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The Jersey Law Review – February 2005
CASE SUMMARIES
This section of the Review contains selected cases from Guernsey as well as Jersey. The following key indicates the court to which the case reference refers.
JRC - Royal Court of Jersey.
GRC - Royal Court of Guernsey.
JCA - Jersey Court of Appeal.
GCA - Guernsey Court of Appeal.
JPC - Privy Council, on appeal from Jersey.
GPC - Privy Council, on appeal from Guernsey.
ADMINISTRATIVE LAW
APPEAL FROM HOUSING AUTHORITY
Foley v States of Guernsey Housing Authority Royal Ct: (Carey, Bailiff) [2004] GRC 4.
J.M. Wessels for the appellant; P. Nicol-Gent for the respondent.
The appellant had initially been granted a 5 year housing licence. The licence was extended for a further 5 years until 2002. The respondent refused any further extension. The appellant applied for disclosure of statistics showing the number of equivalent applications and how they had been disposed of in order to test the proportionality of the respondent’s decision in the present case.
Held, dismissing the application, that the Court should consider only the material that was before the Authority at the time of its decision, and take no account of material that had arisen since the decision.
CIVIL PROCEDURE
APPEALS - COSTS
Blenheim Trust Company Ltd. v Morgan & others Royal Ct: (Bailhache, Bailiff) [2004] JRC 179
D.F. Le Quesne for the appellant; J. Martin for the first and second respondents.
This was an appeal against the Greffier’s taxation of costs upon the standard basis in which the fees of a former English solicitor, who had been struck off the roll of solicitors in England and Wales, had been disallowed as a disbursement.
Held, allowing the appeal, that the former solicitor had not acted improperly in providing the services that he did. The test that had to be applied was whether or not it was reasonable for those costs to have been incurred. This had been complex litigation and it had been reasonable for the former solicitor to have been retained. Whilst the matter would be remitted to the Deputy Judicial Greffier to assess the reasonableness of the specific amounts charged, the Court directed that the hourly rate that would be allowed would necessarily have to be less than that which a qualified and practising English solicitor could have claimed in the circumstances.
CASE MANAGEMENT
Strawn v Hemery Trustees Ltd. Royal Ct: (Hancox, Lieutenant Bailiff) [2004] GRC 5.
M.G. Ferbrache for the plaintiff; R.G. Shepherd for the defendant.
In long running proceedings alleging breach of trust the defendant pleaded exceptions de forme seeking further and better particulars of the cause. The exceptions were first served on 30th March 2001. It was alleged that a number had not been answered adequately.
Held, dismissing all but one of the exceptions, that the case had now taken four years since its inception. The Court drew attention to the dictum of the Jersey Court of Appeal in Re Esteem. “The objective of all involved in civil proceedings is to progress to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time”.
INTERIM PAYMENT OF DAMAGES
Angenent v Pring; Royal Ct; (Talbot, Lieutenant Bailiff) [2004] GRC 30th December, 2004.
J.P. Greenfield for the plaintiff; J.M. Wessels for the defendant.
The plaintiff brought clinical negligence proceedings. Liability was conceded; quantum remained in issue. The plaintiff applied for an interim payment notwithstanding the fact that there was no express provision for such in the (Guernsey) Royal Court Civil Rules 1989. It was agreed that if the Court found that it had jurisdiction to order an interim payment and was minded to exercise its discretion in favour of the plaintiff then the appropriate figure would be £50,000.
Held, dismissing the application, that the Royal Court of Guernsey had no jurisdiction to order an interim payment. There was no statutory provision giving such power, nor was there any inherent jurisdiction to make an interim payment order. Citing English authority and the dicta of Smith JA in the Jersey Court of Appeal in Mayo Associates v Cantrade Private Bank Switzerland (CI) Limited, the inherent jurisdiction of the Court was restricted to and based upon necessity.
STRIKING OUT
Mackinnon v Regent Trust Co. Ltd. & others Royal Ct: (Bailhache, Bailiff) [2004] JRC 211.
N.M.C. Santos Costa for the plaintiff; J.P. Speck for the first defendant; the other defendants did not appear and were not represented.
