Trust/matrimonial – taking of evidence - appeal against the
Greffier’s order of 22 January 2016 allowed to limited extent.
[2016]JRC110
Royal Court
(Samedi)
27 June 2016
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Before :
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W. J. Bailhache, Esq., Bailiff, and Jurats
Olsen and Ramsden
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Between
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J
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Plaintiff/Respondent
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And
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1. Kathryn Tully
2. Louise Dods
3. Rawlinson & Hunter
4. R & H Trust Co (Jersey) Limited
5. R & H Fund Services (Jersey) Limited
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Defendants/Appellants
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Advocate J. M. P. Gleeson for the
Plaintiff/Respondent.
Advocate A. Kistler for the Appellant
Trustee.
judgment
the bailiff:
1.
The
Respondent and her husband are in the course of divorce proceedings in the
circuit court of the County of St Louis, Missouri (“the St Louis court”)
in the United States. The St Louis
Court issued a letter of request on 31st December, 2015, seeking
assistance to enable the Appellants, or some of them, to be examined on oath
and produce various documents as set out in the letter of request. On 19th January, 2016, the
Respondent’s Missouri attorneys sent the letter of request directly to
the Law Officers’ Department, who transmitted it to the Judicial Greffe
on 21st January, 2016.
On 22nd January, 2016, the Greffier made an order, by virtue
of the Service of Process and Taking of Evidence (Jersey) Law 1960, as
amended, that the first and second named Appellants should attend before the
Viscount on a date to be fixed to answer on oath the questions set out in
paragraph 10 of the letter of request and to produce the documents set out in
paragraph 11 of the letter of request . The present proceedings arise by way of
an appeal against the Greffier’s order. The appeal was heard on 25th
May and dismissed with reasons to be furnished later. This judgment contains those
reasons.
Jurisdiction
2.
Although
it is listed as the second ground of appeal against the Greffier’s order,
we take it first because the assertion is that the Greffier had no jurisdiction
to make the order of 22nd January, no application having been made
to him pursuant to Article 3 of the Service of Process and Taking of
Evidence (Jersey) Law 1960 (“the Law”). It is a point which the Appellants say
they raise without enthusiasm. In a
nutshell, it is that no application has been made to the Royal Court for the
order to be made, and Article 3 contemplates such an order only on
application. The Appellants refer
to a comment by this Court in the case of AD v The C Trust and PW [2010]
JRC 001 where a different procedural objection was taken, namely that the
letter of request was not transmitted to the Royal Court by Her Majesty’s
Secretary of State for the Home Department, as envisaged by the Service of
Process (Jersey) Rules 1994 (“the Rules”). The Court said at paragraph 12 of its
judgment in that case:-
“… the Royal Court
makes Rules for a purpose and it is to be expected that the Rules therefore
will be complied with and there should be at least some explanation given to
the Court as to why the Rules have not been complied with. In this instance if
it is the case that the request has been made by the Family Division of the
High Court simply upon the basis of the application by AD, and AD’s
lawyers have not seen fit to make proper enquiry as to how the request to the
Royal Court of Jersey should be formulated, then there is proper criticism to
be made, not of the Family Division of the High Court, but of the lawyers who
made that application to that Court and that would be a factor which this
Court, in any subsequent case, would be entitled to take into account.”
3.
It is to
be noted that the letter of request in that case did not contain any of the
usual courtesies which one might have expected from a requesting court and we
have no doubt that the comment of the Royal Court at paragraph 12 of its
judgment reflects its regret that the letter of request had been issued in that
form. In the present case, where
once again the letter of request was not transmitted through the Secretary of
State for the Home Department, we take the view that this non-compliance with
the Rules is a procedural matter rather than one of substance. As the Royal Court indicated in Re
the C Trust (supra), the Home Office is no longer the official channel of
communication between the United Kingdom and Jersey, although that was the
position in 1994 when the Rules were made.
It appears that the amendment of the Rules to reflect the current
position has regrettably not yet occurred.
