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Legal Developments in the The UK Legal 500 2019

Tracing - Still on a new path

April 2013 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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At the end of last year Jersey's Royal Court delivered a landmark judgment concerning the circumstances in which proprietary claims may be established and when assets may be traced.

Clarity on Cross Border Insolvency Enforcement

January 2013 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The decision in these cases in the United Kingdom Supreme Court will be of enduring importance for off-shore insolvency jurisdictions.  The Court has affirmed that to be enforceable at common law, any judgment of a foreign court either for payment of money or the 'turnover' or vesting of assets outside its territorial jurisdiction must comply with the jurisdictional rules of English private international law.  There is no special rule for judgments in insolvency proceedings.

Beneficiaries apply for beddoes relief

November 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In the matter of the X Trust [2012] JRC 17

Introduction 

This case involved an application to the Royal Court of Jersey for beddoes relief by beneficiaries of a trust, so that they could pursue breach of trust claims against the incumbent trustee at the expense of the trust fund and without personal costs exposure.

Although the English Court of Appeal has decided that discretionary beneficiaries shouldn't ordinarily be given beddoes relief, the Royal Court concluded that in appropriate circumstances beneficiaries should have beddoes protection, where they are in effect suing in a derivative capacity for the benefit of the trust fund.

Court of Appeal Hands Down Judgement in Fairfield

August 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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On 13 June 2012, the Court of Appeal handed down its judgment in the claims that have been brought by the liquidators of Fairfield Sentry Limited ("Fairfield") against a number of investors that redeemed out of the fund. The Court of Appeal has upheld the decision of the trial judged albeit, in some instances, for different reasons.

Not in your backyard!

Taking steps in proceedings ruled not to be a barrier to 'forum non conveniens'

Developments in the Jersey law on unfair prejudice

The Royal Court has recently clarified its approach to applications made pursuant to Articles 141 to 143 of the Companies (Jersey) law 1991. These Articles comprise the statutory unfair prejudice regime in Jersey which can be deployed by a minority shareholder to preserve and protect its rights and position. Article 141 states that:

Where there's a will there's an executor (or two)

The Jersey Court has recently delivered a judgment concerning the principles to be applied where a body of executors are deadlocked. The case is Garnham v PC & Others1 which concerned the administration of the estate of a successful businessman who had been domiciled in Hong Kong but had established significant Jersey trusts.

In the matter of The Valetta Trust: Jersey responds positively to Third Party Litigation Funding

April 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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While not entirely new to some common law jurisdictions Third Party Litigation Funding ("TPLF") has recently been placed in the spotlight in Jersey by the decision of the Royal Court In the Matter of the Valetta Trust.

Where is the Defence? Representation of VV 26 October 2011

March 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Ordinarily a trustee would be expected to take a neutral position in relation to hostile litigation affecting the trust assets.

Revoking the Irrevocable

January 2012 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In the matter of the DDD Settlements [2011] JRC243

Excluding someone irrevocably from benefitting from trust assets normally means just that. The magic bullets of mistake and Hastings Bass have had their wings clipped somewhat, though the Jersey Court has pursued its own course in respect of the former, and its all to play for in the Supreme Court regarding the latter. But what if there were no error involved in the exclusion in any event? What if the exclusion had been effected just as intended? That was the position the Jersey Court faced with the DDD Settlements. 

PERMAFREEZE: THE JUDGMENT IN CUSTOMS & EXCISE v GARNET INVESTMENTS LTD

Those who thought the days of the extended informal freeze may be over, think again.

Many in the financial services industry were heartened by a decision of the Royal Court of Guernsey earlier this year which granted an application for judicial review and quashed a refusal of consent by the Financial Investigation Service (“FIS”) to the release of funds held by BNP.

Shock waves around the trust industry?

December 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In the Matter of the Y Trust (Jersey Unreported Judgments) 4 August 2011

Counsel for one of the parties and Commissioner Clyde-Smith were at odds over whether the court's decision to deprive one of the parties of 50% of its costs would send shock waves around the trust industry or not.

Is that your final answer? When a trustee can change its mind

September 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Royal Court was recently asked to sanction a trustee’s decision to distribute the assets of a discretionary trust in a manner that was inconsistent with previous indications that the trustee had given to the beneficiaries1. In particular, the Court analysed the ability of trustees to make distributions that are fundamentally different from decisions previously described as being “final” and whether beneficiaries need to be consulted if a trustee anticipates changing its mind in this way.

Farstad Supply A/S v Enviroco Limited Supreme Court Judgement on 6 April 2011

August 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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On February 4th 1994, a charterparty was entered into by Farstad Shipping A/S (“Farstad”) and Aberdeen Service Company (North Sea) Limited (“Asco UK”).

In the matter of the V Settlement: Hastings-Bass affirmed?

August 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Royal Court revisited the Hastings-Bass principle in the case of In the matter of the V Settlement [2011] JRC 046, in which it confirmed its previous decisions permitting relief under the principle regardless of whether or not the trustee in question had acted in breach of his duty.

Mistaken Gifts -Jersey says “No” to Pitt v Holt

Representation of R in the matter of the S Trust [2011] JRC 117

IN RE R – THE WAKING OF LEVIATHAN

The former Bailiff of Jersey, Sir Philip Bailhache has recently delivered a judgment in In re R [2011] JRC 117 which declines to follow the English Court of Appeal’s test for mistake established in Pitt v Holt1.

Jersey Legislation Overview

A brief summary of key legislation which has come into force in the first quarter of 2011 or is imminent…

Evidence of Civil Proceedings

April 2011 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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Until recently, the principle law governing evidence which can be admitted in civil proceedings in Guernsey was almost a century and a half old. Surprisingly, the Loi Relative aux Preuves, 1865 (the “1865 Law”), despite its antiquity, is relatively flexible to allow the Guernsey courts to develop well respected and comprehensive provisions as to the admissibility of evidence in civil proceedings.

