Richards v Dove: ChD 1974

[1974] 1 All ER 888
Cited by:
AppliedBurns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 19 November 2021; Ref: scu.198162

Norwich and Peterborough Building Society v Steed: CA 5 Mar 1992

The land-owner had given his mother power of attorney over his home. Her signature was forged on a transfer, and the transferee executed a charge in favour of the appellant. Transfer and charge were registered. A first line of cases restored the defendant to the title, but the original transfer had been found voidable, and the charge left in effect.

Purchas, Butler-Sloss, Scott LJJ
[1992] EWCA Civ 5, [1993] Ch 116
Bailii
England and Wales
Citing:
See AlsoArgyle Building Society v Hammond CA 1984
The registered freehold proprietor (S) of a property lived abroad, his mother having power of attorney. His sister and her husband, Mr and Mrs Hammond, had the register altered to show themselves as the freehold proprietors. The primary case was . .

Cited by:
CitedGold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Trusts

Updated: 14 November 2021; Ref: scu.262622

Harries and Others v Church Commissioners for England and Another: ChD 25 Oct 1991

Trustees Investing using Wider Considerations

The applicant sought a declaration that the Commissioners were obliged to have regard to the object of promoting the Christian faith and not to act in a manner which would be incompatible with that object when managing the assets of which they were trustees. The plaintiffs said that the commissioners, in making investment decisions, attached overriding importance to financial considerations, and that they were only prepared to take non-financial considerations into account to the extent that they did not significantly jeopardise or interfere with accepted investment principles.
Held: The declarations sought were refused. The Church Commissioners were entitled to take ethical considerations into account in forming an investment policy provided there was no risk of detriment to the Trust funds. Ethical investments putting financial return at risk were not open to trustees. Investments should aim for the best return, and be chosen only not to conflict with any express aims of the charity, and should not be used to make moral statements. Trustees must find balance neither bringing their charity into disrepute, nor failing to act with prudence. Such considerations could be allowed provided they did not adversely affect the return.
When property was held by trustees for the purpose of generating money, then prima facie, the purposes of the trust were best served by the trustees seeking to obtain the best return which was consistent with commercial prudence and in most cases, the best interests of the charity required that the trustees’ choice of investments be made solely on the basis of well-established investment criteria. The circumstances in which charity trustees were bound or entitled to make financially disadvantageous investment decisions for ethical considerations were extremely limited and there was no evidence that such circumstances existed in the case before the court. The declaration was refused.
Donald Nicholls VC said: ‘the law is not so cynical as to require trustees to behave in a fashion which would bring them or their charity into disrepute . . on the other hand, trustees must act prudently. They must not use property held by them for investment purposes as a means for making moral statements at the expense of the charity of which they are trustees.’

Sir Donald Nicholls VC
Gazette 11-Nov-1991, [1992] 1 WLR 1241, [1992] 2 All ER 300, [1991] 135 SJLB 180, Times 30-Oct-1991, Independent 29-Oct-1991
England and Wales

Trusts, Equity, Charity

Leading Case

Updated: 11 November 2021; Ref: scu.81250

Vadim Schmidt v Rosewood Trust Limited: PC 27 Mar 2003

PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had taken more and more indirect ways of conferring benefits. The settlements were badly drafted, but that should not be used to excuse a court fulfilling its duties. The right to seek disclosure did not depend upon a fixed and transmissible beneficial interest. The object of a discretion may have similar rights, and the right was not dependant upon establishing a proprietary interest, but the remedy would be in equity and subject to the court’s discretion. A beneficiary of a discretionary trust has a non-assignable and non-transmissible interest in the trust, and has no entitlement as of right to any trust documents or other information relating to the trust in the possession or control of the trustees.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe
Times 29-Mar-2003, [2003] UKPC 26, Gazette 05-Jun-2003, [2003] 2 AC 709, (2002-03) 5 ITELR 715, [2003] 3 All ER 76, [2003] 2 WLR 1442, [2003] Pens LR 145, [2003] WTLR 565
PC, Bailii, PC
Citing:
CitedMcPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
CitedIn re Manisty’s Settlement ChD 1974
The court contrasted the exercise by trustees of an intermediate power with the exercise of a wide special power.
Held: A wide power, whether special or intermediate, does not negative or prohibit a sensible approach by trustees to the . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .

Cited by:
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedBreakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
CitedTN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
CitedRoyal 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 . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.180352

Cowan v Scargill and Others: ChD 13 Apr 1984

Trustee’s duties in relation to investments

Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad.
Held: The same principles applied to pension funds as applied to other trusts. The NUM trustees were attempting to impose the prohibitions in order to carry out union policy; and mere assertions that their sole consideration was the benefit of the beneficiaries do not alter that conclusion, and the defendant had misrepresented the effect of the legal advice upon which he purported to act.
Sir Robert Megarry VC said: ‘The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards their beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interests of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interests of the beneficiaries are normally their best financial interests. In the case of a power of investment, as in the present case, the power must be exercised so as to yield the best return for the beneficiaries, judged in relation to the risks of the investments in question; and the prospects of the yield of income and capital appreciation both have to be considered in judging the return from the investment.’
If trustees for social or ethical reasons fail to make an investement which would produce a better result, the would be subject to criticism. ‘In considering what investments to make trustees must put on one side their own personal interests and views. Trustees may have strongly held social or political views. They may be firmly opposed to any investment in South Africa or other countries, or they may object to any form of investment in companies concerned with alcohol, tobacco, armaments or many other things. In the conduct of their own affairs, of course, they are free to abstain from making any such investments. Yet under a trust, if investments of this type would be more beneficial to the beneficiaries than other investments, the trustees must not refrain from making the investments by reason of the views that they hold.’
however: ‘If trustees make a decision upon wholly wrong grounds, and yet it subsequently appears, from matters which they did not express or refer to, that there are in fact good and sufficient reasons for supporting their decision, then I do not think that they would incur any liability for having decided the matter upon erroneous grounds; for the decision itself was right.’

Sir Robert Megarry VC
[1985] Ch 270, (1984) 128 SJ 550, [1984] IRLR 260, [1984] 3 WLR 501, [1984] 2 All ER 750
Coal Industry Nationalisation Act 1946 37
England and Wales
Citing:
CitedButtle v Saunders ChD 1950
Trustees for sale had struck a bargain for the sale of trust property but had not bound themselves by a legally enforceable contract.
Held: They had a duty to consider and explore a better offer that they received, and not to carry through the . .
CitedIn re Wyvern Developments Ltd ChD 1974
An official receiver ‘must do his best by his creditors and contributories. He is in a fiduciary capacity and cannot make moral gestures, nor can the court authorise him to do so.’ . .
CitedBalls v Strutt 1841
‘It is a principle in this court, that a trustee shall not be permitted to use the powers which the trust may confer upon him at law, except for the legitimate purposes of his trust;…’ . .
CitedDuke of Portland v Topham CA 1864
Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the . .
CitedIn re Whiteley 1886
Lindley LJ considered the duties of a trustee in exercising his powers of investment and said: ‘The principle applicable to cases of this description was stated . . to be that a trustee ought to conduct the business of the trust in the same manner . .
CitedHarrison-Broadley v Smith CA 1964
The court has an inherent power to make declarations even though they have not been claimed in the proceedings. In order to give effect to a partnership, the partner who owns the premises on which the partnership business is carried on is taken to . .
CitedEvans v London Co-operative Society Ltd 6-Jul-1976
Rule 7 of the trust instrument of a pension fund provided for the pensions committee to make loans on certain terms to the Co-operative Society in question, and the pension fund had been receiving from the society less than the market rate of . .

Cited by:
CitedNestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
CitedLehtimaki 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, Financial Services

Leading Case

Updated: 11 November 2021; Ref: scu.222822

Ketteringham and Another v Hardy: ChD 3 Feb 2011

Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. The court was asked to find that a partnership existed and that the estate was liable to contribute to the losses.
Held: No partnership existed. The matter was to be resolved according to the principles of equitable accounting. The real question to be determined is whether it was the common intention of the parties that Nick Ketteringham would contribute to the liability under the mortgage in the event that the net proceeds of sale were less than the sum outstanding under the mortgage. No such common contention had been expressed, and therefore the estate could not be held liable to contribute.

Behrens J
[2011] EWHC 162 (Ch), [2011] WTLR 1367
Bailii
Partnership Act 1890 24
England and Wales
Citing:
CitedClarke v Harlowe ChD 12-Aug-2005
A house was bought in the joint names of the parties. It was in bad condition. An express declaration of trust said they held as beneficial joint tenants. One tenants was earning much more than the other. He paid all the mortgage instalments. Very . .
CitedWilcox v Tait CA 13-Dec-2006
The court considered the principles of equitable accounting as between co-owners of land.
Held: The question of whether there is a liability to account depends on the intention of the parties. Jonathan Parker LJ said: ‘Moreover, it is in any . .
CitedFrench v Styring 8-May-1857
A and B were joint owners of a race horse, and had agreed that A should keep and train and have the general management of the horse, conveying him to and entering him for the different races ; that 35s. per week should be allowed for his keep ; and . .
CitedJaenicke v Schulz 1924
. .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 11 November 2021; Ref: scu.428427

In re Whiteley: 1886

Lindley LJ considered the duties of a trustee in exercising his powers of investment and said: ‘The principle applicable to cases of this description was stated . . to be that 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. I accept this principle; but in applying it care must be taken not to lose sight of the fact that the business of the trustee, and the business which the ordinary prudent man is supposed to be conducting for himself, is the business of investing money for the benefit of persons who are to enjoy it at some future time, and not for the sole benefit of the person entitled to the present income. The duty of a trustee is not to take such care only as a prudent man would take if he had only himself to consider; the duty rather is to take such care as an ordinary prudent man would take if he were minded to make an investment for the benefit of other people for whom he felt morally bound to provide.’

