England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ROBERT ENGLEHART Q.C.
MR JUSTICE NORRIS
[2010] EWHC 449 (Ch) (Futter v Futter)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 March 2011

Lord Justice Lloyd:

Introduction - general

1. Two questions arise in these appeals. The first can be stated, broadly, in this way. Trustees of a settlement exercise a discretionary power intending to change the beneficial ownership of trust property, but the effect of what they do turns out to be different from that which they intended. Can their act be set aside by the court? If so, what is the correct legal test to determine in what circumstances and on what basis the court can intervene? The second question concerns the correct legal test to be applied if a donor seeks to have a voluntary disposition set aside as having been made under a mistake.
2. In 1974 the Court of Appeal heard an appeal from an order of Plowman J in proceedings between the executors of the late Captain Peter Hastings-Bass and the Inland Revenue. The issue was whether estate duty was chargeable in respect of his death in 1964 on certain funds comprised in a settlement made in 1947 under which he had had a protected life interest. It held that the funds had been the subject of a valid advancement in 1958 under which a life interest subsisted in favour of his son William. It was valid even though the interests which had been intended to take effect subject to that life interest were void because of the application of the rule against perpetuities. It followed that this fund was not chargeable to estate duty on Captain Hastings-Bass' death. Re Hastings-Bass deceased is reported at [1975] Ch 25.
3. In a succession of later cases at first instance, starting in 1990 with a pension case, Mettoy Pension Trustees Ltd v Evans [1990] 1 W.L.R. 1587, a principle, described as the rule in Re Hastings-Bass, has been developed and applied to facts very different from those under consideration in Re Hastings-Bass itself. As so developed, the principle is that the exercise of a discretionary dispositive power by trustees may be declared void and set aside, even many years after the event, on the basis that the trustees failed to take into account relevant matters when exercising the power. Often it was applied where the failure was in understanding the tax liabilities that would arise from the exercise. Without prejudice to its correct status or description, I will use the label the Hastings-Bass rule in this judgment to refer to the principle so developed.
4. One of the more recent of that sequence of decisions, Sieff v Fox, [2005] EWHC 1312 (Ch), [2005] 1 WLR 3811, was the last case which I heard as a High Court Judge. I was then able to subject the principle to quite full consideration, as a result of the able and adversarial argument addressed to me, but I was of course constrained by the rules of judicial precedent, sitting at first instance. At the end of my judgment I said that the principle needed to be reviewed by the Court of Appeal, but my decision was not itself the subject of an appeal.
5. Now on two distinct appeals that principle, and those cases, have come to be considered in the Court of Appeal for the first time. By coincidence this comes within a few months of the death of Captain Hastings-Bass' widow, Mrs Priscilla Hastings. We are bound by the decision in Re Hastings-Bass itself, but by no other decision on the point since then. The case has been mentioned in one intervening decision of the Court of Appeal, but that did not affect the status or content of the principle.
6. There are two principal reasons why the point has not been the subject of an appeal in the meantime. The first is that the decisions have, by and large, suited the parties to the proceedings. The second and more important is that, after its defeat in Re Hastings-Bass itself, the Revenue chose not to take part in any of the intervening proceedings. I commented on that policy in paragraph 83 of my judgment in Sieff v Fox. Whether because of that or otherwise, HMRC (as they are now) changed their policy of non-participation. They were joined as Defendants in these two proceedings, and they have brought the appeal in each.

Introduction - Pitt v Holt

7. This appeal is from an order of Mr Robert Englehart Q.C. sitting as a Deputy High Court Judge in the Chancery Division, made on 18 January 2010. The facts of this case are rather different from those of previous cases in the sequence.
8. Mrs Pitt is the widow and personal representative of Mr Derek Pitt, and was at the material time his receiver appointed by the Court of Protection. He was very badly injured in a road accident in 1990. His personal injury claim was compromised in May 1994 on the basis of a structured settlement under which a lump sum was payable as well as monthly payments. (These are not strictly an annuity, but it is convenient to refer to the right to receive them as an annuity.) With the benefit of professional advice it was decided to put both the lump sum and the annuity into a trust for Mr Pitt's benefit. The Court of Protection gave its authority to Mrs Pitt to do so in September 1994. As his receiver she entered into a Deed of Settlement, under which the lump sum was to be held on trust, and she then assigned the annuity to the trustees to be held on the same trusts. The trustees were Mrs Pitt, Mr Shores (the Second Claimant) and a Mr Field, who has since been replaced by Mr Holt, the First Defendant. The settlement created discretionary trusts of income and capital for the benefit of Mr Pitt, his wife, children and remoter issue during his lifetime. It was to be known as the Derek Pitt Special Needs Trust, and I will refer to it as the Special Needs Trust. Upon his death the whole fund was to be held on trust for his personal representatives for the benefit of his estate.
9. Mr Pitt died in September 2007. Probate of his will was granted to Mrs Pitt and Mr Shores. Mrs Pitt is, in the events which happened, the sole beneficiary of the estate. In the meantime it had been realised in 2003 that the terms of the Special Needs Trust were such that inheritance tax (iht) applies to it as to any ordinary discretionary trust. There is a charge to iht on the whole value of the sum put into the trust at the outset, this being a transfer of value by Mr Pitt; there would be a charge to iht on any capital paid out of the trust; and there would also be a charge to iht on the value of the property the subject of the Special Needs Trust every ten years after its creation. On the basis that the assets put into the Special Needs Trust at the outset were valued at around £800,000, the initial charge to iht would be of the order of £100,000.
10. It would have been easy to create the settlement in a way which did not have these tax consequences. Section 89 of the Inheritance Tax Act 1984 excludes from this treatment some discretionary trusts for disabled persons. One additional provision would have been needed, namely a clause under which at least half of the trust fund applied during Mr Pitt's lifetime was to be applied for his benefit. That could easily have been added; the actual distribution of the fund would have complied with it.
11. At the time of Mr Pitt's death little more than £6,000 remained in the Special Needs Trust, and the annuity came to an end on that event.
12. Before his death Mr Pitt, together with Mrs Pitt, Mr Holt and Mr Shores, brought proceedings against the financial advisers on the basis of whose advice the Special Needs Trust was set up. That claim is resisted, and has been stayed pending the outcome of these proceedings.
13. By the present proceedings Mrs Pitt and Mr Shores, as personal representatives of Mr Pitt and in Mrs Pitt's case also personally, claimed a declaration that the settlement by which the Special Needs Trust was created, and the assignment of the annuity, were void or alternatively voidable and ought to be set aside. Mr Holt was joined as Defendant as the other trustee of the Special Needs Trust, and HMRC were also joined with their agreement. The relief sought was put on the basis of the Hastings-Bass rule or alternatively on the ground of mistake.
14. In his judgment, [2010] EWHC 45 (Ch), the judge held that the settlement and the assignment were to be set aside under the Hastings-Bass rule, though he would not have come to the same conclusion on the basis of mistake. He did not have to decide whether the transactions were void or voidable: if they were voidable there was no reason why they should not be avoided. By his order each was ordered to be set aside and declared to be of no effect.

Introduction – Futter v Futter

15. In this case the appeal is against an order of Mr Justice Norris dated 11 March 2010. The case is more typical of other cases in the sequence of first instance cases developing and applying the Hastings-Bass rule.
16. It arises from the exercise by the trustees of powers of advancement under two discretionary trusts, to which I will refer as the No 3 settlement and the No 5 settlement respectively.

i) Under the No 3 settlement Mr Mark Futter (the First Claimant) had a life interest, his wife (the First Defendant) had a reversionary life interest, and eventually the capital was to go their children, the Second to Fourth Defendants. The trustees (the two Claimants) had a power of enlargement which they exercised on 31 March 2008 in such a way that Mr Futter became absolutely entitled to the fund.

ii) The beneficial interests under the No 5 settlement were similar. On 3 April 2008 the trustees exercised the power of advancement under section 32 of the Trustee Act 1925 so as to appoint £12,000 to each of the three children immediately.

17. In each case the point of the operation was to transfer assets out of the settlement in such a way as to avoid incurring a charge to capital gains tax. Each trust fund contained assets with what are referred to as "stockpiled gains". Each settlement was situated offshore for UK tax purposes, so as not to be subject to capital gains tax while the funds remained offshore. Capital gains tax would however be incurred as and when funds were brought onshore, as they would be when any UK resident member of the family became absolutely entitled to them.
18. The enlargement and the advancements were made on the footing that losses incurred for capital gains tax purposes by the recipient beneficiary could be set off against the stockpiled gains. Mr Mark Futter incurred losses for cgt purposes on the disposal of some of his own personal assets and believed that these would absorb the gains on the trust assets, so that there would be no liability to cgt. So far as the advancements out of the No 5 settlement are concerned, part would be covered by the relevant beneficiary's annual exemption, but the balance was expected to be covered by losses incurred by each beneficiary.
19. In this respect, the premise on which the enlargement and the advancements were made was incorrect. Section 2(4) of the Taxation of Chargeable Gains Act 1992 provides that allowable losses cannot be set off against gains attributed to beneficiaries in these circumstances. The trustees' solicitors, Withers, overlooked that provision when advising on the proposed operations.
20. Mr Cutbill, the Second Claimant, was at the time a partner in Withers. Relevant advice was given partly by him, partly by his assistant in the firm and to some extent also by others within the firm.
21. Proceedings were then brought by the trustees against Mrs Futter and the three children, seeking declarations that the enlargement and the advancements out of each settlement were void and of no effect, or alternatively an order setting each aside. Later HMRC were added as a Defendant.
22. The matter came before Mr Justice Norris, as it happens on the very day on which Mr Englehart handed down his judgment in Pitt v Holt. In turn by his reserved judgment, given on 11 March 2010, [2010] EWHC 449 (Ch), Norris J held that the advancements were vitiated under the Hastings-Bass rule and should be set aside. He held that the consequence was that the transaction was void. Unlike Mr Englehart he did not have to consider any alternative approach based on mistake.

The appeals

23. In each case HMRC appeal, contending that, on a correct view, the Hastings-Bass rule does not justify a conclusion that the relevant disposition was void or even voidable. It is not suggested that either judge was wrong, at first instance, being bound, in effect, to follow the line of decisions that had developed since Mettoy. However, it is contended that, looking at the matter in terms of (a) the ratio of Re Hastings-Bass itself and (b) relevant principles of trust law, it is wrong to treat the acts of either Mrs Pitt or the trustees of the Futter settlements as vitiated by the fact that the fiscal consequences of what was done were different from what was expected. The argument on this point requires the court to go back both to Re Hastings-Bass itself and to first principles.
24. In Pitt v Holt the respondents served a Respondent's Notice by which they contend that, even if the Hastings-Bass rule does not justify the judge's order, the same conclusion should be reached by the application of the equitable jurisdiction to set aside voluntary dispositions entered into under a mistake. This is a jurisdiction which has not been considered by the Court of Appeal for a very long time, but on which there have been several recent decisions at first instance.
25. We had the benefit of full and helpful written and oral submissions from Mr Philip Jones Q.C., leading Ms Ruth Jordan, for HMRC in each appeal, from Mr William Henderson for the respondents in Pitt v Holt and from Mr Richard Wilson leading Ms Jennifer Seaman for the respondents in Futter v Futter.
26. We were favoured (if that is the right word) with authorities on the two issues spread over (in the end) nine binders. Relatively few of these were cited to us in oral argument, on either aspect of the cases. The bundles did include a small selection from the very many published articles and lectures about the Hastings-Bass rule, notably one by Sir Robert Walker, as he then was, published in 2002 and one by Lord Neuberger in 2009. Mr Justice David Hayton has also written on the subject in the 17^th edition of Underhill on Trusts and Trustees and also, published since the hearing of the appeals, the 18^th edition.
27. I drew to the attention of Counsel one very recent article which had come to my attention: "In defence of the rule in Re Hastings-Bass", by Michael Ashdown, published in Trusts and Trustees in November 2010 at page 826. I am also indebted to Mr Ashdown for an introduction to some comparative law on the point, with reference to cases and articles from Australia, Canada and New Zealand. None of these is sufficiently close to the points at issue on these appeals for it to have been necessary to lengthen the hearing still further by inviting submissions from Counsel on them, though the leading Australian case Karger v Paul [1984] VR 161 is in our bundles of authorities. Nor did Counsel take the opportunity to make submissions about Mr Ashdown's interesting analysis in his article.
28. Given the way in which the appeals were argued, it is necessary to examine fully both the Hastings-Bass rule and the equitable jurisdiction in relation to voluntary dispositions made under a mistake. I will start with the former. This will inevitably be a rather extended process.

The Hastings-Bass rule

29. In Sieff v Fox at paragraph 119(i) I set out what then seemed to me to be the best formulation of the Hastings-Bass rule, on the basis of the first instance decisions:

"Where trustees act under a discretion given to them by the terms of the trust, in circumstances in which they are free to decide whether or not to exercise that discretion, but the effect of the exercise is different from that which they intended, the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account."

30. I made a number of other general comments later in paragraph 119, not all of which are of relevance to these appeals. I did not think that the principle applied only in cases where there has been a breach of duty by the trustees, or by their advisers or agents, as Lightman J had held in Abacus Trust Co (Isle of Man) v Barr [2003] EWHC 114 (Ch), [2003] Ch 409, to which I will refer later. I found attractive the view expressed by Lightman J in that case, that if the principle is satisfied, the act in question is voidable rather than void, but it seemed to me to require further consideration, in the light of earlier authority. I was in no doubt that, as a general proposition, fiscal consequences were among the matters which may be relevant for the purposes of the principle.
31. Both of the judgments under appeal proceeded on the basis that the principle was as I set it out, as quoted above. In argument before us it was accepted that the rule, as developed at first instance, was fairly set out in that passage.
32. Having now had the opportunity to re-examine Re Hastings-Bass, it seems to me to be clear that the case itself does not bear out or support the rule so formulated. The starting point has to be the ratio decidendi of that case.

Cases before Re Hastings-Bass deceased: Vestey and Abrahams

33. Before I analyse the Court of Appeal's decision, however, I must refer to two previous cases. The first is Re Vestey's Settlement [1951] Ch 209. The income of a fund was held on trust to be paid or applied to or for the support or benefit of the members of a class as the trustees might decide in their discretion. The trustees resolved in each of three successive periods to distribute part of the income to certain adult beneficiaries and declared the balance to belong to infant beneficiaries in specified shares. The minute of each resolution went on to record that the trustees were of the opinion that none of the income falling to infant beneficiaries under the resolution was required for the maintenance of the beneficiaries and accordingly they resolved that the income should be accumulated under section 31 of the Trustee Act 1925. It appeared that, in taking this decision, the trustees had regard to the fact that if income were distributed it would be subject to surtax whereas if it were accumulated it would not be taxed in that way.
34. Later the trustees came to doubt whether what they had done had been effective as they had intended, and they brought proceedings to have the position clarified, joining the adult beneficiaries and the infant beneficiaries as defendants. Harman J held that the allocation of the income to the infants with a view to its being accumulated was not a valid exercise of the power conferred by the settlement. The infant beneficiaries appealed to the Court of Appeal. There the situation was analysed differently. It was held that the allocation of the balance of the income to the infant beneficiaries was valid under the power in the settlement, as an application of the income for their benefit, but that this made the income the absolute property of the relevant beneficiaries, and the power to accumulate under section 31 therefore did not apply. That then raised the question whether, because of the erroneous belief that the income would fall to be accumulated, the allocation of the income to the infant beneficiaries was valid and effective at all. It is that last question that makes the case relevant to the Hastings-Bass debate.
35. Sir Raymond Evershed MR put the issue, at [1951] Ch 220, as being whether the court should hold:

"that there has been no effective exercise of the discretion on the ground that the trustees intended to undertake this operation on the footing that they were producing a specific result, and that, if they produced a wholly different result, it would not be right to say that they had exercised their discretion."

36. Shortly after that he said that the question had to be decided having regard to the terms of the resolutions as a whole. His conclusion was that the allocation of funds to the infant beneficiaries was the essence of the operation, and that the reference to accumulation was no more than setting out "the mechanical results which had to be applied". He said at page 220-221:

"I do not think that it can or ought to be said that if, as I hold, the trustees wrongly thought that section 31 would operate, then a result is produced substantially or essentially different from that which was intended."

37. Asquith and Jenkins LJJ agreed with the Master of the Rolls on this and the other points in the case, neither of them adding anything on this point.
38. That, therefore, was a case in which the trustees had exercised a power under the settlement for the benefit of the relevant beneficiaries, in a way which, in itself, could not be said to be outside the scope of the power. They had done so in terms which showed that they intended, or at least expected, a certain result to follow as a matter of law, but it turned out that it did not. Instead of the income being accumulated under section 31, so as to be (a) capable of later application for the benefit of the relevant beneficiary and (b) incidentally, not subject to surtax, it belonged to the beneficiary absolutely. Construing the trustees' resolutions, the court held that the accumulation of the income was not of the essence of the trustees' decision, and that the error in this respect did not vitiate the exercise of the discretion. It was therefore a question of construction rather than of any overriding general principle.
39. The other case leading up to Re Hastings-Bass deceased itself is Re Abrahams' Will Trusts [1969] 1 Ch 463, decided by Cross J. A testator who died in 1943 created trusts in his will for his children, issue and other beneficiaries. Under a special power included in the will trusts, a settlement was created in 1948 for the benefit of his two sons, their children and issue and other beneficiaries. By 1957 each son had two daughters, all of whom were born after the death of the testator. With the consent of the two sons (who had life interests), the trustees (purportedly) exercised their statutory power of advancement to advance funds out of the half share of one of the sons by way of a settlement for the benefit of his two daughters. The trusts of this settlement gave each daughter a protected life interest. Subject to that, each daughter had power to appoint in favour of her issue, with default trusts for her issue and yet further default trusts.
40. The problem with this settlement was that in 1962 the House of Lords held in Re Pilkington's Will Trusts [1964] AC 612 that, although an advancement under section 32 could be made by way of sub-settlement, the rule against perpetuities applied to such an operation in the same way as it did to the exercise of a special power of appointment. Therefore the trusts of the sub-settlement had to be tested for perpetuity by being written back into the original settlement. Under the law as it stood before the Perpetuities and Accumulations Act 1964, any interest which might not vest within a period consisting of any relevant life in being at the date of the original settlement plus 21 years would be void.
41. The effect of this in the Abrahams case was that the protected life interest for each daughter was valid, because each daughter would become entitled to it on attaining the age of 21. The daughter's father was alive at the death of the testator, and the daughter must therefore acquire the protected life interest within the permitted period. All other provisions of the trusts of the sub-settlement, however, starting with the discretionary trust arising on forfeiture of the protected life interest, and including all provisions as to capital, might vest outside the permitted period, and they were therefore all void. Thus, all that could take effect out of the advancement by way of sub-settlement was the life interest of each daughter until an event of forfeiture. Upon forfeiture (if it ever occurred) or otherwise on the daughter's death, the property would revert to the trusts of the 1948 settlement. Although the details of these trusts are not set out in the report, they appear to have been first for the children and issue of one son, then for the children and issue of the other son, and then for the testator's nephews and nieces.
42. By the proceedings, the trustees of the 1957 settlement asked a series of questions, of which the relevant one was this:

"whether, on the true construction of the will, the 1948 settlement and the 1957 settlement and in the events which had happened the advances in favour of Carole and Linda were (a) valid or (b) invalid (i) by reason of the alterations to the effect of the declared trusts, powers and provisions of the 1957 settlement effected by operation thereon of the rule against perpetuities, or (ii) for any other and if so what reason".