In the matter of the representation of Y [2010] JRC 54

November 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The case concerned an application to the Court by Y, the liquidator of Centurion Trust Company Limited (“Centurion”), to approve the proposed appointment of Herald Trust Company Limited (“Herald”) as the trustee of the Q Trust

Discain Project Services Ltd v Charles Le Quesne (Guernsey) Ltd

November 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Plaintiff sought to challenge the outcome of an adjudication proceeding between the two parties on the grounds that the decision was unfair and contrary to natural justice.

Arun Estate Agencies Ltd v Kleinwort Benson (Guernsey) Trustees Ltd

November 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Applicant applied to the Court to have an Employee Benefit Trust (“EBT”) set aside and all the monies held by the trustees to be returned to the Applicant.

Discain Project Services Ltd v Charles Le Quesne (Guernsey) Ltd

October 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Plaintiff sought to challenge the outcome of anadjudication proceeding between the two parties on thegrounds that the decision was unfair and contrary tonatural justice.  

The New Security Interests (Jersey) Law - Transitional Provisions

October 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The draft Security Interests (Jersey) Law 201- (the “newLaw”) is in close-to-final form and is shortly due tocommence its journey through the legislative process. Itis currently anticipated that the new Law will come intoforce in the first half of 2011. 

Representation of the Jeep Trust [2010] JRC075

This representation was made by the principal beneficiary of the Jeep Trust (“Mr K”). The Jeep Trust was established in May 1998 with Regal Trustees Limited (“Regal”) as trustee.

Chvetsov v BNP Paribas and Another [2009] JCA220

The case concerned an application for leave to appeal against a decision in the Royal Court striking out a claim against Maison Anley Property Nominee Limited (“MA”). The conclusion arrived at by the Royal Court was upheld, that being the claim contained no cause of action.

Cunningham v Cunningham

A trust known as the A Cunningham No. 2 Settlement (the “Trust”) was established in 1991, with two brothers (the plaintiff and his brother referred to herein as “A”) in the class of beneficiaries who subsequently got into dispute with one another as to certain transactions relating to the Trust. The original trustees at the time of establishment of the Trust had power to designate the settlor and protector, and they chose A as such. A had power as protector of appointing new or additional trustees and removing trustees by instrument in writing.

British Virgin Islands: New Regulatory Legislation

February 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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New legislative provisions will come into force shortly in the British Virgin Islands relating to financial services, insurance business and financing and money services. These provisions will provide for an enhanced platform in these areas of the financial services industry of the BVI, once again demonstrating the continual commitment of the BVI to ensuring its legislation provides for first class transparent regulation which is appropriate for the BVI as an OECD white listed jurisdiction.

The law of mistake: In B -v- C, D and E in the matter of the A Trust [2009] JRC 245

February 2010 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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In B -v- C, D and E in the matter of the A Trust the Royal Court took the opportunity to fully review the law of mistake in Jersey concerning the disposal of personal property by an individual into a trust following recent decisions by the English courts.

Who Moved My Class Rights? - A Short Study of Cayman Islands Law on Variation of Class Rights

December 2009 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The basic question is whether under Cayman Islands Law, a variation of a right attaching to a particular class of shares has to be consented to by special majority of the members? In other words, can the Article authorising the variation of class rights specify a simple majority or some other majority?

In the matter of the H Trust - Royal Court 12 August 2009 unreported judgment

November 2009 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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The Trust in question was known as the H Trust. The trustees were a Mr Arthur (the “Individual Trustee”) and the settlor. The settlor experienced difficulties in his relationship with the Individual Trustee and decided he wanted to replace him. The settlor selected Church Street Trustees Limited (“the New Trustee”).

Tasarruf Meduati Sigorta Fonu V Merrill Lynch (Cayman) Limited and Others

October 2009 - Litigation & Dispute Resolution. Legal Developments by Ogier .

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As a matter of English and Cayman law, does the court have jurisdiction to appoint a receiver, at the behest of a judgement creditor, by way of equitable execution over a settlor’s power of revocation of a trust?

Leeds United vs AdMatch ruling dismantles protectionism surrounding Jersey based legal cases

The recent decision of the Jersey Court of Appeal in the Leeds United Association Football Club Limited and another v AdMatch case has enhanced both the quantity and quality of justice in Jersey

Divorcing Beneficiaries - A Practical Guide for Trustees

A Jersey law trust. A Jersey corporate trustee. Divorcing beneficiaries, both of whom are resident in a foreign jurisdiction.

What should you do? What shouldn’t you do?

Joanna Woods considers three key matters; the provision of information, submission to the jurisdiction of the foreign Court and the enforcement of a judgment in Jersey, in this practical guide for trustees.

 

Protecting your position as trustee: obtaining the Court’s approval of a trustee’s proposed deci

1.         Introduction 1.1             Generally and historically speaking, trusteeship is an office of personal confidence and a trustee is not able either to it or allow another to exercise it unless the settlement so provides.  Lord Langdale put this duty as follows in the case of Turner v. Corney[1] as far back as 1841:

Loss of a Privilege

Until now the rudest question that a Jersey lawyer has had to ask a client is ‘can you pay my fees”, not for much longer - lawyers in Jersey are about to get a taste of the medicine that their financial services clients have been swallowing since the introduction of the anti money laundering regime in Jersey since 1999: From mid February, with the anticipated States approval of the newly revised Money Laundering Order, lawyers will in respect of defined activities at least, have to fall into line by implementing systems to forestall money laundering including verification of identity requirements.