TJL which confirms beneficiaries may relieve or indemnify you for breach of trust)

79

Stephen Whale


Stephen joined Jersey Trust Company in July 2010 and is head of our Private Wealth Division. Previously, Stephen held the position of Managing Director at Caversham Fiduciary Services, where he worked for over 17 years. He is a Chartered Accountant and has extensive commercial experience as well as specific expertise in wealth planning for clients based in East Africa and non-UK domiciliaries living and investing in the UK.


[email protected]

Philip Sinel Commentary


Trustees’ agents and delegates and

responsibility for loss to a trust estate


25 November 2010


2 Distinguishing agency and delegation

3 Breach of trust and trustees’ agents and delegates

4 Two recent Jersey cases


Trustees’ agents and delegates and responsibility for loss to a trust estate:

Trustees’ agents and delegates and responsibility for loss to a trust estate


• art.25(1), Trusts (Jersey) Law 1984 (“TJL”):

“Subject to the terms of the trust, a trustee may

delegate the execution or exercise of any of

his or her trusts or powers (both

administrative and dispositive) and any delegate

may further so delegate any such trusts or powers.”



• art.25(2), TJL:

“Except where the terms of the trust specifically

provide to the contrary, a trustee –

(a) may delegate management of trust property

to and employ investment managers whom the

trustee reasonably considers competent

and qualified to manage the

investment of trust property; and



(b) may employ accountants, advocates, attorneys,

bankers, brokers, custodians, investment

advisers, nominees, property agents,

solicitors and other professional agents or

persons to act in relation to any of the affairs of the

trust or to hold any of the trust property.”



• art.25(3), TJL:

“A trustee shall not be liable for any loss to the trust

arising from a delegation or appointment under this

Article who, in good faith and without

neglect, makes such delegation or appointment or

permits the continuation thereof.”

• Protection given only if any loss resulting from a delegation

or appointment is not through the trustee’s own wilful default

or neglect whether on appointment or any time following.



• What do the English equivalent provisions say?

• s.11(1), Trustee Act 2000 (“TA”):

“Subject to the provisions of this Part, the trustee of

a trust may authorise any person to exercise any

or all of their delegable functions as their

agent.”



• s.11(2), TA:

“In the case of a trust other than a charitable trust,

the trustees' delegable functions consist of any

function other than –

(a) any function relating to whether or in what way

any assets of the trust should be distributed,

(b) any power to decide whether any fees or other

payment due to be made out of the trust funds

should be made out of income or capital,



(c) any power to appoint a person to be a trustee of

the trust, or

(d) any power conferred by any other enactment or

the trust instrument which permits the

trustees to delegate any of their

functions or to appoint a person to act as a nominee

or custodian.”

• see also ss.16 and 17, TA (powers to appoint

“nominees” and “custodians”)



• s.22(1), TA:

“While the agent, nominee or custodian continues to act for the

trust, the trustees –

(a) must keep under review the arrangements under which the

agent, nominee or custodian acts and how these

arrangements are being put into effect,

(b) if circumstances make it appropriate to do so, must consider

whether there is a need to exercise any power of intervention

that they have, and

(c) if they consider that there is a need to exercise such a power,

must do so.”



• s.22(2), TA:

“If the agent has been authorised to exercise asset

management functions, the duty under subsection (1)

includes, in particular –

(a) a duty to consider whether there is any need to revise or

replace the policy statement made for the purposes

of section 15,

(b) if they consider that there is a need to revise or replace

the policy statement, a duty to do so, and

(c) a duty to assess whether the policy statement (as it has

effect for the time being) is being complied with.”



• s.23(1), TA:

“If a trustee has agreed a term under which the agent,

nominee of custodian is permitted to appoint a substitute,

the trustee is not liable for any act or default of the

substitute unless he has failed to comply with the

duty of care applicable to him … -

(a) when agreeing that term, or

(b) when carrying out his duties under section 22 in so

far as they relate to the use of the substitute.”



• The traditional position: not to delegate duties or

powers

• Now, delegation allowed where specifically permitted

by the trust instrument or statute

• Is there a distinction between agency and delegation?

Should you care?

• Consider standard trust terms in respect of appointing

agents and delegates



• First:

“Any Trustee may from time to time delegate to any

person for any period and upon any terms

whatsoever the execution or

exercise of all or any trusts and powers

(both administrative and dispositive) vested in him in

connection with this trust and (without limiting the

foregoing) unless prohibited under the terms of the

delegation any delegate may further so

delegate all or any such trusts and powers.”