4.
In the
present case the letter of request does not display any of the lack of
courtesies to which the Court made reference in the case on which the
Appellants rely. It is clear from
the letter of request that the request was issued by Judge Douglas Beach of the
Circuit Court of the County of St Louis, State of Missouri and the request was
addressed to “the United Kingdom
– Jersey”. It was
to be sent to the Central Authority of the United Kingdom, the Senior Master,
for the attention of the Foreign Process Section, Room E16, Royal Courts of
Justice, Strand, London. Such a
process would seem to be consistent with Article 3 of the Convention which we
think is currently a reference to the Hague Convention on the Service Abroad of
Judicial and Extra-Judicial Documents in Civil Law Commercial Matters, a
multi-lateral treaty adopted on 15th November, 1965, Article 3 of
which is in these terms:-
“The authority or judicial
officer competent under the Law of the State in which the documents originate
shall forward to the Central Authority of the state addressed a request
confirming to the model annexed to the present Convention, without any requirement
of legalisation or other equivalent formality.
The document to be served or a copy
thereof shall be annexed to the request.
The request and the document shall both be furnished in
duplicate.”
No doubt it was this provision which led to
Rule 2 of the Rules being drafted as it was.
5.
The
repository of the Convention is the Foreign Office of the Hague, and the
request is properly transmitted to the Senior Master as the Central
Authority. It would appear that as
far as United States law is concerned, no objection can be taken to the
procedure which has been adopted in the St Louis Court, and certainly no such
objection has been notified to us.
In fact in this case, the request of the St Louis court was not
transmitted to us in the way Article 3 of the Convention anticipates, as set
out below.
6.
Although
reference was made to the Hague Convention, no document was produced to us to
show that the United Kingdom’s ratification of that Convention has been
extended to Jersey. It is settled
constitutional practice that where the United Kingdom ratifies a treaty or
convention, it does so on behalf of the United Kingdom of Great Britain and
Northern Ireland and such, if any, of the Crown Dependencies and its overseas
territories as wish the treaty or the convention to apply to them. This practice has been acquiesced in by
other States and is regarded by the Secretary General of the United Nations as
establishing “a different
intention” for the purposes of Article 29 of the Vienna
Convention. Where reliance is being
placed on a convention or treaty which is said to have application to Jersey,
counsel should provide to the Court a copy of the United Kingdom’s
instrument of ratification which confirms that the convention or treaty does
have application to the Island. Whether the Hague Convention relevant to
this case has or has not been ratified on the Island’s behalf by the
United Kingdom, however, we think there is no doubt that this Court has a
settled practice of acting in comity with the requesting court of other states,
unless there is some particular reason not to do so. The procedural formalities which a
multi-lateral convention often requires may well be useful guidance – the
Court will for example want to be satisfied that the request genuinely does emanate
from a foreign court with jurisdiction to deal with the matters before it, and
the receipt of a request through the official diplomatic channel does provide
some comfort in that respect. That
does not arise in the instant case because there appears to be no doubt that
there are divorce proceedings currently on hand in the St Louis court, that the
St Louis court has jurisdiction to deal with them and has made the request a
copy of which is in our papers. No
one before us has contended otherwise, and it is clear that there have been
some communications between the Appellants and the husband such that we can be
reasonably satisfied that if there were an issue, it would have been taken.
7.
It appears
that although addressed to the UK Central Authority, the request was
transmitted by the Respondent’s US lawyers to Her Majesty’s
Attorney General, who subsequently transmitted it to the Judicial Greffier. This is not procedurally in accordance
with the Rules, which, as we have indicated need attention. Nonetheless, it cannot be said that no “application” has been made
for the purposes of Article 3 of the Law. The request has been issued by the
requesting court, and the Respondent’s lawyers have procured that it be
transmitted to the Attorney General. Whether one concludes that the
application has been made by the Respondent or by the Attorney General seems to
us for present purposes to be beside the point. There has been an application, and the
Judicial Greffier has made an order. Advocate Gleeson, on behalf of the
Respondent indicated that he had a representation ready to present to the Court
if it were really necessary, but he contended that it was not. The Court considered that no such
representation was necessary because it had already received an application for
the purposes of Article 3.