The first defendant (“the trustee”) appealed against a decision of the Master refusing to strike out certain paragraphs of an Order of Justice attacking the validity of three trusts. The plaintiff claimed that the trusts were invalid inter alia because they were in effect shams or did not reflect the true intention of the settlor (the plaintiff’s deceased mother). The trustee had sought to strike out those claims because (1) the OJ did not allege an intent to deceive in the context of the sham allegations, and (2) there was no broad principle entitling the Court to look behind the express provisions of a duly executed settlement so as to ascertain the intention of the settlor. Such intention was to be found, absent some other established vitiating factor such as fraud or mistake, from the express terms of the trust. The plaintiff asserted that Re Esteem was wrong to the extent that it purported to decide that an essential ingredient of a sham trust was an intent to deceive. He further contended, on the basis of a number of other cases, that the Court did have a broad jurisdiction to set aside the express terms of a trust if there were clear evidence that they did not represent the true intention of the settlor.
Held, allowing the appeal and striking out certain paragraphs of the OJ, that -
(1) it was a necessary ingredient of a sham trust that the parties to the sham intended to mislead or deceive others; and
(2) distinguishing the cases relied upon by the plaintiff, there was no broad jurisdiction vested in the Court allowing it to look behind a trust deed in order to determine the subjective intentions of the settlor and to set aside the trust if those subjective intentions differed from the express trusts.
COURTS
CONTEMPT OF COURT
Taylor v Chief Officer of States of Jersey Police & another Royal Ct: (Birt, Deputy Bailiff and Jurats De Veulle and Newcombe [2004] JRC 215.
O. Blakeley for the representor; J. Hawgood for the Chief Officer.
T was an employee at Police Headquarters who was suspended pending disciplinary enquiries and a criminal investigation. In the context of an application by T for a stay of the disciplinary proceedings the Deputy Chief Officer gave an undertaking that knowledge of the disciplinary proceedings would be confined to three senior police officers and a named civil servant. At the conclusion of the disciplinary proceedings the Chief Officer drafted a letter to T and, having taken legal advice, gave it to a confidential typist to type out. T complained that this action amounted to a breach of the undertaking and a contempt of court.
Held, that it was of the first importance that the Court’s orders be obeyed and that the Chief Officer was accordingly in contempt of court, there being no requirement for mens rea, but that the contempt was in all the circumstances a technical offence and no penalty would be imposed.
CRIMINAL LAW
CONFISCATION ORDERS
Att. Gen. v Smith, Clearwater International Ltd. and others intervening Royal Ct: (Birt, Deputy Bailiff) [2004] JRC 168A.
C.E. Whelan, Crown Advocate, for the Crown; N. Benest for the defendant; W. Grace for the first intervenor; L. Springate for the third intervenor; the second intervenor did not appear and was not represented.
The defendant, S, had pleaded guilty to offences of fraudulent conversion involving the conversion of over £1 million and was sentenced to five years’ imprisonment. The Attorney General had applied for a confiscation order relating to approximately £550,000 seized from S pursuant to article 3 of the Proceeds of Crime (Jersey) Law 1999 (“POCL”). 8 offences on the indictment were committed before the date of coming into force of POCL; 5 offences were committed after that date. The intervenors sought to oppose the making of a confiscation order on the basis that they were victims of the fraud, and had instituted civil proceedings against S to recover their losses. As a preliminary issue they argued that the Court had no jurisdiction to make a confiscation order because art. 3 (2) provided –
“However this Article shall not apply in the case of any proceedings against any defendant where he is convicted in those proceedings of an offence which was committed before this article come into force”.
The intervenors submitted that because S was convicted of some offences committed before POCL came into force, an order could not be made even in respect of those offences committed after the Law came into force. They contended that “proceedings” in art. 3 (2) meant the proceedings as a whole. The AG submitted that such an interpretation would lead to absurdities and that the provision simply prohibited the making of confiscation orders in respect of pre-POCL offences. “Proceedings” meant proceedings for a single offence.
Held,
(1) that the Court would adopt a purposive construction and avoid an interpretation producing an absurd result;
(2) that the Court had jurisdiction to make a confiscation order in relation to post-POCL offences for the reasons advanced by the AG.
DRUGS: PROCEEDS OF TRAFFICKING
Att. Gen. v Harris & others Royal Ct: (Birt, Deputy Bailiff and Jurats Le Brocq, Allo, King, Le Cornu, Morgan and Newcombe) [2004] JRC 192.
M.St.J O’Connell, Crown Advocate, for the Crown; D.F. Le Quesne for the defendants.