• Second:

“The Trustees may employ and pay at the expense of

the Trust Fund or any income thereof any

agent in any part of the world and whether a

solicitor advocate attorney banker accountant

stock-broker or other agent to transact any

business or do any act required to be transacted or

done in the execution of this trust including

without prejudice to the generality of the

foregoing the receipt and payment of money

and the execution of documents.”



• Third:

“The Trustees may invest or hold or allow to

remain in the name or under the control

of some or one only of the Trustees or of any

person or corporation as nominee of the

Trustees the whole or such part of the Trust Fund

as the Trustees shall in their discretion think fit.”



• Fourth:

“The Trustees may appoint or employ investment

advisers and managers and may delegate to any

such advisers or managers (for such periods to such

extent and generally on such terms and in

such manner as the Trustees may from

time to time think fit) all or any of the

Trustees' powers and discretions with

regard to making retaining varying or transposing

investments.”



• Delegation:

“[a] trustee’s delegate attends meetings of the trustees

in the place of the absent, delegating trustee and

participates in the decisions of the trustees as one

of their number. A delegate is therefore concerned

with the administration of the trust as such, as well as

with all the other business that the trustees must

transact in the management of the trust property.”: Lee,

“Purifying the dialect of equity”, (2009) 7 TQR 12 at 12



• Agency:

“An agent … simply performs the tasks imposed upon

it by the trustees. It is concerned with

implementing decisions of the trustees relative to

the management of the trust property. An

agent rarely if ever attends meetings of the trustees and

cannot participate in any of the decisions of the

trustees relating to the administration of the

trust as such.”: Lee, ibid.



• Confusion between delegation and agency in statute and

trust deeds

• The words seem now to be used interchangeably when

there are two clear and different concepts

• It ought to matter as part of proper trusts’ administration;

it must also matter when liability for breach of trust or

breach of duty causing loss to the trust estate is in issue


3 Breach of trust and trustees’ agents and

delegates

• contemporary trusts practice

• again, consider typical provisions in modern trust

deeds purporting to limit liability which might arise out

of the appointment of an agent or a delegate



• Let's try to limit liability! First:

“In the purported execution of this trust no Trustee or delegate of

or person connected with a Trustee shall be liable for any loss or

loss of profit to the Trust Fund arising in consequence of the failure

depreciation or loss of any investments made or retained in good

faith or any failure to enhance or preserve the value of the Trust

Fund or any part thereof or by reason of any act or omission made in

good faith or of any other matter or thing except fraud wilful

misconduct or gross negligence on the part of the Trustee or

delegate of or person connected with a Trustee who is sought to

be made liable and in the case of a corporate Trustee or corporate

person connected with a Trustee all references in this clause thereto

shall include the directors officers and employees thereof.”



• Second:

“Without prejudice to the generality of clause [ ] neither the Trustee nor

any person connected with any Trustee shall incur any liability

whatsoever arising from: the negligence or fraud of any delegate or

agent appointed or employed by the Trustees or any of them in

good faith although the appointment or employment of such

delegate or agent was not strictly necessary or expedient; or

anything done or omitted in conformity with any advice given or

purporting to have been given by any investment adviser or

manager appointed or employed by the Trustees or any of them in

connection with this trust or the delegation to any such adviser or

manager of all or any of the Trustees' powers and discretions with

regard to making retaining varying or transposing investments … .”



• The question: how successfully do these sort of trusts

provisions limit liability in the teeth of the Jersey statutory

provisions that define the minimum standard of trustee skill

and care and define the consequences of breach of that

standard?

• Purporting to limit the trustee’s liability to the beneficiaries

• Purporting to limit the liability of agents and delegates to

both trustee and beneficiaries



• Some further particular points as to trustees’ agents:

Trustees must ensure that a suitable agent is employed

Appointing an agent with a conflict of duty and interest or duty and duty

is not to appoint a suitable agent

Agent employed should be employed within the scope of the agent’s

business

In all questions requiring exercise of trustee’s discretion or power, the

decision has to be that of the trustee, not the agent, even if in making

that decision the trustee is guided by the advice of others; cf where

delegation of powers has actually taken place

Trustees must be diligent in ensuring that the task or responsibility

given to the agent has been or is being duly performed or discharged



• Chvetsov v. BNP Paribas Jersey Trust Corporation Limited &

anor [2009] JLR 217; [2009] JCA 157: House in north London owned on trust and occupied by

plaintiff beneficiary and his family The house was “held by MA [the second defendant] as

nominee for BNP [the trustee] and … MA executed a declaration of trust to that effect in favour of BNP as trustee of the trust”: see at 220