43. On this point the issue seems to have been argued between Counsel for the daughters, seeking to uphold at least the protected life interests, and Counsel for the Revenue who argued that the advancement was entirely ineffective. Cross J held in favour of the latter contention. He addressed this issue in his judgment starting at [1969] 1 Ch page 478C. Mr Goulding Q.C. for the Revenue argued that the trustees were "exercising the power of advancement on the footing that they were producing a certain result, and in fact they produced a totally different result; and so, he says, it would not be right to say that they had exercised the power at all": see page 483D. He relied on the decision in Re Vestey's Settlement in support of this argument.
44. Cross J referred to Re Pilkington's Will Trusts, but said that it did not resolve the issue before him. He accepted that there was an analogy between a power of advancement and a special power of appointment, but pointed out that a power of advancement is exercisable for the benefit of a single beneficiary. Accordingly, the effect of the invalidity of some limitation in a sub-settlement may be different according to whether it is made under a power of advancement or a power of appointment, since in the former case it has to be tested as to whether it is for the benefit of the single beneficiary to be advanced. He commented that "the interests given to separate objects of an ordinary special power are separate interests, but all the interests created in [the daughter's] fund were intended as part and parcel of a single benefit to her".
45. The reasoning that led to his conclusion is set out immediately after that passage, at page 485:

"Of course, it may well be that, if the invalidity caused by the operation of the rule against perpetuities is quite small as compared with the parts of the settlement which are unaffected by the rule, the court might be prepared to say that the valid parts of the settlement would survive intact. Thus Lord Evershed M.R. held in the Vestey case that the exercise of the discretion there could be upheld notwithstanding the fact that the trustees were to some extent under a misapprehension as to what its effect would be. But here there is no doubt that the effect of the operation of the rule is wholly to alter the character of the settlement. In my judgment the result of that must be that there never was a valid exercise by the trustees of the power of advancement."

Re Hastings-Bass deceased: the decision

46. Re Hastings-Bass deceased requires close analysis, as the origin of the rule is ascribed to it, and it is binding on us. I will have to make extensive reference to and quotations from it.
47. Like Re Abrahams' Will Trusts, it was a case where there had been (purportedly) an advancement by way of sub-settlement, in 1958, but the trusts of the sub-settlement after a life interest to one beneficiary were void for perpetuity in the light of Pilkington. Captain Hastings-Bass was entitled to a life interest under a settlement made in 1947. His sister made a settlement in 1957 under which his eldest son William had a life interest, with trusts of capital in favour of William's children and in default other trusts. The rate of estate duty prospectively payable on the property passing on the death of Captain Hastings-Bass was very high, and property in which he had a life interest under the 1947 settlement would be treated as passing on his death for estate duty purposes. In order to reduce the burden of estate duty the solicitor to the trustees of the 1947 settlement suggested that property be advanced out of the 1947 settlement for the benefit of William Hastings-Bass to be held on the trusts of the 1957 settlement. Thereby, Captain Hastings-Bass' life interest in the advanced fund would come to an end and instead William Hastings-Bass would hold a life interest in it. That was done in 1958. However, the perpetuity problem arising from the House of Lords' decision in Pilkington affected all interests in the sub-settlement other than the life interest in favour of William Hastings-Bass, because he was born after the date of the 1947 settlement. Captain Hastings-Bass died in 1964. The Revenue contended that the advancement was ineffective, and that therefore Captain Hastings-Bass' life interest had continued until his death in relation to the supposedly advanced fund. The trustees of the 1947 and the 1957 settlements brought proceedings against the Revenue to determine whether or not this was the case. Plowman J followed Abrahams and held that the advancement did not take effect at all. The trustees appealed to the Court of Appeal and succeeded.
48. Most usefully, the report at [1975] Ch 25 sets out clearly the arguments addressed to the court by Mr Slade Q.C. for the trustees and by Mr Browne-Wilkinson Q.C. for the Revenue. In the light of later developments of the law it is worth noting a number of the grounds on which Mr Slade challenged the decision in Re Abrahams. He criticised the distinction drawn by Cross J between the test for the validity of the exercise of a power of advancement and that of a special power of appointment. He went on to make three points which could be said to be rather prescient (see [1975] Ch at 28F-29A):

"(iii) The decision is objectionable on grounds of public policy (a) because it involves the bona fide exercise of trustees' discretions, falling within the letter of their powers, being open to attack years later on grounds that the trustees had been under some misapprehension of law or fact and (b) because it would give rise to many uncertainties in the administration of the law because of difficulties in drawing the line.

(iv) The decision conflicts with the well established principle that where trustees have been given an absolute discretion and have exercised it within the letter of their powers, the court will not subsequently interfere with such exercise provided it has been exercised in good faith and not demonstrably unreasonable. …

(v) The decision is unsupported by authority. If it were open to persons to attack an exercise of trustees' discretion merely on the grounds that, although exercised bona fide, it had been exercised under some mis-apprehension, one would expect the reports to be full of such cases. There appear to be no reported cases where such an attack has been made."

49. The subsequent first instance decisions on the Hastings-Bass rule might be said to fulfil an implicit prophecy in Mr Slade's fifth point: the reports are now rather full of such cases. Moreover, as some commentators point out, these do involve attacks on the trustees' exercise of their discretion, though made in good faith, on the grounds that the trustees were under a misapprehension of law or fact, but these attacks are by and large made by the trustees themselves for the sake of the beneficiaries in order to save the fund from the impact of fiscal liabilities, and they have not been made by the Revenue seeking to establish that the fund is subject to such a liability.
50. For the Revenue, Mr Browne-Wilkinson put forward seven propositions, of which I wish to draw attention to the second and fourth as being particularly relevant to the issue on the present appeals (see [1975] Ch page 29):

"(2) The power of advancement is a fiduciary power only capable of being validly exercised after the trustees have exercised their discretion properly, i.e., after giving due weight to all relevant factors, in particular to the benefit to be conferred on the advancee: In re Pauling's Settlement Trusts [1964] Ch 303.

(4) Therefore, in order to exercise the power of advancement by making a sub-settlement the trustees must weigh the benefits to the advancee under the sub-settlement against the other interests affected and for that purpose must have a proper understanding of the effect of the sub-settlement. If they do not, they have not validly exercised their power at all. This is tied up with passages in Pilkington. Cross J. thought the trustees must apply their minds to the question of balancing on one side the benefit to the advancee and others against other factors, the effect on the trust subsisting under the settlement. Unless the conglomerate benefit to the advancee is found, the weighing operation cannot be carried out: see In re Pilkington's Will Trusts [1961] Ch. 466, per Upjohn L.J. at pp. 489, 490 and [1964] A.C. 612, per Viscount Radcliffe at pp. 641, 642, accepted unanimously by the House of Lords. Until the trustees have weighed the benefits they cannot have applied their minds to the right question."

51. Mr Slade's response to those points is reported as follows, at [1975] Ch page 31-2:

"(2) The argument on this point is derived from In re Pauling's Settlement Trusts [1964] Ch 303; the trustees accept the principle as laid down by the Court of Appeal at p. 333 but say that the duty imposed on trustees, as explained in that case, only extends to applying their minds to what they know or could reasonably be expected to know. The duty of the trustees here did not extend to forecasting what the House of Lords would decide in Pilkington six years later.

(4) which ties in with (2), is wide and if correct would have far-reaching significance in trusts. It is erroneous. The courts in general do not undertake a retrospective examination of the states of mind of trustees in exercising discretions. The words "must have a proper understanding of the effect of the sub-settlement" are much too wide and should read "must apply their minds to the effect of the settlement." If they do not do this, the exercise of the discretion may well be held invalid as being "merely wanton or capricious and not to be attributable to a genuine direction": Pilkington [1964] A.C. 612, 641. Here the trustees took legal advice and therefore, reasonably and in good faith, thought that the sub-settlement was not perpetuitous."

52. Buckley LJ gave the judgment of the court. Having set out the essential facts and summarised the contentions of the parties, he turned to Re Abrahams. At page 37C-D he said that he understood Cross J to have decided Abrahams on the basis of the point which was the Revenue's fourth submission, as I have quoted it above, and that it was therefore necessary to consider whether that submission was sound in principle. He elaborated on the submission by Mr Browne-Wilkinson as follows, at [1975] Ch 37D-F:

"The power of advancement is, he says, a fiduciary power, and as to this we think there is really no dispute. He says that the trustees can only properly exercise such a power after giving due consideration and weight to all relevant circumstances. As they must weigh the benefit which the advancement will confer upon the person advanced against those interests under the settlement which will be adversely affected by the advancement, they cannot give due consideration and weight to the benefit to be conferred on the person advanced unless they appreciate the true nature of that benefit. Mr Browne-Wilkinson contends that, if in the present case when the trustees made the advancement they believed that all the trusts of the sub-settlement would take effect, they cannot have applied their minds to the right question."

53. He then considered Pilkington, and went on to mention some of the salient facts of the Hastings-Bass case, including the prospective burden of estate duty and the saving that would be achieved if at least a life interest was created in favour of William Hastings-Bass by the advancement. It seems that there was no evidence as to the actual considerations in the minds of the trustees when they exercised the power of advancement, but the evidence did include a letter from Captain Hastings-Bass describing what had been suggested by the trustees' solicitors as a scheme whereby the enormous death duties might be reduced on the settlement. Against that background Buckley LJ considered at page 39 what the trustees should be taken to have addressed their minds to when considering whether to make, and then in making, the advancement. It may be helpful to quote the following passage:

"We can feel no doubt that in such circumstances the duty-saving aspect of the scheme was a primary consideration in the minds of the trustees. The trusts of the sub-settlement which were intended to take effect after William's death in favour of his issue could also (had they been capable of taking effect) legitimately be regarded as beneficial to him as making some provision for any issue he might have for whom he would otherwise be expected to wish to make provision out of his free estate, and as securing the fund for that end. The intended power for William to make provision for a widow under the sub-settlement could also legitimately be regarded as benefiting William indirectly in a similar manner, and the power for the trustees to pay capital to him for his own use could also clearly be regarded as conferring a contingent benefit on him. But, in our opinion, these indirect or contingent benefits (had they been capable of taking effect) should be regarded as mere make weights which might be treated as enhancing the benefit to William of the scheme as a whole, but which were of far less significance than the major benefits of the saving of death duties coupled with an acceleration of William's interest.

In these circumstances, to what considerations is it reasonable to suppose that the trustees addressed their minds before making the advancement? No doubt it is right to say that they should and would have considered whether the aggregate of all the provisions of the sub-settlement (if fully effective) would be for William's benefit, but in doing so they could not, we think, have failed to consider to what extent each of those provisions could properly be regarded as contributing to the aggregate benefit, and in particular they could not have failed to consider to what extent the conferring upon William of an immediate and indefeasible life interest in possession would benefit him. The circumstances of the case, in our view, make it clear that this aspect of the arrangement must have been the prime consideration in the minds of the trustees, and this is, we think, borne out by the terms of Captain Hastings-Bass's contemporary letter to which we have already referred."

54. He observed that the failure of the ultimate trusts under the sub-settlement for perpetuity could not, on the facts of the case, decrease the benefit for William Hastings-Bass of the scheme, especially as it left intact his contingent interest in capital under the 1947 settlement. In turn, as regards weighing up the benefits to the advancee of the proposed advancement against its effect on the expectant interests of others under the original settlement, the latter would clearly be less adversely affected by an advancement under which only a life interest was created than they could have been if new interests in capital had been brought into being, and moreover they had the benefit of the estate duty saving. On this basis he said at [1975] Ch 40C-D:

"Had it occurred to the trustees that the ulterior trusts might all fail for perpetuity, they could not reasonably have thought that this could tip the scales in the weighing operation against the scheme. The law cannot, in our judgment, require the trustees' exercise of their discretion to be treated as a nullity on the basis of an absurd assumption that, had they realised its true legal effect, they would have reached an unreasonable conclusion as the result of the weighing operation."

55. He then posed the crucial question, namely whether it could be said that the trustees had not exercised their discretion under section 32. The transfer of the investments to the trustees of the 1957 settlement was the product of an exercise of some kind of discretion. He went on at [1975] Ch 40E-H:

"If one asks what discretion they exercised, there can be no doubt that they believed themselves to be acting under section 32. They made the transfer to the 1957 settlement trustees because they considered that it would benefit William. Can the fact that they believed their action would have a different legal effect from the limited effect which alone it could have result in the transfer not having been an exercise of their discretion under that subsection? There is no reason to suppose that, in the light of their own understanding or advice as to the law, they failed to ask themselves the right questions or to arrive in good faith at a reasonable conclusion. Amongst the questions they must have asked themselves was the question whether a sub-settlement limiting William's interest in the advanced fund to a life interest would be for his benefit. For reasons which we have already indicated, the only answer which they could reasonably have given themselves to that question would have been affirmative, even without regard to any indirect or contingent benefits intended to be conferred on William by the other provisions of the sub-settlement. They may not have asked themselves whether to give William an immediate life interest without any further variation of the trusts of the 1947 settlement would benefit William, but the consequence would not, in our opinion, be that their action should be regarded as something other than an exercise of their discretion under section 32."

56. Then he set out a more general proposition, which also needs to be quoted, at [1975] Ch 40H-41C:

"Where trustees intend to make an advancement by way of sub-settlement, they must no doubt genuinely apply their minds to the question whether the sub-settlement as a whole will operate for the benefit of the person advanced, but this does not, we think, involve regarding this benefit as a benefit of a monolithic character. It is, in our opinion, more naturally and logically to be regarded as a bundle of benefits of distinct characters. Each and all of those benefits is conferred, or is intended to be conferred, by a single exercise of the discretion under section 32. If by operation of law one or more of those benefits cannot take effect, it does not seem to us to follow that those which survive should not be regarded as having been brought into being by an exercise of the discretion. If the resultant effect of the intended advancement were such that it could not reasonably be regarded as being beneficial to the person intended to be advanced, the advancement could not stand, for it would not be within the powers of the trustees under section 32. In any other case, however, the advancement should, in our judgment, be permitted to take effect in the manner and to the extent that it is capable of doing so."

57. After that he returned to Re Abrahams. The distinction between that case and Re Hastings-Bass on the facts was that each daughter had only a protected life interest under the sub-settlement, and that her interest in capital under the principal settlement was limited, being in half the capital contingently on her attaining 21 or marrying. Buckley LJ said this about Cross J's decision, at [1975] Ch 41 D-F:

"Cross J. might well have been justified in that case in considering that the intended sub-settlement in its attenuated form could not reasonably be regarded as beneficial to the daughter intended to be advanced and so could not be treated as an exercise of discretion falling within the terms of section 32. If so, we think he reached the right conclusion. His decision should not, in our judgment, be regarded as authority for the fourth contention of the commissioners in the present case. It should not, we think, be treated as laying down any principle applicable in any case other than one in which the effect of the perpetuity rule has been to alter the intended consequences of an advancement so drastically that the trustees cannot reasonably be supposed to have addressed their minds to the questions relevant to the true effect of the transaction. We do not consider that the operation of the rule has produced such a drastic effect in the present case."

58. In that passage, as it seems to me, Buckley LJ rejected in terms the Revenue's fourth submission, holding that it was wrong. Having said earlier that Cross J's decision appeared to be based on that point, he held that the decision could be justified on the basis (and only on this basis) that, because of the limited extent to which the sub-settlement could take effect, the advancement was one which, as properly understood, could not reasonably be regarded as being for the benefit of the advancee. It was therefore not within the scope of the power.
59. Having decided the case, therefore, on the basis which I have already set out, and having distinguished and limited the effect of Re Abrahams, Buckley LJ went on to provide a summary of what he had already said: see [1975] Ch 41F-H. This is the passage to which recourse has been had, far more often than any other, in the later decisions at first instance. It is as follows:

"To sum up the preceding observations, in our judgment, 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 not have taken into account, or (b) had he not failed to take into account considerations which he ought to have taken into account."

60. He said that (2) had not been established. The Revenue had a separate argument as to (1), namely that the power of advancement did not authorise a disposition which did not affect the beneficial interests in capital. He proceeded to reject that argument. Accordingly he held that the advancement was valid and effective, albeit that all interests under the sub-settlement other than the life interest in favour of William Hastings-Bass failed because of the perpetuity rule.
61. The decision in the case was that the advancement in 1958 was valid to create a life interest in favour of William Hastings-Bass, even though it purported also to create other beneficial interests, affecting the capital of the fund advanced, which did not take effect because of the perpetuity rule.
62. The ratio, however, seems to me to have been wider than that. At our request, each Counsel formulated for us a proposition as to what the ratio is. In my judgment, the rejection by the court of the Revenue's fourth submission in the case is part of the ratio. If that submission had been accepted, the fact that the trustees did not know what was the true effect of the advancement by way of sub-settlement would have been fatal by itself.

Re Hastings-Bass deceased – the ratio decidendi

63. It seems to me that the passage in which the ratio can be found most clearly, apart from the rejection of the Revenue's fourth submission, is the paragraph in Buckley LJ's judgment just before he turned back to consider Re Abrahams, as I have quoted it at paragraph [56] above. I would set the ratio out in the following terms.
64. Trustees considering an advancement by way of sub-settlement must apply their minds to the question whether the sub-settlement as a whole will operate for the benefit of the person to be advanced. If one or more aspects of the provisions intended to be created cannot take effect, it does not follow that those which can take effect should not be regarded as having been brought into being by an exercise of the discretion. That fact, and the misapprehension on the part of the trustees as to the effect that it would have, is not by itself fatal to the effectiveness of the advancement. (That involves the rejection of the Revenue's fourth submission.) If the provisions that can and would take effect cannot reasonably be regarded as being for the benefit of the person to be advanced, then the exercise fails as not being within the scope of the power of advancement. Otherwise it takes effect to the extent that it can.
65. I do not regard Buckley LJ's summary at the bottom of page 41, quoted at paragraph [59] above, as being part of the ratio. Though it may be a convenient summary of what has gone before, it does not appear to be intended to displace or supersede what had already been said. It does seem to me that its terms are such as to risk diverting attention from what the judge had already said, and in particular to lead the reader to overlook the rejection of the Revenue's fourth submission, stated expressly some ten lines earlier in the judgment. The reference to taking into account considerations which the trustees ought not to have taken into account, and failing to take into considerations that they should have taken into account, needs to be understood in a sense consistent with the rejection of the Revenue's fourth submission. An examination of the later cases at first instance (including my own decision in Sieff v Fox) seems to me to show that the summary has led to a misunderstanding of the effect of Re Hastings-Bass deceased.
66. If the problem to be resolved is what is the effect on an operation such as an advancement of the failure of some of the intended provisions, because of external factors such as perpetuity, it is not useful to ask what the trustees would have thought and done if they had known about the problem. The answer to that question is almost certainly that they would have done something different, which would not have run into the perpetuity or other difficulty. It is for that reason that the test has to be objective, by reference to whether that which was done, with all its defects and consequent limitations, is capable of being regarded as beneficial to the intended object, or not. If it is so capable, then it satisfies the requirement of the power that it should be for that person's benefit. Otherwise it does not satisfy that requirement. In the latter case it would follow that it is outside the scope of the power, it is not an exercise of the power at all, and it cannot take effect under that power.
67. In Re Hastings-Bass the issue was whether the advancement was valid or was void; had there been an advancement at all? The Revenue could only succeed (as they had done in Re Abrahams) by showing that no advancement had taken place, and that therefore there had been no change in the beneficial interests in the relevant property. It was irrelevant to consider whether the exercise of the trustees' power might have been vitiated by some fault which rendered it voidable at the instance of a person affected, i.e. a beneficiary, rather than entirely void. In such a case the exercise would be valid and effective unless and until avoided, and no party had sought to have the advancement avoided.

