Alsop Wilkinson v Neary and Others: ChD 4 Nov 1994

The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs through a Beddoe application.
Held: Trustees who sought directions from the court on whether to defend an action, should ask that question in separate proceedings begun for that purpose. By applying within the proceedings, they exposed the strengths and weaknesses of the trustees’ case: ‘it would be quite inappropriate for all this to be revealed to the court which has to try the case or the other parties to the litigation.’ Nor did the application bring the necessary parties before the court. A trustee has a duty to remain neutral when the trust faces hostile litigation regarding the validity of trust itself.
Lightman J
Independent 03-Nov-1994, Times 04-Nov-1994, [1995] 1 All ER 431
Insolvency Act 1986 423
Citing:
CitedFearns v Young 1804
A trustees’ duty may extend to taking or defending proceedings to protect the assets of the trust. . .
(1804) 10 Ves 184
CitedIn re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .
[1893] 1 Ch 547
CitedJenour v Jenour 1804
A trustee taking legal action properly to defend the assets of the trust can expect to be indemnified from those assets. . .
(1805) 10 Ves 562
CitedRe Biddencare Ltd ChD 1994
The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself. . .
[1994] 2 BCLC 160
DoubtedIdeal Bedding Company Ltd v Holland 1907
The plaintiffs had obtained against the trustees an order that the settlement was void as against the plaintiffs and other creditors. The court considered the trustees’ position on costs.
Held: A trustee has a duty to defend the trust, and . .
[1907] 2 Ch 157
CitedMcDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
Ind Summary 08-Aug-94, Times 10-Aug-94, [1995] 1 All ER 961, (1994) 144 NLJ 1515, [1995] ICR 685, [1995] 1 CR 685
CitedNational Anti-Vivisection Society Ltd v Duddington 23-Nov-1998
The trustee of the Society had actively defended a trust action but failed. He sought an indemnity for his costs.
Held: He was not entitled to an indemnity for costs out of the trust assets. His acts had preferred one group of beneficiaries . .
Times 23-Nov-85

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.77770