House renovated with considerable cost overruns causing substantial loss to trust estate; MA had entered the relevant building contract “as nominee on behalf of BNP”: ibid

Both BNP and MA sued to which MA responded arguing no proper cause of action had been pleaded against it: does a beneficiary of a discretionary trust have a claim “against an agent or delegate appointed by … [the] trustee of the trust”?: id at 221



• Chvetsov v. BNP Paribas Jersey Trust Corporation Limited &

anor “The legal position is that MA was simply an agent or delegate

appointed by BNP in its capacity as trustee of the trust. If MA were to act negligently or beyond its authority in connection with that agency or delegation, the remedy would lie with BNP as trustee of the trust. Any duties owed by MA in connection with its appointment were owed to BNP as trustee of the trust, not to the beneficiaries. It would be similar in the case of an investment manager appointed by a trustee to manage the investments of a trust. If that investment manager were to be negligent in the performance of his duties, the cause of action would lie with the trustee, not with any beneficiaries.”: per Birt, B. at 221-222

“MA held the property on bare trust for BNP, as trustee of the trust, and the remedy for any breach of that bare trust lies only with BNP, which, in its capacity as trustee of the trust, was the sole beneficiary of the bare trust. The fact that MA was acting as nominee for BNP cannot possibly mean that, simply as a result of so acting, MA thereby assumed the obligations of a trustee towards the beneficiaries of the trust”: id at 222



• Chvetsov v. BNP Paribas Jersey Trust Corporation Limited & anor:

“ … the trustee would have a cause of action against the defaulting agent

and would therefore be able to obtain restitution of any loss to the trust

fund. In the event of a trustee failing to enforce that right, the

beneficiaries would have a remedy either by way of an administrative

action to force the trustee to take action against the agent or by way of a

derivative action.”: id at 223

As to the claim in tort, “[a]n agent or delegate of a trustee owes a duty in

contract (and possibly tort) to his principal (in this case BNP as trustee of

the trust) but, in the absence of particular factors, he owes no duty of care

towards the beneficiaries of the trust” (id at 224) but “[t]his is not to say

that there may not be circumstances in which beneficiaries may have a

claim against an agent of a trustee for economic loss suffered by the

beneficiaries” (id at 226) where there is reliance by a beneficiary known to

an agent or an assumption of responsibility by an agent towards the

beneficiaries.



• Cunningham v. Cunningham & ors [2009] JLR 227: The background to the amendments sought: a purported use of

protector’s power and subsequent purported exercises of purported new trustee’s power to remove a beneficiary from the trust; all trust assets then subsequently “lent” out to remaining beneficiary

SI the purported trustee but then says it has been refused PI cover; amendment sought to allege SG trustee de son tort (amendments also sought to allege dishonest assistance against SG and relevant director of SI)

Why go after SG?:

“ … in January 2009, the plaintiff [beneficiary] was informed that [SI]’s insurers were not maintaining cover. … it is [SG] which is the main company of the … Group, with employees, property, etc., whereas [SI] merely acts as a trustee. The plaintiff is therefore concerned as to whether, even if successful, he will necessarily recover all financial loss to the trust from [SI].”: Birt, B. at 246



• Cunningham v. Cunningham & ors [2009] JLR 227 at 240:

“ … of critical importance … is that, to be a trustee de son tort, a person who

intermeddles in a trust must be one ‘ … not having authority from a trustee’ or who

‘takes it upon himself’ to act as a trustee. If a duly appointed trustee delegates

functions to a person, that person derives his authority from the trustee and is

entitled to act within the confines of the authority conferred on him by the

trustee without himself becoming a trustee.”

“ … where a duly constituted trustee appoints a person to act as his agent but

such actions cause loss to the trust fund, the beneficiaries will have a remedy for

breach of trust against the trustee, who may or may not in turn have a remedy

against the agent for any wrongdoing. However, the interests of the beneficiaries

are protected because of the strict liability of the trustee for breach of trust. In

those circumstances, there is no justification for imposing the liability of a

trustee upon an agent or deeming him to be a trustee.”