8.
We add
that Advocate Kistler had submitted that in the absence of rules prescribing
precisely how the application fell to be made, the Respondent was the applicant
in this case and she should have made her application ex parte with full and
frank disclosure in an appropriate affidavit. He asserted that the Court needed to be
told of the factors relevant to the application and it was essential that the
Court knew what the questions were and could make a judgment assessing those
questions against any prospective issues of confidentiality . We think it would
be desirable that the Rules be amended to make plain what procedure is
appropriate, although we do not think, as at present advised, that an affidavit
from the applicant is necessary. The
request essentially is being made to the Royal Court by the requesting court
and the onus really lies on the requesting court to satisfy itself that the
jurisdiction of the foreign court is not being engaged purposelessly or inappropriately.
One can assume in the Royal Court
that the St Louis Court was satisfied that these questions ought to be
delivered and the documents ought to be requested. That does not mean that the Royal Court
cannot of itself review, against issues of trustee confidentiality or indeed on
any other basis, the request for assistance, but it does mean that the
threshold for making the order in the first place has been passed.
9.
It appears
to us that the fact that the procedure envisaged under the Law and the Rules
has not been precisely followed does not prevent the matter being taken forward
and that the following principles apply. The Greffier, having received the
application from the foreign court has a procedural discretion to exercise as
to whether to order enrolment of the application in the Rolls of the Court and
make such consequential orders as are apposite to give effect to it. Essentially, this is what the Greffier
achieved by his order of 22nd January, 2016, in the instant case. Having ordered the registration of the
application in the Rolls of the Court, the Greffier then is able to make such
administrative orders as are requisite to give effect to the application. The appeal which has been brought in the
present case is the appropriate way of dealing with a challenge to the
Greffier’s order, whether that is a challenge to the substance of
ordering enrolment of the application in the Rolls of the Royal Court, or a
challenge to the detail of the extent to which the letter of request should be
given effect.
10. While the procedure adopted in transmitting the
request of the St Louis court to the Royal Court was unsatisfactory, it does
not in our judgment deprive this Court of jurisdiction to deal with it. Procedural rules are the Court’s
servant not its master. That is why
Rules 10/6 and 10/7 of the Royal Court Rules 2004 provide as they do in
cases of non-compliance. If the
result of the procedure adopted were to cause unfairness, that would be a
different matter because the Court has an obligation to deliver a fair trial or
hearing in any civil or criminal cause both as a matter of our own longstanding
domestic law and practice and of course under the Human Rights (Jersey) Law
2000 and Article 6 of the European Convention of Human Rights 2000. Having said that, we think that the
Service of Process Rules do need attention so as to bring clarity to the
process.
Discretion
11. We now turn to the exercise of discretion to
give effect to the incoming letter of request in the instant case. We note that the Royal Court itself has a
free discretion to exercise on an appeal of this nature, giving such weight to
the decision of the Greffier as it thinks fit. This is not an appeal that falls within
the appellate rules of Downes v Marshall [2010] JLR 265.
12. It is on that basis that we turn to the
detailed letter of request in this case.
