Two Islands, Two Courts, Two Laws – And Two Different Approaches To Hastings-Bass

The rule in Hastings-Bass gives the court discretion to set aside an exercise of power if a trustee failed to take into account relevant considerations when exercising the power, or took into account considerations which should properly have been disregarded. This rule has been at the forefront of Guernsey jurisprudence in recent months due to the two decisions in M v St Anne's Trustees Limited and Re the Achilles Trust, resulting in what appears to be quite a difference in approach between the Channel Island Courts, though this is largely as a result of Jersey having adopted legislation in respect of this area. Ogier examines in brief those differences in approach.

In England, the rule in Hastings-Bass was revised by the cases of Futter v HMRC and Pitt v HMRC which effectively limited the protection afforded to beneficiaries to cases of 'aberrant' conduct. Some offshore jurisdictions (including Jersey) appeared to consider that the limitation of the rule was wrong