Jersey Unreported Judgments

[2009]JRC215

royal court

(Samedi Division)

13^th November 2009

IN THE MATTER OF THE REPRESENTATION OF CI TRUSTEES AND EXECUTORS LIMITED

Advocate P. C. Sinel for the Plaintiffs.

Advocate C. J. Scholefield for the Defendants.

judgment

the deputy bailiff:

1.        This is an application for an extension of time within which to comply with orders which the Court made ex-parte for the service by Mr Killmister of an affidavit, the details of which are set out at page 23 of the Order of Justice at paragraph (b).  The application is to have an extension of time to 28 days after the date of service or, in the event that the First Defendant proceeds with the forum non conveniens application, 28 days after a final decision that the Royal Court is the correct forum to hear the plaintiffs' case. 

2.        I have in the exercise of my discretion considered carefully the submissions which have been made by both parties today and will order an extension of time until close of business on Thursday next, which is the 19^th November. 

3.        I would like to take the opportunity of saying these things, which are directed particularly at the trustee, although they are also directed at the plaintiffs.  Any court is likely to pay particular attention to the type of documents which the plaintiffs have annexed to the affidavits which indicate that the trustee has a £2 share capital and that the trustee has one director and one share holder, namely Mr Killmister; that the accounts of the trustee are presented by a company called CI Accountancy Limited which also appears to be beneficially owned by Mr Killmister.  He is the only director of it and the officers of that company appear to be CI Trustees and Executors Limited.  Thus the accounts of CI Trustees and Executors Limited are prepared by CI Accountancy Limited and that company is itself administered apparently by CI Trustees and Executors Limited; there is a 360 degree nature to that organisation which all ends up with Mr Killmister.  I make that comment because it emphasises the need, where there is any uncertainty as to the transactions which have taken place so far, to ensure that that uncertainty is removed as quickly as possible and the orders which have been made, have been very firmly based with that in mind; and having in mind also the letter which I asked Mr Sinel to refer to me which is that of 14^th May 2009 in which the purported trustee certainly has indicated that any pressing of him for further information will lead the trust fund to being dissipated in costs.  The curator, as I mentioned to Mr Scholefield earlier, has a duty under Jersey law to gather in the estate of this interdict and is certainly entitled to ask the Royal Court for its assistance in gathering information for this purpose.  There is no doubt at all that this is a hostile action in which he is joined by the wife of the interdict but the fact that it is a hostile action does not make it unimportant that he is nonetheless, as curator appointed by this Court, entitled to come to this Court for help in identifying the extent of the interdict's estate.

4.        I recognise that the proper law of the trust is English law and that that is agreed and I make these comments because I take into account Mr Scholefield's submission that it is possible that a Beddoe application would be made to an English court.  Of course it would be appropriate for the comments of this Court to be brought to the attention of the English Court should any such application be made.  I would quite understand that as it is an English trust law-governed settlement it may seem on the face of it, to be appropriate to apply to the English Court for directions but nonetheless, there are a plethora of Jersey, and important Jersey, connections which make, in my view, the orders which have been made for service out of the jurisdiction absolutely appropriate to be made and I have no doubt at all that the Royal Court has got jurisdiction to deal with this particular series of claims as they stand at the moment.

5.        I also add this, that there is absolutely no reason, in my view, why the trustee should not make a Beddoe application if so minded to the Royal Court; the differences between English and Jersey trust law are not enormous in this area and the Royal Court would be perfectly well able to apply English trust law to the trust application if it were appropriate to do so.  I make no finding that it is because that is a matter on which it may be necessary for the Court to be addressed by the trustee if such an application were made.  While not in any way pre-judging that Beddoe application, it is apparent to me from reading all the papers which have been provided to me, and I note that Mr Scholefield now has a copy of the affidavit and the exhibits, that there are a number of questions which the trustee would have to answer before gaining any permission to defend this action at the expense of the trust.  It does, on the face of it, seem to be a hostile action which is brought by the only two beneficiaries of the settlement and certainly, and so far as parts of the claim are concerned, it is a little difficult at the moment to see that it is a claim which ought not to have been brought at all, I am thinking of the Saunders-v-Vautier (1841) CR and PH 240 part of the claim where it would be interesting to hear in due course what the trustee has to say about that.  If the trustees contention is that there is property which is held by the trustee but which is not in fact trust property, that would lead to a form of interpleading proceeding which the trustee is perfectly able to bring to this Court separately from the trust actions directly.  So I hope it is helpful to make those comments to ensure that if an application is made to an English court - and it is not out of any disrespect to that court that I make the comments I have - that this Court seems to me to be the right place, as at present advised, to deal with the matters which are before it and when I say that I'm talking about the leave to serve out of the jurisdiction and not of course, pre-judging any forum non conveniens application which it is open to the trustee to bring if so advised in due course.

6.        An extension of time is ordered until close of business next Thursday and costs will be in the cause.

Authorities

Saunders-v-Vautier (1841) CR and PH 240.