The defendant Harris pleaded guilty to being knowingly concerned in the importation of heroin. The evidence was that heroin could be bought for £1000 per ounce in Glasgow, and that he had received £1300 from a co-accused. Applying a multiplier of £1000 to the quantity of grams of heroin seized, the Crown applied for a confiscation order of £3053 (£1735 for the cost of heroin and £1300 received by the defendant). The defence objected that there had been double-counting.
Held, making a confiscation order of £3053, that –
(1) the Court was concerned with gross proceeds of trafficking and not with profit;
(2) the Court was concerned with any trafficking by the defendant and not just with the proceeds of the drug trafficking offence of which the defendant had been convicted;
(3) the assumptions set out in the Law placed the burden on the defendant to show that any receipts by him were not the proceeds of trafficking and that here there was no evidence to counter the assumptions.
CRIMINAL PROCEDURE
APPEAL AGAINST CONVICTION
Bayliss v Att. Gen. CA ( Smith, Clarke and Rokison JJA ) [2004] JCA 196.
C.J. Scholefield for the applicant; B.H. Lacey, Crown Advocate, for the Crown.
The applicant applied for leave to appeal against his conviction for being concerned in the supply of a controlled drug and the question arose of the test to be applied by the Court. The applicant contended that it was open to the court to incorporate the “unsafe or unsatisfactory” test introduced in the Criminal Appeal Act 1968 and now contained in the 1995 Act. The test set out in the Court of Appeal (Jersey) Law 1961 allowed the Court to set aside a verdict only if “it is unreasonable or cannot be supported having regard to the evidence … etc”.
Held, dismissing the application, that it required legislation to introduce the “unsafe or unsatisfactory” test.
SENTENCE
Att. Gen. v Hatte Royal Ct: (Hamon, Commissioner) [2004] JRC 143.
S. Sharpe, Crown Advocate, for the Crown; C.M. Fogarty for the defendant.
Hatte had pleaded guilty to a single offence of unlawful sexual intercourse with a girl of 14 years. During a discussion with the probation officer charged with the duty of preparing a background report, Hatte admitted that the sexual activity with the girl had been continuing for two years. The probation officer’s report referred to that admission. The Crown did not propose to rely on that admission nor to prefer further charges. Hatte nonetheless contended that the reference in the report was prejudicial to his interests and that it should be excised or alternatively that a fresh report should be prepared for the sentencing court omitting reference to the admission.
Held, dismissing the applications and applying R v Ellerlay -
(1) that a probation officer was under a duty to prepare a full and frank report for the court, including any admissions made by the defendant which were relevant to sentencing;
(2) that a probation officer should be alert however to any unfairness which might arise from an admission made, and in some circumstances should consider stopping the interview and advising the defendant to seek legal advice before going further.
EMPLOYMENT
UNFAIR DISMISSAL
Hopkins v NRG (Distribution) Ltd. Royal Ct: (Carey, Bailiff) [2004] GRC 6.
The appellant in person; P. Richardson for the respondent.
The appellant challenged the decision of the adjudicator rejecting his claim for unfair dismissal.
Held, dismissing the appeal, that the right of appeal was on a question of law. It was not therefore open to the Royal Court on appeal to review all the evidence that was before the adjudicator and substitute for her view, its views of whether the evidence pointed to the dismissal being reasonable or unreasonable. The Royal Court’s conclusions as to the reasonableness of the dismissal were immaterial and accordingly the Court was not required to look at all the evidence that was before the adjudicator and the Court’s consideration of documentation was therefore limited to the judgment of the Adjudicator and the various submissions of the parties relating to that judgment.
EVIDENCE
EXPERT WITNESSES
Gildea v States of Jersey Health & Social Services Committee. Royal Ct: (Hamon, Commissioner, sitting alone) [2004] JRC 206.
D.M. Cadin for the plaintiff; D.J. Benest for the defendant.
The plaintiff alleged that negligence on the part of a consultant employed by the defendant had resulted in her losing the sight in her left eye. In making those allegations she relied, in part, on the opinion evidence of a leading expert in the relevant field who had also treated her and against whom the defendant, as part of its defence, had in turn made allegations amounting to negligence.
The defendant applied to exclude the evidence of the plaintiff’s expert as lacking sufficient independence to have the quality of expert evidence.
Held, dismissing the application, that -
the evidence of the plaintiff’s expert should stand; the fact of her involvement in the plaintiff’s case and the allegations made against that treatment by the defendant could be put to her in cross examination and would go to the weight of the evidence rather than require its exclusion.