Lindley LJ
(1886) 33 ChD 347
England and Wales
Cited by:
CitedCowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
CitedNestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .

Lists of cited by and citing cases may be incomplete.

Trusts

Leading Case

Updated: 10 November 2021; Ref: scu.222827

Williams v Lawrence and Another: ChD 28 Jul 2011

The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in favour of one of the purchaser, one of the defendants, and therefore reduced in value.
Held: The effect of Regulation 12 was to allow such an application to go back much further than could happen in a normal insolvency, but in this case, at the time of the transfer, the parties knew of the estate’s debts. On the facts, no common intention to create a binding right was established, and therefore the sale was at a gross undervalue, and was to be set aside.

David Cooke J
[2011] EWHC 2001 (Ch)
Bailii
Administration of Insolvent Estates of Deceased Persons Order 1986 (SI 1986/1999)
England and Wales
Citing:
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedPascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
CitedKernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
CitedJames v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Insolvency, Trusts

Updated: 09 November 2021; Ref: scu.442271

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 the documents sought, including accounts of capital and lists of investments, and the trustee’s fees insofar as they impacted on capital. They were not generally entitled to matters relating to income. They were allowed to see the documents underlying the trust and to be informed as to the history of the identities of the trustees and the status of life interest holders.
As to costs, the trustees had failed to engage properly at all with what were proper requests, and the claimant charities should be entitled to their costs. The claimants also sought an order disallowing the trustees an indemnity from the estate, and ‘In my judgment, notwithstanding the lack of participation or explanation on behalf of the Defendants, it is clear that the Second Defendant in failing to account to the Claimants over so many years acted for a benefit other than that of the estate, and in failing to take part in these proceedings at all acted unreasonably. I have no hesitation in saying that any costs incurred by the Second Defendant in the context of these proceedings, including the costs which I have ordered him to pay to the Claimants, were not ‘properly incurred’ within s 31(1) and CPR rule PD46 para 1.1, and hence he is not entitled to be reimbursed out of the trust fund in respect of them.’
Master Matthews said: ‘Every beneficiary is entitled to see the trust accounts, whether his interest is in possession or not’, but ‘There is some danger of misunderstanding here. When the books and cases talk about beneficiaries ‘entitlements to accounts’ or to trustees being ‘ready with their accounts’ they are not generally referring to annual financial statements such as limited companies and others carrying on business (and indeed some large trusts) commonly produced in the form of balance sheets and profit and loss accounts, usually through accountants, and – in the case of limited companies – filed at Companies House. Instead they are referring to the very notion of accounting itself. Trustees must be ready to account to their beneficiaries for what they have done with the trust assets. This may be done with formal financial statements, or with less formal documents, or indeed none at all. It is no answer for trustees to say that formal financial statements have not yet been produced by the trustees’ accountants.’

Master Matthews
[2016] EWHC 1948 (Ch)
Bailii
England and Wales
Citing:
CitedRe Cowin 1886
. .
CitedIn re Tillott ChD 1892
The plaintiff was entitled under a will trust to a one twelfth share in the capital of the residue, contingently on the death of his mother, who was a life tenant. The residue included Bank of England Consols. He had already obtained from the court . .
CitedIn re Dartnall CA 1895
. .
CitedNestle v National Westminster Bank ChD 1988
The plaintiff was the remainder beneficiary under the will trust of her grandfather, who died in 1922. The trust fund was then worth about andpound;50,000. The last outstanding life interest under the trust was that of her father John, who died in . .
CitedD v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
CitedArmitage v Nurse; etc CA 19-Mar-1997
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 . .
CitedVadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedBurrows v Walls 10-Mar-1855
A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedMurphy v Murphy ChD 2-May-1998
Where a plaintiff could show that he might have some potential interest under a discretionary trust, the settlor could be obliged by the court to disclose the names and addresses of the settlement trustees. . .
CitedBrittlebank v Goodwin 1868
A trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest . .
CitedHeugh v Scard CA 1875
Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of . .
CitedIn Re Skinner ChD 1904
A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was . .
CitedBlades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .

Cited by:
CitedHenchley 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 . .

Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 09 November 2021; Ref: scu.567848

Phipps v Boardman: HL 3 Nov 1966

A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case. The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust, which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.’
‘The whole of the law is laid down in the fundamental principle exemplified in Lord Cranworth’s statement [in Aberdeen Railway Co v. Blaikie]. But it is applicable, like so many equitable principles which may affect a conscience, however innocent, to such a diversity of different cases that the observations of judges and even in your Lordships’ House in cases where this great principle is being applied must be regarded as applicable only to the particular facts of the particular case in question and not regarded as a new and slightly different formulation of the legal principle so well settled.’ and ‘The phrase ‘possibly may conflict’ requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in conflict.’
The court considered the circumstances under which information has been acquired which impose a duty of confidence: ‘The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references: knowledge of secret processes, ‘know-how’, confidential information as to the prospects of a company or of someone’s intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship.’
Lord Upjohn said: ‘In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another, then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, ‘know-how’, confidential information as to the prospects of a company or of someone’s intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense, but equity will restrain its transmission to another if in breach of some confidential relationship’.

Lord Upjohn, Lord Hodson
[1966] 3 All ER 721, [1967] 2 AC 46, [1966] UKHL 2
Bailii
England and Wales
Citing:
CitedBray v Ford HL 1896
An appellate court’s power to order a new trial is conditional on ‘some substantial wrong or miscarriage’ being established.
Lord Hershell said: ‘It is an inflexible rule of the court of equity that a person in a fiduciary position, such as . .
Appeal fromPhipps v Boardman CA 1965
Affirmed . .
At first instancePhipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .

Cited by:
CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedNew Zealand Netherlands Society ‘Oranje’ Inc v Laurentuis Cornelis Kuys PC 1963
(New Zealand) The scope of a fiduciary duty may be modified by a course of dealing by the person to whom the duty is owed. ‘The obligation not to profit from a position of trust, or, as it sometimes relevant to put it, not to allow a conflict to . .
CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedO’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
CitedGray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
CitedPhillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .

Lists of cited by and citing cases may be incomplete.

Equity, Trusts, Information

Leading Case

Updated: 02 November 2021; Ref: scu.180410

Leahy v Attorney-General of New South Wales: PC 20 Apr 1959

leahy_agnswPC1959-4

A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the date of the gift as joint tenants or tenants in common.
Where a trust is for a non-charitable purpose and does not have a beneficiary, it fails ‘for a purpose or object cannot sue . . to enforce it’
Viscount Simonds said: ‘But, though their Lordships are of opinion that the section may operate where there is a composite expression covering charitable and non-charitable purposes, and does so in the present case, it is clear that not every expression which might possibly justify a charitable application is brought within it. For instance, in In re Hollole there was a gift to a trustee ‘to be disposed of by him as he may deem best’. The trustee might presumably have deemed it best to dispose of it for a charitable purpose, and, if he had done so, could not be said to have exceeded his powers. Yet O’Bryan J held that the gift was not saved by the section, and his decision has been rightly approved in the High Court. This was a clear case because the testator did not designate any purpose at all but in effect delegated his testamentary power in a manner that the law does not permit. Greater difficulty will arise where the permissible objects of choice are described in a composite expression which, though not so vague and general as to amount to a delegation of testamentary power, does not very clearly indicate a charitable intention on the part of the testator. ‘In the present case,’ say the Chief Justice and McTiernan J, ‘there is reference to a distributable class which, while not exclusively charitable, is predominantly charitable in character’. The same concept appears in a different form in the judgment of Williams J and Webb J. ‘One can also agree with him’ (ie., Myers J) they say ‘that in order to satisfy the section the application of the whole fund to charity must be one way of completely satisfying the intention of the testator. But, if the trust either directs or allows this to be done, the testator’s intention will be completely satisfied if the trust funds are so applied….’ Thus whether the gift be to Orders of Nuns, an object so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed, or for (say) benevolent purposes, which connotes charitable as well as non-charitable purposes, the section will apply. Inevitably there will be marginal cases, where an expression is used which does not significantly indicate a charitable intention, and their Lordships do not propose to catalogue the expressions which will or will not attract the section. It may be sufficient to say that in the chequered history of this branch of the law the misuse of the words ‘benevolent’ and ‘philanthropic’ has more than any other disappointed the charitable intention of benevolent testators and that the section is clearly designed to save such gifts.’