The decisions since Re Hastings-Bass deceased

68. I do not need to refer to all of the sequence of decisions at first instance by which the Hastings-Bass rule came to be developed, but I must mention a few of them, as well as two decisions of the Court of Appeal. I start with the first decision in the High Court, Mettoy Pension Trustees Ltd v Evans, which I have already mentioned.
69. In Mettoy the issue was as to the validity or otherwise of a deed made in 1983 by the company and the trustees of its pension fund, at a time when the company's financial position was precarious. Among other things, the effect of this deed was that, if there were a surplus of the pension fund on winding-up, it was to be applied at the absolute discretion of the employer so as to secure further benefits within Inland Revenue limits, and any balance remaining after that application was to be divided between the employers. The previous position as regards a surplus was different in a number of respects, of which the important feature was that the discretion to augment benefits was exercisable by the trustees, not by the employer. Later the company went into liquidation, and there remained a surplus in the pension fund after satisfying the entitlements of members. A number of questions were raised for the court's decision, including whether the power to augment out of a surplus was a fiduciary power or not, and whether the 1983 deed was wholly valid, or valid only in part. Following a long trial, Warner J held that the company's power to augment was fiduciary. In favour of the invalidity of the deed, at least in part, it was argued that the trustees' act in executing the deed was vitiated because they had failed to take into account considerations which they ought to have taken into account, and that but for that failure they would have acted differently. At [1990] 1 WLR 1624B the judge said this:

"I have come to the conclusion that there is a principle which may be labelled 'the rule in Hastings-Bass'. I do not think that the application of that principle is confined, as Mr Nugee suggested, to cases where an exercise by trustees of a discretion vested in them is partially ineffective because of some rule of law or because of some limit on their discretion which they overlooked. If, as I believe, the reason for the application of the principle is the failure by the trustees to take into account considerations that they ought to have taken into account, it cannot matter whether that failure is due to their having overlooked (or to their legal advisers having overlooked) some relevant rule of law or limit on their discretion, or is due to some other cause.

It is not enough, however, for the principle to apply, that it should be shown that the trustees did not have a proper understanding of the effect of their act. It must also be clear that, had they had a proper understanding of it, they would not have acted as they did. That is apparent from Re Hastings-Bass itself, where the Court of Appeal rejected what it referred to as the fourth contention of the Commissioners of Inland Revenue."

70. The judge also held that the application of this principle could enable the court to declare invalid part of an exercise by trustees, leaving the rest valid and effective: see this passage at [1990] 1 W.L.R. 1624H-1625A:

"Nor can I accept Mr Nugee's 'all or nothing' argument. There may well be cases where the court, giving effect to the rule in Hastings-Bass, comes to the conclusion that, had the trustees not failed to take into account considerations which they ought to have taken into account, they would not have acted as they did at all, but would either have done nothing or done something quite different. In such a case the court must declare void the whole of the purported exercise of the trustees' discretion. There may however be cases where the court is satisfied that the trustees would have acted in the same way but with, for instance, the omission of a particular provision in a deed. I do not see why, in such a case, the court should not declare only that provision void. It seems to me that the remedy to be adopted by the court must depend on the circumstances of each case."

71. He then proceeded to ask himself, first, what the trustees were under a duty to consider, secondly whether they failed to consider it, and thirdly what they would have done if they had not so failed. On the first point, pressed with the submission that it was not necessary for trustees to consider every detail of a complex deed such as that made in 1983, and with their dependence on professional advice, he said that although in practice they had to rely on professional advice, the "duty to take into account all material considerations is that of the trustees": see [1990] 1 W.L.R. at 1626A. It was not affected by the amount or quality of the professional advice sought or given. He then held that they had not taken all matters into account, as regards the effect of the deed in changing the current provisions of the rules, that they ought to have done. The critical difference was the change as regards the exercise of the power to augment out of a surplus. He held that if the company's power had been an unfettered discretion, the trustees would have objected to the change, and would not have executed the deed in that form. Since, however, he had held that it was a fiduciary power, he held that they might well have decided to execute the deed despite the change. On that basis, the principle which he had identified was not satisfied and the deed was not in any respect invalid.
72. The principle on the basis of which the judge decided this aspect of the case cannot, in my judgment, be found in the decision in Re Hastings-Bass itself. What the trustees did in relation to the Mettoy pension scheme was within their powers, on any basis. The challenge was to the propriety of their exercise of the power. To use an analogy with corporate law, the execution of the deed could not be said to have been ultra vires, which is what the Revenue argued in Re Hastings-Bass; rather it was an exercise of a power which might have been vitiated by a breach of duty on the part of the trustees in deciding whether or not to enter into the deed, as some acts by a company within its powers are (potentially) vitiated by a breach of duty on the part of the directors. As it seems to me, the breach of duty by the trustees of the Mettoy pension scheme (if it had been established) would have rendered the deed, at most, voidable, and certainly not void. If it had been void, I do not see how there could have been any question of it being partly valid and partly void, as the judge contemplated in the passage cited at paragraph [70] above. Either it was void, in which case the whole deed would have failed, or it was not, in which case no part of it would have failed. Whether partial invalidity is a possible consequence if an exercise of trustees' power is vitiated by breach of duty so as to be voidable, though not void, is a question which may need to be addressed on another occasion. It does not arise in the present cases. Sir Andrew Park had something to say on this topic in Smithson v Hamilton [2007] EWHC 2900 (Ch), [2008] 1 WLR 1453, at paragraphs 68 to 72.
73. In Stannard v Fisons Pension Trust Ltd [1992] IRLR 27, the Court of Appeal had to consider a dispute arising from the sale of a division of Fisons, with the transfer to the purchaser's employment of 2,500 employees who had previously been members of the Fisons pension scheme. The sale agreement provided for the trustees of the Fisons pension scheme to make an appropriate transfer of assets and money to the purchaser's pension scheme in respect of the transferring members. The basis of calculation of the amount to be paid was agreed, but the calculation was for the Fisons trustees, under the rules, as being what they considered, after consulting the scheme actuary, to be just and equitable. The trustees took account of the last actuarial valuation of the Fisons scheme, but not of the fact that, since then, the value of the fund had grown very substantially. Warner J at first instance held that the trustees' determination of the amount to the transferred had been flawed for this reason. The Court of Appeal agreed. Dillon LJ followed an earlier Court of Appeal decision Kerr v British Leyland (Staff) Trustees (1986), now reported at [2001] WTLR 1071, which was also concerned with rights in the context of employment, and held that the trustees were obliged to give properly informed consideration to the question before them, and that, in the Fisons case, that included giving consideration to the current value of the fund.
74. Re Hastings-Bass was cited to the Court of Appeal in Stannard v Fisons, and the Court of Appeal had no difficulty in reconciling that decision with Kerr and with its own conclusion. The report does not record that Mettoy was cited and it is not mentioned in any of the judgments.
75. The next case I should mention was also in the Court of Appeal, and also a pensions case: Edge v Pensions Ombudsman [2000] Ch 602. Re Hastings-Bass is not recorded as having been cited, though Kerr and Stannard were, and Peter Gibson LJ might have been reminded, by the reference in Stannard to Re Hastings-Bass, of the latter case in which he had been Mr Browne-Wilkinson's junior for the Revenue. The trustees of a pension scheme which was in substantial surplus had amended the rules so as to reduce the surplus, reducing contributions from employers and active members, and increasing benefits for active members, but not for pensioners. Some pensioners complained to the Pensions Ombudsman, who held that the changes had been made in breach of trust because the trustees had not acted impartially between the different classes of beneficiaries, and that the amendments should be treated as not having been made. Sir Richard Scott VC allowed the trustees' appeal, and this was upheld by the Court of Appeal.
76. Chadwick LJ, giving the judgment of the court, said at the top of page 626 that the right of the beneficiaries (given that there was a surplus) was to have the question of an increase in benefits properly considered. He then referred to a number of matters which the trustees ought to take into account when deciding how to exercise a relevant power, the trustees being under a duty to consider such exercise (as would not normally be the case in a discretionary trust set up for a family). He then said at [2000] Ch 627:

"The essential requirement is that the trustees address themselves to the question what is fair and equitable in all the circumstances. The weight to be given to one factor as against another is for them.

Properly understood, the so-called duty to act impartially - on which the ombudsman placed such reliance - is no more than the ordinary duty which the law imposes on a person who is entrusted with the exercise of a discretionary power: that he exercises the power for the purpose for which it is given, giving proper consideration to the matters which are relevant and excluding from consideration matters which are irrelevant."

77. Having used that formulation, he referred to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. He did not have to consider how far the analogy with the principles applicable in public law cases could or should be pressed in a pension scheme case. For my part, I would wish to discourage reference to such public law principles in relation to trust law, since trust law has plenty of satisfactory means of dealing with the issues that arise under trusts, and those issues are inherently different from those arising in public law. Later, at page 633, he said:

"Nevertheless, there is no doubt that the trustees' decision can be set aside if it can be shown that they failed to consider matters which were relevant, or took into account matters which were irrelevant."

78. The court held that the trustees had not acted in breach of duty in making the particular changes. It is clear, however, from Chadwick LJ's reasoning that, if he had held that the exercise of the power had been vitiated, it would have been by a breach of duty on the part of the trustees in failing to give proper consideration to relevant factors, or in taking into account irrelevant factors. It would therefore have been analogous to Stannard v Fisons, and the trustees' act would have been voidable, not completely void. That said, the pensioners who complained to the Ombudsman were beneficiaries who could have sought to have the act avoided.
79. It was not until after these decisions that the rule enunciated by Warner J in Mettoy began to be used in relation to private trusts. The first such case was Green v Cobham [2000] WTLR 1101. This concerned property subject to offshore trusts in respect of which substantial capital gains had accrued. It was desired that some of the property be distributed to or for the benefit of beneficiaries who were UK resident but that this be done in a tax-efficient way. This was done by a series of steps, including appointments by the trustees on two separate accumulation and maintenance trusts for the minor beneficiaries, executed in November 1990. Under the provisions of the capital gains tax legislation, the main trust, out of which the appointments were made, and the two accumulation and maintenance trusts were treated as a single composite settlement with a single body of trustees consisting of the trustees of all three settlements. There were ten such trustees, of whom four were UK resident and six were, or were treated as, not UK resident. Three of these six (a solicitor and two accountants) were UK based professionals each of whom was treated by the legislation as not being UK resident so long as he carried on a business which included the management of trusts and was a trustee in the course of that business. That was all well and good, save that the solicitor had already stated his intention to retire from practice at the end of 1990. He remained a trustee, but after his retirement he was no longer treated as not being UK resident and he was in fact resident in the UK. That meant that the composite settlement no longer had a majority of non-resident trustees and the body of trustees was no longer treated as itself not being resident in the UK. Because of this there was a substantial exposure to capital gains tax on assets in each of the three sets of trusts. It was clear from the evidence that the trustees were wholly unaware of the problem before they exercised the power of appointment, not realising that the whole of the trust property would be treated as part of the composite settlement, with this composite body of trustees, whose status as resident or not might be affected by the solicitor's retirement. Of course, if it had been realised, a number of steps could have been taken which would have avoided the consequence, including appointing additional non-resident trustees before the solicitor retired, quite apart from appointing on different trusts such that the minor beneficiary's fund was not part of a composite settlement with the main fund.
80. Jonathan Parker J set out the facts, and then quoted first Buckley LJ's summary from the bottom of page 41 of the report of Re Hastings-Bass, and then Warner J's transposition of this into a positive proposition in Mettoy, as well as referring to Edge. Despite a number of arguments addressed to him by Counsel for the minor beneficiary as to what the trustees might have done if they had realised the problem, he applied the Mettoy test and held that the deed of appointment in November 1990 was entirely void.
81. I need only refer in detail to one other in the sequence of first instance cases. This is Abacus Trust Co (Isle of Man) v Barr, already mentioned. This is particularly interesting both because it was provoked by a point which had nothing to do with tax consequences, and because of the judge's perceptive analysis of the issues arising. Under a settlement the settlor was entitled to a life interest, subject to an overriding power of appointment on the part of the trustee. He wished the trustee to exercise the power of appointment so as to create discretionary trusts over 40% of the fund for the benefit of his two sons, free from any interest of his own or of his wife. This wish was misunderstood or misinterpreted by the trustee's representative, who conveyed to it that the appointment should relate to 60% of the fund. The trustee proceeded accordingly. The mistake was discovered within months, in 1992. The settlor expressed his dissatisfaction but he did not take any legal advice on the point at that time, and he decided that no action should be taken, for fiscal reasons. Two years later the settlor reconsidered whether anything could or should be done about it. Again he chose not to take legal advice, and decided to leave matters as they stood. At that time a company whose shares were included in the trust fund floated on the London Stock Exchange another company in which it held shares. This led to substantial distributions of capital and income under the settlement, including to the sons. In 2001 the trustee received advice that the appointment was open to challenge, no doubt because of the then recent decision in Green v Cobham. The settlor wished the issue to be raised and the trustee therefore started proceedings to have the validity of the appointment decided, joining the settlor and his wife and also the sons as defendants.
82. The report of Counsel's submissions at [2003] Ch 410-412 shows that Buckley LJ's summary on page 41 of the report of Re Hastings-Bass was taken as showing what that case decided. It was also put to the judge that the consequence of a breach of the principle was that the exercise was void, not merely voidable, though that point was questioned on behalf of the sons.
83. Lightman J took the principle as being that "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": [2003] Ch 412F. He identified two particular issues: first whether a breach of fiduciary duty was necessary for the principle to apply and secondly whether, if the principle applied, it rendered an act of the trustees void or voidable. At paragraph 16 the judge referred to a number of cases as to the scope of the trustees' duty to inform themselves of matters relevant to their decision. He said:

"This duty lies at the heart of the rule, which is directed at ensuring for the protection of the beneficiaries under the trust that they are not prejudiced by any breach of such duty."

84. He referred to Buckley LJ's summary in Re Hastings-Bass, and to Warner J's transposition of the proposition in Mettoy. He held that the mistake was sufficiently significant to bring the principle into play.
85. The judge next asked himself whether a mistake on the part of the trustee was sufficient however it might have arisen. He held that it was necessary to show that the trustee in making its decision had failed to consider something that it was under a duty to consider. In paragraph 23 he said this:

"If the trustee has in accordance with his duty identified the relevant considerations and used all proper care and diligence in obtaining the relevant information and advice relating to those considerations, the trustee can be in no breach of duty and its decision cannot be impugned merely because in fact that information turns out to be partial or incorrect."

86. Therefore, he held (at paragraph 24) that the trustee was required to perform its duty in exercising its discretion, and the beneficiary had a remedy if the trustee failed in that duty, but that absent a breach of duty neither the trustee nor the beneficiary could have the decision declared invalid. He went on to hold, on the facts, that the trustee did fail in its fiduciary duty to ascertain the true wishes of the settlor to which the appointment was to give effect.
87. Then he turned to the issue whether the result of applying the rule was that the appointment was void or voidable. On the facts of that case the distinction was important, because of the settlor's conduct since he first discovered the error. At paragraph 31 the judge said this:

"The authorities leave open the question whether a decision successfully challenged under the Rule is voidable or void. (The problematic judgment of Farwell LJ in Cloutte v. Storey [1911] 1 Ch 18 on the effect of a fraud on a power raises difficulties pointed out by Lord Walker and cannot be determinative). There are statements in a number of the cases that the decision is void, but it is not clear how far the issue was fully argued, if argued at all, and so far as they do so decide, their weight and otherwise binding effect on me is diluted by the absence of reasoning and accord with principle by the fact that there appears to have been no reference made to the statement by Staughton LJ in Stannard (at para 66 p.237) that in the case of the challenge to the decision in that case the court had a discretion whether to declare the trustees' decision invalid. It is necessarily implicit in this statement in the private law context in which it is to be found that he was holding that the court had a discretion whether to avoid the trustee's decision i.e. it was voidable only."

88. He then referred to the striking case of Turner v Turner [1984] Ch 100 where trustees had for many years signed every document placed before them by their solicitors without understanding that they had any discretion to exercise. This has been likened to an example of equitable non est factum. He continued as follows at paragraphs 32 and 33:

"32. … But if the trustees have exercised the discretion conferred upon them, but in doing so have failed to take into account a relevant consideration or have taken into account an irrelevant consideration, it cannot in my view fairly or sensibly be held that they made no decision. It may be held that they made a flawed decision which is open to challenge, but that they made a decision is beyond question. The common law doctrine of "Non est factum" has a very narrow and limited application. The transaction must be essentially different in substance or in kind from the transaction intended: Saunders v. Anglia Building Society [1971] AC 1004 at 1026 per Lord Wilberforce. As Lord Walker suggests [in "The Limits of the Principle in Re Hastings-Bass" [2002] PCB 226, 233 and 239], a like requirement as to the essential nature of a transaction is surely called for before the equivalent rule can render a decision in equity no decision at all. The application of the rule cannot of itself have this effect.

33. A successful challenge made to a decision under the rule should in principle result in the decision being held voidable and not void. This accords with the ordinary principles of equity that (leaving aside the separate and distinct self-dealing rule) a decision challenged on grounds of breach of fiduciary duty is voidable and not void. That applies to the appointment which, as I have held, falls foul of the rule."

89. He therefore held that the appointment was voidable and not void. He adjourned the case for later consideration, if necessary, as to whether it should be avoided and if so on what terms.
90. I find it opportune to mention one other case at this stage, though not of the same kind. This is Scott v National Trust [1998] 2 All ER 705, in which Robert Walker J had to consider a challenge to a decision by the defendant, and commented on challenges to the exercise of a discretion by trustees. At page 718 he said this, having referred to Re Hastings-Bass, Mettoy and Stannard v Fisons:

"In an imperfect world trustees (like other decision-makers) do often make decisions which are based on less than complete information and less than full analysis and discussion, and there is real difficulty in formulating the test for determining when a decision is so flawed as to be invalid. The authorities just mentioned are not completely clear as to whether the test is whether the trustees, if properly advised and informed, would have acted otherwise, or whether it is that they might have acted otherwise. There is also the question of how materially different the trustees' decision would or might have been (for instance, on the facts of this case, the council of the National Trust might have decided on a ban, even contrary to donors' memoranda of wishes, but might have decided to defer the ban for a full year, that is until the end of the current season). To impose too stringent a test may impose intolerable burdens on trustees who often undertake heavy responsibilities for no financial reward; it may also lead to damaging uncertainty as to what has and has not been validly decided."

91. I should mention here a different point as well. In Re Hastings-Bass deceased the litigation was directly about tax. In those of the cases at first instance since then that have been concerned with private trusts (rather than pension trusts) tax has been the driving factor in each case other than Abacus v Barr, though not always the only relevant factor. As a general proposition (which is probably an over-simplification), tax is due on or as a result of transactions which are effective, not those which are not. In the case of iht, a specific provision in section 150 of the Inheritance Tax Act 1984 (IHTA) means that it does not matter whether a transaction is void or is set aside as voidable. In either case any tax paid on the transaction is to be repaid and any calculation made by reference to the transaction is to be redone without reference to it. Mr Jones told us that, without making any concession, he understood the position to be likewise in respect of other taxes. That may not be so in every case, but in principle it seems to be right, even though principle may not always be the decisive factor in relation to fiscal legislation. Accordingly, HMRC is an outsider in relation to the interests under a trust, but it is one that is entitled to test the position so as to have it determined what the beneficial interests are and have been in relevant property and what dispositions there may have been, in order to see how tax is to be charged.

