Trustees liability 8.0 /35

Transcription

1 Trustees liability 8.0 /35

2 Trustees liability /8.1 Target Holdings v Redferns (1996) House of Lords Extent of trustees liability for equitable relief A finance company instructed a firm of solicitors to act in a mortgage transaction on commercial property. The borrower had misled the finance company about the value of the property, which was worth less than the finance company believed. In technical breach of trust, the firm of solicitors transferred the loan money to the borrower before the property had been charged. The security was only properly obtained a month later. On sale of the property the finance company recovered from the proceeds less than a third of the sum loaned. The finance company sued the solicitors for breach of trust, claiming that the firm was liable to reconstitute the trust in its entirety at the value it had been before the money was transferred to the borrower, even though the ultimate losses had not been incurred as a consequence of the breach of trust. The Court of Appeal ordered the reconstitution of the entire fund less the sum realised on the sale of the mortgaged property. The solicitors appealed. The appeal was allowed. Although the finance company was entitled to equitable compensation for the breach of trust, it did not follow that the finance company was entitled to have the entire fund reconstituted where the actual losses had not resulted from the solicitors breach of trust and would have arisen anyway. Lord Browne-Wilkinson reasoned the decision in two ways. On one analysis, the requirement to reconstitute the fund did not apply to a solicitor s bare trust of client funds. While the relationship undoubtedly created a trust, the client was not entitled to have the fund reconstituted after the completion of the commercial transaction for which the fund was intended. The firm s obligation to ensure that a charge was taken over the mortgagor s property when the money was paid over was a term of the retainer, not a part of its trust. The firm was only liable for contractual damages flowing from its breach (there were none). The alternative ratio was that the quantum of equitable relief was not fixed at the time the breach was committed, but at the date of judgment, when the Court would be able to assess the beneficiary s real losses (which in this case were no more than those attributable to the borrower s fraudulent misrepresentation). Aspects of the decision have been criticized (in particular the suggestion that commercial trusts should be treated differently from traditional trusts) but the general rule has been approved by the Supreme Court in AIB Group v Mark Redler & Co (2014). 36\

3 Armitage v Nurse (1998) English Court of Appeal /8.2 Trustees liability Trustee exemption clauses can exempt trustees from liability for all breaches of trust except actual dishonesty. Allegations against trustees for breach involving reckless or wilful disregard of the terms of the trust, but not dishonesty, were accepted for the purposes of a preliminary issue only. Clause 15 of the trust deed stated no trustee was liable for any loss or damage caused by his own actual fraud. The trustees argued that they were exonerated by the clause and also that they could rely upon the Limitation Act 1980 in relation to breaches prior to the six years from the date of the writ. It was held that a clause in a settlement providing that a trustee was exempted from liability for loss or damage to the fund or its income unless such loss or damage shall be caused by his own actual fraud could validly exclude liability for negligence. For a trustee to be guilty of fraud there had to be a fraudulent intention and proof of dishonesty, so that even if trustees deliberately committed a breach of trust, if they did so in good faith, honestly believing that they were acting in the best interests of the beneficiary, there could be no fraud. Millet LJ said: There is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts. But I do not accept the further submission that these core obligations include the duties of skill and care, prudence and diligence. The duty of the trustees to perform the trusts honestly and in good faith for the benefit of the beneficiaries is the minimum necessary to give substance to the trust, but in my opinion it is sufficient. /37

4 Trustees liability /8.3 Walker v Stones (2001) English Court of Appeal This case evidences English courts moving away from a literal interpretation of the judgment in Armitage v Nurse towards a more qualitative approach, which may depend upon an objective assessment of the attributes of any given trustee defendant. Beneficiaries under a family trust brought a breach of trust action against the trustees. They applied for permission to re-amend their statement of claim to join a firm of solicitors, on the basis that the firm was vicariously liable for the actions of the trustees who were partners of the firm. The judge struck out the application and dismissed the action, finding that (1) they did not have locus standi in relation to part of their claim since the principle established in Prudential Assurance Co Ltd v Newman Industries Ltd (No.2) precluded a shareholder from suing for damages where the company had a cause of action itself; (2) a breach of trust was dishonest only where the trustee committed the breach in the knowledge that it was contrary to the beneficiaries interests or was recklessly indifferent to them and (3) the firm was not vicariously liable under the Partnership Act. The beneficiaries appealed. The Court held that the principle established by Prudential Assurance, that a beneficiary could not sue a trustee for damage to a company in which the trust had a controlling interest where the company possessed its own right of action, would not prevent a party from pursuing an otherwise valid claim if the claimant could establish the breach of duty owed to him personally and additionally that such breach had resulted in a personal loss to him as distinct from a loss incurred by a corporate body in which he had a financial stake. The test for dishonesty in relation to solicitor trustees had to take account of whether a genuine belief that the deliberate breach was for the benefit of the beneficiaries was a belief so unreasonable that no solicitor trustee could have held it. Despite a clause in the trust deed excluding liability for non-fraudulent breaches of trust, a judicious breach of trust may still be actionable even where the trustee gains nothing personally from it. Vicarious liability was excluded by s.13 of the Partnership Act, since the actions of the partner trustee were not acting in the ordinary course of business of the firm. A consequence of the decision may be that professional trustees will become less prepared to take any decision involving any risk, even where the trust instrument appears to limit their liability. 38\

5 Alhamrani v Alhamrani (2007) Court of Appeal Jersey Dog-leg claims doubted /8.4 Trustees liability Two beneficiaries brought claims against the two corporate trustees for breach of trust, and subsequently tried to amend the pleading to bring dog-leg claims against a director of each corporate trustee. The claimants contended that the statutory duties of skill and care which the directors owed to the corporate trustee were trust property which the corporate trustee held for the beneficiaries. Therefore the beneficiaries were entitled to sue the directors directly for breach of those duties where the trustee was unable or unwilling to so the so-called dog-leg claim. Commissioner Page refused to allow the amendment. He held that the idea that the right to performance of the directors statutory duties to the company could be trust property had a degree of artificiality and awkwardness about it, and would lead to undesirable uncertainties in the inter-relationship between trust law and company law. He thought it was also relevant that the directors responsibilities were not confined to the trusts in question, which added weight to the argument that the position for large corporations with many trusts under administration was more protected. However, the position for smaller one-trust companies administering a single trust might be less clear. In the more recent case of Gregson v HAE Trustees Limited (2008), the English High Court considered and rejected a similar argument, on the grounds that there was no intelligible legal mechanism to support it and that it would erode the fundamental principle that a director is not personally liable in a claim against a company. /39