Viscount Simonds
[1959] AC 457, [1959] UKPC 1, [1959] UKPC 9
Bailii, Bailii
Cited by:
CitedRe Lipinski’s Will Trusts ChD 1976
Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest . .
CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
CitedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Leading Case

Updated: 02 November 2021; Ref: scu.245263

Chettiar v Chettiar: PC 14 Feb 1962

(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact displaced the presumption of advancement.
Held: The presumption of advancement in a gift between father and son is not lightly to be displaced by evidence: ‘in the present case the plaintiff had of necessity to disclose his own illegality to the court and for this reason: He had not only to get over the fact that the transfer stated that the son paid $7000 for the land. He had also to get over the presumption of advancement, for whenever a father transfers property to his son, there is a presumption that he intended it as a gift to his son; and if he wishes to rebut that presumption and to say that he took as trustee for him, he must prove the trust clearly and distinctly, by evidence properly admissible for the purpose, and not leave it to be inferred from slight circumstances. see Shepherd v. Cartwright [1955] AC 431. The fact that the father received the income does not suffice . . The father had also to get over this pertinent question: If he intended the son to take as a trustee, why did he not insert on the memorandum of transfer the words ‘as trustee’ and register the trust as he could have done under section 160 of the Land Code?
‘In these circumstances it was essential for the father to put forward a convincing explanation why the transfer took the form it did, and the explanation he gave disclosed that he made the transfer for a fraudulent purpose, namely, to deceive the public administration . . Once this disclosure was made by the father, the courts were bound to take notice of it, even though the son had not pleaded it . .in the present case the father has of necessity to put forward,, and indeed, assert, his own fraudulent purpose, which he has fully achieved. He is met therefore by the principle stated long ago by Lord Mansfield ‘No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act,’ see Holman v. Johnson (1775) 1 Cowp. 341, 343).”

Lord Denning, Viscount Simonds
[1962] AC 294, [1962] UKPC 1, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238
Bailii, Bailii
Commonwealth
Citing:
CitedHolman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, . .
See AlsoPalaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .

Cited by:
CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
ApprovedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedCollier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
See AlsoPalaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .

Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Leading Case

Updated: 02 November 2021; Ref: scu.194812

Zeital and Another v Kaye and Others: CA 5 Mar 2010

The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator sought the court’s direction. The widow and deceased had lived seperately for over 20 years, and his more recent partner said that he had informally given the shares to her. The widow and children appealed a finding in favour of the gift in respect of one share, and against the costs order.
Held: The appeal succeeded. The steps taken by the deceased to transfer the share fell short of what was required. He had not been himself registered as owner, and could not execute a share transfer. The company was in liquidation, and no share certificate was handed over. The deceased had not done all he could to transfer the share.

Dyson, Maurice Kay, Rimer LJJ
[2010] EWCA Civ 159
Bailii
England and Wales
Citing:
MentionedIn re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .
MentionedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Company

Updated: 01 November 2021; Ref: scu.402536

Pitt and Another v Holt and Others: ChD 18 Jan 2010

The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now sought the unravelling of the trust based on either Hastings Bass or mistake.
Held: The rule in Hastings-Bass could be used by others than only trustees. Robert Englehart QC said: ‘A mere failure by someone to take a material consideration into account in the conduct of his own affairs will not justify setting aside for mistake. It was said in argument before me that the law allows you to be as foolish as you like with your own property. On the other hand, there certainly is jurisdiction, irrespective of any trust or fiduciary element, to set aside a voluntary transaction where there has been an operative mistake. Nevertheless, for the rule in Hastings-Bass to apply there is no need to identify a mistake as such, as opposed to a failure to take a relevant consideration into account.’ though there was no real mistake, only a failure to address the effect of the arrangement fully, the rule in Hastings-Bass could be applied and the trust varied.

Robert Englehart, QC
[2010] EWHC 236 (Ch)
Bailii, Times
Mental Health Act 1983
England and Wales
Citing:
CitedSieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
CitedRe Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedByng v London Life Association CA 1990
The venue selected for a meeting of the members of a company was too small to accommodate all the members who attended, and so the chairman adjourned the meeting to an alternative venue.
Held: The decision by the chairman was set aside on the . .
CitedGibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
CitedHunter v Senate Support Services Ltd and others ChD 2005
The court set aside a forfeiture of shares for non-payment of a call. The decisions of the directors to forfeit the shares and to transfer the forfeited shares to the group holding company were flawed, though not improperly motivated, because the . .
CitedEdge and others v Pensions Ombudsman and Another CA 29-Jul-1999
The Pensions Ombudsman was wrong to set aside the decision of pensions trustees where that decision was properly made within the scope of a discretion given to the Trustees. He should not carry out an investigation where no particular benefit could . .
CitedEquitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
CitedAnker-Petersen v Christensen ChD 2002
Where a mistake is made as to the effect of an appointment under a trust it may be possible to invoke the court’s jurisdiction to rescind the appointment. Davis J considered Millett J’s distinction between ‘effect’ and ‘consequences’: ‘An example in . .
CitedOgden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .
CitedWolff v Wolff ChD 6-Sep-2004
The court considered its ability to redraw a document where its legal effect was misunderstood. . .
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedOgilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
CitedBurrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
burrell_burrellChD05
Shares were appointed by trustees in the mistaken belief that they attracted business property relief from Inheritance tax. They sought to set aside the appointment.
Held: Mann J applied the rule in Stannard v Fisons Pensions Trust and . .

Cited by:
CitedFutter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .

Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate, Inheritance Tax

Leading Case

Updated: 01 November 2021; Ref: scu.396742

Re Hastings-Bass; Hastings v Inland Revenue: CA 14 Mar 1974

Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the trusts in remainder were void for perpetuity.
Held: A trustee when exercising a power (for example) of appointment or of advancement shall take into account all relevant considerations and refrain from taking into account any irrelevant consideration, and opens his decision to challenge if he fails to do as so required. The court should not interfere with the exercise in good faith of a trustee’s discretion, notwithstanding that it does not have the full effect which the trustee intended, unless the trustee exceeded the authority given by the trust or it is clear that he would not have acted as he did (a) had he not taken into account considerations which he should not have taken into account, or (b) had he not failed to take into account considerations which he ought to have taken into account.
Buckley LJ said: ‘where by the terms of a trust (as under section 32) a trustee is given a discretion as to some matter under which he acts in good faith, the court should not interfere with his action notwithstanding that it does not have the full effect which he intended, unless (1) what he has achieved is unauthorised by the power conferred upon him, or (2) it is clear that he would not have acted as he did (a) had he not taken into account considerations which he should have taken into account, or (b) had he not failed to take into account considerations which he ought to have taken into account.’

Buckley LJ, Megaw LJ, Roskill LJ
[1975] Ch 25, [1974] EWCA Civ 13, [1974] 2 All ER 193
Bailii
Trustee Act 1925 32
England and Wales
Citing:
CitedIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
CitedIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners ChD 1959
Whether Trust was void for perpetuity . .
Citedin Re: Abrahams’ Will Trust ChD 1969
The trustees of a 1948 settlement had advanced funds in 1957 by way of a new settlement, the terms of which did not comply with the rule against perpetuities. Not all the terms of the 1957 settlement would infringe the rule against perpetuities, but . .
CitedRe Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .

Cited by:
CitedAbacus Trust Company (Isle of Man) Ltd and Another v National Society for the Prevention of Cruelty to Children ChD 17-Jul-2001
abacus_nspccChD01
The claimants were beneficiaries, trustee and protector of a trust fund. In order to mitigate Capital Gains Tax liability they sought advice, and, following that advice, entered into a deed of gift in favour of the respondent charity. The deed . .
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedGibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
CitedStannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
CitedBurrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
burrell_burrellChD05
Shares were appointed by trustees in the mistaken belief that they attracted business property relief from Inheritance tax. They sought to set aside the appointment.
Held: Mann J applied the rule in Stannard v Fisons Pensions Trust and . .
CitedIn Re Duxbury’s Settlement Trusts CA 21-Nov-1994
The Public trustee appealed against an order which had recognised his appointment under the 1959 trust, but had held that because of the explicit prohibition in the trust instrument against a trustee acting alone, he could not act.
Held: . .
CitedPublic Trustee v Cooper 2001
The court looked at the circumstances required when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): ‘Where the issue was whether the . .
CitedJones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
CitedSieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
CitedPitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
CitedPitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
CitedFutter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
CitedFutter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
CitedGlaxo Group Limited, the Wellcome Foundation Ltd v Dowelhurst Limited ChD 6-Feb-2003
Challenge to appointment of trustee . .

Lists of cited by and citing cases may be incomplete.

Trusts

Leading Case

Updated: 01 November 2021; Ref: scu.181634

Attorney-General v Pearson: 1817

No Alteration to Charty’s Objects

A protestant dissenters’ meeting house in Wolverhampton which was declared by a trust deed to be held for ‘the worship and service of God’ was the subject of a dispute between the schismatic congregation. The issue was the nature of the worship denoted by those words and the occasion was the ejection of a minister.
Held: Referring to Craigdallie, Lord Eldon said: ‘if any persons seeking the benefit of a trust for charitable purposes should incline to the adoption of a different system from that which was intended by the original donors and founders; and if others of those who are interested think proper to adhere to the original system, the leaning of the Court must be to support those adhering to the original system, and not to sacrifice the original system to any change of sentiment in the persons seeking alteration, however commendable that proposed alteration may be.’

Lord Eldon
(1817) 3 Mer 353, [1817] EngR 645, (1817) 3 Mer 353, (1817) 36 ER 135
Commonlii
England and Wales
Citing:
ExplainedCraigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .

Cited by:
Not followedVarsani and others v Jesani, Patel and Her Majesty’s Attorney-General CA 3-Apr-1998
A Hindu religious sect, constituted as a charity, had split into two factions.
Held: The court had jurisdiction to order that the assets of the sect should be divided under the powers in the Act, and held upon separate trusts for the two . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

Lists of cited by and citing cases may be incomplete.

Charity, Trusts

Leading Case

Updated: 01 November 2021; Ref: scu.187518

National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others: HL 7 Jun 2001

The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus had accrued within a scheme, and there was a substantial anticipated surplus, the trustees could allow the employers to deal with this by them reducing the amount of contributions to the scheme. Lord Hoffmann stressed the perils inherent in linguistic arguments of the ‘expressio unius’ variety in the context of ‘a patchwork document like the pension scheme’.
Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Clyde Lord Scott of Foscote
Times 10-Apr-2001, Gazette 07-Jun-2001, [2001] UKHL 20, [2001] 2 All ER 417, [2001] 1 WLR 864
Bailii, House of Lords
Pensions Act 1995 37(1)(a)
England and Wales
Citing:
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedImperial Group Pension Trust Ltd v Imperial Tobacco Ltd 1991
A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s . .
CitedIn Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
CitedRe Vauxhall Motor Pension Fund 1989
The fact that a pension scheme cannot be amended to allow something to be done does not necessarily mean that a limited power to do that thing does not already exist within the scheme. . .
DisapprovedBritish Coal Corporation v British Coal Staff Superannuation Scheme Trustees Ltd 1994
The court considered the distinction between a power in relation to which the duty of the employer was limited to a duty of good faith and a power in respect of which the employer was a fiduciary and which was to be exercised solely in the interests . .

Cited by:
CitedAon Trust Corporation Ltd v KPMG (A Firm) and others CA 28-Jul-2005
The claimants were trustees of the defendant’s pension scheme. They sought additional payments to make up a shortfall in funds, on the basis that the fund was an earnings related pension scheme, and that the company therefore had obligations to make . .
CitedBarnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.84179

Letterstedt v Broers: PC 22 Mar 1884

(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts of equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce courts of equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.’
. . and ‘It seems to their Lordships that the jurisdiction which a court of equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.’
The court set out the principles underlying a decision to remove a trustee. Lord Blackburn said: ‘The whole of the matters which have been complained of, and the whole that, if this judgment stands, may yet have to be done by the Board, are matters which they had to do, as having accepted the burthen of carrying out the trusts which on the true construction of the will were imposed upon them, and so become trustees. What they had to do as executors merely, such as paying debts, collecting assets, andc., have long ago been over, and by the terms of the compromise the plaintiff cannot now say they have not been done properly. There may be some peculiarity in the Dutch Colonial law, which made it proper to make the prayer in the way in which it was done to remove them from the office of executor; if so, it has not been brought to their Lordships’ notice; the whole case has been argued here, and, as far as their Lordships can perceive, in the Court below, as depending on the principles which should guide an English Court of Equity when called upon to remove old trustees and substitute new ones. It is not disputed that there is a jurisdiction ‘in cases requiring such a remedy,’ as is said in Story’s Equity Jurisprudence, s. 1287, but there is very little to be found to guide us in saying what are the cases requiring such a remedy; so little that their Lordships are compelled to have recourse to general principles.
Story says, s. 1289, ‘But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity’
It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate. The reason why there is so little to be found in the books on this subject is probably that suggested by Mr. Davey in his argument. As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported. It is to be lamented that the case was not considered in this light by the parties in the Court below, for, as far as their Lordships can see, the Board would have little or no profit from continuing to be trustees, and as such coming into continual conflict with the appellant and her legal advisers, and would probably have been glad to resign, and get out of an onerous and disagreeable position. But the case was not so treated.
In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond the very broad principle above enunciated, that their main guide must be the welfare of the beneficiaries.’ He referred to cases in which there was a conflict between trustee and beneficiary and continued: ‘As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him; but cases involving the necessity of deciding this, if they ever arise, do so without getting reported.’
However: ‘It is quite true that friction or hostility between trustees and the immediate possessor of the trust estate is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded.’
Lord Blackburn
[1884] UKPC 1, (1884) 9 App Cas 371, [1884] UKPC 18, [1884] UKLawRpAC 12
Bailii, Bailii, Commonlii
England and Wales
Cited by:
CitedCharman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
CitedJones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
CitedKershaw v Micklethwaite and Others ChD 12-Feb-2010
Application by the claimant, Mr Kershaw, for some or all of the defendants to be removed as executors of the Will of Mr Kershaw’s mother. . .
CitedLehtimaki 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.
Updated: 25 August 2021; Ref: scu.247442

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.
Ind Summary 03-Jul-1995
England and Wales
Cited by:
At first InstanceArmitage v Nurse SCCO 11-Apr-2000
review of counsel’s fees in a legal aid only case . .
Appeal fromArmitage v Nurse; etc CA 19-Mar-1997
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.77868

Erlanger v New Sombrero Phosphate Company: HL 1878

Rescission needs Restitutio in Integrum

A syndicate, of which Erlanger (Orse Erlinger) was the head, purchased from an insolvent company an island, said to contain valuable mines of phosphates. Erlanger, who managed the purchase, prepared to get up a company to take over the island and work the mines. The sale of the island to the company was made nominally by a person who had no real interest in the island.
Held: Erlanger was in a fiduciary position to the company and was obliged to faithfully state to the company the facts which applied to the property and which would influence the company in deciding on the reasonableness of acquiring it. The question was whether the contract should be allowed to stand. It could not be sustained. Where a fiduciary relationship between parties may be the occasion of unfair advantage to one of them, the burden of proof lies on that party to show that he has not used that advantage for his own benefit. The value of depreciation of a phosphate mine could be measured in order to make counter-restitution in equity.
Lord Blackburn said: ‘It is, I think, clear on principles of general justice, that as condition to a rescission there must be a restitutio in integrum. That parties must be put in statu quo. See Lord Cranworth in Addie v The Western Bank. It is a doctrine, which has often been acted upon both at law and in equity. But there is a considerable difference in the mode in which it is applied in Courts of Law and Equity, owing, as I think, to the difference of the machinery which the Courts have at their command. I speak of these Courts as they were at the time when this suit commenced, without inquiring whether the Judicature Acts make any, or if any, what difference.
It would be obviously unjust that a person who has been in possession of property under the contract which he seeks to repudiate should be allowed to throw back on the other party’s hands without accounting for any benefit he may have derived from the use of the property, or if the property, though not destroyed, has been in the interval deteriorated, without making compensation for that deterioration. But as a Court of Law has no machinery at its command for taking an account of such matters, the defrauded party, if he sought his remedy at law, must in such cases keep the property and sue in an action for deceit, in which the jury, if properly directed, can do complete justice by giving as damages a full indemnity for all that the party has lost; see Clarke v Dixon and the cases there cited.
But a Court of Equity could not give damages, and, unless it can rescind the contract, can give no relief. And, on the other hand, it can take accounts of profits, and make allowance for deterioration. And I think the practice has always been for a Court of Equity to give this relief whenever, by the exercise of its powers, it can do what is practically just, though it cannot restore the parties precisely to the state they were in before the contract.’
Lord Penzance said: ‘A contract of sale effected under such circumstances is, I conceive, upon principles of equity liable to be set aside.
The principles of equity to which I refer have been illustrated in a variety of relations, none of them perhaps precisely similar to that of the present parties, but all resting on the same basis, and one which is strictly applicable to the present case. The relations of principal and agent, trustee and cestui que trust, parent and child, guardian and ward, priest and penitent, all furnish instances in which the Courts of Equity have given protection and relief against the pressure of unfair advantage resulting from the relation and mutual position of the parties, whether in matters of contract or gift; and this relation and position of unfair advantage once made apparent, the Courts have always cast upon him who holds that position, the burden of shewing that he has not used it to his own benefit.’
Lord Penzance, Lord Blackburn
(1878) LR 3 App Cas 1218, [1874-80] All ER 271
Contracts (Applicable Law ) Act 1990
England and Wales
Citing:
At CANew Sombrero Phosphate Co v Erlanger CA 26-Feb-1877
Sir George Jessel MR said: : ‘. . persons in a fiduciary position must make a full and fair disclosure when they are about to sell property to those towards whom they stand in that relation’ . .