• Cunningham v. Cunningham & ors [2009] JLR 227:

“The response of [SG] was straightforward. … [SG] is the main trading or operational

company in Gibraltar of the Group. It rents office premises and employs over 50

people. It is the service company within the Sovereign Group which provides various

services, such as preparing accounts and financial statements, opening bank accounts,

legal and documentary services and administrative services, to other entities within

the Sovereign Group which act as trustees of trusts. There is power under the trust

deed of the trust to delegate and, in effect, [SI] as trustee delegated many of

its functions to [SG].”: id at 241

“[SG] submitted that it was commonplace in the trust industry for the

administration of a trust to be carried out largely by another company within

the same group of companies as the corporate trustee. … it would be very

surprising if such a company were to find itself designated as a trustee de son tort.” id

at 242



• Cunningham v. Cunningham & ors [2009] JLR 227:

“… an agent or a delegate acting with the authority of a duly appointed trustee

is not committing any ‘wrong’ by acting within the scope of his delegation and is

not ‘intermeddling’ in the trust so as to constitute him a trustee de son tort. He is

acting in the capacity in which he has been authorised to act. In those

circumstances, it is the trustee who has made the delegation that is

acting as trustee of the trust, not the agent or delegate.”: ibid

“However, if the plaintiff is successful in his claim that the purported

appointment of [SI] as trustee … is void, [SG] will not have been acting under the

authority of the trustee, because [SI] itself will not have been the duly appointed

trustee of the trust. In these circumstances, given the degree of involvement

alleged by the plaintiff, it does not seem to me that the claim that [SG] was acting

as a trustee de son tort is so hopeless as to be doomed to failure and therefore

liable to be struck out.”: id at 242-3



• Conclusions:

Confusion between what a delegate is (or should be) and what an agent is (or should be); the offices are completely different (or should be) and the questions to be asked where there has been loss to the trust estate should be completely different depending upon whether you are looking at a delegate or an agent

“Modern” trusts practice and the risk of a trustee being a man of straw: what if the “administrative” agent or delegate [sic] has caused or been involved in the actions causing loss to the trust estate

What does it now mean to be a trustee?

Any right of action against an agent or nominee is an asset of the trust which a trustee should seek to realise: is the trustee happy to sue any agent he or she has appointed? If not, why not?



• A trustee may delegate trusts’ powers to an agent so

making an agent a delegate also but delegates are not

necessarily agents nor vice versa.

• The distinction between agents and delegates is

hopelessly muddled and we ought to be clear about

whether we are dealing with an agent or a delegate

(even if these two offices, so to speak, are held by the one

person) because the duties of the two offices are not co-

extensive and an consequent questions of liability for breach

causing loss to the trust estate must also be different.



• In Cunningham and Chvetsov, the then Deputy Bailiff

used the terms interchangeably where he stated “agent

or delegate” suggesting that there was no difference

between the two.

• Unfortunately, the then Deputy Bailiff also used the terms

“agent” and “nominee” (which term is, in itself, the

Devil’s work) interchangeably; that only serves to muddy

the waters of liability for loss to a trust estate further.



• Agents’ or delegates’ liability towards the trustee?

- a direct relationship where the difficulty will be getting the

trustee to sue someone with whom he or she

probably has some kind of relationship

• Agents’ or delegates’ liability towards the beneficiaries?

- an indirect or a direct relationship?

- the difficult question may be establishing standing for the beneficiaries to sue the agent or the delegate



• Is it consistent with a trustee’s duties to his or her

beneficiaries for a trustee to purport to limit or

otherwise countenance a purported limitation of

agents’ or delegates’ liability?



• A trustee's checklist for dealing with agents or delegates (read through

looking glass if a beneficiary): What are you doing? Appointing an agent or a delegate? Is the agent or delegate independent? How have you selected them? What purpose is being served by the appointment? Is it for your benefit

or to serve your purposes? Or is the appointment in the interests of the trust as a whole? Can you show the latter?

Is the relevant appointment in writing? Have the adult beneficiaries been made aware of the appointment? Does the relevant appointment define what the agent or delegate is to

do? To what extent does the appointee seek to limit or avoid any liability to

the trust estate? And, if so, is your countenance of such a purported limitation or avoidance of liability consistent with your duty as trustee?

What sort of supervision/ review/monitoring regime is in place? What records would you be able to show of same?

Have you considered intervention/ replacement of appointee at any stage? If so, what records do you have showing the decision you made and the basis/es for same?

119

Stephen Whale



T: +44 (0) 1534 816 275F: +44 (0) 1534 700 007E: [email protected]

120120

Timothy Collingwood Commentary

sinels’ sixth annual channel islands trusts law conference 2010

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