FAMILY LAW
ACCESS TO CHILDREN
GS v DS Royal Ct: (Birt, Deputy Bailiff and Jurats Bullen and Clapham) [2004] JRC 199.
D. Hopwood for the plaintiff; P. Harris for the defendant.
The defendant gave birth to a child in 2000. The plaintiff (who was not married to the defendant) believed that he was the father of the child. The child lived with the defendant mother and from October, 2001, the plaintiff enjoyed access. After the issue of staying access was raised, the mother queried the father’s paternity and DNA tests showed that he was not the biological father of the child.
Held, that the Royal Court had inherent jurisdiction to order that the child have access to a person despite the fact that that person was not the natural parent of the child. However, the court would need to hear evidence as to whether or not it was in the best interests of the child for continued contact to take place.
VARIATION OF FINANCIAL PROVISION
JEC v MSD Royal Ct: (Birt, Deputy Bailiff and Jurats Georglin and Le Cornu) [2004] JRC 164.
P.D. James for the petitioner; R.E. Colley for the respondent.
This was an application by the respondent (husband) to vary the amount of agreed child maintenance on the grounds of a material change in circumstances, now that the petitioner (wife) was co-habiting with another man.
The application, which was originally made to the Matrimonial Registrar, was thought to raise a matter of general principle as to whether the Court should place weight upon the United Kingdom Child Support Agency tables and was accordingly referred to the Royal Court for resolution. At the same time the Registrar reduced the child maintenance on an interim basis.
Held, allowing a small downward variation of the agreed sum, that -
(1) the strong presumption was that since parties are free to enter into such agreements as they think fit, once they have done so, they should be held to their bargain and should not be encouraged to reopen matters because of a change in circumstances. The court should take the agreed figure as a starting point and then simply decide what variation would be fair and reasonable in the light of the changed circumstances;
(2) this was not an appropriate case to refer to the CSA tables. The Court must take the agreed rate of child maintenance as a starting point and the CSA tables were not relevant;
(3) to regard co-habitation as amounting to a material change of circumstances leading to a reduction in maintenance was a weaker argument in the case of child maintenance than in the case of spousal maintenance. Children were not the responsibility of the co-habitee and remained the responsibility of the parents;
(4) in this case, the fact that the wife was co-habiting did amount to a material change of circumstances which entitled the father to ask the Court to re-visit the agreement, but the only significance was that the co-habitation had the effect of indirectly relieving the wife of some expenditure, with the result that it was right to re-visit the allocation of the child maintenance;
(5) the Registrar had erred in varying the maintenance order on an interim basis. Until the Court (or the Registrar if he had retained the matter) had determined that there had been a material change of circumstances, it was not clear that there should have been any variation.
LANDLORD AND TENANT
RENT REVIEW
Epoch Properties Ltd. v British Homes Stores (Jersey) Ltd.. and President of the Royal Institution of Chartered Surveyors CA: (Beloff, Nutting and Vaughan, JJA) [2004] JCA 156.
M.L. Preston for the appellant; K.J. Lawrence for the first respondent; F.B. Robertson for the second respondent.
Epoch was the landlord under a lease of business premises in which BHS, the tenant, carried out business. The rent review clause under the lease provided, in the event of disagreement, for the appointment by the president of RICS of a valuer to act as an independent expert in the review. The president appointed a valuer at the request of the tenant. The landlord then applied to the Royal Court for a declaration that the appointment was invalid as contrary to the terms of the lease which provided that the valuer should be “…..experienced in the valuation and letting of premises so far as practicable of similar character or comparable to the demised premises within the Island of Jersey or if there are no such premises within the Island of Jersey then within the Channel Islands or nationally (as the case may require)”.
The Royal Court decided that the position of the President when presented with a request for the appointment of an expert under the terms of such a lease was to be equated with that of an independent expert; if he asked himself the right questions and exercised his jurisdiction accordingly, his appointment could not be challenged on the basis that he made a mistake. In the circumstances the decision was reasonable and the application would be dismissed. On appeal by the landlord,
Held, dismissing the appeal, that -
the reasoning of the Royal Court had been right: the parties were bound by the agreement made by them in the lease. The president was acting as an expert for the purposes of the appointment. In deciding whether the president had so departed from his instructions in an area where the parties had chosen him for his expertise, the Court should apply a test analogous to Wednesbury unreasonableness.
LIMITATION OF ACTIONS
RUNNING OF TIME
Butt v Brannan Royal Ct: (Talbot, Lieutenant Bailiff) [2004] GRC 7.