Cited by:
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedHalpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
CitedCaterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.236341

O’Rourke v Darbishire: HL 1920

Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own benefit, with a precatory expression of his wishes that it should be used for charitable purposes. Two further codicils 1886 extended the first codicil’s gift to the executors. Sir Joseph’s intestate successors would have been Mrs Uniacke (as to realty) and Mrs Uniacke and Mrs McGowan (as to personalty). Mrs McGowan threatened to challenge the will and codicils, but in 1889 there was a compromise between all interested parties. In 1916, after Mrs Uniacke, Mrs McGowan and the executors had all died, Mrs Uniacke’s administrator (Mr O’Rourke) sought to challenge both the will and codicils and the compromise, alleging fraud by Mr Darbishire (who was one of the executors and had been Sir Joseph’s solicitor). Mr O’Rourke sought disclosure of documents containing legal advice given to Sir Joseph during his lifetime, and to his executors after his death.
Held: The House dismissed Mr O’Rourke’s appeal. He had not made out even a prima facie case that the will and codicils were invalid, or that the communications had promoted fraud. Mr O’Rourke’s relied on a ‘proprietary right’. A cestui que trust, in an action against his trustees, is generally entitled to the production for inspection of all documents relating to the affairs of the trust. It is not material whether this is seen as a paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of discovery, since in both cases an essential preliminary is either the admission, or the establishment, of the status on which the right is based.
Viscount Finlay, Lord Sumner, Lord Parmoor
[1920] AC 581, [1920] All ER 1
England and Wales
Cited by:
CitedVadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedRush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedMartin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
CitedRoyal 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 . .
CitedRoyal 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 . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.180360

Drake v Whipp: CA 30 Nov 1995

The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff appealed against a finding that she had only a 14.9% interest on a resulting trust, in the house she and the defendant had occupied together. The property had been purchased for andpound;61,000 of which she had contributed andpound;24,000, with later additional contributions to conversion works. She complained that working on a resulting trust, the costs of acquisition were given undue emphasis.
Held: A beneficial interest in a family home could be presumed from the intention of the parties and their acting in detriment. There was a constructive trust. There was undisputed evidence that she was to have an interest in the property, and she had acted to further that intention and to her detriment. The appeal was allowed, and her interest set at one third. ‘it is not easy to reconcile every judicial utterance in this well-travelled area of the law. A potent source of confusion, to my mind, has been suggestions that it matters not whether the terminology used is that of the constructive trust, to which the intention, actual or imputed, of the parties is crucial, or that of the resulting trust which operates on a presumed intention of the contributing party in the absence of rebutting evidence of actual intention.’
Peter Gibson LJ, Lord Justice Hirst and Mr Justice Forbes
Times 19-Dec-1995, [1996] 2 FCR 296, [1995] EWCA Civ 25, (1996) 28 HLR 531, [1996] CLY 5780
Bailii
England and Wales
Citing:
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedDyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

Cited by:
CitedOxley v Hiscock CA 6-May-2004
oxley_hiscockCA2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedJones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.80130

Attorney General for Hong Kong v Reid and Others: PC 24 Nov 1993

Principalhas proprietary interest in Trust assets

Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:
Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum
Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1
Bailii
England and Wales
Citing:
Wrongly decidedLister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .

Cited by:
CitedTesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.77944

Re Cohen’s Will Trusts: ChD 1959

An application was made for the variation of trust provisions on behalf of a child beneficiary.
Held: Where the outcome of the arrangement cannot be predicted with certainty then the Court should be prepared to take on behalf of a minor, a risk which an adult would be prepared to take
[1959] 1 WLR 165
England and Wales
Cited by:
CitedWright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.448127

Rowe v Prance: ChD 26 May 1999

A boat had been bought and held in one persons name, but on reassurance that it would be ‘ours.’ The share was substantial but unquantified, and so equality was assumed. An express trust of personalty need not be formal. Constructive trust rules were unhelpful.
Gazette 26-May-1999
England and Wales

Updated: 01 June 2021; Ref: scu.88881

Prescott v Fellowes: CA 1958

The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a settlement which are familiar to conveyancing practitioners. It has, however, long since been established by decisions which are binding on this court that a disposition of property may a ‘settlement’ for the purposes of section 25 of the Matrimonial Causes Act 1950, notwithstanding that it would not be regarded as a settlement of property for any other purpose. The liberality with which this legislation has been construed is sufficiently exemplified by Bosworthick v. Bosworthick. In that case a wife executed, a few years after her marriage, a bond which secured to her husband an annuity for his life. The marriage was dissolved in 1925 and the wife applied to the court for an order extinguishing her liability under the bond. This court, affirming the decision of Lord Merrivale P., held that the bond was a post-nuptial settlement for the purposes of section 5 of the Matrimonial Causes Act, 1859, and section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925; and the wife’s application succeeded. In the course of his judgment Romer J., who was sitting as a member of this court, said that the authorities established ‘that where a ‘husband has made a provision for his wife, or a wife for her husband, in the nature of periodical payments, that amounts to a settlement within the meaning of the sections. That may appear to be a very liberal construction of the sections, but I think that it is no more liberal a construction than should be given to them having regard to the obvious purposes for which they were enacted by the legislature.’
Romer LJ
[1958] P 260
Matriimonial Cause Act 1950
England and Wales
Cited by:
CitedCharalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.199724

Saeed and Another v Ibrahim and Others: ChD 9 Jan 2018

The court considered the overlap between CPR 3.4(2)(a) and CPR 24.2
Marsh CM
[2018] EWHC 3 (Ch)
Bailii
England and Wales
Cited by:
See AlsoSaeed and Another v Ibrahim and Others ChD 3-Aug-2018
. .
CitedBoyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.602625

Templeton Insurance Ltd and Another v Brunswick and Others: ChD 31 May 2012

Templeton Insurance Limited and Knox D’Arcy Operations Limited claim against the defendant for allegedly dishonest breaches of contractual obligations and of fiduciary duties, which breaches are alleged to be fraudulent or to constitute fraudulent breaches of trust on his part.
Simon Barker C HHJ
[2012] EWHC 1522 (Ch)
Bailii
England and Wales

Updated: 23 April 2021; Ref: scu.466273

Foskett v McKeown and Others: CA 27 Jun 1997

Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had power to renominate himself as sole beneficiary. One or two premiums were paid by the defendant himself.
Held: The representation order was confirmed. Trust money which had been used by a trustee fraudulently to invest in a life policy, did not give the eventual beneficiaries of the trust an interest in the proceeds of that policy. Nevertheless the purchasers were entitled to be repaid out of the proceeds of the Policy such of their money as could be traced into the premiums paid under the Policy.
Hobhouse LJ
Times 27-Jun-1997, [1997] EWCA Civ 1747, [1998] Ch 265
England and Wales
Citing:
CitedIn re Leslie; Leslie v French ChD 1883
The court gave guidance as to the circumstances in which an individual who had paid a premium on a policy belonging to someone else could claim an interest in the policy: ‘In my opinion a lien may be created upon the moneys secured by a policy by . .
CitedFalcke v Scottish Imperial Insurance Co CA 1886
The owner of a policy of life assurance mortgaged the policy to secure repayment of a loan. Subsequently the owner, now the owner of an equity of redemption in the policy, paid two annual premiums which became due under the policy. The policy was . .
CitedRe a Policy No 6402 of the Scottish Equitable Life Assurance Society 1902
Mr Sanderson effected insurance on his own life ‘for the behoof’ of his sister-in-law, Miss Stiles. The policy moneys were payable to Miss Stiles or her personal representatives but the premiums were paid throughout by Mr Sanderson. The personal . .
CitedSinclair v Brougham HL 1914
An insolvent building society had, outside its powers, run a banking business. The House considered the competing claims of the unadvanced shareholders of the building society’s intra vires business, members of the society who had not been granted . .
CitedIn re Diplock’s estate CA 1948
re_diplockCA1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
CitedIn re Tilley’s Will Trusts ChD 1967
The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property. . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
CitedThe Venture CA 1908
Contributions were made to the purchase price of a yacht.
Held: The court concluded that the contributor was entitled under a resulting trust to a pro rata equitable interest in the yacht. The payments were made at the time the yacht was . .
CitedRosco v Winder 1915
. .
CitedGoldcorp Exchange Ltd and others v Liggett and others PC 25-May-1994
(New Zealand) The non allocated claimants purchased gold bullion from a company for future delivery on a non allocated basis. The company stored and insured the metal, but the claimants had a right to call for delivery of their part within 7-days. . .
CitedRe Maxwell Communications Corporation Plc: Bishopsgate Investment Management Ltd v Homan CA 26-Sep-1994
The remedy of tracing is not available through a bank account which was subsequently overdrawn. Nor does the doctrine of tracing extend to following value into a previously acquired asset: ‘there can be no equitable remedy against an asset acquired . .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
CitedStrutt v Tippett CA 1890
The list set out in re Leslie for the ways in which one person might claim an interest in an insurance policy in another’s name, was not exhaustive. . .
CitedDyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .
CitedIn re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .
CitedGravesend Corporation v Kent County Council KBD 1935
A school vested in the Corporation had been built with the assistance of financial contributions from the County Council. As a result of various legislative changes the County Council replaced the Corporation as the education authority and as the . .
CitedRe Roberts 1946
. .
Appealed toFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .

Cited by:
CitedGeoffrey Allen and Another v Rochdale Borough Council CA 23-Mar-1999
Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The . .
Appeal fromFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .

These lists may be incomplete.
Updated: 21 April 2021; Ref: scu.80647

Hughes and Others v Bourne and Others: ChD 27 Jul 2012

A trust owned a majority shareholding in a family firm. A purchaser wished to buy a substantial interest. Differing sections of the beneficiaries wanted either to sell or not. The trustees sought advance approval for a planned use of their powers to sel.
Held: For their part, the Trustees have made it clear . . that they do not wish to surrender their discretion to the court, but are instead asking the court to give its blessing to their proposed course of action. The application therefore falls within the second category identified by Robert Walker J (as he then was) in a judgment given in chambers in 1995 and cited by Hart J in The Public Trustee v Cooper [2001] WTLR 922 at 923:
The second category is where the issue is whether the proposed course of action is a proper exercise of the trustees’ powers where there is no real doubt as to the nature of the trustees’ powers and the trustees have decided how they want to exercise them but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the court for the action on which they have resolved and which is within their powers. Obvious examples of that, which are very familiar in the Chancery Division, are a decision by trustees to sell a family estate or to sell a controlling holding in a family company. In such circumstances there is no doubt at all as to the extent of the trustees’ powers nor is there any doubt as to what the trustees want to do but they think it prudent and the court will give them their costs of doing so to obtain the court’s blessing on a momentous decision. . . ‘
Henderson J
[2012] EWHC 2232 (Ch)
Bailii
England and Wales
Cited by:
CitedRe JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .

