Sun11192017

Last updateTue, 24 Feb 2015 5pm

Harcus Sinclair

Harcus Sinclair

A recent Privy Council case indicates how the court will determine remedies and damages for breach of fiduciary duty. Joseph de Lacey explains

On 27 March 2017 the Privy Council (PC) gave judgment in Akita Holdings Ltd v The Honourable Attorney General of The Turks and Caicos Islands [2017]. The judgment and the decisions of the lower courts provide a useful summary of the principles to be applied when determining:

Beth Mason and Georgia Day examine a case involving a large amount of assets, but also issues relevant to cases concerned with lesser sums

The decision in AAZ v BBZ [2016] caused a stir in large part due to the level of award granted to the wife. A settlement of £453m is, by any standards, a very high-net-worth case. However the size of the award is, of course, governed largely by the amount of the parties’ assets, and what is of greater interest to family practitioners is the analysis by Haddon-Cave J and the issues arising after the final hearing. The case was heard in December 2016, but the judgments were published several months later.

Hannah Southon explores a judgment concerning a rarely used power of the court to direct the division of jointly-owned chattels

What relief is available from the court for co-owners of chattels who have reached an impasse as to what is to become of their jointly-owned property? The recent case of Butler v Butler [2016] provides some clarity on the previously little-known s188 of the Law of Property Act 1925.

Hannah Southon highlights a case that provides new guidance on the status of protectors in English law

There have been very few, if any, cases in England concerning the standing of protectors to bring matters before the English courts. The decision in Davidson v Seelig [2016] provides useful guidance both as to a protector’s standing under ss41 and 57 of the Trustee Act 1925 and on the extent to which a protector may invoke the court’s inherent jurisdiction. Further, prior to this judgment there had been some doubt as to whether, in the absence in England and Wales of enabling statutory provisions, a protector is entitled to apply for directions and other relief in relation to matters which are not directly connected to the powers they hold. The clear answer now, at least at first instance, is that they are not. Perhaps most of all, the decision highlights the problems in the role of protector that arise from its lack of equitable and statutory foundation in England.

Beth Mason and Georgia Day look at the Court of Appeal decision in Critchell and what may constitute a Barder event

Family lawyers are used to advising their clients of the courts’ desire for certainty and finality in financial proceedings. Consent orders should not be entered into lightly and even a final order not made by consent cannot be appealed on a whim. We are all too familiar with the issue of non-matrimonial assets and particularly a client’s fear that their spouse may have recourse in the future to post-separation (and even post-order) assets: the classic case of post-separation lottery wins, for example. For the most part we are able to reassure our clients that once a deal is done, or an order made, that is the end of the matter, but should the decision in Critchell v Critchell [2015], the latest in the Barder (per Barder v Caluori [1988]) line of authorities, alter the advice we are giving?

The Guernsey Court of Appeal affirms the scope of the jurisdiction conferred by Article 51 of the Trusts (Guernsey) Law 2007. Hannah Southon and Alison Meek explain

The Jersey Court of Appeal decision In the matter of the B, C and D Settlements [2010] placed a significant limitation on the power of the Jersey court to make orders in respect of trusts in exercise of its jurisdiction under the Trusts (Jersey) Law 1984. As a Court of Appeal decision, it was also thought to be persuasive in relation to the Guernsey court’s analogous powers under the Trusts (Guernsey) Law 2007 simply because the tribunal which constitutes the Jersey Court of Appeal is frequently the same as the Guernsey Court of Appeal. At the heart of the decision lay the question of the extent to which the judiciary should seek to limit or quantify statute as a matter of the common law rather than exercise judicial discretion on a case by case basis. The recent Guernsey Court of Appeal decision In the matter of the R and RA Trusts [2014] confirms that, when the legislature has given jurisdiction to the court, it is not for the court to limit that power further but rather it is for the court to exercise judicial discretion in exercising the statutory power that it has. In the same judgment the Guernsey Court of Appeal also went some way towards encouraging trustees to feel less constrained in appealing decisions at first instance for fear of adverse cost orders.