13. Advocate Kistler accepted that R & H Trust
Co (Jersey) Limited was the trustee of the Atlantic Trust. In the St Louis Court, the husband has
apparently accepted that he is a beneficiary of this trust. Advocate Kistler submitted that there was
therefore no reason for the trustee to be called to give evidence, because the
husband could give evidence about the trust and there was no basis for thinking
that it would not be given truthfully. He reminded the Court that Article 51
applications can be distinguished from matrimonial or family cases because the
Court was looking at the matter from a trust perspective and had to determine
what was in the best interests of the beneficiaries. This was not quite that sort of case,
because a letter of request had been received and it was not strictly speaking
an Article 51 application – but nonetheless he submitted the Court could
not form a view on the best interests of the trust, or the best interests of
the beneficiaries because it did not have all the information necessary to do
so. The submission which Advocate
Kistler made was that although this was not an Article 51 application, and the
test could not logically be the question of what was in the best interests of
the trust, nonetheless the Court should not disregard the fact that this
application by letter of request concerns a trust and the Court had to balance
the interests of confidentiality between the trustee and its beneficiaries on
the one hand against the obligations of comity on the other. The case of The C Trust [supra]
shows that the principle of confidentiality goes wider than the Article 51
application itself. In that case
the Court had said at paragraph 7:-
“We would also like to add
that we have seen that the affidavits contain a number of exhibits; we assume
that the letter of request extends to the exhibits as well as to the affidavits
themselves although it does not in terms say so. The exhibits contain material
which is legally privileged and also contain material which is confidential.
These are claims to privilege and confidence which we would expect an English
court to uphold.”
14. In the case of Wadman and another v Dick
[1993] JLR 52 at page 74/75, there appears the following passage in the
judgment of the Court of Appeal, delivered by Frossard JA:-
“Confidentiality
It has been urged upon us that for
reasons of confidentiality we ought not to give effect to the letters of
request, even though they appear to be directed to relevant and admissible
matters. Advocate Le Quesne
submitted that it would be impossible for any representative of La Hougue to
give evidence about the matters covered by the letters of request without violating
the duty of confidentiality owed by La Hougue to its clients. Advocate
Bailhache submitted that Messrs Heinrichs Pauls and Seabrook were all clients
of La Hougue and feared that if La Hougue were to give evidence about the
matters covered by the letters of request, confidential information about their
affairs might be revealed.
The evidence (as we have indicated
above) shows that La Hougue is a small trust company handling trust and
investment business for about 150 clients. The relationship between such a
company and its clients is one which the law now recognises as giving rise to a
state of confidentiality.
Information subject to such confidence is not absolutely privileged from
disclosure but the Court has a discretion whether to compel a witness to
disclose. The position is thus explained by Lord Wilberforce in British
Steel Corp v Granada TV (2) [1981] A.C. at 1168:
‘….[A]s to information
obtained in confidence, and the legal duty, which may arise, to disclose it to
a court of justice, the position is clear. Courts have an inherent wish to
respect this confidence, whether it arises between doctor and patient, priest
and penitent, banker and customer, between persons giving testimonials to
employees, or in other relationships. A relationship with confidence between a
journalist and his source is in no different category; nothing in this case
involves or will involve any principle that such confidence is not something to
be respected. But in all these cases the Court may have to decide, in
particular circumstances, that the interest in preserving this confidence is
outweighed by other interests to which the law attaches
importance.’”
15. Thus it is that the Court of Appeal has clearly
laid down that there is a balancing exercise to be undertaken, and the issue of
confidentiality is one to be considered.
16. Frossard JA however added some further comments
later in the judgment at page 76:-
“We make two observations
about this balancing exercise before considering its application in this
case. First, every claim to
confidentiality to exclude evidence which would or might be relevant is an
attempt to limit the Court’s ability to get as nearly as possible to the
truth. One factor to be weighed in the balance therefore, the public interest
in the power of the Courts to investigate fully matters brought before them.
The Court carrying out the balancing exercise must bear in mind the possibility
that respect for a witness’s duty of confidentiality may result in
disabling the Court from protecting the rights of other parties. We do not
believe that the English Courts meant to exclude so important and so obvious a
factor. It was presumably because of the peculiar features of the State of
Norway case that the judges whose words we have quoted did not mention it
expressly.
Secondly, it is important to
appreciate the part played by public policy in the exercise. It has been
submitted to us that we ought to pay particular regard to confidentiality
between banker and customer because of the great importance to Jersey of its
role as an offshore finance centre.