These lists may be incomplete.
Updated: 19 April 2021; Ref: scu.463320

In Re Duxbury’s Settlement Trusts: CA 21 Nov 1994

The Public trustee appealed against an order which had recognised his appointment under the 1959 trust, but had held that because of the explicit prohibition in the trust instrument against a trustee acting alone, he could not act.
Held: Powers under a trust deed were satisfactorily exerciseable by the Public Trustee acting alone despite the trust deed’s express requirement that no trustee shall act alone. The powers given under the Act inevitably included this power: ‘It would be idle to appoint a trustee who was unable to act. Appointment and action were for this purpose inseparable.’ It was futile to distinguish between a power to appoint a sole trustee and the power of that trustee to act alone.
Nourse LJ, Henry LJ, Sir John Megaw
Times 19-Dec-1994, Gazette 16-Dec-1994, Ind Summary 06-Feb-1995, [1995] 1 WLR 425, [1994] EWCA Civ 21
Bailii
Public Trustee Act 1906 5(1)
England and Wales
Citing:
CitedIn re Moxon 1916
Under the statutory power of appointing new trustees out of court, the public trustee could be appointed and act even though the instrument might require a minimum of two trustees to act. The section was ‘not merely by way of addition o the . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedRe Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .

These lists may be incomplete.
Updated: 10 April 2021; Ref: scu.81858

Saville v Goodall: CA 1993

The court considered the requirements to establish that property purchased in one name but for an unmarried couple were to be held on trust: ‘[Counsel] referred us to a recent decision of this court in Springette v Defoe [1992] 2 FLR 388, which recognises that the common intention must be communicated between the parties. I think all the authorities on first category cases will be found to be consistent with that proposition.’
Lord Justice Nourse and Lord Justice Evans
[1993] 1 FLR 755
England and Wales
Citing:
CitedSpringette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .

Cited by:
CitedOxley v Hiscock CA 6-May-2004
oxley_hiscockCA2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.199952

Henry Wedderburn, Esq, Second Son of Charles Wedderburn of Gosford v Sir Peter Halket of Pitfirran, Bart, Alexander Hart, His Curator Ad Litem, and John Wedderburn of Gosford, Repondents: HL 19 Mar 1770

Entail – Power to Alter Order of Succession.-
Entail taken to the makers and longest liver in liferent, and to their eldest son in fee, whom failing his second son, andc., with a prohibition against altering the order of succession; but no restraint against selling or charging the estate with debt. The eldest son, who succeeded after the maker, finding his own eldest son an idiot, altered the order of succession, and gave the estate to his second son, and the heirs precisely marked out by the original entail. Held, that as he was fiar of the estate, he could exercise this power, more especially seeing that the deed so executed had not in view fraudulently to alter the order of succession, but merely to provide for a contingency that had not been contemplated by the maker.
[1770] UKHL 2 – Paton – 231, (1770) 2 Paton 231
Bailii
Scotland

Updated: 08 April 2021; Ref: scu.561669

Spencer and Others v Fielder: ChD 15 Jul 2014

Beddoe proceedings by the present trustees of the Airways Pension Scheme for directions of the court in relation to their conduct of proceedings brought against them by British Airways plc.
Held: The Chancellor authorised the Trustee to defend the claim (down to and including the completion of disclosure and inspection) and ordered that the Trustee’s costs be paid out of the Scheme assets
Sir Terence Etherton CH
[2014] EWHC 2768 (Ch), [2015] 1 WLR 2786
Bailii
England and Wales
Citing:
CitedIn Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .

Cited by:
See AlsoAirways Pension Scheme Trustee Ltd v Fielder and Another (3032) ChD 11-Nov-2019
. .

These lists may be incomplete.
Updated: 25 March 2021; Ref: scu.550161

Southampton City Council v Southampton Medina Mosque Trust Ltd and Others: ChD 5 Oct 2010

The court considered competing claims for the ownership of a newly built mosque. The Council had agreed to it being built on its land and now sought a direction as to its future ownership. The first named defendant charity disputed ownership with a father and son as trustees of a different mosque. An original constitution appeared to have been adopted but then another was proposed. When a trustee dies, one of the defendants was appointed temprarily, but there was a dispute as to the confirmation of that appointment.
Held: The building agreement was in favour of named individuals as trustees of the unincorporated trust. However at a properly constituted meeting, the benefit of the agreement had been assigned to the newl formed charitable company. There should be a transfer accordingly.
David J
[2010] EWHC 2376 (Ch)
Bailii
England and Wales

Updated: 28 February 2021; Ref: scu.424869

Vatcher v Pault: PC 17 Dec 2014

(Jersey) A fraudulent exercise of a trust power is constituted if it is exercised for a purpose or with an intention beyond the scope of the power. It was said that ‘it is not enough that an appointor or some person not an object of power may conceivably derive some benefit’: ‘The general presumption which the law makes is in favour of the good faith and validity of transactions which have long stood unchallenged, and if the known facts and existing documents are, though such as to give rise to suspicion, nevertheless capable of a reasonable explanation, the Court ought not to draw inferences against the integrity of persons who have long been dead and cannot therefore defend themselves.’
Lord Parker went on: ‘The term fraud in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power.’
Lord Parker of Waddington
[1915] AC 372, [1914] UKPC 100
Bailii
England and Wales
Cited by:
CitedFutter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .

These lists may be incomplete.
Updated: 24 February 2021; Ref: scu.408859

Mcvey and Others, Regina (on The Application of) v Secretary of State for Health: Admn 5 Mar 2010

The respondent had set up a trust providing for compensation for the victims of variant CJD. The claimants challenged a variation of the trust scheme which did not proceed on the basis of a recommendation made for this purpose.
Silber J
[2010] EWHC 437 (Admin)
Bailii
England and Wales

Updated: 22 February 2021; Ref: scu.402538

Random House UK Ltd v Allason and others: ChD 11 Dec 2008

The now defendants had lost their action for copyright infringement, and the now claimant sought to enforce the costs order made in their favour. The defendant denied ownership of any assets, but the claimant said that various properties were held in trust for him.
David Richards J
[2008] EWHC 2854 (Ch)
Bailii
England and Wales

Updated: 11 February 2021; Ref: scu.278968

Dexter Ltd (In Administrative Receivership) v Harley: ChD 2 Apr 2001

Money was transferred wrongfully out of the company, and then on again into the hands of the respondent. She received the money, and knew of its fraudulent provenance, but all her acts were committed outside the jurisdiction.
Held: It was not sufficient that the original act in breach of trust occurred within the jurisdiction, the claimant had to show that some act of the defendant had occurred here, if she was to be sued here.
Times 02-Apr-2001
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395)
England and Wales

Updated: 11 February 2021; Ref: scu.79951

El 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: The company was fixed with the knowledge of its part-time chairman and a non-executive director, because he had acted as its directing mind and will for the particular purpose of arranging its receipt of the tainted funds. It was sufficient that the director had management and control so far as the receipt of the fraud was concerned, having made arrangements for the receipt and disposal of the money, even though he had no general managerial responsibility in the company.
Hoffmann LJ set out the ingredients of knowing receipt: ‘For this purpose the plaintiff must show, first a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets are traceable to a breach of fiduciary duty.’
When asking who was the controlling mind of a company, the relevant test is to find the person who had management and control in relation to the act or omission in point. The formal position or status as a director is relevant but not decisive. A ‘pragmatic’ approach is necessary: ‘Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company’s articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own’ and ‘ . . different persons may for different purposes satisfy the requirements of being the company’s directing mind and will. ‘ The court considered the ingredients of the tort of ‘knowing receipt’: ‘For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.’ (Hoffmann LJ)
Nourse LJ said: ‘The doctrine attributes to the company the mind and will of the natural person or persons who manage and control its actions. At that point, in the words of Millett J ([1993] 3 ALL ER 717 at 740): ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’ It is important to emphasise that management and control is not something to be considered generally or in the round. It is necessary to identify the natural person or persons having management and control in relation to the act or omission in point. This was well put by Eveleigh J in . . R v Andrews Weatherfoil Ltd . .
Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company’s articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own.’
Nourse, Rose, Hoffmann LJJ
Times 03-Jan-1994, [1994] 2 All ER 685, [1993] EWCA Civ 4, [1994] BCC 143, [1994] 1 BCLC 464
Bailii
England and Wales
Citing:
Appeal fromEl Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
CitedLennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
CitedRegina v Andrews-Weatherfoil Ltd CACD 1972
For so long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Eveleigh J: ‘It is necessary . .