C.A. Tee for the plaintiff; R.J. Collas for the defendant.
The plaintiff underwent a hysterectomy operation in July 1996. Complications followed leading to two emergency operations. Proceedings were issued in February 1999, alleging negligence in respect of a failure to provide an adequate explanation of the operation and the risks. This reflected the views of the expert then instructed on behalf of the plaintiff. The plaintiff instructed another expert who reported in April and May 2002 that there had been negligence during the operations. A draft amended cause was produced and sent to the defendant’s advocates who would not agree the amendment because prescription had, prima facie, expired. The plaintiff applied pursuant to s. 8 of the Law Reform (Tort) (Guernsey) Law 1979 Law to override the time limit.
Held, allowing the application, that it would be equitable to override the 3 year prescription period for the following principal reasons. It was not the plaintiff’s fault that her expert had changed his mind. The delay was very serious but not enough to outweigh other matters which weighed heavily in her favour. Here the medical witnesses and experts would be relying upon contemporaneous medical and hospital notes and a letter written by the defendant to the plaintiff’s GP not long after the material events. The defendant’s own expert had considered the issues raised by the new cause of action in November 1999.
POLICE
CENTENIERS- CHEF DE POLICE
The Connétable of St. Helier v Gray and Att.Gen. Royal Ct: (Birt, Deputy Bailiff and Jurats Le Cornu and Quérée) [2004] JRC 177.
The representor and first respondent in person; S.C. Nicolle QC, Solicitor General, for the second respondent.
The representor wished to appoint a centenier as chef de police other than the first respondent who had the longest record of honorary service. The first respondent contended that by long custom and usage, the centenier with such record was entitled to appointment as chef de police and that the representor had no discretion in the matter. The second respondent submitted that whilst this had been the customary law position, custom had changed since the 1950’s and that the connétable did have the power to choose a chef de police.
Held,
(1) Over many centuries, the senior centenier had deputised for the connétable in the event of illness, absence or death, both in respect of the connétable’s role in the States and in the parish generally. Whilst the connétable was and remained the chief of police of his parish, the senior centenier was known as chef de police. A 1946 judgment demonstrated that it was the aggregate of all forms of honorary service that determined seniority and, further, that the senior centenier was entitled to exercise this role as of right.
(2) However, during the latter part of the 20th century, there had been two changes: first, the role of chef de police had increased in importance following the general delegation by the connétable of the day to day policing of the parish to that officer. Accordingly, it was in the public interest for the chef de police to be appointed upon merit rather than upon length of service. Second, except in the parish of St Clement, the 1946 judgment had, to varying degrees, not been followed in practice. Such a change in usage represented a change in custom.
(3) Accordingly, under customary law the senior centenier had no right to be appointed chef de police and the connétable could make such appointment as he saw fit.
Editor’s note: The potential for customary law to change notwithstanding the existence of a decision of the Royal Court upon the point, is of particular interest. The case may be contrasted with the observations of Lord Hope in Snell v Beadle. Further, it is noteworthy that despite the faithful observance of the 1946 judgment by the parish of St Clement, and efforts at compliance by other parishes, a change in custom was still found to have taken place.
SUCCESSION
WILLS: FORM
Re Estate Meek Royal Ct: ( Bailhache, Bailiff and Jurats Bullen and Le Cornu) [2004] JRC 181A.
N.M.C. Santos Costa for the representor; D.P. Le Maistre for certain respondents.
The Assistant Registrar of Probate lodged with the Bailiff a request for directions pursuant to art. 6 of the Probate (Jersey) Law 1998. The deceased had executed a will and four codicils. His signature on the fourth codicil had been witnessed by the executor nominate who was a beneficiary under the will, but not under the codicil in question. The question was whether the fourth codicil was accordingly invalid.
Held, directing the admission to probate of the will and four codicils, that a codicil was not dependent on the will and that its formal validity was to be determined by reference to itself and not to the will. The executor derived no benefit from the fourth codicil and was accordingly competent to witness the testator’s signature.
TORT
OCCUPIERS’ LIABILITY
Noel v Ann Street Group Ltd. Royal Ct: (Birt, Deputy Bailiff and Jurats Clapham and Morgan) [2004] JRC 180.