In our view, this is not the right approach. The public significance and
benefit of the finance industry depend upon considerations (economic, social
and even moral) lying right outside the province of a court of law. The basis
of the protection of confidentiality between banker and customer is not the
public benefit of banking in this sense. It is the law’s recognition that
the relationship between banker and customer is important for the persons
involved on both sides, whose purpose cannot be achieved without confidential
communication between them. It is the individual relationship, in which trust
is reposed by the one party in the other, which is material. The argument
before us transcends that relationship and seeks to import a generalised
statement about public policy. The former, not the latter, is the Court’s
concern.”
17. Advocate Kistler submitted that if the wife had
come to the Court under Article 51 of the Trusts (Jersey) Law 1984 and,
as a non-beneficiary, sought disclosure of the trust assets, her prospects of
success would be very slim indeed. He
asserted it should be no different because she had made an application to a
foreign court, which had issued letters of request.
18. While it is true that the wife’s
prospects under Article 51 might well be slim in the circumstances put to us,
we reject the conclusion drawn. In
our view it is necessary to distinguish between an Article 51 application and a
request for assistance from a foreign court. The tests to be applied by the Royal
Court will not be the same because the application to the Court is conceptually
quite different. In the case of an
Article 51 application, the applicant - often the trustee - puts all its
material before the Court and seeks the Court’s guidance in accordance
with the established rules. The
customary law jurisdiction for what is now a statutory jurisdiction was based
on the rationale that the Court must be able to administer the trust in the
absence of a trustee, and in the presence of the trustee had the jurisdiction
to give directions in relation to the various trust powers which existed. That is the explanation for many of the
Royal Court’s decisions on trust matters prior to the enactment of the Trusts
(Jersey) Law 1984 (“the Trusts Law”). In the case of letters of request received
from a foreign court, the exercise which the Royal Court is tackling is quite
different. In such a case, the
statutory jurisdiction is based upon acting in comity with a foreign court and
indeed upon the principles contained in the Hague Convention (whether or not
that has been formally ratified for the Island). It is the balancing of that obligation to
act in comity with the foreign court with the need to protect confidentiality
or privilege in the context of our domestic law that occasionally presents
challenges for this Court – but the approach which is not followed is to
apply the equivalent of an Article 51 jurisdiction.
19. It was then submitted that the Court should
have regard to public policy because of the firewall provisions provided by Article
9 of the Trusts Law and in particular the provisions by reference to
relationships introduced by the 2012 amendment to that legislation. Article 9(1) of that law includes, for
example, the following provision:-
“Subject to paragraph (3),
any question concerning –
…
(d) the administration of
the trust,
… or
(g) the nature and extent
of any beneficial rights or interests in the property,
shall be determined in accordance
with the law of Jersey and no rule of foreign law shall affect such question.”
20. Article 9(2) provides so far as material,
without prejudice to the generality of paragraph (1), that:-
“any question mentioned in
[paragraph 1] shall be determined without consideration of whether or not
… the trust … avoids or defeats rights, claims, or interests
conferred by any foreign law upon any person by reason of a personal
relationship or by way of heirship rights or contravenes any rule of foreign
law or any foreign judicial or administrative order or action intended to
recognise, protect, enforce or give effect to any such rights, claims or
interests.”
21. By Article 9(6) the definition of “personal
relationship” includes any relationship between a person and the
settlor or a beneficiary by blood, marriage, civil partnership or adoption. Although the relevant amendment was only
introduced in 2012, it is clear that this legislation as amended applies to
trusts whenever constituted or created.
22. Thus it is said by Advocate Kistler that Jersey
trusts are protected against the orders of a foreign matrimonial court and the
effect of the statutory provisions is that such orders will not be enforced. It is against that context that it was
submitted that public policy would affect the decision on whether or not to act
in comity with a foreign court.