Two different categories of case

92. It seems to me that Lightman J's analysis in Abacus v Barr points to the distinction between Re Hastings-Bass itself and the later cases in which the Hastings-Bass rule has been developed. In Re Hastings-Bass the issue was whether what the trustees had done was an exercise of the power of advancement under section 32 at all. If it was not, then it was entirely void. If on the other hand it was within the power, then there was no reason to regard it as ineffective to the extent that the rule against perpetuities permitted, i.e. as regards the life interest in favour of William Hastings-Bass. Only if it was void could the Revenue succeed. They had no right to challenge it as voidable (even if there had been any grounds for saying that it was) and no person who had such a right had sought to do so.
93. None of the later cases has raised an issue of that kind. In each case the trustees' exercise of their discretionary power has undoubtedly been within the scope of the relevant power. The trustees' act has been said to be vitiated by a failure on their part to comply with their duty to take all relevant matters into account, and not to take irrelevant matters into account.
94. In my judgment in Sieff v Fox I expressed doubt about two aspects of Lightman J's judgment, namely both his conclusion that a breach of duty was required and his decision that the consequence of a breach was that the trustees' act was voidable rather than void. With the benefit of further consideration it seems to me that Lightman J was right on both these points in relation to a case of the kind that was before him, like all or most of the other first instance cases in the sequence. My doubt was how his views could be reconciled with the decisions in Abrahams and in Hastings-Bass itself. As I now see it, the answer to that dilemma lies in the fact that those earlier cases are of a quite different nature. It has been said that Re Hastings-Bass did not involve applying what has come to be called the Hastings-Bass rule at all. As it seems to me, that rule was first created by Warner J in Mettoy, derived from Buckley LJ's summary on page 41 of the report of Re Hastings-Bass which, as I have said already, does not in my judgment form any part of the ratio of Re Hastings-Bass itself.
95. It may be difficult to break the habit that has grown up of referring to the principle as being the Hastings-Bass rule, despite the false affiliation that this involves. However, the court's task on this appeal is to identify what is the true principle. The decision in Re Hastings-Bass does not provide us with the answer.

What is the true principle?

96. The purported exercise of a discretionary power on the part of trustees will be void if what is done is not within the scope of the power. There may be a procedural defect, such as the use of the wrong kind of document, or the failure to obtain a necessary prior consent. There may be a substantive defect, such as an unauthorised delegation or an appointment to someone who is not within the class of objects. Cases of a fraud on the power are similar to the latter, since the true intended beneficiary, who is not an object of the power, is someone other than the nominal appointee. There may also be a defect under the general law, such as the rule against perpetuities, whose impact and significance will depend on the extent of the invalidity. Re Abrahams and Re Hastings-Bass together show that the effect on an advancement of invalidity by reason of something such as the rule against perpetuities may be such that what remains of the advancement is not reasonably capable of being regarded as for the benefit of the advancee. In that case the advancement will be void, since the power can only be used for the benefit of the relevant person and the purported exercise was not for his or her benefit. That is an example of an exercise outside the scope of the power. Otherwise, as in Re Hastings-Bass itself, it will be valid.
97. I must say something at this point about cases of fraud on a power, as to which there is Court of Appeal authority that the defect renders the appointment void, not merely voidable: see Cloutte v Storey [1911] 1 Ch 18. The principle is not to be stated narrowly, but an intention to benefit someone who is not an object of the power is generally of the essence. In Vatcher v Paull [1915] AC 372, Lord Parker of Waddington, giving the opinion of the Privy Council, said this at page 378:

"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. Perhaps the most common instance of this is where the exercise is due to some bargain between the appointor and appointee, whereby the appointor, or some other person not an object of the power, is to derive a benefit. But such a bargain is not essential. It is enough that the appointor's purpose and intention is to secure a benefit for himself, or some other person not an object of the power. In such a case the appointment is invalid, unless the Court can clearly distinguish between the quantum of the benefit bona fide intended to be conferred on the appointee and the quantum of the benefit intended to be derived by the appointor or to be conferred on a stranger."

98. In that case the appointment was held not to be defective on this ground. In Cloutte v Storey, on the other hand, it was clear that appointments made to one beneficiary were made under a bargain by which he paid the funds received over to his parents who were not objects of the power. To add a complication, the funds he received did not come directly from the trust fund but were obtained by mortgaging his interest under the appointment as security for loans from an insurance society. It was not in dispute, in the end, that the appointments were vitiated as frauds on the power. The issue was whether the lender's security took effect, it having had no notice of the fraud. Neville J held that the effect of the fraud was that the appointment was void, as it would have been if it had been directly in favour of a non-object. The Court of Appeal upheld this decision, Farwell LJ giving the substantive judgment. He observed that, since the competing interests were only equitable, the difference between void and voidable is of little if any importance (page 30). I confess that I do not find everything in Farwell LJ's judgment on this point as cogent as that judge's decisions so often are. I share the reservations expressed on this by Lightman J: see paragraph [87] above. It is not necessary to go into the point in more detail for present purposes, but although we are bound to hold that the effect of an appointment being found to have been made in fraud of the relevant power is that it is void, not merely voidable, I am not willing to apply that decision more extensively, by analogy, to cases to which it does not relate directly as a matter of decision.
99. By contrast with the types of case to which I have referred at paragraph [96] above, if an exercise by trustees of a discretionary power is within the terms of the power, but the trustees have in some way breached their duties in respect of that exercise, then (unless it is a case of a fraud on the power) the trustees' act is not void but it may be voidable at the instance of a beneficiary who is adversely affected. The interest of a beneficiary in the trust property continues until it is brought to an end by an act of the trustees done in accordance with the terms of the trust (or the general law). This is an incident of the beneficiary's right to have the trust duly administered in accordance with the provisions of the trust instrument and the general law: see Target Holdings v Redfern [1996] AC 421 at 434. If the act of the trustees which purports to alter or bring to an end the interest of a beneficiary is affected by a breach of fiduciary duty, then the beneficiary is entitled to restrain the trustees from acting on it, and to have it set aside, subject always to equitable defences and discretionary factors. Of course if a third party purchaser has acquired some relevant trust property as a result, he may have an indefeasible title, if he gave value without notice of the breach of fiduciary duty, but in such a case the beneficiary's interest would attach to the proceeds of the sale. As to this proposition, see Foskett v McKeown [2001] 1 AC 102 at 127F-G (Lord Millett), Venables v Hornby [2002] EWCA Civ 1277, [2002] STC 148 at paragraph 27 (Chadwick LJ) (a proposition not affected by the reversal of the Court of Appeal's decision by the House of Lords: [2003] UKHL 65, [2003] 1 WLR 3022), and Lewin on Trusts (18^th ed) paragraphs 41-12 and 41-13, and see also Underhill on Trusts and Trustees (18^th ed) paragraph 99.38. Dance v Goldingham (1873) LR 8 Ch App 302, referred to at paragraph [123] below, also illustrates this position.
100. If no relevant person takes any steps to have such an act by the trustees set aside, then it is as valid and effective as if there had been no vitiating factor. In that respect the position is the same as if a transaction is procured by misrepresentation, undue influence or fraud. The aggrieved party may seek to avoid the transaction but, first, avoidance is not a matter of right but is subject to a discretion on the part of the court, and secondly if there is no attempt, or no successful attempt, to avoid the transaction, it remains valid and effective as regards all concerned. This is also the position if a trustee enters into a transaction affected by the rule against self-dealing, for example buying an asset from the trust. That also involves a breach of fiduciary duty: see Gwembe Valley Development Co Ltd v Koshy [2003] EWCA Civ 1048, [2004] 1 BCLC 131. The transaction is not void, but it is voidable at the suit of a beneficiary.
101. In principle, cases where an act done by trustees which appears to be within their powers can be held to be void ought in my judgment to be kept to a minimum, just as at common law the cases where a transaction is void, rather than voidable, are few and far between. Robert Walker J's reference in the passage cited at paragraph [90] above to "damaging uncertainty as to what has and has not been validly decided" is very much in point here, as is what Lightman J said in his judgment in Abacus v Barr at paragraph 32: see paragraph [88] above. By contrast, if the defect renders the act voidable, the availability of equitable defences and the court's discretion as to the remedy make it easier to reach a just outcome while recognising the defect in the transaction.

What are the relevant duties of a trustee?

102. It is therefore necessary to consider the nature and extent of the duty of trustees in relation to their dispositive discretionary powers. This has been the subject of a number of authoritative observations and decisions, in different contexts. In Re Baden's Deed Trusts, [1971] AC 424 at 449, Lord Wilberforce considered the nature of the duty of trustees with a discretion exercisable as between the members of a very wide defined class. Taking first the case in which the discretion was not backed up by a trust to distribute, he said, at 449D:

"Any trustee would surely make it his duty to know what is the permissible area of selection and then consider responsibly, in individual cases, whether a contemplated beneficiary was within the power and whether, in relation to other possible claimants, a particular grant was appropriate."

He then went on:

"Correspondingly a trustee with a duty to distribute, particularly among a potentially very large class, would surely never require the preparation of a complete list of names, which anyhow would tell him little that he needs to know. He would examine the field, by class and category; might indeed make diligent and careful inquiries, depending on how much money he had to give away and the means at his disposal, as to the composition and needs of particular categories and of individuals within them; decide upon certain priorities or proportions, and then select individuals according to their needs or qualifications."

103. Summarising the position, a little later he said, at 449F:

"Differences there certainly are between trust (trust powers) and powers, but as regards validity, should they be so great as that in one case complete, or practically complete, ascertainment is needed, but not in the other? Such distinction as there is would seem to lie in the extent of the survey which the trustee is required to carry out: if he has to distribute the whole of a fund's income, he must necessarily make a wider and more systematic survey than if his duty is expressed in terms of a power to make grants. But just as, in the case of a power, it is possible to underestimate the fiduciary obligation of the trustee to whom it is given, so, in the case of a trust (trust power), the danger lies in overstating what the trustee requires to know or to inquire into before he can properly execute his trust."

104. Those observations were directed to the test for validity of a trust creating a duty to distribute within a very wide class, which was said to depend on whether the court could enforce the duty. In Re Pauling's Settlement Trusts [1964] Ch 303, which was the basis for some of the submissions made to the court in Re Hastings-Bass, at issue was the propriety of a number of advancements made under a particular provision in a settlement. The Court of Appeal said this about the exercise of the power at page 333:

"Being a fiduciary power, it seems to us quite clear that the power can be exercised only if it is for the benefit of the child or remoter issue to be advanced or, as was said during argument, it is thought to be "a good thing" for the advanced person to have a share of capital before his or her due time. That this must be so, we think, follows from a consideration of the fact that the parties to a settlement intend the normal trusts to take effect, and that a power of advancement be exercised only if there is some good reason for it. That good reason must be beneficial to the person to be advanced; it cannot be exercised capriciously or with some other benefit in view. The trustees, before exercising the power, have to weigh on the one side the benefit to the proposed advancee, and on the other hand the rights of those who are or may hereafter become interested under the trusts of the settlement."

105. I have already quoted passages from the judgment of the Court of Appeal in Re Hastings-Bass which were influenced by the earlier decision, including that set out at paragraph [52] above. Issues have in the past arisen as to whether a particular disposition is within the scope of the statutory power of advancement. As a notable example, the power has been held to enable trustees to advance money directly to charity if the beneficiary to be advanced in this way accepts that he is under a moral obligation to make donations to charity. In such a case it is for the benefit of the advancee to have his moral obligation to charity discharged more economically than if he made equivalent provision out of his own assets: Re Clore's Settlement Trusts [1966] 1 W.L.R. 955. That shows the width of the factors that may be regarded as relevant in a given case.
106. I have quoted at paragraph [76] above a pertinent passage from the judgment of Chadwick LJ in Edge v Pensions Ombudsman referring to the duty of trustees to give proper consideration to the matters which are relevant.
107. In addition, trustees are under a duty of care, obliging them to exercise such skill and care as is reasonable in the circumstances, under section 1 of the Trustee Act 2000. This puts into statutory form (in relation to specific functions of the trustees) the duty recognised in Speight v Gaunt (1883) 22 Ch D 727 and (1883) 9 App Cas 1, which continues to apply to cases where the statutory duty does not.
108. To consider the point from another angle, we were taken to the decision of Lord Truro, Lord Chancellor, in Re Beloved Wilkes' Charity (1851) 3 Mac & G 440, in which a decision by charity trustees to identify a particular young man as the appropriate object of the charity was challenged. The trustees had not stated the reasons for their decision, and the judgment is important, among other things, as recognising that charity trustees are not under a duty to give reasons for such a decision. So far as the substance of the trustees' duty is concerned, Lord Truro said at page 448:

"it is to the discretion of the trustees that the execution of the trust is confided, that discretion being exercised with an entire absence of indirect motive, with honesty of intention, and with a fair consideration of the subject. The duty of supervision on the part of this Court will thus be confined to the question of the honesty, integrity, and fairness with which the deliberation has been conducted, and will not be extended to the accuracy of the conclusion arrived at, except in particular cases. If, however, as stated by Lord Ellenborough in The King v. The Archbishop of Canterbury (15 East, 117), trustees think fit to state a reason, and the reason is one which does not justify their conclusion, then the Court may say that they have acted by mistake and in error, and that it will correct their decision; but if, without entering into details, they simply state, as in many cases it would be most prudent and judicious for them to do, that they have met and considered and come to a conclusion, the Court has then no means of saying that they have failed in their duty, or to consider the accuracy of their conclusion."

109. The duty there stated to undertake "a fair consideration of the subject", as part of the process of deciding how to exercise a power of choice as to the preferred object of the charity, has something in common with the duty addressed in more recent cases to take all relevant matters, and no irrelevant matters, into account, though it is stated in a less precise and possibly a less demanding manner.
110. We were reminded of Gisborne v Gisborne (1877) 2 App Cas 300 in which the House of Lords declined to interfere with the exercise of a discretion given to trustees as being, in express terms, uncontrollable, Lord Cairns, Lord Chancellor, stating that the trustees' discretion is to be without any check or control from the court unless there be some bad faith as regards the exercise. That was a strong case; the House of Lords did not call on Counsel for the respondent trustees, and the judgments of the Court of Appeal in Chancery are not reported. While both this case and Re Beloved Wilkes' Charity make it clear that the court will respect the exercise by trustees of a discretion vested in them, neither of them excludes the possibility of challenge if it appears that the trustees have acted in breach of their duties in respect of the exercise, for example by failing to give fair consideration to the question.
111. Reference was also made to Dundee General Hospitals Board of Management v Walker [1952] 1 All ER 896. The issue there was significantly different, as the gift claimed was payable only if the trustees were satisfied of a state of facts as to which, with the benefit of counsel's advice, they said that they were not so satisfied. That is not the same as a discretion to pay or not, as they thought fit. Lord Reid (at page 905) said that even where trustees are expressed to have an absolute discretion:

"If it can be shown that the trustees considered the wrong question, or that, although they purported to consider the right question they did not really apply their minds to it or perversely shut their eyes to the facts or that they did not act honestly or in good faith, then there was no true decision and the court will intervene."

112. In similar vein, Viscount Radcliffe said in Pilkington at [1964] AC 641:

"there does remain at all times a residual power in the court to restrain or correct any purported exercise that can be shown to be merely wanton or capricious and not to be attributable to a genuine discretion."

113. Those cases set a high test for the ability of the court to intervene where trustees have exercised a discretion in a way that is within the terms of the relevant power. The task for the claimant is all the greater if the trustees do not give reasons for their decision, though even in such a case reasons can often be inferred. In the cases since Mettoy the trustees have been forthcoming about their reasons, and have asserted their own failure to take into account a factor which they say they would have regarded as relevant.

What ought trustees to take into account?

114. The decided cases do not give a great deal of guidance in detail as to what the trustees ought to take into account, in the case of a private discretionary trust. (Pension trusts and charities may well each be different in some respects, as may be discretionary trusts for a very large class, such as that at issue in Re Baden's Deed Trusts, and I do not deal with such trusts for the present.) Older cases tended to focus on what ought not be to taken into account, such as personal disapproval: see Klug v Klug [1918] 2 Ch 67 and Re Lofthouse (1885) 29 ChD 921 at 925-6 (both being cases where the trustees declined to exercise their discretion). Abacus v Barr shows that the wishes of a settlor may well be one thing that trustees should take into account. The wishes, circumstances and needs of beneficiaries, so far as made known to the trustees, may also be relevant.
115. In Sieff v Fox I said that I was in no doubt that "fiscal consequences may be relevant considerations which the trustees ought to take into account": see paragraphs 85 and 86. I remain of that view. Although it is often said that decisions as regards the creation and operation of trusts ought not to be dictated by considerations of tax, the structure and development of personal taxation in the UK over the past decades, the use of trusts in order to deflect or defer the impact of taxation, and in turn the development of taxation as it applies to property held by trustees, have been such that there can be few instances in which trustees of a private discretionary trust with assets, trustees or beneficiaries in England and Wales could properly conclude that it was not relevant for them to address the impact of taxation that would or might result from a possible exercise of their discretionary dispositive powers.
116. In Nestle v National Westminster Bank plc [1994] 1 All ER 118 at 137 Staughton LJ held that the trustees were entitled and bound to take into account the fact that life tenants were not UK resident and that therefore, if the fund was invested in exempt gilts, the trust income to which they were entitled would not be subject to deduction of UK income tax. The other members of the court (Dillon and Leggatt LJJ) did not put that point in the same way and it is therefore not part of the ratio. Moreover the issue there was the proper investment of a fund which was not the subject of discretionary trusts. However, it is at least an indication supporting the relevance of fiscal matters. Similarly, fiscal considerations were relevant, for example, in Re Clore's Settlement (see paragraph [105] above), and of course it was the prospect of a heavy liability to estate duty that led the trustees of the Hastings-Bass settlement itself to make the advancement that had to be considered in that case.
117. As Counsel pointed out, the extent of the proper consideration on the part of the trustees would be affected by the nature and circumstances of what was proposed. It might be different if what was proposed was the release from the trust of a relatively modest sum of capital to meet an extremely urgent need of one of several beneficiaries. In such a case it might not be necessary to undertake the same degree of enquiry and examination as it would be if the proposed transaction affected a very large proportion of the trust fund, or was not required as a matter of extreme urgency.
118. It is not possible to lay down any clear rule as to the matters which trustees ought to take into account when considering the exercise of a power of advancement or some other dispositive discretionary power. Circumstances will differ a great deal from one trust to another, and even within one trust they may change from time to time or according to the nature of the particular exercise which is under consideration.

