A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The trustee was under no liability in absence of any dishonest intention. Millett LJ criticised the existing law. Care was needed when applying concepts relevant to the tort of deceit to a breach of trust because breaches of trust were of many different kinds. An exemption clause could exclude the trustee from liability for loss and damage to the trust property ‘no matter how indolent, imprudent, lacking in diligence, negligent or wilful he may have been, so long as he had not acted dishonestly’.
Millett LJ held that a fraudulent breach of trust: ‘simply means dishonesty. I accept that formulation put forward by Mr Hill on behalf of the respondents which (as I have slightly modified it) is that it connotes at the minimum an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not.
It is the duty of a trustee to manage the trust property and deal with it in the interests of the beneficiaries. If he acts in a way which he does not honestly believe is in their interests then this is acting dishonestly. It does not matter whether he stands or thinks he stands to gain personally from his actions. A trustee who acts with the intention of benefiting persons who are not the objects of the trust is not the less dishonest because he does not intend to benefit himself.’
As to the requirements for pleading fraud, he said: ‘Fraud must be distinctly alleged and as distinctly proved: Davy v Garrett (1877) 7 Ch D 473 , 489 per Thesiger LJ. It is not necessary to use the word ‘fraud’ or ‘dishonesty’ if the facts which make the conduct complained of fraudulent are pleaded; but, if the facts pleaded are consistent with innocence, then it is not open to the court to find fraud. As Buckley LJ said in Belmont Finance Corp Ltd v Williams Furniture Ltd  Ch 250, 268: ‘An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used . . The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent on the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.’
‘Every beneficiary is entitled to see the trust accounts, whether his interest is in possession or not.’
Millett LJ identified the ‘irreducible core’ of obligations of a fiduciary: ‘there is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts . . The duty of the trustees to perform the trusts honestly and in good faith for the benefit of the beneficiaries is the minimum necessary to give substance to the trusts, but in my opinion it is sufficient.’
Times 31-Mar-1997,  Pens LR 51,  EWCA Civ 1279,  Ch 241,  2 All ER 705,  3 WLR 1046
Trustee Act 1925 21(3)
England and Wales
Cited – Davy v Garrett 1878
It is not sufficient in pleadings to allege facts from which fraud might be inferred but which are also consistent with innocence.
Thesiger LJ said: ‘Fraudulent conduct must be distinctly alleged and distinctly proved, and it [is] not . .
Appeal from – Armitage v Nurse and Others ChD 3-Jul-1995
A clause exonerating trustees from responsibility for breaches of duty will be construed strictly against them. . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Barraclough v Mell and others ChD 1-Dec-2005
Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: the tustee exemption clause was effective to protect the executor as such. She had . .
Cited – Crawford v Financial Institutions Services Ltd PC 2-Nov-2005
(Jamaica) The government had intervened in banking institutions under the control of the appellant. Subsequently orders had been made against him for compensation in respect of loans made negligently or otherwise than in accordance with good banking . .
Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Cited – Cavell USA, Inc and Randall v Seaton Insurance Company etc CA 16-Dec-2009
The parties had settled terms for concluding business arrangements between them. The agreement released and referred all claims in law and in equity ‘save for fraud’ to the UK courts. The respondents now wanted to bring a case alleging breach of a . .
See Also – Armitage v Nurse SCCO 11-Apr-2000
review of counsel’s fees in a legal aid only case . .
Cited – Abbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
Cited – Stocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Cited – Henchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.
Trusts, Torts – Other, Litigation Practice
Updated: 09 November 2021; Ref: scu.141675