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The Rights of Discretionary Beneficiaries to Trust Information

In separate but related proceedings before the BVI Courts – Mr Robert Tchenguiz v Rawlinson & Hunter Trustee SA (the TFT Trust Claim) and Mr Robert Tchenguiz v Mr Mark McDonald and Ors (the 3.14 Applications), the Courts gave orders permitting the applicant to inspect documentation related to the liquidation of certain BVI companies.

In the TFT Trust Claim, the Claimant sought delivery up of all of the proof of debt and claim documentation submitted by the Defendant trustees to the joint liquidators in the liquidation of the BVI companies. The 3.14 Applications sought inspection pursuant to CPR 3.14 of documents on the court file. The impetus behind the Claimant’s desire to seek disclosure was to hold the Trustee to account for allegations that it had made against the Claimant in separate proceedings involving the liquidation of the BVI companies (the Proceedings). The Trustee’s behaviour called into question broader issues about the conduct and integrity of the Trustee; as a beneficiary of the trust, the Claimant had a right to ensure that the trust was being administered properly.

In the TFT Trust Claim, relief was granted subject to the provision of an undertaking by the Claimant not to use the documents for any purpose other than seeking the administration of the trust. Here, the Court held that:

  1. As the Claimant was close to the economic position of a beneficiary absolutely entitled (i.e. a discretionary beneficiary), relief should be granted;
  2. It would not be appropriate to limit documents to those which specifically set out the allegations of misconduct made against RT since it is key for the Claimant to see how the allegations against him were deployed in the proceedings; and
  3. The provision of an undertaking by the Claimant not to use the documents for ulterior purposes was sufficient.

In the 3.14 Applications, the Claimant was permitted to inspect certain affidavits in the Proceedings on the basis that the Claimant has shown a good reason or legitimate interest to see the evidence in the matter.

The decisions solidify the open justice policy and highlight the importance in allowing beneficiaries to exercise oversight over the trustees’ activities to ensure that the trust property is properly managed and trustees can be held to account accordingly.

 

Examiner

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