Professional advice

119. Where tax matters are relevant (as they often will be), it is likely to be the duty of the trustees, under their duty of skill and care, to take proper advice as to those matters. In Scott v National Trust, cited at paragraph [90] above, Robert Walker J, considering the duty of trustees in a very different context, said this at page 717:

"I have heard a lot of submissions about the duties of trustees in making decisions in exercise of their fiduciary functions. Certain points are clear beyond argument. Trustees must act in good faith, responsibly and reasonably. They must inform themselves, before making a decision, of matters which are relevant to the decision. These matters may not be limited to simple matters of fact but will, on occasion (indeed, quite often) include taking advice from appropriate experts, whether the experts are lawyers, accountants, actuaries, surveyors, scientists or whomsoever. It is however for advisers to advise and for trustees to decide: trustees may not (except in so far as they are authorised to do so) delegate the exercise of their discretions, even to experts. This sometimes creates real difficulties, especially when lay trustees have to digest and assess expert advice on a highly technical matter (to take merely one instance, the disposal of actuarial surplus in a superannuation fund)."

120. Suppose, then, that the trustees, being aware that what they are thinking of doing could have tax consequences, take advice from appropriate and reputable advisers and are given what appears to be clear and pertinent advice that if they proceed in a particular way, tax liabilities will not be incurred, whether by them or by the beneficiaries, or at any rate that the liabilities incurred will be as small as can be hoped for. Suppose also that the trustees follow that advice and proceed in the way suggested, but that it then turns out that the advice was wrong, for example because (as in Futter v Futter and as in Sieff v Fox) a particular section was overlooked, and liabilities are incurred, whether they could easily have been avoided (as in Pitt v Holt) or not. The trustees have discharged properly their duty to take advice, as a matter of skill and care. It could be said, however, that in preparing to exercise their discretionary power they failed to take into account a relevant matter, namely the true fiscal consequences of their action. Can it be said that those trustees were acting in breach of trust when, on that advice, they made the particular advancement or appointment? Mr Henderson and Mr Wilson submitted that they would have been in breach of trust; Mr Jones argued to the contrary.
121. In support of the proposition that the trustees were in breach of trust, it can be said that the duty of the trustees is personal to them, as Robert Walker J pointed out in the passage quoted at paragraph [119] above, and as Warner J indicated in a passage quoted from his judgment in Mettoy at paragraph [71] above. It was no defence to a claim against trustees for breach of trust that they acted on legal advice in Perrins v Bellamy [1899] 1 Ch 797, where they had sold leaseholds comprised in a trust fund, in the erroneous belief (on advice) that they had power to sell. (They were, however, relieved of personal liability under what is now section 61 of the Trustee Act 1925.) Nor was legal advice a defence to a trustee in National Trustees Company of Australasia Ltd v General Finance Company of Australasia Ltd [1905] AC 373, where solicitors of high standing in Melbourne had "by some extraordinary slip" given incorrect advice to the trustee as to who was entitled on an intestacy, and the trustee had distributed in accordance with that advice. (Nor was the trustee relieved in that case under the Victorian equivalent of section 61.) In both those cases, however, the trustees did something which they had no power or authority to do: in the one case making a disposition of trust property of a kind not authorised by the trust and in the other paying trust money out to persons who were not beneficiaries.
122. It would have been a breach of trust for Mr Abrahams' will trustees to pay out funds in reliance on the advancement which Cross J held to be void. Since that advancement was entirely ineffective, it did not affect the beneficial interests in the fund, and the fund had therefore to be applied without regard to it. That would be so whether or not, in any sense, the trustees were in breach of trust in making the advancement. Since the invalidity of the advancement resulted from a later court decision as to the application of the rule against perpetuities, I find it difficult to see how making the advancement as such can have been a breach of the trustees' fiduciary duties, although acting on it would have been a breach of trust, by paying money to someone not entitled to it.
123. We were also shown Dance v Goldingham (1873) LR 8 Ch App 302, a very different case in which trustees (who were themselves solicitors) had put property comprised in the settlement up for sale at auction, which they had power to do, but had subjected the sale to what the court held to be an unnecessarily and unjustifiably depreciatory condition as regards the title which the purchaser must accept, they having lost the deed which should have been the root of title, and not having used proper diligence to find it. The property was sold at the auction, but the contract had not been completed. At the suit of a beneficiary, the completion of the sale was restrained by injunction on the basis that the inclusion of the depreciatory condition was a breach of trust, and that the purchaser did not yet have a title which prevailed over that of the beneficiary. Despite Mr Henderson's submissions on the point, in support of the proposition (unexceptional in itself) that "beneficiaries are entitled to expect their trustees to get it right", I do not find this case of assistance either way. No reference was made to the relevance of legal advice given to the trustees, no doubt because the trustees had acted on their own view of the law.
124. The issue considered in Perrins v Bellamy and in the Australian case is altogether different, as it seems to me, from the question whether, if trustees take advice properly, and act on that advice in a matter which is within their powers, the fact that the advice has misled them as to the true position in a relevant respect means that they acted in breach of fiduciary duty. Warner J seems to indicate, in a passage quoted at paragraph [71] above, that they would be in breach of duty. On the other hand, addressing the point more specifically, Lightman J held that they would not have been in breach of trust in that situation in paragraph 23 of his judgment in Abacus v Barr, quoted at paragraph [85] above. The approach of Lightman J seems to me to be correct in principle. It is not inconsistent with what Robert Walker J said, as quoted at paragraph [119] above, since the latter was not addressing the case of inaccurate advice. I do not question the decisions in Perrins v Bellamy or in the Australian case. If a trustee does something which is not within the terms of the trust, that is still a breach of trust, even if he did so on advice; the relevance of the advice is only to relief under section 61, apart from any claim against the adviser. Nor do I question the proposition that the trustees' duty is personal to them and cannot be delegated. However, if the trustees, aware of the need to consider relevant matters, seek advice (whether in general or in specific terms) as to the position while considering what, if anything, to do under their discretionary powers, then unless the process of taking and acting on the advice is itself open to challenge in some way, I do not see that the trustees can be said to be in breach of their duty if they proceed to address the exercise of their discretionary power on the basis of the advice given to them as to, for example, tax consequences.
125. Accordingly, in my judgment, in a case where the trustees' act is within their powers, but is said to be vitiated by a breach of trust so as to be voidable, if the breach of trust asserted is that the trustees failed to have regard to a relevant matter, and if the reason that they did not have regard to it is that they obtained and acted on advice from apparently competent advisers, which turned out to be incorrect, then the charge of breach of trust cannot be made out.

The correct principle

126. I leave on one side cases where the trustees' act is said to be void because it is not authorised by the power under which they purported to act, such as Re Abrahams' Will Trusts, as interpreted in Re Hastings-Bass deceased. I have discussed that kind of case sufficiently already.
127. The cases which I am now considering concern acts which are within the powers of the trustees but are said to be vitiated by the failure of the trustees to take into account a relevant factor to which they should have had regard – usually tax consequences - or by their taking into account some irrelevant matter. It seems to me that the principled and correct approach to these cases is, first, that the trustees' act is not void, but that it may be voidable. It will be voidable if, and only if, it can be shown to have been done in breach of fiduciary duty on the part of the trustees. If it is voidable, then it may be capable of being set aside at the suit of a beneficiary, but this would be subject to equitable defences and to the court's discretion. The trustees' duty to take relevant matters into account is a fiduciary duty, so an act done as a result of a breach of that duty is voidable. Fiscal considerations will often be among the relevant matters which ought to be taken into account. However, if the trustees seek advice (in general or in specific terms) from apparently competent advisers as to the implications of the course they are considering taking, and follow the advice so obtained, then, in the absence of any other basis for a challenge, I would hold that the trustees are not in breach of their fiduciary duty for failure to have regard to relevant matters if the failure occurs because it turns out that the advice given to them was materially wrong. Accordingly, in such a case I would not regard the trustees' act, done in reliance on that advice, as being vitiated by the error and therefore voidable.
128. It can be said that this distinction makes potentially vulnerable an act done by trustees who fail to take any advice, whereas the same act done in the same circumstances by trustees who take advice which proves to be incorrect is not vulnerable. That is said to reduce significantly the protection afforded to beneficiaries by the Hastings-Bass rule. I accept that the point of the principle is to protect beneficiaries rather than trustees. I also accept that a claim by beneficiaries against the trustees themselves may often be precluded by an exoneration clause in the trust deed. It may also be, as was submitted to us in particular by Mr Henderson, that a claim against the professional advisers of the trustees would face problems even if liability can be established, because different loss may be suffered by different people, not all of whom may have a claim against the advisers. Recognising those points, nevertheless I see no anomaly in the distinction that I have drawn. It arises from the need to find a breach of trust in order to set aside an act of the trustees which is within their powers, and from what I see as the impossibility of holding trustees to be in breach of their relevant duties in a situation such as that posed by Lightman J in paragraph 23 of his judgment in Abacus v Barr, quoted at paragraph [85] above.
129. If the principle had been applied which I have set out above, then it seems likely that a number of the cases decided at first instance would have been decided differently. Lightman J's decision in Abacus v Barr is consistent with the principle. I rather doubt whether Green v Cobham would have been decided the same way if this principle had been applied. The unfortunate tax consequences might have been found to be too remote from the discretionary exercise that the trustees of the will trust were considering, so that they might not have been within the scope of the matters that the trustees ought to take into account. In any event it might have been the duty of the trustees' solicitors to advise them on the point, or to see that they had the benefit of proper advice. But it is not a useful exercise for present purposes to re-examine the earlier cases generally, and I will say no more on that subject.
130. One practical consequence, if I am right, is that if in future it is desired to challenge an exercise by trustees of a discretionary power on this basis, it will be necessary for one or more beneficiaries to grasp the nettle of alleging and proving a breach of fiduciary duty on the part of the trustees. Only rarely would it be appropriate for the trustees to take the initiative in the proceedings; it might be so if (as in Abacus v Barr) they need to seek directions from the court if a beneficiary alleges breach of trust but does not bring his own proceedings. Presumably proceedings by a beneficiary would generally need to be brought by a Part 7 Claim Form, since it should not be assumed that there will not be a substantial dispute of fact that needs to be resolved, and statements of case will be needed in order to set out the allegation of breach of trust and the answer to that case.
131. For the reasons that I have given above, in my judgment the principle known as the rule in Re Hastings-Bass, as developed from Mettoy onwards, is not a correct statement of the law. The correct principle is that which I have set out at paragraph [127] above.

Applying the principle: Futter v Futter

132. I will now apply the principle so formulated to the facts of Futter v Futter.
133. The trustees of the two settlements were Mr Mark Futter and Mr Clive Cutbill, the latter then a partner in the firm of Withers. The principal evidence was given by Mr Cutbill by witness statement. The firm advised the trustees as to the steps which might be taken to terminate the settlements (among others) by a memorandum dated 11 January 2008, followed up by meetings in January and February and further documents early in March. On 27 and 28 March 2008 a number of telephone conversations and other communications took place between Mr Cutbill, his assistant at Withers (Miss Minett), Mr Mark Futter and his accountant. On 31 March Mr Futter met Mr Cutbill and Miss Minett. He confirmed that he had realised enough losses to be set off against the stockpiled gains in the No 3 settlement. On that basis, he and Mr Cutbill executed the deed of enlargement already mentioned in respect of the No 3 settlement.
134. They also discussed what to do with the No 5 settlement. Mr Futter said that he would like to advance £12,000 to each of his three children by 5 April, so as to use the annual exemption of each of them and certain losses already incurred, and also to advance a further £9,000 each after 5 April so as to use their annual exemptions for the next tax year. Following the meeting Mr Cutbill wrote to Mr Futter confirming that this could be done and enclosing the necessary deeds. These were duly executed, the first of them on 3 April. No issue arises as regards the second.
135. The case was not, of course, presented on the basis that the trustees had committed any breach of fiduciary duty in making the enlargement and the advancements in question, since that was not then seen as a relevant issue. The case made was that "we all proceeded on the assumption that the losses could be used in the desired way, and that no charge to CGT would arise as a consequence", and that if the true position had been realised the trustees would not have made the enlargement or the advancements, or, in the case of the No 5 settlement, would have advanced only the amount of the beneficiaries' annual exemptions. It was therefore said that "in failing to take account of the correct tax consequences we neglected to take into account a highly relevant factor which, had we considered it, would have led us not to adopt the course that we did."
136. This presentation of the case was entirely orthodox in terms of the Hastings-Bass rule. In the light of what I have said above as to the correct principle, it is appropriate to consider how that principle applies to the facts in evidence. Did the trustees fail to have regard to something which it was their duty to take into account, and if so did they act in breach of fiduciary duty, having regard to the advice they took?
137. I accept that the tax consequences of the proposed enlargement and the advancements were relevant for the trustees to take into account. They had been under discussion since the beginning of January 2008. When it was thought that funds could not be extracted from a relevant settlement without incurring a cgt liability, the decision was that the trusts should not be brought to an end, or not at that stage. Therefore the trustees were obliged to take the tax consequences of the proposed enlargement and advancements into account, and they failed to do so, because Withers gave the wrong advice on the point.
138. However, the trustees acted entirely properly in relying on Withers for such advice. They did not overlook the need to think about cgt. They were given advice on the right point. The problem was that the advice was wrong.
139. Following the principle that I have set out above, it does not seem to me that Mr Mark Futter, at any rate, could be said to have been in breach of fiduciary duty by joining in making the enlargement and the advancements in the circumstances as he understood them to be, or as they in fact were, on 31 March. He asked for advice from a reputable and competent firm, he received it and he acted on it, without any reason to suppose that it was not correct.
140. A distinctive feature of the present case is that one of the trustees was himself a partner in the firm whose advice was sought, and was involved in the process of giving that advice. Does that make a difference?
141. As one would expect, the settlement contains a trustee charging clause at clause 17 under which Mr Cutbill is entitled to charge for himself as well as that of his firm in respect of time spent and acts done in connection with the trusts. There is also, as usual, a trustee exoneration clause (clause 22) rendering the trustees immune from liability for any breach of trust arising from a mistake or omission made in good faith. I mention these provisions not because they are necessarily relevant to the question I am examining, but because such matters have been said by some commentators to be relevant to the issue generally.
142. As it seems to me, Mr Futter and Mr Cutbill as trustees together relied on the advice of Withers as solicitors in relation to the tax implications of what was proposed. To the extent that it is relevant to consider who was actually giving the advice, it is plain that a great deal of the work was done, and the advice given, by Miss Minett. I would regard it as artificial to distinguish between Mr Futter and Mr Cutbill as trustees for this purpose. In one sense, it is also artificial to draw a distinction between Mr Cutbill acting in one capacity, as trustee, and in another, as solicitor to the trustees. But that is a comprehensible distinction which may need to be made for some purposes. It reflects the fact that, as solicitor, he was part of a team which included Miss Minett and other members or employees of the firm who played a part in the process of giving relevant advice, whereas as trustee he was part of a different team, so to speak, consisting of himself and Mr Mark Futter, who had to act together and unanimously. As a partner in Withers he might be the recipient of a claim in negligence in respect of the advice given, but as a trustee I do not see that he could be charged with breach of trust, any more than Mr Mark Futter could be, for having acted on the advice so given.
143. For that reason, I would hold that the trustees approached the issue of whether to make any, and if so what, enlargement or advancements out of these two settlements in a proper manner, taking and relying on advice from suitable professional advisers. They failed to take into account a relevant matter, namely the prospective charge to capital gains tax on the distributions which the enlargement and advancements represented, but they did so in reliance on the advice obtained.
144. It follows that the enlargement and the advancements are not only not void, because they were within the relevant powers of the trustees, but they are also not voidable, because no breach of fiduciary duty was committed in the process of making them.
145. I would therefore allow the appeal of HMRC in this case.