Cited by:
AppliedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedMahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
See AlsoEl Ajou v Dollar Land Holdings Plc ChD 1995
The tracing of assets into the hands of a third party depends upon a notional charge. There are no inflexible rules. The essential elements of ‘knowing receipt’ are: ‘For this purpose the plaintiff must show, first, a disposal of his assets in . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedKR and others v Royal and Sun Alliance Plc CA 3-Nov-2006
The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The . .
CitedCharter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedAkers 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 . .

These lists may be incomplete.
Updated: 09 February 2021; Ref: scu.262615

IBM United Kingdom Pensions Trust Ltd v IBM United Kingdom Holdings Ltd and Others: ChD 12 Oct 2012

Application for further amendment of deed of amendment relating to company pension scheme.
Warren J
[2012] EWHC 2766 (Ch)
Bailii
England and Wales
Citing:
See AlsoRe IBM Pension Plan ChD 2012
The court considered an application to rectify a pension scheme.
Held: Warren J said: ‘There needs to be cogent evidence of the intentions of both the trustee and the employer where the power of amendment requires the consent of both. . . In a . .
See AlsoIBM United Kingdom Pensions Trust Ltd v Metcalfe and Others ChD 1-Feb-2012
. .

These lists may be incomplete.
Updated: 08 February 2021; Ref: scu.464907

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 amendment was refused. ‘It is open to the Claimant to bring claims for breach of trust or of fiduciary duty more than six years after the causes of action arose but only for those explicitly based on and limited to fraud. The current proposed amendment is not explicit about fraud.’
Mackie J QC
[2008] EWHC 1138 (Comm)
Bailii
Limitation Act 1980 21(1)(a)
Citing:
CitedCobbold v London Borough of Greenwich CA 9-Aug-1999
cobbold_greenwichCA1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
CitedArmitage v Nurse; etc CA 19-Mar-1997
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 . .
CitedParagon v Thakerer 1993
A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded. . .
CitedGiles v Rhind CA 28-Feb-2008
. .
CitedDEG-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 . .
CitedGoode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
CitedWelsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
CitedThe Convergence Group Plc and Another v Chantrey Vellacott (a Firm) CA 16-Mar-2005
An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for . .
CitedNomura International Plc v Granada Group Ltd and others ComC 23-Mar-2007
To fulfil the requirement in CPR Part 16.2.1(a) ‘it is necessary at least to give some idea or indication of the duty which it is alleged the defendant has failed to perform.’ . .
CitedP and O Nedloyd BV v Arab Metals Co and Others (‘The UB Tiger’) QBD 22-Jun-2005
The claimants sought to amend their particulars of claim to add a request for declarations with regard to a bill of lading and contract for carriage.
Held: The application to amend was made more than six years after the cause of action . .

These lists may be incomplete.
Updated: 07 February 2021; Ref: scu.268005

Lissimore v Downing: ChD 31 Mar 2003

The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after his other girlfriends and she would not be different’ did not found a proprietary estoppel: ‘Such statements do not on their face relate to any specific property, they plainly do not amount to a representation which binds the whole of Mr Downing’s property, and they are not expressed in terms which enable any objective assessment to be made of what is being promised. In this last respect they are to be contrasted with statements made to unpaid or underpaid workers or business partners, encouraged to work on because they would be ‘treated right’, and for whom a commensurate reward could be objectively assessed.’
Norris QC J
[2003] EWHC B1 (Ch), [2003] 2 FLR 308, [2003] Fam Law 566
Bailii
Citing:
See AlsoDowning v Lissimore CA 6-Nov-2002
Application for order to reflect interest of cohabiting partner in house. . .

Cited by:
CitedJames v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .

These lists may be incomplete.
Updated: 05 February 2021; Ref: scu.263204

Paul v Constance: CA 8 Jul 1976

Scarman LJ
[1976] EWCA Civ 2, [1977] 1 WLR 527
Bailii
England and Wales
Cited by:
CitedLegg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .

These lists may be incomplete.
Updated: 05 February 2021; Ref: scu.262712

3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others: ChD 25 Jul 2007

The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs.
[2007] EWHC 1922 (Ch)
Bailii
Human Rights Act 1998 Part 1
England and Wales
Citing:
CitedIn Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .
CitedIn re Moritz CA 1960
Trustees had denied the defendants a sight of the exhibits to affidavits. Their’ counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should . .
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 . .
CitedRe Evans 1986
. .
CitedMarley and 11 Others v Mutual Security Merchant Bank and Trust Co Ltd Co PC 15-Oct-1990
BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
Lord Oliver of Aylmerton said: ‘A . .
CitedMcDonald and Others v Horn and Others ChD 12-Oct-1993
A pre-emptive costs order is possible where Plaintiffs are impecunious but the case is very strong. . .
CitedIn re Trusts of X Charity ChD 2003
If a hearing is heard in private, then it is open to the court to rule that its judgment should be maintained in private. Sir Andrew Morritt said: ‘This, essentially administrative, jurisdiction is designed to provide guidance to the fiduciary as to . .

These lists may be incomplete.
Updated: 04 February 2021; Ref: scu.259656

Harris v Kent and Another: ChD 14 Mar 2007

The claimant said the defendant had failed to complete his promise to arrange for the issue of shares in a company in return for a loan. The defendant denied the contract.
Held: It had been agreed to treat the claimant as a fifty per cent participant, and an estoppel had been created as against the defendants.
As to damages: ‘The ‘but for the breach’ analysis called for by the application of the basic equitable principle requires the court to decide what would hypothetically have happened if, instead of committing the breach of trust, the Kents as trustees had in all respects complied with their fiduciary obligations. In this respect equity follows the law, in which for example damages are quantified by reference to the difference between the effect of the breach and the position which the claimant would have been in, had the defendant complied with his contract. ‘ Damages were awarded accordingly.
Briggs J
[2007] EWHC 463 (Ch)
Bailii
England and Wales
Citing:
CitedWalsh v Lonsdale CA 1882
Lonsdale purported to grant to Walsh a seven year lease with rent payable in advance. The lease was not embodied in a deed, and when Walsh went into possession, an annual tenancy with rent payable in arrear was created. Walsh did not pay in advance, . .
CitedTarget Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .

These lists may be incomplete.
Updated: 02 February 2021; Ref: scu.250019

Glenn v Watson and Others: ChD 31 Jul 2018

In the context of a claim in which there were substantial disagreements as to the underlying facts. Nugee J said: ”Despite the primacy which our trial system has long given to oral evidence, it is by now a commonplace that the memory even of witnesses who are doing their honest best is often unreliable . . and in cases of fraud when the credibility of witnesses is in issue, it has long been recognised to be essential to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities . .’
Nugee J
[2018] EWHC 2016 (Ch)
Bailii
England and Wales
Cited by:
CitedWalsh v Greystone Financial Services Ltd ChD 4-Jul-2019
The parties disputed a long history of allegations and denials of involvement in fraud. . .

These lists may be incomplete.
Updated: 01 February 2021; Ref: scu.621072

Jasmine Trustees Ltd and others v Wells and Hind (A Firm) and Another: ChD 19 Jan 2007

The original trustees had puported to appoint to act in their stead a company and an individual. The beneficiaries said that the trust deed required two individuals, and a trust corporation was not such.
Held: The word ‘individuals’ in section 37(1)(c) of the 1925 Act had to be given its natural meaning, within its legislative context. The original trustees were not discharged, and actions taken by the invalidly appointed trustees were ineffective, the purported trustees being merely trustees de son tort.
Mann J
[2007] EWHC 38 (Ch), Times 12-Feb-2007
Bailii
Trustee Act 1925 37(1)(c)
England and Wales