D. Gilbert for the plaintiff; D.J. Benest for the defendant.
The plaintiff was a customer of a public house owned by the defendant. The plaintiff left the premises, in near darkness, through an exit from the garden of the public house on to the adjacent slip way. That exit was unlit. The slipway was not owned or occupied by the defendant and was a public right of way. The plaintiff missed her step on the kerb of the slipway, just outside the defendant’s premises and fell, injuring herself. The defendant contended, amongst other things, that it owed no duty of care to the plaintiff since an occupier’s duty in relation to premises did not extend to neighbouring property.
Held, dismissing the action, that -
(1) in the absence of any statutory duty the duty of an occupier of land was “….to have done what a reasonable man would have done in the circumstances by way of response to the risk in so far as foreseeable in accordance with the Donoghue v Stevenson principles of the law of negligence;”
(2) in given circumstances, an occupier of land could owe a duty of care to a person in respect of a hazard on adjoining land. This was dependent on the three tests of foreseeability, proximity and whether it was fair and reasonable that such a duty be imposed;
(3) on the facts, however, the plaintiff’s claim was dismissed. The plaintiff was familiar with the slipway and knew that it was unlit. The area where the plaintiff fell was not in such a condition as to impose a duty on the defendant to light it, give a warning or prevent usage of the exit. It was not in the nature of a trap.
TRUSTS
BENEFICIARIES – DISCLOSURE OF DOCUMENTS
Re Internine Trust & Intertraders Trust CA: (Beloff, Nutting, and Vaughan JJA) [2004] JCA 158.
P.D. James for the representor; A.R. Binnington for the second respondent; M.H.D. Taylor for the third to eighth respondents; the first, ninth and tenth respondents did not appear and were not represented.
Nine brothers and sisters of the Alhamrani family were beneficiaries under two Jersey trusts known as the Internine Trust and the Intertraders Trust. A bitter family dispute erupted between the beneficiaries which was sought to be resolved by a “Disengagement Agreement” reached in 2000. By this agreement, the third to seventh respondents (known as the “First Party”) were to take assets in Saudi Arabia whilst the representor, together with the eighth to tenth respondents (known as the “Second Party”), were to take assets elsewhere, including the Jersey Trusts with an appropriate balancing payment. However, a number of issues subsequently arose between the First and Second Parties as to the conduct of the Trusts in reply to which the representor alleged, inter alia, that the First Party had disclaimed any interest in the Trusts by virtue of the Disengagement Agreement. In January 2004, the Grievance Board in Saudi Arabia ruled that the Disengagement Agreement was null and void whereupon the First Party obtained an order from the Royal Court directing that financial information subsequent to the Disengagement Agreement, and relating to the Trusts, be disclosed by the Second Party. The representor appealed against the order of the Royal Court contending that further appellate procedures were being pursued in Saudi Arabia which would eventually confirm that no member of the First Party was a beneficiary under the Trusts. Accordingly, it was inappropriate for a disclosure order to have been made.
Held, dismissing the appeal, and applying Schmidt v Rosewood Trust Ltd,. the Court had a discretion to order disclosure. Whilst, ordinarily, this should be deferred until any issue as to whether or not a party was a beneficiary could be dealt with, exceptional circumstances might make such a course inappropriate. In this case, the First Party were not strangers to the Trusts; the Saudi Court of Appeal had recently dismissed an appeal from the decision of the Board of Grievances; and the dispute could last many more years. During the intervening period, the interests of the parties had to be balanced against each other and settlement encouraged.
REMUNERATION OF TRUSTEE
In re H Sossen 1969 Settlement Royal Ct: (Rowland, Deputy Bailiff) [2004] GRC 16.
St J.A. Robilliard for the applicant; N.J. Barnes for the minor great grandchildren.
The settlement was made in 1969 and contained a right for the original trustee to be remunerated. Another company became trustee in 1971. Although a successor trustee was plainly contemplated by the trust instrument there was no express provision for the remuneration of any trustee other than the original trustee. The omission was due to an unfortunate drafting error. In 1973 the settlor executed an indemnity in favour of the successor trustee relating to remuneration taken from the trust fund. The successor trustee remained trustee at the time of the application in 2004 which was prompted in part by the possibility of a replacement trustee being appointed. The application was to authorise retrospectively the remuneration paid to the successor trustee since 1971 (approximately £177,000) and to provide for a properly drafted remuneration clause. The relevant beneficiaries were notified of the application. The application was unopposed.
Held, granting the application, that the Court had power to approve remuneration, including past remuneration, under s.30(1)(c) of the Trusts (Guernsey) Law 1989 (as amended), and would do so in this case.
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