Applying the principle: Pitt v Holt

146. The different facts of this case, above all the fact that Mrs Pitt, though acting in a fiduciary capacity, was not herself a trustee, mean that the principles already discussed apply somewhat differently.
147. Mrs Pitt was the receiver for her husband, appointed by the Court of Protection under the Mental Health Act 1983 (the 1983 Act). It is not in doubt that, although her husband's property was not vested in her as such, her power to deal with it on his behalf put her in the category of fiduciaries, as Peter Smith J held in Bunting v W [2005] EWHC 1274 (Ch), [2005] WTLR 955. At first instance HMRC did not accept that the Hastings-Bass rule applied to Mrs Pitt, because she was not a trustee, but the judge decided against this contention and that is not challenged on appeal.
148. I have summarised the facts very briefly already, but I need to go into more detail at this stage. In doing so I also bear in mind the separate issue of mistake, raised by the Respondent's Notice. Mr Pitt was born on 6 April 1933. On 6 April 1990 he was involved in a road traffic accident as a result of which he suffered very serious head injuries. The effect of the injuries was that he became a patient, within the meaning of the then RSC Order 80, as a person who, by reason of mental disorder within the meaning of the 1983 Act, was incapable of managing and administering his property and affairs. As such, when he issued proceedings against the other driver in 1991 his wife acted as his next friend. On 18 November 1992 the Court of Protection made an order appointing Mrs Pitt as his receiver under the 1983 Act.
149. In an affidavit sworn in the Court of Protection in 1994 on behalf of the receiver, the assets of Mr and Mrs Pitt were described. Their main asset (other than the damages claim) was their home, Marsh Farm, near Frome, held in joint names and ownership and said to be worth £400,000 though subject to an all moneys charge in favour of Lloyds Bank then securing just over £210,000. The farm was not then run commercially, accommodating only a few sheep. Mr Pitt was entitled to two pensions, not then in payment, one of them being very small, and the other affording a lump sum of some £12,500 and a pension of £3,700, or a larger pension if no lump sum were taken. There was some £15,000 in the receiver's bank account. Mrs Pitt had no income and modest credit balances on two bank accounts. Mr Pitt's care needs were calculated at £55,000 per year at that time. Marsh Farm had been altered to accommodate a full time carer, and I dare say also in other ways to suit Mr Pitt's condition and needs. A carer looked after Mr Pitt for alternate fortnights, with Mrs Pitt looking after him for the other fortnights.
150. The damages claim was settled by an agreement providing for a structured settlement, which was approved by the court by order dated 9 May 1994. The settlement figure was £1,200,000. There had been an interim payment of £350,000. The liability to pay £1.2 million was to be discharged, as to £350,000 by the interim payment already made, as to £420,000 by a further payment to be made forthwith, and as to the balance by continuing payments starting at £2,418.75 per month, adjusted annually by reference to changes in the RPI, and with a minimum of 120 payments to be made, even if Mr Pitt died in the meantime. On Mrs Pitt's behalf as next friend and receiver, advice had been sought by the solicitors acting in the litigation from Frenkel Topping, financial advisers with specialist experience of structured settlements. One feature of their advice was that it was desirable to avoid having to pay the fees of the Court of Protection in respect of dealings with an invested fund, and restrictions that might be imposed by the Court of Protection on the amount to be released from the fund or its income. From that point of view they recommended that the funds received under the settlement be put into a discretionary trust. This was also said to have other potential advantages, first in seeking to ensure that the funds available under the structured settlement would not adversely affect Mr Pitt's entitlement to any means-tested state benefits that might be available, and secondly that it might be of use in coping with Lloyds Bank's claim against Mr and Mrs Pitt. (In fact Mr Pitt was not entitled to any means-tested benefits, and the settlement was irrelevant to the claim by the bank.) This option was preferred by Mrs Pitt, and it was on this basis that the matter proceeded.
151. The authority of the Court of Protection was needed, and it was given at a hearing on 1 September 1994. The order authorised Mrs Pitt as receiver to execute deeds in the form of two approved drafts, one being the deed of settlement creating the Special Needs Trust itself, and the other being the assignment to the trustees of the right to receive the continuing payments under the structured settlement. Acting under that authority, Mrs Pitt executed the two deeds as receiver, and she and the other trustees executed them as trustees, on 1 November 1994.
152. Frenkel Topping's advice had gone into a good deal of detail about how advantageous a structured settlement was from the tax point of view, having regard to income tax. At a time in late May 1994 when Mrs Pitt was becoming very anxious about the delay in finalising the matter, Frenkel Topping told her solicitor, Mr Field, that the settlement was breaking new ground, so that some delay was unavoidable, but that in view of the tax advantages of the settlement the family should be patient. At one point it seemed that a liability to ad valorem stamp duty of almost £3,500 might arise on the assignment of the continuing payments, but this turned out not to be the case. It seems that no-one addressed the issue of potential inheritance tax, though we were told in argument (if I remember rightly) that Frenkel Topping at one stage provided two alternative precedents for the proposed trust, one of which would have satisfied section 89 of the IHTA. Unfortunately, it was the other precedent that was used.
153. Frenkel Topping had given their advice by way of a report to Mrs Pitt, which was eventually made available to the Official Solicitor, representing Mr Pitt in the Court of Protection proceedings. This did not refer in terms to iht. It did set out illustrative forecasts of what would become of the money in the settlement over a long period of years. That forecast allowed for cgt on any capital growth in the fund. It did not take account of the impact of iht on the fund, either at the outset, or on distributions or on ten year anniversaries.
154. As in the case of Futter v Futter, though in very different circumstances and for different reasons, it is clear that Mrs Pitt and those advising her were concerned about issues of potential tax liabilities that might arise according to what course of action was taken. It is also clear, as the judge said at paragraph 47 of his judgment, that if the iht point had come to the attention of those advising her, and through them to her attention, then the likelihood is that she would have proceeded with the trust approach, but using a form of trust which fell within section 89.
155. I have mentioned in outline the impact of iht on the Special Needs Trust, but I will now go into it in more detail. The initial charge, on the creation of the Special Needs Trust, arose because value was transferred by a chargeable transfer, that is to say, a transfer of value by an individual which is not an exempt transfer. A transfer of value is a disposition made by a person as a result of which the value of his estate immediately after the disposition is less than it would be but for the disposition. The amount by which it is less is the value transferred by the transfer. By creating the Special Needs Trust and assigning to it the continuing payments under the structured settlement, Mr Pitt's estate was worth less that it would otherwise have been, by the capital sum and the value of the continuing payments. If the settlement had been one under which Mr Pitt had a life interest (an interest in possession, in the technical language of iht), he would have been treated as still owning the relevant assets, so there would have been no transfer of value. If the settlement had been within the terms of section 89 of IHTA, it would have been treated as one in which Mr Pitt had an interest in possession, so there would have been no transfer of value. As it was a discretionary settlement which did not fall within section 89, there was a transfer of value.
156. Under section 199 of IHTA the persons liable for the tax are the transferor, i.e. Mr Pitt, and the trustees of the Special Needs Trust. Mr Pitt would be primarily liable, under section 204(6), and the trustees would only be liable if the tax remained unpaid after it ought to have been paid. Normally, that would be six months after the end of the month in which the chargeable transfer is made so, in the present case, by the end of April 1995. Nevertheless, under section 237 an Inland Revenue charge is imposed on the property in the trust, with (it seems) immediate effect as from the date of the disposition. The amount of the liability has not been calculated, but the evidence on behalf of HMRC put the liability in respect of the capital sum paid into the Special Needs Trust as being some £52,000, with a further amount due in respect of the value of the continuing payments. Since that element of the structured settlement was treated, for those purposes, as worth about £400,000, it seems likely that a similar amount of tax would be chargeable in respect of that part of the fund. If, therefore, it can be assumed that the initial liability would have been of the order of £100,000, it is clear that Mr Pitt could not possibly pay the tax due, so that it would have had to have been paid by the trustees out of the trust fund, and until it was paid it was secured in favour of HMRC by the Inland Revenue charge. On the assumption that the funds contributed to the Special Needs Trust were worth of the order of £800,000, the iht liability immediately depleted them by about one eighth.
157. In addition, the iht regime in relation to ordinary discretionary trusts imposes charges to tax on capital sums paid out of the trust, known as the exit charge, and also a charge on capital funds remaining in the trust every ten years, called the periodic charge. Quite how these would have applied to the Special Needs Trust has not yet been worked out, but in principle there would have been a charge when any capital was applied for the benefit of Mr or Mrs Pitt out of the settlement, and a charge on the funds left in the Special Needs Trust on its tenth anniversary, 1 November 2004.
158. By comparison, if the Special Needs Trust had been so drafted as to fall within section 89, there would have been no transfer of value on its creation. Any payment of funds to Mr Pitt or for his direct benefit would have been a non-event for iht purposes, since he was already treated as owning the assets. Any payment out for the benefit of Mrs Pitt would have been exempt, as transfers to spouses are. For the same reason, on Mr Pitt's death, when the assets in the trust became part of his estate, under the terms of the Special Needs Trust, there would have been no iht charge, because Mrs Pitt was the sole beneficiary of the estate.
159. Since, of its nature, the amount payable under the structured settlement reflected Mr Pitt's needs in the light of the grave injury caused to him, the immediate liability, let alone the further liabilities, to iht would have had a severe impact on the funds available for his needs for the rest of his life.
160. On that basis it is understandable that the case made on behalf of the estate of Mr Pitt, and of Mrs Pitt personally, was a straightforward case under the Hastings-Bass rule, with the alternative of equitable relief on account of mistake. The judge accepted that the case had been made out on the Hastings-Bass rule.
161. However, addressing the facts by reference to the principle which I have set out above, it seems to me that the position is different. First, there is no doubt that Mrs Pitt, as receiver, had power to enter into the two deeds that are sought to be set aside: the settlement and the deed of assignment. That power was created in terms by the Court of Protection order made on 1 November 1994. The execution of the deeds cannot therefore be categorised as ultra vires, beyond her powers, and void on that basis. In that sense, this case is not at all analogous with Re Hastings-Bass itself or with Re Abrahams, just as Futter v Futter is not.
162. So the question is whether the deeds can be set aside as voidable, on the basis that they were executed in breach of a fiduciary duty on the part of the receiver, because she overlooked the impact of iht. I am prepared to assume, for present purposes, that a receiver, in the position in which Mrs Pitt was at the relevant time, owes to the patient a fiduciary duty analogous to that identified as regards trustees in, for example, Edge (see paragraph [76] above) to take all relevant matters into account in deciding whether to exercise particular powers vested in the receiver. I will assume that a receiver may well be under a duty of skill and care requiring the taking of appropriate professional advice, at any rate in a case such as the present. It is clear that Mrs Pitt did not have in mind, and therefore did not take into account, the prospect of a charge to iht, but it is equally clear that she did seek proper professional advice, and she acted on it. Frenkel Topping deny that they were under a duty to advise her about iht. However that may be, it seems to me that, as between the various advisers which acted for and advised her, it must have been the duty of one or other of them, at least, either to advise her about any risk as to iht, or to point out that she might need such advice and see that she got it. While some trustees are well aware of the fiscal risks that their actions may give rise to (as Mr Mark Futter was), that will not be true of all trustees or persons in a fiduciary position. It must be a sufficient discharge of the duty of skill and care of such a person to retain appropriate professional advisers, whose duty it is to either to give the necessary advice or to point out areas on which advice may be needed which should be sought from another adviser.
163. It seems to me that Mrs Pitt fulfilled any duty of skill and care she was under by looking for advice to her solicitors acting in the litigation, either to advise her or to see that she got whatever advice she needed from another source, such as from Frenkel Topping. In those circumstances, I cannot accept that, in entering into the two deeds on 1 November 1994, Mrs Pitt can be said to have been acting in breach of her fiduciary duties owed to Mr Pitt. I would therefore reject the contention that the settlement and the assignment are voidable on the principles discussed so far. It follows that the grounds of appeal in HMRC's Appellant's Notice are made out, and, subject to the issue of mistake, raised by the Respondent's Notice, the appeal should be allowed.

The equitable jurisdiction to set aside a voluntary transaction for mistake

164. I therefore turn to the points taken in the Respondent's Notice in Pitt v Holt, which the judge said that he would have decided against the Claimants, had he not already decided the case in their favour on the Hastings-Bass rule.

The nature of the jurisdiction; Mrs Ogilvie's litigation

165. The jurisdiction of equity to protect parties against fraud, undue influence, unconscionable bargains and related conduct including abuse of confidence is long established and well known. Equity does not limit fraud, in this context, to actual dishonesty such as would give rise to an action in deceit at common law. Equitable fraud takes account of any breach of the sort of obligation which is enforced by a court that from the beginning regarded itself as a court of conscience: see Viscount Haldane LC in Nocton v Lord Ashburton [1914] AC 932 at 954.
166. The jurisdiction now in point is of the same kind. It is quite distinct from, and ought not to be confused with, common law remedies for mistake, particularly since the Court of Appeal's decision in Great Peace Shipping Ltd v Tsaviris Salvage (International) Ltd [2002] EWCA Civ 1407, [2003] QB 679 in which it was held that there was no equitable jurisdiction to set aside contracts on the ground of mistake. There are cases concerning recovery of voluntary payments at common law, and there is scope for an interesting discussion as to whether the principles relevant at common law and in equity are, or ought to be, more or less closely aligned. Goff & Jones Law of Restitution, 7^th ed, touches on this, treating common law recovery at paragraphs 4-020 to 4-022 and the equitable jurisdiction at paragraphs 9-051 and 9-052. For a long time there was one clear difference, in that equity would relieve against a mistake even if it was of law rather than fact, which the common law would not. However, the claim in Pitt v Holt is firmly based on equity, as it has to be in order to claim proprietary relief by setting aside the transaction. I do not propose to add to an already lengthy judgment by entering on the debate as to the correct principles at common law and the comparison between the two bases of claim.
167. In relation to claims in equity, we have the benefit of judgments at both appellate levels in an action brought in the 1890's. This litigation, brought by Mrs Ogilvie, took up "upwards of a week" of the Court of Appeal's time in 1897 and a further five days of the time of the House of Lords in 1898. Mrs Ogilvie was a very wealthy widow, who with her husband had been active in good works. She decided to devote a large part of her fortune to charity, and eventually executed a number of deeds for that purpose. Later she came to regret what she had done, and she brought an action to have the deeds set aside. Mr Justice Byrne heard the trial and concluded that the case was "entirely wanting in any of the elements of fraud, undue influence, concealment of facts from the donor, want of separate and independent advice, surprise or pressure which, or some of which, were commonly met with in cases of attempts to set aside or rectify voluntary instruments": see 13 TLR page 400. He dismissed the action. In turn the Court of Appeal and the House of Lords dismissed Mrs Ogilvie's appeals; the reports are Ogilvie v Littleboy (1897) 13 TLR 399 and Ogilvie v Allen (1899) 15 TLR 294. Lindley LJ, giving the judgment of the court, said at 13 TLR 400:

"Gifts cannot be revoked, nor can deeds of gift 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 influence, no fiduciary relation between donor and donee, no mistake induced by those who derive any benefit by it, a gift, whether by mere delivery or by deed, is binding on the donor.

…

In the absence of all circumstances of suspicion a donor can only obtain back property which he has given away by showing that he was under some mistake of so serious a character as to render it unjust on the part of the donee to retain the property given to him."

168. Having reviewed the facts and the various contentions on the part of Mrs Ogilvie, he held that there was no basis for setting aside the gifts. I will refer to what he said in the second of the paragraphs just quoted as the Ogilvie v Littleboy test.
169. In the House of Lords, Lord Halsbury LC, having referred to the general nature of the contentions for the appellant, said, at 15 TLR 295:

"Such questions, doubtless, may arise under circumstances when misunderstanding on both sides may render it unjust to the giver that the gift should be retained."

170. He went on to say that there was nothing of the kind in the present case, and he entirely concurred with the judgment of Lindley LJ. The other members of the House of Lords, Lord Macnaghten and Lord Morris, agreed.

Cases in the nineteenth and early twentieth centuries

171. A good many cases in the nineteenth century had been brought in reliance on this jurisdiction, and the active line of cases continued some way into the twentieth century. The reported cases exhibit a variety, but not a very wide variety, of fact situations as giving rise to the intervention of equity. Most of them concerned the making of a settlement, though there are at least two about outright gifts.
172. In some cases the donor was said not to have understood the nature of the disposition, and not to have had the benefit of a proper explanation. One example, in the Court of Appeal, is Dutton v Thompson (1883) 23 ChD 278. The donor in that case was a young man who was regarded by his uncle, father and stepmother as "very weak minded", and (though of full capacity) as not having "that full enjoyment of his faculties which average persons have". Sir George Jessel MR said that "they treated him like a baby, and not as a man of average intellect". He was entitled to an interest under his grandfather's will which would vest in him absolutely at the age of 25. He was prevailed upon, after some resistance, to settle that interest, when he was 24. He had no independent legal advice, he did not know the value of the property to be settled, and there was much that he did not understand about the terms of the settlement. The Court of Appeal upheld the order of the judge below setting the settlement aside on the basis that the settlor did not understand it. It is clear that, because of the perceived limits on his understanding, the court considered that those responsible for persuading him to execute the settlement should have taken particular trouble to see that he had a full explanation and advice and understood it properly. Sir George Jessel said at page 282: "In my opinion there was a special obligation on the part of the Defendant to see that the Plaintiff understood the settlement, which obligation he has not discharged." Because of the failure to discharge that obligation, concealment of facts from the donor is a feature of the case, which seems to me to be in the category of circumstances of suspicion mentioned by Lindley LJ.
173. By contrast, in Phillips v Mullings (1871) LR 7 Ch App 244 Lord Hatherley LC upheld as valid a settlement which a young man, not weak-minded but of improvident habits, had been persuaded to create, on the basis that it had been properly explained to him and adequately understood by him.
174. Other cases at first instance include Meadows v Meadows (1863) 16 Beav 401 and Lister v Hodgson (1867) 4 Eq 30, in each of which the trusts of the settlement were different from those which had been intended and which the solicitor had been instructed to achieve. In some other cases of this kind the court was able to order that the settlement should take effect as intended, in effect rectifying it: see Walker v Armstrong (1858) 8 De G M & G 531 (Lords Justices) and Wollaston v Tribe (1869) LR 9 Eq 44.
175. Phillipson v Kerry (1863) 32 Beav 628 is an interesting case where an unmarried lady of mature years had one asset, a sum of about £4,275 consols, which provided her sole source of income. She resided with a lady friend of hers and, after the latter's death, with her son and his family. In 1857 she executed deeds by which she gave to the son immediately the entire benefit of the investment. She was then about 47 years old; she died in 1862, but the donee had died a year or so before she did. In fact she was allowed to continue receiving the benefit of the dividends and to continue to reside with him and then his widow until she herself died. Thus, because of the honour and generosity of the donee and his widow, an apparently highly imprudent course, of giving away her sole asset and sole source of income, did not turn out to put her at any disadvantage during the relatively short remainder of her life, as it might well have done. Just before her death she brought proceedings to have the gift set aside. Sir John Romilly MR held that it should be set aside, although it was clear that she had understood that she was giving away her sole asset. It had not been explained to her that, although she might well be able to rely on the honour of the donee to allow her to retain the dividends, that would not be enough if, for example, he became bankrupt, or if on his death the asset came to be held by trustees for infant children. On that basis the deed was set aside.
176. I find this decision to be somewhat remarkable in the light of the fact that she never did, in fact, suffer any of the disadvantages that should, no doubt, have been pointed out to her. The report in 32 Beavan states that the decision was affirmed on appeal by the Lords Justices, but I know of no report of their judgments. It is a case in which the donor understood what she was doing, but had not been advised of, and therefore perhaps did not appreciate, all of the risks to which it would expose her. It is therefore a case of inadequate advice, but not as to the nature of the transaction itself. So far as I can see it is unique in this respect. In all the other cases of lack of adequate advice, the result was that the donor did not understand adequately the nature of the disposition itself.
177. Re Walton's Settlement [1922] 2 Ch 509 is an example of a transaction where the legal effect of what was done was other than was intended, and where what was intended could have been achieved by other means. A marriage settlement contained a provision under which, if the wife survived her husband, the funds could be applied in the purchase of an annuity for her sole benefit. The settlement also contained a power of revocation exercisable at any time. The wife having survived her husband, and being 70 years of age, wished to avoid the need to purchase an annuity, and wanted to have the funds available for her absolute sole benefit and use. Her solicitor advised her to exercise the power of revocation, overlooking that fact that this would cause that part of the fund which had been settled by the husband to revert to his estate. Instead he should have advised her that, since she was absolutely entitled to the annuity if bought, she could simply call for the fund as it stood. Eve J held that the deed of revocation should be set aside as having been executed under a mistake, and that the widow should be treated as absolutely entitled to the capital of the whole fund.
178. Another example of a mistake as to the effect of the disposition, also in the context of a marriage settlement, but where both parties were still alive, had come before Warrington J some years earlier: Ellis v Ellis (1909) 26 TLR 166. On the marriage, over twenty years before, a settlement had been created under which each party covenanted to settle any after-acquired property on the trusts of the settlement. The husband gave the wife a generous allowance by way of pin-money each year, but decided that it would be better to give her a capital sum, so that she would have an equivalent financial benefit and would also gain experience of the management of money which would be of great use to her after his death. He therefore gave her more than £50,000 worth of securities outright. Only later was it realised that this gift was after-acquired property which she was obliged by her covenant to transfer to the trustees of the marriage settlement, leaving her with a life interest in it only. The judge held that the gift was made under a relevant and sufficient mistake, because the relevance and terms of the marriage settlement was overlooked, and thus the effect of the gift, which was in reality not to the wife but on the trusts of the marriage settlement, was misunderstood. He therefore set it aside.
179. Another case decided in 1909 illustrates a different basis for the jurisdiction. In Lady Hood of Avalon v Mackinnon [1909] 1 Ch 476, Eve J set aside an appointment under a settlement. Lady Hood had power under her marriage settlement to appoint capital among the issue of the marriage, of whom there were two daughters. In 1888 on the marriage of the elder daughter half the fund was appointed to her absolutely, subject to the life interests, and the fund so appointed was then re-settled on the trusts of the daughter's marriage settlement. In 1902 and 1904 Lady Hood appointed certain sums to her younger daughter absolutely. Having forgotten the appointment made in 1888, Lady Hood then made a further appointment to her elder daughter of the same amount, in order to ensure equality between the two. The duplication of benefits to the elder daughter came to light in 1908 and Lady Hood brought an action to have the later appointment to the elder daughter set aside. The claim was resisted by the trustees of the elder daughter's marriage settlement under which there were infant beneficiaries. Eve J considered whether Lady Hood's having forgotten the earlier appointment amounted to a mistake, and held that it did. He said at page 482:

"It seems to me that when a person has forgotten the existence of a pre-existing fact, and assumes that such fact did not pre-exist, he is labouring under a mistake, and he acts on the footing that the fact really did not pre-exist."