Updated: 01 February 2021; Ref: scu.247967

Hunt and Another v McLaren and others: ChD 4 Oct 2006

Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably reduced its value. The trustees sought clarification of their duties.
Held: A gift on trust must have a cestui que trust and must be for the benefit of individuals, unless charitable. It must have a definite object, and there must be someone in whose favour the court can enforce it. In general, in order to be valid, a non-charitable trust must have an ascertainable beneficiary in whose favour performance of the trust may be decreed.
Lawrence Collins J
[2006] EWHC 2386 (Ch)
Bailii
Citing:
CitedConservative and Unionist Central Office v Burrell (Inspector of Taxes) CA 10-Dec-1981
An unincorporated association is defined as ‘two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings each having mutual duties and obligations, in an organisation which has rules which . .
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 . .
CitedMorice v Bishop of Durham HL 1805
The court was asked whether a gift of residue to be applied ‘to such objects of benevolence and liberality as the Bishop of Durham in his own discretion shall most approve of’ was valid as being confined to purposes that were charitable.
Held: . .
CitedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .
CitedRe Nottage 1895
The law does not regard the promotion of any particular sport, for its own sake, as charitable. . .
CitedElvridge v Coulson ChD 15-Jul-2003
An unregistered friendly society was dissolved. The governing instrument provided that the votes should be counted according to value, and that a vote of five sixths of such members by value were need to dissolve the company. Members claimed to be . .
CitedRe GKN Bolts and Nuts Ltd etc Works Sports and Social Club ChD 1982
There was a sports and social club associated with GKN, whose members were all employees of GKN. The main issue in the case was whether the club had ceased to exist. But one subsidiary issue was whether a meeting had been validly convened. The club . .
CitedRe Lead Co.’s Workmen’s Fund Society 1904
. .
CitedLeahy v Attorney-General of New South Wales PC 20-Apr-1959
leahy_agnswPC1959-4
A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the . .
CitedRe Endacott CA 12-Oct-1959
The will had left the residue to a parish council for the purpose of providing some useful memorial to myself, subject to the proviso that if my wife outlives me they must during the lifetime of my wife pay to my wife the interest which may accrue . .
CitedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .
CitedIn re Denley’s Trust Deed ChD 1969
The trustees of land in Gloucestershire were to maintain the land as a sports ground for the benefit of the employees of a company and also for ‘such other person or persons (if any) as the trustees may allow to use the same . . .’ The Deed . .
CitedWhishaw v Stephens (on appeal from In re Gulbenkian’s Settlement) (No 1) HL 31-Oct-1968
Parties disputed the effect of clauses describing the beneficiaries of a trust.
Held: The clause did not make sense as it stood. In a fixed non-charitable trust (as opposed to a discretionary trust) the court must be able to draw up a list of . .
CitedRe Grant’s Will Trusts ChD 1980
The deceased left property to the Labour Party property committee.
Held: A trust created by making a gift to the members of an unincorporated assoication as at the date of the gift can be wound up only if under the rules, the members could, at . .
CitedMcPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
CitedIn re Bucks Constabulary Widows and Orphans Fund Friendly Society (No 2) 1979
In the absence of any contractual obligation otherwise, the funds of a mutual society must be distributed equally on a dissolution. . .
CitedRe Recher’s Will Trusts ChD 1972
The deceased gave a share of the residue, to ‘The Anti-Vivisection Society, 76 Victoria Street, London S.W.1.’ She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the ‘London and . .
CitedRe Lipinski’s Will Trusts ChD 1976
Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest . .
CitedDaad Sharab v Usama Salfiti CA 12-Dec-1996
No amendment was to be allowed to a claim introducing an allegation of a foreign criminal offence. The claim in contract failed for insufficient certainty or on some other ground, but a claim nonetheless succeeded as a quantum meruit. . .
CitedWay v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
CitedBecerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .

These lists may be incomplete.
Updated: 31 January 2021; Ref: scu.245176

Donohoe v Ingram: ChD 20 Jan 2006

The appellant had lived with the bankrupt for several years, and sought an order delayng sale of the house they had lived in until their children had grown up. She said the circumstances were exceptional.
Held: The fact that the delay might put at risk the payment of the creditors in full and with interest made it not sufficient to require them to wait. There was no human right violated.
[2006] EWHC 282 (Ch)
Bailii
Insolvency Act 1986 335A
England and Wales
Citing:
CitedHarman v Glencross 1986
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was . .
CitedIn re Holliday CA 1981
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of . .
CitedClaughton v Charalambous 1998
What is required of the court in applying section 335A(3) is, in effect, a value judgment. The court must look at all the circumstances and conclude whether or not they are exceptional. That process, he considered, left ‘very little scope for the . .
CitedRe Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .
CitedBarca v Mears ChD 2005
While the categories of exceptional case which might allow delay in the sale of a bankrupt’s property are not circumscribed by the previous case-law, the only cases subsequent to In Re Citro in which orders for possession and sale have been withheld . .
CitedLondon Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
CitedPrice and others v Leeds City Council CA 16-Mar-2005
The defendant gypsies had moved their caravans onto land belonging to the respondents without planning permission. They appealed an order to leave saying that the order infringed their rights to respect for family life.
Held: There had been . .

These lists may be incomplete.
Updated: 28 January 2021; Ref: scu.238692

Scott v The National Trust: ChD 12 Nov 1998

The Trust applied to be joined in an application by the plaintiffs.
Neuberger J
[1998] EWHC 318 (Ch)
Bailii
England and Wales
Cited by:
Appeal fromScott v The National Trust CA 1998
Trustees, in the exercise of their fiduciary discretions, are under constraints which do not apply to adult individuals disposing of their own property. Walker LJ said: ‘Certain points are clear beyond argument. Trustees must act in good faith, . .

These lists may be incomplete.
Updated: 26 January 2021; Ref: scu.263756

Singh v Bhasin and Others: ChD 21 Aug 1998

A trustee who defended a claim would always be at risk of an order to pay the costs personally even if advised by counsel to defend if he did not seek a protective Beddoe order before defending.
Times 21-Aug-1998, Gazette 16-Sep-1998
England and Wales
Citing:
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 . .

These lists may be incomplete.
Updated: 25 January 2021; Ref: scu.89271

Darby v Darby; Rebecca Darby v Alfred Edmund William Darby, Alice Mary Darby, Alfreda Lucy Darby, Abraham Darby: 8 Mar 1856

A. and B. purchased land on a joint speculation with their joint monies for the purpose of laying it out in building plots, and reselling it at the joint profit or loss of A. and B. Held, that it was converted out and out, and the share of one of the partners deceased in part of the unrealised real estate passed to his personal representatives.
[1856] EngR 328, (1856) 3 Drew 495, (1856) 61 ER 992
Commonlii
England and Wales

Updated: 07 January 2021; Ref: scu.291083

Polly Peck International Plc v The Marangos Hotel Company Ltd and Others: CA 7 May 1998

Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim of remedial constructive trust against assets held by liquidator here. A so-called ‘remedial constructive trust’ is not known in English law. Mummery LJ pointed to the lack of any material distinction between compulsory winding up and administration.
Nourse LJ, Potter LJ, Mummery LJ
Times 18-May-1998, [1998] EWCA Civ 789, [1998] 3 All ER 812, [1998] 2 BCLC 185
Bailii
Insolvency Act 1986 11(3)
England and Wales
Cited by:
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedHarms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others CA 26-Jun-2009
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The . .

These lists may be incomplete.
Updated: 31 December 2020; Ref: scu.144267

Mortgage Corporation Ltd v Shaire and Another: ChD 25 Feb 2000

The claimant had an equitable charge over the property, and sought a possession order after failures to keep up repayments. The order was sought under the Act, and the claimants asserted that the conditions for the grant of possession were unchanged.
Held: Parliament had clearly intended a change. The interests of a chargee ranked alongside those of, for example, children living in the house. This might act to the detriment of banks, and the old authorities, whilst not entirely irrelevant, should be viewed with caution. Where the parties have reached a consensus on the beneficial interests in the property, the court will give effect to it, unless there is very good reason for not doing so, such as a subsequent renegotiation.
Neuberger J
Gazette 16-Mar-2000, Times 21-Mar-2000, [2000] 1 FLR 973, [2001] Ch 743, [2000] EWHC Ch 452
Bailii
Trusts of Land and Appointment of Trustees Act 1996 14 15, Law of Property Act 1925 30
Cited by:
CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
[2006] 1 FLR 254, [2005] EWCA Civ 857
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
[2007] 2 WLR 831, [2007] UKHL 17, [2007] 2 All ER 929, [2007] 2 WLR 831, [2007] AC 432, Times 26-Apr-07, [2007] 1 FLR 1858, [2007] BPIR 913, [2007] Fam Law 593, [2007] 2 FCR 280, [2007] 18 EG 153, (2006-07) 9 ITELR 815, [2007] WTLR 1053

These lists may be incomplete.
Updated: 18 December 2020; Ref: scu.83867

Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 5 Jul 2001

Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred.
Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.
Patten J
Times 05-Jul-2001
Limitation Act 1980 36(1)(f)
Cited by:
CitedMcLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
[2009] EWHC 1925 (QB)

These lists may be incomplete.
Updated: 17 December 2020; Ref: scu.79197

Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others: ChD 6 Sep 2000

Where there was a gift of land on charitable trusts, but where the gift was first expressed to be unlimited in time, but later in the deed provided powers for revocation, and conditions for defeasance, it must remain a matter of construction of the particular deed to decide whether the gift was in perpetuity. In the current cases the reversionary provisions were void for remoteness, and the trustees had acquire a possessory title for charity on the trusts of the original deeds.
Times 06-Sep-2000, Gazette 05-Oct-2000

Updated: 17 December 2020; Ref: scu.78288

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

In Re Skinner: ChD 1904

A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was commenced. The court made a full administration order, and the question whether the executor trustees should pay the costs was reserved.
Held: After further argument, Farwell J held that the plaintiff was entitled to her costs. He said: ‘The gist of the complaints against the defendants . . is that they would not, and did not, render any proper accounts, though repeatedly requested to do so by the plaintiff and by . . their co-executor. Now it is clear that in the case of a small estate like this it is very hard that the plaintiff should be obliged to have recourse to proceedings of this nature in order to get an account. I am always unwilling to make trustees pay costs; but, on the other hand, beneficiaries have a right to expect the performance of their duty by executors, and not the less when one of them has power to make professional charges. In my opinion the conduct of these two defendants amounts to a gross neglect to account. ‘
Farwell J
[1904] 1 Ch 289
Citing:
AppliedHeugh v Scard CA 1875
Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of . .
(1875) 33 LT 659

Cited by:
CitedRoyal 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 . .
[2016] EWHC 1948 (Ch)
CitedBlades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .
[2016] EWHC 601 (Ch)

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.567857

Re Cowin: 1886

(1886) 33 ChD 179
Cited by:
CitedRoyal 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 . .
[2016] EWHC 1948 (Ch)

These lists may be incomplete.
Updated: 16 December 2020; Ref: scu.567854