Akers and Others v Samba Financial Group: SC 1 Feb 2017

Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the company, but Saudi law would not recognise such trusts. The shares had been transferred to the defendants, and the liquidators now sought to have the transfer set aside as having been in breach of trust.
Held: Samba’s appeal succeeded. The transfer to Samba did not dispose of any rights belonging to SICL within the meaning of s. 127.
In the eyes of English law, a trust may be created, exist and be enforceable in respect of assets located in a jurisdiction, the law of which does not recognise trusts in any form.
At common law, the interest created by a trust depends on the law governing the trust. The lex situs may treat a disposition of shares to a third party as overriding any interest of the beneficiary in the shares. Even so, a common law trust may exist in respect of those shares. A trust can be created, exist and be enforced in respect of assets located in a jurisdiction such as Saudi Arabia, the law of which does not recognise trusts in any form.
The Hague Convention does not change this conclusion, since one of its aims was exactly to provide for the recognition of trusts in jurisdictions which did not themselves know of the institution.
Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Collins
[2017] 1 BCLC 151, [2017] WTLR 373, [2017] UKSC 6, [2017] WLR(D) 57, [2017] 2 All ER 799, [2017] 2 WLR 713, [2017] 2 All ER (Comm) 97, [2017] BPIR 263, [2017] AC 424, UKSC 2015/0009
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Video Summary
Cross-Border Insolvency Regulations 2006, Insolvency Act 1986 127 436
England and Wales
Citing:
At First InstanceAkers and Others v Samba Financial Group ChD 28-Feb-2014
Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi . .
Appeal fromAkers and Others v Samba Financial Group CA 4-Dec-2014
Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. . .
CitedOrr Ewing v John Orr Ewing and Co and Orr Ewing’s Trustees HL 5-Dec-1882
A contract of copartnery provided that in the event of the death of any of the partners the surviving and solvent partners who should continue the business should pay out to the representatives of the deceased the amount at his credit in the books . .
CitedAttorney General v Jewish Colonization Association 1901
The court was asked whether on the death of the settlor and the termination of his life interest, the foreign shares held on trust were taxable as on a succession. . .
CitedBritish South Africa Co v De Beers Consolidated Mines Ltd CA 1910
The equitable rule against clogging the equity of redemption of a mortgage applied to a contract governed by English law and would be enforced against a contracting party as regards land abroad in a state where the equity of redemption may not be . .
CitedIn re Berchtold 1923
. .
CitedArcher Shee v Garland HL 15-Dec-1930
The parties disputed the taxpayer’s liability to income tax on income coming due to her on an American based family trust.
Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject . .
CitedWestdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
CitedDuke of Marlborough v Attorney General 1945
The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as . .
CitedRe Philipson-Stow HL 1961
The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
CitedDeschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
CitedDeschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
CitedLake v Bayliss 1974
As to the sale of land: ‘ It is by reason of this trusteeship that the vendor who breaks his contract of sale by reselling to someone else has been held to be accountable to the first intended purchaser for the proceeds of sale.’ . .
CitedLightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .
CitedLuxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
CitedBristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
CitedClark and Whitehouse (Joint Administrators of Rangers Football Club Plc), Re Directions SCS 23-Mar-2012
(Outer House) Contracts were made in 2011 and subject to English law, between Rangers and two English limited liability partnerships (together ‘Ticketus’). Under the contracts, Ticketus had paid Rangers large sums for future tranches of season . .
CitedGlasgow City Council v Springboig St John’s School and Another SCS 27-Mar-2014
The civil law concept of patrimony has been developed to explain the protection of trust property held by a trustee against claims by the trustee’s personal creditors . .
CitedSaunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
CitedAyerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
CitedIndependent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
CitedIndependent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
CitedIn re Earl Leven, Inland Revenue Comrs v Williams Deacon’s Bank Ltd ChD 1954
Wynn-Parry J said: ‘the word ‘disposition’, taken by itself, and used in its most extended meaning, is no doubt wide enough to include the act of extinguishment’, but he rejected such a wide interpretation of that word in the Finance Act 1940, . .
CitedInland Revenue Commissioners v Buchanan CA 1958
The surrender of a life interest under a will trust in favour of those people entitled in remainder operated as a ‘disposition’ of that life interest for the purposes of sections 20 and 21 of the Finance Act 1943.
Jenkins LJ specifically . .
CitedRe Mal Bower’s Macquarie Electrical Centre Pty Ltd (in liquidation) 1974
The liquidator made a claim against the bank for the amount of the Payments had been made out of the company’s bank account between the date of the petition and the date of the order and the date when the account was subsequently closed.
Held: . .
CitedIn re J Leslie Engineers Co Ltd 1976
The director of a company between presentation of a petition to wind up and the making of the order paid over pounds 1050 to a creditor for work done. Of this sum, pounds 800 was paid by way of a cheque drawn on the personal account of the director . .
CitedBristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
CitedRe S A and D Wright Ltd, Denney v John Hudson and Co Ltd CA 1992
Fox LJ said: ‘A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that a petition had been presented would usually be validated by the court unless there is ground for thinking that the . .
CitedEl Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
CitedExpress Electrical Distributors Ltd v Beavis and Others CA 19-Jul-2016
Sales LJ said: validation will ordinarily only be granted ‘if there is some special circumstance which shows that the disposition in question … has been … for the benefit of the general body of unsecured creditors’. . .
CitedAttorney General v Jewish Colonisation Association 1901
. .
CitedCook Industries Inc v Galliher ChD 1979
The plaintiff claimed a declaration that the defendants held a flat in Paris together with its contents in trust for the plaintiff, and made an order compelling the defendants to allow the plaintiff to inspect the flat. The fact that the . .

These lists may be incomplete.
Updated: 09 February 2021; Ref: scu.573799