180. On that basis, and satisfied that the last appointment was made under a mistake with regard to the existing facts, he held that she was entitled to have the appointment set aside, and he so ordered.
181. Curiously, Mrs Ogilvie's litigation seems to have disappeared from view for over a century, so far as decisions of the courts are concerned. The only trace I can find of it in law reports in the 20th century through electronic searches is that the All England Report of Morgan v Ashcroft mentions it as cited in argument in the Court of Appeal, unlike the Law Report version, which sets out the arguments at some length but does not mention the case: compare [1937] 3 All ER 92 with [1938] 1 KB 49.
182. Morgan v Ashcroft deserves mention for its own sake, even though it was decided on the basis of a common law claim to recovery. The case was very different indeed, being a claim by a bookmaker against a punter for recovery of £24 odd, said to have been overpaid by mistake in respect of winnings. Sir Wilfred Greene MR considered the nature of a mistake that can be relevant to a common law action for recovery of a sum paid under a mistake. The defendant had relied on words of Bramwell B in Aiken v Short (1856) 1 H & N 210 at 215, where he said that a mistake of fact, to be relevant to such a claim, had to be one which led the payer to suppose that he was under a liability to make the payment. The Master of the Rolls said this at pages 65 to 66 (the italics are mine):

"It is, I think, instructive to consider the words of Bramwell B. referred to above [i.e. in Aiken v Short] in the light of these authorities. In the first case which he mentions, namely, that where the supposed fact if true would have made the person paying liable to pay the money, the mistake is a mistake as to the nature of the transaction. The payer thinks that he is discharging a legal obligation whereas in truth and in fact he is making a purely voluntary payment. Such a mistake is to my mind unquestionably fundamental or basic and may be compared, at least by way of analogy, with the class of case in which mistake as to the nature of the transaction negatives intention in the case of contract. But the second case which he mentions, namely, that where the supposed fact would, if true, merely make the payment desirable from the point of view of the payer, is very different. In that case the payment is intended to be a voluntary one and a voluntary payment it is whether the supposed fact be true or not. It appears to me that a person who intends to make a voluntary payment and thinks that he is making one kind of voluntary payment whereas upon the true facts he is making another kind of voluntary payment, does not make the payment under a mistake of fact which can be described as fundamental or basic. The essential quality of the payment, namely its voluntary character, is the same in each case. If a father, believing that his son has suffered a financial loss, gives him a sum of money, he surely could not claim repayment if he afterwards discovered that no such loss had occurred; and (to take the analogous case of contract) if instead of giving him money, he entered into a contract with his son, he surely could not claim that the contract was void. To hold the contrary would almost amount to saying that motive and not mistake was the decisive matter."

183. Scott LJ (the only other member of the court) also discussed the point. At [1938] 1 KB page 74 he said this:

"And in refusing assent to the appellant's argument that the Aiken v. Short proposition is of itself necessarily sufficient to fix the boundary, I desire to keep clearly open the possibility of the common law treating other types of payment in mistake as falling within the scope of the action for money had and received. Without expressing any opinion, I recognize, for instance, the possibility that there may be cases of charitable payments or other gifts made under a definite mistake of person to be benefited, or of the substantial nature of the transaction, where on consideration the old principles of the action might still, in spite of limiting decisions, be held to cover such circumstances."

184. That was explicitly a common law claim, without recourse to the jurisdiction of equity, though I cannot suppose that the result in equity would have been different.

The more recent cases

185. Historically, after a long silence in the law reports as regards the equitable jurisdiction, that jurisdiction came to be examined next in the ground-breaking first edition of Goff & Jones on the Law of Restitution, published in 1966, where Ogilvie v Littleboy is cited at page 69 (the equivalent of paragraph 4-022 in the latest edition, the seventh) and page 133 (equivalent to paragraph 9-051). These references did not cause the case to be brought to the attention of any court, so far as I know, until 2005, when it was cited to me in Sieff v Fox. However, in the meantime there had been several cases in which recourse was had to the equitable jurisdiction.
186. The first of these was Gibbon v Mitchell [1990] 1 WLR 1304. In that case the plaintiff had a protected life interest under a settlement, and a limited power to appoint an annuity to a surviving spouse, and subject to that the capital was held on trust for his children. For purposes of tax planning he wished his children's interest in the fund to be accelerated, and he was advised that he could achieve this by surrendering his life interest. This advice was wrong, because the life interest was protected, not absolute. He acted on the advice, and it was then realised that this brought into place a discretionary trust. Because of another mistake, the interest in capital came to be in favour of all of his children, including any later born, rather than, as intended, his two existing children. Millett J referred to a number of cases where voluntary dispositions were set aside for mistake. At page 1309D-F he summarised these cases as follows:

"In my judgment, these cases show that, wherever there is a voluntary transaction by which one party intends to confer a bounty on another, the deed will be set aside if the court is satisfied that the disponor did not intend the transaction to have the effect which it did. It will be set aside for mistake whether the mistake is a mistake of law or of fact, so long as the mistake is as to the effect of the transaction itself and not merely as to its consequences or the advantages to be gained by entering into it. The proposition that equity will never relieve against mistakes of law is clearly too widely stated: see Stone v. Godfrey (1854) 5 De G. M. & G. 76, and Whiteside v Whiteside [1950] Ch 65, 74."

187. He held that the plaintiff was mistaken as to the effect of the deed of surrender, in that, although he knew it was a deed of surrender, he believed that the effect of surrendering his life interest, having regard to its nature and the terms of the settlement, would be that his two children would become entitled to the fund immediately and absolutely. At page 1310 he said this:

"Mr. Gibbon did not merely execute the deed under a mistake of law as to the legal consequences of his doing so. He executed it under a mistake as to its legal effect. The deed itself shows that to be the case. Since its effect was not that which he intended, he is entitled to have it set aside. Equity acts on the conscience. The parties whose interest it would be to oppose the setting aside of the deed are the unborn future children of Mr. Gibbon and the objects of discretionary trust to arise on forfeiture, that is to say his grandchildren, nephews and nieces. They are all volunteers. In my judgment they could not conscionably insist upon their legal rights under the deed once they had become aware of the circumstances in which they had acquired them."

188. He therefore set the deed aside. Less attention has been given in later cases to this last passage than to that which I quoted earlier, from page 1309 of the report. The language of the last passage is entirely consistent with the approach of Lindley LJ in Ogilvie v Littleboy. There is no incompatibility between this decision and that of the Court of Appeal and the House of Lords in the earlier case. What has given rise to some debate and to a perception of difficulty is Millett J's distinction between "the effect of the transaction itself" and "its consequences or the advantages to be gained by entering into it". I will come back to that distinction later.
189. We were shown a number of more recent decisions on the point. The first is Anker-Petersen v Christensen [2001] EWHC B3 (Ch), [2002] WTLR 313. In this case which, unlike some others, was fully contested, Davis J had to consider whether assignments by beneficiaries under a trust of their beneficial interest in favour of trustees who were to hold them on new trusts should be set aside as having been made under a mistake. A number of features of the case mark it out from others. The beneficiaries were well aware of the trust, under which they received substantial income, but they were given little information about it. In 1997 there were proceedings in relation to the trust under the Variation of Trusts Act 1958, the beneficiaries being parties as plaintiffs, represented by the same London solicitors as acted for the trustees. The beneficiaries were, however, given only extremely limited information about the proceedings. A meeting was held in March 1997 attended by the beneficiaries, most of the trustees and the responsible partner from the London solicitors, as a result of which one of the beneficiaries made an affidavit for the purposes of the proceedings, describing in general terms what was proposed. Part of that description was that the interests under the existing trusts would be resettled on trusts similar to those of the current trusts, but held and located outside the UK for UK tax purposes. The solicitor also made an affidavit in which he said that the beneficiaries would resettle their interest on trusts corresponding to those under the current trusts. The beneficiaries were not shown or told the terms of the trusts which were eventually brought into being for this purpose, whether in advance of or at the time they were asked to execute the assignments needed for the purposes of the resettlement. In fact the new trusts were significantly different from the terms of the previous trusts, to the disadvantage of the beneficiaries, and could not properly be described as similar, or corresponding, to the previous trusts.
190. Davis J held that the assignments should be set aside because of the beneficiaries' mistake as to the effect of the transaction. They knew that they were executing assignments, but they were mistaken as to the effect of the assignments, which were to be (and were) on trust, because of the false impression that had been given to them that the new trusts would be similar, or would correspond, to the existing trusts.
191. In the course of his judgment, Davis J quoted the passage from Gibbon v Mitchell which I have set out at paragraph [186] above, and then commented on the distinction between effects and consequences. He cast doubt on whether a failure to achieve a desired favourable tax outcome would be sufficient; see [2002] WTLR at pages 330H-331A:

"If a party enters into a deed (with a view to saving tax) on terms which are fully understood and where the effect of such terms is fully appreciated and if for whatever reason the anticipated desirable tax consequences thereafter do not flow, it would really not be open, in the ordinary way at least, to such person to seek to set aside that deed on the ground that he had not understood its nature or effect."

192. The judge held that the differences between the existing trusts and the new trusts were substantial and some of them were very significant indeed. It was, moreover, a significant factor that the beneficiaries had been misled as to the terms of the new trusts.
193. In the meantime, the jurisdiction had been noted, though not in the end relied on, by Lawrence Collins J in AMP (UK) Ltd v Barker [2000] EWHC 42 (Ch), [2001] PLR 77, a pension case in which relief was granted by way of rectification. On the subject of mistake, Gibbon v Mitchell had been cited. Lawrence Collins J said, at paragraph 70, of the distinction between effects and consequences for this purpose:

"If anything, it is simply a formula designed to ensure that the policy involved in equitable relief is effectuated to keep it within reasonable bounds and to ensure that it is not used simply when parties are mistaken about the commercial effects of their transactions or have second thoughts about them."

194. In Wolff v Wolff [2004] EWHC 2110 (Ch), [2004] WTLR 1349, Mann J set aside documents executed for the purpose of a tax saving scheme, which were so ill-drafted that it was evident that not even their draftsman, let alone the parties, had understood the transaction. One of the two documents executed was a reversionary lease of the settlors' home, granted in 1997 and effective as of 2017. In 1997 the settlors (husband and wife) were about 60 years old, so that they might well still have been alive in 2017 and still wanting to live in the home. The solicitor did not explain to them that, as of 2017, they would not be able to rely on staying there. Mann J held that this was a material aspect of the effect of the transaction as to which they were mistaken. He distinguished that from the fiscal consequences that might ensue if the daughters did permit them to stay in the house gratuitously, since they would be treated as having reserved a benefit. That, he held, would be too remote to qualify, but the mistake as to legal effect was sufficient to justify setting the lease aside.
195. The equitable jurisdiction to relieve against mistake was relied on in the alternative to the Hastings-Bass rule in Sieff v Fox, but I did not decide the case on that basis. I see no need to reiterate what I said, obiter, on this subject in that case.
196. A case which does need to be examined is one of the most recent, Re Griffiths deceased [2008] EWHC 118 (Ch), [2009] Ch 162. Lewison J had to consider a claim by the executors of Mr Griffiths to set aside dispositions by which he had transferred property into several trusts in 2003 and in February 2004. It turned out that he was suffering from lung cancer, from which he died in 2005. Because he had not survived for at least 3 years after the gifts, iht was chargeable on the full amount of the gifts. One recommendation of those advising on the steps to be taken had been that term insurance should be taken out to cover the risk that Mr Griffiths might not survive between three and seven years, but this was not acted on. Even though tax of more than £1 million was at stake, HMRC declined the invitation to take part in the proceedings. There was no adversarial argument on the law or the facts (see paragraph 6 of the judgment). (I find it odd, in those circumstances, that the case should have been selected to be reported in the Law Reports, but that is by the way.) Mr Griffiths' cancer was diagnosed in October 2004. The judge held that Mr Griffiths was already suffering from lung cancer at the time of the third and largest gift, but not at the time of the earlier gifts.
197. Lewison J proceeded on the basis that a mistake of fact is capable of bringing the equitable jurisdiction into play. He held that, if Mr Griffiths had known in February 2004 that he was suffering from lung cancer, he would not have made the disposition that he did, and that this mistake allowed his executors to invoke the equitable jurisdiction. He held that the mistake rendered that disposition voidable, and that there was no reason why he should not set it aside, which he therefore did.
198. I wonder whether the judge would have come to the same conclusion on the law (quite apart from the facts) if the case had been argued in a fully adversarial manner. It seems to me that there would have been a strong argument for saying that, having declined to follow the recommendation that he should take out term insurance, Mr Griffiths was taking the risk that his health was, or would come to be, such that he did not survive. If that was the correct view, it seems to me that the answer to the Ogilvie v Littleboy test would have been that it was not against conscience for the recipients of the gift to retain it. Ogilvie v Littleboy was cited by the judge, but he did not pose the question derived from that case in terms when he came to state his conclusion. I do not criticise the judge, given the limited argument before him, but I do question his conclusion. I do not see what there was in the case that could have justified a favourable answer to the Ogilvie v Littleboy test.
199. By way of Goff & Jones, my attention was drawn to a relevant decision of the High Court of New Zealand, University of Canterbury v Attorney-General [1995] 1 NZLR 78. In that case a donor had made a substantial gift of shares to the university, intended to augment an existing fund from which small scholarship awards had previously been made, so as to enable scholarships of a realistic amount to be paid out of the fund. He had made it clear to the university in advance that this was his purpose. They had not told him in reply (as was the case) that the fact that scholarships of realistic amount were not paid was not due to the inadequacy of the fund, but was for quite other reasons. Far from disclosing that position, they said that there would be no problem in his transferring shares "in order to increase the value of the award". His gift was therefore made on the false assumption that additional funds were necessary to, and would, enable the trust to pay realistic scholarship awards. His gift could not make any difference to the amount of any scholarships that could be offered, because other factors precluded the grant of any scholarships. The university argued that it was liable to refund the gift, but the Attorney-General objected, hence the need for proceedings. It was held that his gift had been made under a fundamental or basic mistake of fact, a mistake of such a nature and importance in the context of the transaction that it was just to order the recipient to return the property given (see [1995] 1 NZLR page 86). Williamson J relied among other things on a passage in the then 4^th edition of Goff & Jones (equivalent to the present paragraph 4-021), on what Scott LJ had said in Morgan v Ashcroft (as quoted above at paragraph [183]) and on Lady Hood of Avalon v Mackinnon.
200. A propos of the sort of situation illustrated by that case, we were shown an obiter passage from the speech of Lord Scott of Foscote in Deutsche Morgan Grenfell v Inland Revenue [2006] UKHL 49, [2007] 1 AC 558, at paragraph 87:

"There are, I think, some problems about voluntary payments made as gifts but that would not have been made but for some causative mistake, whether of fact or law, e.g. a gift of £1,000 by A to B where B is believed by A to be impecunious but is in fact a person of substantial wealth and where A would not have made the gift if he had known that to be so. My present opinion is that unless there were some other reason, such as a misrepresentation by B, to enable the gift to be set aside, the mistake made by A would not suffice, notwithstanding that the payment had not been made pursuant to any legal obligation and that but for the mistake it would not have been made. But the availability of a restitutionary remedy to recover gifts which would not have been made but for some mistake of fact or of law does not need to be pursued on this appeal and can be left for another day."

201. The New Zealand case had the added feature that the donor made plain the basis on which he intended to make the gift, which involved a false assumption of fact, and the university did not correct his misapprehension, but, in effect, confirmed it by their reply. Lord Scott indicates that the gift might not be recoverable if the mistake were not caused by the recipient, or perhaps at least known to, and not corrected by, the recipient at the time of the gift. Sir Wilfred Greene's comments in Morgan v Ashcroft, cited above at paragraph [182], are on similar lines. How that fits with Lady Hood of Avalon v Mackinnon may be for discussion, but perhaps the mistake was reasonably apparent from the nature of what Lady Hood did, in the context of the true facts, which were known to her elder daughter.
202. In his judgment in Pitt v Holt Mr Englehart commented on a submission by Mr Henderson that what Millett J had said in Gibbon v Mitchell was inconsistent with what Lindley LJ had said in Ogilvie v Littleboy. He disagreed and said that Lindley LJ was describing the gravity of the mistake that was required to invoke the jurisdiction, whereas Millett J was addressing the type of mistake that could be relevant. I agree.

Discussion

203. It seems to me that, as a matter of authority and of principle, the correct test is in part as set out by Lindley LJ in Ogilvie v. Littleboy, endorsed by the House of Lords, which I have quoted at paragraph [167] above. That identifies the critical relevance of the court's view of the effect of the mistake, once identified, upon the conscience of the recipient. Thereby it points to a need to protect the recipient in his possession and enjoyment of the property given. In that respect it sets a very high test as to the gravity of the mistake. However, I do not consider that it can be taken as definitive as to the type of mistake that may be relevant, so as to leave that entirely at large. I would accept that, in general, equity does not define dogmatically the categories of case in which it may intervene. Nevertheless, it seems to me that, with the benefit of the review of the relevant cases over the past 150 years or so, it is possible and right to say in what kinds of case the jurisdiction is available, and in which it is not. I do not aim to set out a hard and fast rule as if in legislation, which permits of no exceptions for unforeseen cases, but in my judgment the authorities do justify setting down certain general rules, as to both inclusion and exclusion.
204. For that purpose, Gibbon v Mitchell provides the best starting point. A mistake as to the effect of the disposition, by which I mean (as Millett J did) its legal effect, may be sufficient. Gibbon v Mitchell is such a case, since the nature of the donor's interest under the trust meant that the disposition which he entered into could not have the effect that he intended and desired. Ellis v Ellis is such a case, because of the overlooked effect on the gift of the covenant as to after-acquired property. Re Walton's Settlement is such a case, as is Anker-Petersen, with the added factor there that in the latter case the donors were misled by what they were told about the trusts on which their interests would be held after the assignments. Meadows v Meadows is such a case, as is Walker v Armstrong, though that was resolved by rectification. Wolff v Wolff was also such a case.
205. Then there have been a few cases where the donor, without any specific subjective intention as to the transaction, has not fully understood its legal effect. Dutton v Armstrong is an example of this kind, where it was clear that the donor was overborne, and the full relevant circumstances were withheld from him, so that it can be seen as a case of concealment from the donor. Phillipson v Kerry is not in the same category since the donor seems to have known the nature of the transaction she was undertaking and intended it. What she had not been advised about, and perhaps did not appreciate, was the risks to which it exposed her. That, it seems to me, would be in the category of consequences rather than legal effect. Bearing that in mind, and also the fact that none of the risks had materialised, or could do so by the time of the trial, I regard this decision as suspect. Mann J said in Wolff v Wolff that it was to be treated as a case of mistake, and Millett J speaks of it rather in that way in Gibbon v Mitchell. For my part I do not think it should now be followed.
206. Lady Hood of Avalon v Mackinnon is not a case of the same kind. The nature of the disposition was known. The mistake was as to an underlying assumption, namely that, but for this further appointment, the elder daughter would have received less than the younger. That was a fundamental error of fact, in relation to a point which lay at the heart of the transaction. The same is true of the New Zealand case, University of Canterbury v Attorney-General, which had the added factor that the mistaken assumption was stated by the donor in advance and not corrected by the recipient. In Re Griffiths Lewison J rejected the case so far as it was based on the falsification of expectations at the time of the disposition, but upheld it on the basis of a mistake about an existing fact, namely as to Mr Griffiths' state of health at the time of the third disposition. I agree that a mistake as to an existing fact of sufficient seriousness is capable of bringing the jurisdiction into play. As appears above at paragraph [198], my reservations about the decision in that case have more to do with the thought that Mr Griffiths might be said to have taken the risk of this eventuality, by not taking out insurance, as had been recommended. There may also be room for doubt as to whether Mr Griffiths could have known for certain what his state of health was at the relevant time.
207. Since Ogilvie v Littleboy emerged from the shadows to be cited in court, it has been applied in a number of different jurisdictions. By way of cases in the Isle of Man and Jersey which were included in the bundles of authorities, a decision of Deemster Kerruish came to my attention: Clarkson v Barclays Private Bank and Trust (Isle of Man) Ltd [2007] WTLR 1703. This was an action for recovery of sums paid by a settlor to a trustee said to have been made under a mistake of law or fact (as to the impact of UK taxation). The judge decided that the common law claim succeeded, but he went on to deal in the alternative with the equitable jurisdiction to set aside voluntary dispositions made under a mistake. Having cited Ogilvie v Littleboy and other cases, including some of what I said about the point in Sieff v Fox, the judge said this at paragraph 41:

"By way of analogy with the approach of the courts to a common law claim in restitution, the best measure as to whether the mistake was so serious as to render it unjust for the volunteer donee to retain the moneys is if the payment would not have been made "but for" the mistake. In other words the mistake is the cause of the payment."