23. We do not think this submission is consistent
with the earlier decisions of this Court such as Mubarik v Mubarak and
others [2008] JLR 430; nor do we think that there is a different rule in
terms of comity when one is dealing with a trust than where one is not. Wadman v Dick (supra) would seem
to support that. In any event the issue is more nuanced in relation to the
present appeal. We agree that where
a trust is governed by Jersey law it is the Royal Court of Jersey which will
exercise jurisdiction over any variations of such a trust or over whether
directions should be given to the trustee in relation to the exercise of the
trustee’s powers under the trust and the creation of what we would regard
as an exorbitant jurisdiction by legislation effected outside the Island, which
might suggest that a foreign court could exercise any such power, would not be
effective here. Nonetheless, that
is not the issue which arises in this case, at least at present. The courts of this Island do respect
letters of request made to them by a foreign court and do act in comity with
that court. Indeed it is for just
that reason that one would expect the foreign court to respect the trust
jurisdiction which we exercise. In
any event, it is clear, in the context of a dispute about matrimonial assets in
a foreign court, that the existence or otherwise of a beneficial interest in a
Jersey trust may be relevant to how the other matrimonial assets should be
allocated, even if the foreign court recognises that its order cannot extend to
whatever interests it may consider are established by the Jersey trust.
24. Advocate Kistler suggested that there should be
some exercise of the blue pencil test in accordance with Rio Tinto Zinc Corp
v Westinghouse Elec. Corp [1978] A.C. 547, [1978] 1 All ER 434 in order to
ensure that confidential trust documents were not disclosed. This submission did not seem wholly
consistent with the submission made earlier that because the husband was a
beneficiary of the Atlantic Trust, he could give evidence about it – one
would have thought that if the information was truly confidential, it would not
matter much who provided the evidence, whether it was the trustee or the
beneficiary. Nonetheless, we accept
the principle that Westinghouse applies and we have made some changes to
the questions to be put, as described later in this judgment.
25. In his submissions Advocate Gleeson contended
that there were a number of reasons why the Court’s discretion should be
exercised in favour of his client, but as a matter of principle he contended
that it was preposterous to suggest that the Court could not go behind a
trustee’s conclusion that disclosure was not in the best interests of the
beneficiaries. We agree with that
contention, and we have no doubt that the Court can examine where the best
interests of the beneficiaries lie and indeed these best interests then need to
be balanced with the obligation of comity to the foreign court.
26. The Court has considered the various
contentions and looked at the letter of request with care. We consider that the public interest in
giving comity to the foreign letter of request outweighs the public interest in
maintaining confidentiality of trust documents. If the matrimonial proceedings were
taking place within this jurisdiction, there would be no question about where
the public interest lay – information about the trust documents would be
provided. The purpose of ensuring
that such information was provided in such a case is to ensure that the
matrimonial court can do justice to the parties before it. If the husband were the only beneficiary
of the trust, it is in the interests of justice that the matrimonial court
knows that to be the position; and similarly if the husband has only a limited
beneficial interest in the trust.
As a matter of trust law, this Court may not permit a foreign court to
make orders varying the terms of the trust, but that is not to say that we
should not assist in ensuring that the matrimonial court has all the relevant
information available to it to make such order as the matrimonial court,
whether in this jurisdiction or not, thinks is relevant for the issues which it
has to determine.
27. Having looked at the scheduled questions in the
letter of request, we consider that it is permissible that all these be put to
the Jersey witnesses, subject to the following changes. In paragraph 10, question 4 should be
framed in this way – “Is the
husband the beneficiary, guardian, protector, trustee or director of the
trustee of any trust located in Jersey and managed by the Rawlinson &
Hunter Partnership or any company owned by that partnership?” In the context of divorce proceedings,
the St Louis court may well wish to consider whether it should proceed within
its jurisdiction upon the basis that the husband will benefit from or has
control over a trust located in Jersey, and hence questions aimed at
establishing if he is the beneficiary, guardian, protector, trustee or director
of the trustee of any such trust are likely to be relevant to the issues it has
to decide.
28. The question in paragraph 10(5) should be
framed as follows – “Are A
and B beneficiaries of any trust managed by the Rawlinson & Hunter
Partnership in Jersey or any company owned by that partnership as a
trustee?” This question is
equally likely to be relevant to the matrimonial proceedings in the St Louis
court, as we see them. Whether the
children of the marriage are beneficiaries of any trust managed by the
Appellants in Jersey and have an expectation of benefit may well be relevant to
issues of alimony or maintenance in the St Louis court.
29. The question in paragraph 10(9) should be
framed as follows – “Is the
Respondent a beneficiary or has she been a beneficiary of any trust managed by
the Rawlinson & Hunter Partnership in Jersey or any company belonging to
that partnership?” In
similar fashion to the question in paragraph 10(5), questions in relation to
whether the Respondent, wife of K, has any expectation of benefit from a Jersey
trust may well be relevant to the assessment of an equitable outcome to the
divorce proceedings in the St Louis court.
30. The question in paragraph 10(10) is to be
deleted, applying the blue pencil test, not least because it does not seem to
make much sense.
31. The question in paragraph 10(12) should be
framed as follows – “Do you
know who is/are the settlor/s of any trust referred to in question 4 - 9 of which the husband, the Respondent
or their children are beneficiaries?” We think this question is also likely to
be relevant to any matrimonial proceedings. The providers of the funds into trust
may well have an impact on the extent to which a matrimonial court would treat
those sums as (a) being available or (b) being funds which in equity ought to
be treated as those of one party or another. Whether that assessment will be given
effect by the Royal Court of Jersey on an application by the trustees for
directions under Article 51 is, as a matter of our trust law, a different
issue, but we do not see any reason why the information should be kept from the
foreign matrimonial court.
32. The question on paragraph 10(14) should be
framed as follows – “Is the
husband a beneficiary of any trust which you manage?” The reasons this question should be
so framed are straightforward. If
the husband is a beneficiary of any trust managed by the Appellants, then the
extent of his expectation of benefit is something to be established.
33. In relation to question 11 of the letters of
request, the documents or other property to be inspected should be as listed in
that question but should include any deed of appointment. We referred earlier to the balancing of
the interests of the beneficiaries.
The reason that these documents ought to be provided is that such
provision will enable the St Louis court to form a better judgment as to other
interests which may affect the assets in trust. This may work both to the benefit of the
husband and indeed to the benefit of the other potential beneficiaries because
it is capable of casting a doubt on whether the husband really does have an
expectation of benefit, or it may show that there is a limit on the benefit
which he might expect. All of that
will naturally be relevant to a matrimonial court.
34. In our judgment the provision of this
information, or the absence of it, as the case may be, will enable the foreign
court, using the language of the Court of Appeal in Wadman “to
get as nearly as possible to the truth”. On the assumption that the St Louis court
will have full information, it will be able to apply that information in
reaching its judgment properly on the matters which lie before it in accordance
with its own jurisdiction. The
extent to which the results of the exercise of its judgment are enforceable in
Jersey at a later date will of course depend upon the application of Jersey law
to whatever issue is put before this Court at that time.
35. The appeal is therefore allowed to the limited
extent of the changes to the listed questions in the letter of request and is
otherwise dismissed.
Authorities
Service of Process and Taking of
Evidence (Jersey) Law 1960, as amended.
AD
v The C Trust and PW [2010] JRC 001.
Service of Process (Jersey) Rules
1994.
Royal Court Rules 2004.
Human Rights (Jersey) Law 2000.
European Convention of Human Rights
2000.
Downes
v Marshall [2010] JLR 265.
Wadman
and another v Dick [1993] JLR 52.
Trusts (Jersey) Law 1984.
Mubarik
v Mubarak and others [2008] JLR 430.
Rio Tinto Zinc Corp v Westinghouse
Elec. Corp [1978] A.C. 547, [1978] 1 All ER 434.