208. That test has been applied in other cases in the Isle of Man (Re Betsam Trust [2009] WTLR 1489) and in Jersey (In re the A Trust [2009] JLR 447). I have to say that it seems to me that this passage misinterprets and misapplies what Lindley LJ said in Ogilvie v Littleboy and poses a test which is a great deal too relaxed for the donor who seeks to recover his gift. I agree with Mr Englehart who said at paragraph 52 that the decision in Re Betsam Trust does not accord with English law. The same goes for Clarkson and the Jersey case.
209. These decisions are, however, a useful foil to the English decisions that I have reviewed. Not only does it seem to me that they give wholly inadequate effect to the gravity of the test posed by Lindley LJ, they also ignore the distinction drawn by Millett J between effect and consequences. I will come shortly to the distinction as applied in relation to the facts to the present case, but in principle I agree with Davis J in Anker-Petersen (see paragraph [191] above) that the impact of taxation on or as a result of a particular transaction is a consequence, rather than a part of the legal effect, of the transaction and is therefore outside the scope of the factors as to which a mistake on the part of the donor is relevant to the jurisdiction.

The correct test

210. I would therefore hold that, for the equitable jurisdiction to set aside a voluntary disposition for mistake to be invoked, there must be a mistake on the part of the donor either as to the legal effect of the disposition or as to an existing fact which is basic to the transaction. (I leave aside cases where there is an additional vitiating factor such as some misrepresentation or concealment in relation to the transaction, among which I include Dutton v Armstrong.) Moreover the mistake must be of sufficient gravity as to satisfy the Ogilvie v Littleboy test, which provides protection to the recipient against too ready an ability of the donor to seek to recall his gift. The fact that the transaction gives rise to unforeseen fiscal liabilities is a consequence, not an effect, for this purpose, and is not sufficient to bring the jurisdiction into play.

Applying the test to the facts in Pitt v Holt

211. The respondents need to show three things in order to succeed on the Respondent's Notice: first, that there was a mistake, secondly that it was a relevant type of mistake, and thirdly that it was sufficiently serious to satisfy the Ogilvie v Littleboy test.
212. Mr Englehart would have rejected the case on mistake on the basis that there was no mistake as to iht. Mrs Pitt's mind was simply not directed to it: "she never thought about it at all": see paragraph 50 of his judgment. Mr Henderson's submission in response was that Mrs Pitt believed that there would be no adverse tax consequences as a result of creating the Special Needs Trust – that was what she had been advised. Accordingly, because there were such consequences, she was mistaken.
213. As to the type of mistake, Mr Henderson contended that, even if the rule is that only legal effects, not consequences, are relevant and if taxation is, normally, a consequence not an effect, nevertheless at least some of the fiscal liabilities in the present case are part of the direct effect of the transaction. For this purpose he relied on the fact that the iht charge is not merely imposed on Mr Pitt (which by itself would not suffice) but – given that it would have been plain that he was unable to pay it – it was also imposed on the trustees of the Special Needs Trust and, crucially, was charged on the property in the trust from the moment of the creation of the trust and the assignment to the trustees of the annuity. That, he said, made it part of the direct and immediate legal effects of the disposition.
214. Coming on to the gravity of the mistake and the Ogilvie v Littleboy test, the case is put in this way. Before the creation of the Special Needs Trust and the assignment of the annuity to its trustees, Mr Pitt was absolutely entitled to the lump sum and to the annuity both of which were payable under the structured settlement. They had been negotiated, we can assume, to provide a sum that was adequate but not generous on the basis of a prediction of his needs for the rest of his life, given the severity of his injuries in the accident. He had his home, jointly owned with his wife, but he had no spare assets. Through his wife, he was advised that it would be a good idea to put the lump sum and the annuity into a trust. The main reason for this, in the end, was to save having to pay fees to the Court of Protection, and to avoid being subject to the policy of the Court of Protection as to how much was released. He could have been advised to do this in a way which had no disadvantages in respect of any fiscal liability. He was advised that there would be no tax disadvantage. Instead, the moment that the assets were transferred into the Special Needs Trust, the assets, then worth of the order of £800,000, became subject to a liability for about £100,000 iht, secured by an immediate charge on the assets, and to the prospect of future liabilities on the withdrawal of assets from the trust, and on the assets in the trust every ten years. The assets which can be assumed to have been adequate, but no more than that, to provide for Mr Pitt's needs for the rest of his life, and which, apart from his home, were the only assets of any substance that were available for that purpose, thereby immediately became significantly less than adequate for that purpose. It could be foreseen that they would become even more inadequate when further charges to iht arose.
215. If it were only a question of satisfying the Ogilvie v Littleboy test as to gravity, it seems to me that there would be a good deal of force in Mr Henderson's argument, outlined above. The problem lies with the first two aspects of the test: was there a mistake at all, and if so was it as to effect or only as to consequences?
216. On the one hand, it seems that no relevant person applied his or her mind to the question of whether and if so how iht might affect the transaction. Neither Mrs Pitt nor her advisers turned their minds to that question. On the other hand, Mrs Pitt was advised that there were no adverse tax implications of what was proposed. In itself, a belief or assumption in general terms which is false in one material respect, even if not in others, seems to me to suffice as a mistake for these purposes. I would therefore hold that there was a belief, not specifically as to iht but generally as to adverse tax effects, which was mistaken as regards iht, and that on that basis Mrs Pitt was under a mistaken belief at the time of the transaction.
217. Was this a mistake as to effect or as to consequence? As I have said, in principle I regard the treatment for tax purposes of a transaction, or of any person or property as a result of it, as a consequence, not an effect, for this purpose. Mr Henderson sought to distinguish this case from the generality, on the lines that I have described above, relying principally on the immediate Inland Revenue charge on the trust property for the amount of tax chargeable on the creation of the Special Needs Trust. He contended that this was an immediate and direct legal effect of the transaction, in the particular circumstances, and was no more remote than the effect of the covenant as to after-acquired property in Ellis v Ellis.
218. I cannot accept that argument. The tax liability was imposed primarily on Mr Pitt as donor. The trustees are under a secondary liability, and this is backed up by a charge on the trust property. Clearly these liabilities have a major impact on the economic effect of the transaction. The fact that Mr Pitt came under a liability to pay iht was a consequence, not an effect, of the transaction. Equally, the fact that the trustees came under a secondary liability was a consequence. It does not seem to me that the fact that there was a charge on the trust property to secure the trustees' liability can change the characterisation of the tax treatment of the relevant people and circumstances from being a consequence (which it would otherwise be) to being a part of the legal effect of the disposition itself. The legal effect was the creation of the Special Needs Trust, on its particular terms, and the fact that the lump sum and the annuity were settled upon its terms. There was no mistake as to that. Each aspect of the charges to iht upon the creation of the settlement, the assignment of the trust property to the trustees, and the course of dealings with the trust property under the settlement has to be regarded as a consequence of the transaction, not part of its legal effect. That is true also of the charge on the trust property to secure the tax liability.
219. Accordingly, I would hold that, even though Mrs Pitt was under a mistaken belief at the time of the disposition, and it was a mistake of sufficient gravity to satisfy the Ogilvie v Littleboy test, nevertheless it was not a mistake as to the legal effect of the disposition, and it therefore does not qualify as a basis for invoking the jurisdiction of equity to set aside a voluntary disposition for mistake.
220. Mrs Pitt is entitled to feel that she has been badly let down by the advice that she was given, and the failure of her advisers to address the question of iht, especially as the liability could have been avoided so easily. However, it seems to me that her remedy for that (and likewise that of the Futter family for the corresponding errors in their case) lies not in the realms of equity but by way of a claim for damages for professional negligence.

Summary and disposition

221. In summary, my conclusions are as follows.
222. The Hastings-Bass rule. The principle promulgated first by Warner J in Mettoy, developed thereafter, and set out by myself in paragraph 119(i) of my judgment in Sieff v Fox is not correct. Two kinds of case need to be distinguished.

i) On the one hand there may be a case in which, for example because of an inadvertent misunderstanding of the position, an act done by trustees in the exercise of a dispositive discretion is not within the scope of the relevant power. If so it is void. That was the case in Re Abrahams' Will Trusts, as it was interpreted in Re Hastings-Bass. It would have been the case in Re Hastings-Bass but for the Court of Appeal having allowed the appeal by the trustees.

ii) On the other hand, the case may be one in which the trustees' act in exercise of their discretion is within the terms of their power, but is said to have been vitiated by their failure to take into account a relevant matter, or their taking something irrelevant into account, when deciding to exercise, and exercising, the discretion. The correct approach to such cases is dealt with at paragraph [127] above. The trustees' act is not void; it may be voidable. To be voidable it must be shown to have been done in breach of a fiduciary duty of the trustees. The duty to take relevant, and no irrelevant, matters into account is a fiduciary duty. Relevant matters may include fiscal consequences of the act in question. However, if the trustees fulfil their duty of skill and care by seeking professional advice (whether in general or in specific terms) from a proper source, and act on the advice so obtained, then (in the absence of any other basis for a challenge) they do not commit a breach of trust even if, because of inadequacies of the advice given, they act under a mistake as to a relevant matter, such as tax consequences. In the absence of a breach of trust, the trustees' act is not voidable. Even if it is voidable, it cannot be avoided unless a beneficiary seeks to have it avoided, and a claim to that effect will be subject to the discretion of the court and to the usual range of equitable defences.

iii) The same principles may apply to acts on the part of other persons in a fiduciary position, of whom a receiver appointed under the Mental Health Act 1983 is an example.

223. Mistake. The correct test is set out at paragraph [210] above. If the only ground for invoking equity's jurisdiction is a mistake on the part of the donor, it must be shown that the donor was under a mistake at the time of the disposition, which is either a mistake as to the legal effect of the transaction, or as to an existing fact which is basic to the transaction, and the mistake must be of sufficient gravity to satisfy the Ogilvie v Littleboy test, set out in the quotation from Lindley LJ's judgment at paragraph [167] above.
224. Pitt v Holt.

i) What Mrs Pitt did was within the terms of the power conferred on her by the Court of Protection. It was therefore not void. She owed her husband a fiduciary duty in respect of her exercise of the power conferred on her by the Court of Protection. However, having taken advice from a proper source as to the advantages and disadvantages of the various courses open to her, she was not in breach of fiduciary duty even though, because of the inadequacy of the advice given, she did not take into account the liability to iht that would arise. Accordingly what she did was not voidable as having been done in breach of fiduciary duty.

ii) She was under a mistake, in that she believed that the transaction would not have any tax disadvantages. Although neither she nor anyone else had thought about iht, her belief was falsified by the charge to iht that would arise, and this was a mistake. However, it was not a mistake as to the legal effect of the disposition, but as to its consequences, despite the imposition of the Inland Revenue charge on the trust property. It was therefore not a mistake of a kind such as can provide a basis for invoking the jurisdiction of equity to set aside a voluntary disposition for mistake. That is so even though it was of sufficient gravity to satisfy the Ogilvie v Littleboy test.

iii) It follows that the appeal in Pitt v Holt is to be allowed.

225. Futter v Futter. The trustees' acts of enlargement and advancement were within their powers under the respective settlements, and cannot be held to be void. The trustees took advice from appropriate solicitors as to the tax consequences of what they were thinking of doing, and acted in accordance with that advice. Therefore they did not act in breach of trust in making the enlargement and the advancements even though, because the advice was wrong, they were mistaken as to the tax consequences. The enlargement and the advancements are therefore not voidable.
226. For those reasons, I would allow the appeals by HMRC in Pitt v Holt and in Futter v Futter, and set aside the order made below in each case.

Lord Justice Longmore

227. I am entirely persuaded by my Lord's remarkable judgment that these appeals provide examples of that comparatively rare instance of the law taking a seriously wrong turn, of that wrong turn being not infrequently acted on over a twenty year period but this court being able to reverse that error and put the law back on the right course.
228. It is perhaps not without interest (at any rate to a complete non-specialist in this difficult field) to see how Re Hastings-Bass has been treated by Snell on Equity. In the first (28^th) edition (1982) published after the case had been decided, it was only mentioned in the section on the statutory power of advancement. So it remained in the 29^th and 30^th editions (1990 and 2000). It was only in the supplement to the 30^th edition that the subsequent authorities forced the editor to add a substantial commentary at the beginning of the chapter entitled "The Duties and Discretions of Trustees". This was carried into the 31^st edition (2005) and by the time of the 32^nd edition (2010) Re Hastings-Bass merited 11 separate references in 3 separate chapters. It is no doubt too much to hope that the case will only resurface in the chapter on advancement in the next edition but the commentary in the other chapters can, one hopes, be more easily aligned with principle than perhaps it has been able to be to date.
229. I agree with my Lord's disposition of both appeals.

Lord Justice Mummery

230. These appeals involve a thorough re-examination of the nature and scope of the rule in Hastings-Bass. The context is the jurisdiction of the court to determine the validity of a disposition having fiscal consequences that were unintended and unforeseen by a fiduciary purporting to exercise a discretionary dispositive power.
231. I agree that both appeals should be allowed. In his very fine comprehensive and clarifying judgment, with which I agree, Lloyd LJ convincingly demonstrates, by reference to principle and authority, that (a) the ratio in Hastings-Bass is not authority for the rule successfully invoked at first instance in the two cases under appeal and in a line of other cases since Hastings-Bass; (b) a disposition by a fiduciary is void if it is a misapplication of property outside the four corners of the discretion, a disposition of property to a non-object of the power, for instance, being ultra vires and without any legal or fiscal effect; (c) a disposition is not void if it is intra vires, even if the manner in which the discretion was exercised was "legally flawed" by the fiduciary's failure to take into account a relevant consideration, such as the correct tax consequences of the disposition; (d) in proceedings to invalidate a disposition on the ground that the fiduciary has left a relevant consideration out of account or has taken an irrelevant consideration into account, a breach of fiduciary duty has to be established; (e) a claim for breach of fiduciary duty would not normally be made by a fiduciary (as has happened in practice under the Hastings-Bass rule), but rather against a fiduciary by a person claiming to be an object of the power; and (f) the court's jurisdiction to grant a discretionary remedy, such as rescission of the disposition, or other remedies for breach of trust, is subject to equitable defences.
232. Lloyd LJ describes how Hastings-Bass developed into a rule. It seems to have quite quickly taken on a life of its own in the field of discretionary dispositive powers generally. The evolution of the rule in the case law did not, however, take account of some elementary distinctions and principles applicable to the validity of a disposition pursuant to a fiduciary power and to the discretionary remedy of rescission setting aside a disposition of property.
233. First, there is a fundamental distinction between, on the one hand, the existence and extent of a fiduciary power to make a disposition and, on the other hand, the manner of exercise of that power. In the case of a disposition to a non-object, the power does not exist. The purported disposition has no legal effect. It is void as against the whole world. If, however, the power to make the disposition exists, but there is a flaw in the manner in which the discretion has been exercised, the disposition will be valid, unless and until set aside as between the parties by order of the court.
234. Secondly, a defect in the manner of making an intra vires decision to exercise a fiduciary power is not, and should not be treated as if it were, an excess of the power. The exercise of the discretion must, of course, be properly informed and considered. The discretion must be performed in an honest, fair and responsible manner, but those requirements of the way that a decision to exercise a discretion is made are not a sufficient basis for implying a legal limitation on the four corners of the power.
235. Thirdly, analogies with judicial review in public law are unhelpful and unnecessary. There is an elementary distinction between, on the one hand, the liability in private law of a fiduciary for breach of duty and, on the other hand, the availability of judicial review for the control of abuses of public power. There are surface similarities in the language of discretion and in the debates about the limits of discretionary power, but the contexts are so different that it is dangerous to develop the private law of fiduciaries by analogy with public law on curbing abuse of power. Judicial review in public law is concerned with the lawfulness of decisions and acts of public authorities to ensure that they are acting within the limits of a power usually set by statute. Breaches of duty in fiduciary law relate to discretionary dispositive powers privately entrusted to a fiduciary who has been selected to exercise the powers for the benefit of members within a designated class. The discretion of the fiduciary is not controlled by the court, which will not interfere with matters of judgment by the fiduciary. The only ground on which the court will review the exercise of the discretion is that of a breach of fiduciary duty. The underlying principles of fiduciary law and private property law are conceptually different from the public interest basis for reviewing the lawfulness of administrative action.
236. As Lloyd LJ has explained, the correct basis of the court's jurisdiction to set aside a disposition by a fiduciary in purported exercise of a discretionary power is whether it was in breach of fiduciary duty. Talk of judicial review of the fiduciary discretion, or of interfering with the decision of a fiduciary decision-maker, and whether the flawed exercise of fiduciary discretion renders the disposition void or voidable does not grapple with the real point, which is whether there has been a breach of fiduciary duty. Once the focus is on breach of trust the rest should fall into place.
237. Fourthly, if the disposition is a misapplication of property outside the scope of the power (e.g. a fraud on the power) that will be a breach of fiduciary duty and the disposition would be void. It would have no consequences, legal or fiscal. If, however, the disposition is made within the scope of the power, but pursuant to an exercise of discretion infected by a flawed process of decision-making (e.g. failure to take relevant factors into account or to leave relevant factors out of account), that may be a breach of duty but it is of a different kind of duty. The intra vires disposition will be valid unless and until the court, in its discretion, decides to grant rescission setting it aside or some other remedy, such as equitable compensation or an account.
238. Fifthly, whether or not there is a breach of fiduciary duty in a particular case will involve the court in an inquiry into the nature of the relevant duty, the nature of the breach, the basis of liability for breach, the applicability of any exceptions to, or exemptions from, a breach of duty and the availability of equitable defences to breach. Taking Lloyd LJ's example of a fiduciary taking into account and acting upon incorrect advice obtained from a professional adviser about the fiscal consequences of a disposition, there would be no breach of duty in such a case. A fortiori no question would arise of the court granting, either at the instance of the fiduciary or of an object of the power, the remedy of rescission setting aside the disposition so as to deprive it of fiscal effects on Hastings-Bass type grounds: e.g. that the adverse consequences were not intended or expected, that they were to the detriment of the beneficiaries and that the fiduciary would have acted differently and not made that disposition if he had received and taken into account the correct tax advice. The fact that a disposition by a fiduciary pursuant to a discretionary power had unintended tax consequences and did not achieve the desired effect, but without involving a departure from the terms of the trust or a breach of duty, is neither outside the scope of the power nor is it a ground for setting the disposition aside.
239. I am in full agreement with Lloyd LJ on the correct legal test where a donor seeks to set aside a voluntary disposition on the ground of mistake. I also agree with his application of that test to the facts in Pitt v Holt.