Litigating Trust Disputes in Jersey: Law, Procedure & Remedies

Description

This text is the first comprehensive guide to litigating trust disputes in Jersey, bringing together analysis of substantive Jersey law, civil procedure and the remedies available to parties appearing in trust litigation before the Royal Court of Jersey. The book is be an indispensable tool for trust professionals and legal practitioners with clients that have an exposure to a trust structure in Jersey, whether through a trustee, a beneficiary or a protector, enforcer or other power holder. This book is also of importance to matrimonial, criminal or insolvency practitioners seeking information or documents for the purposes of foreign proceedings and those seeking asset recovery or enforcement against assets subject to Jersey trusts. Foreword Table of Contents Table of Cases Table of Legislation and Legislative-Type Instruments 1 Jersey as a Jurisdiction in which to Litigate Trust Disputes I. Introduction II. Jersey"s Legal System III. Commencing Proceedings in Jersey IV. Case Management and Directions for Trial V. Litigation Costs VI. Funding Solutions: Litigation Funding and After the Event Insurance 2 Conflict of Law Issues in Jersey Trust Litigation I. Introduction II. Jurisdiction III. Choice of Governing or Proper Law 3 Applications for Directions,the Variation of Trusts I. Introduction II. The Supervisory Jurisdiction of the Royal Courtand Applications for Directions III. Examples of Applications under Article 51 of theTrusts (Jersey) Law 1984 IV. Applications for Directions Concerning theExercise of Powers V. Distributions and the Trustee’s Right of Indemnity for Liabilities and the Insolvency of a Jersey Trust VI. Beddoe Proceedings VII. Procedure in Proceedings to Obtain Directions under Article 51 of the Trusts (Jersey) Law 1984 VIII. Costs of Proceedings under Article 51 IX. Article 47—Applications for the Variation of a Trust X. Privacy Orders 4 Litigation Concerning the Existence of the Trust, the Rectification of its Terms and the Exercise of Powers I. Introduction II. Sham Trusts III. Jersey"s Rules as to Rescission for Mistake IV. Rectification and Construction of Trust Documents 5 Disclosure of Trust Information and Documents I. Introduction II. The Voluntary Provision of Trust Information to Beneficiaries III. Disclosure by Trustees to Beneficiaries on Demand IV. Disclosure of Trust Documents and Information in Hostile Proceedings against the Trustee V. Disclosure of Evidence from Jersey in Support of Foreign Proceedings 6 Trusts Arising by Operation of Law: Resulting and Constructive Trusts I. Introduction II. Constructive Trusts and Constructive Trusteeship III. Resulting Trusts 7 Personal Remedies against Trustees: The Personal Accountability of the Trustee and Liability for Breaches of Trust I. Actions for an Account II. The Basic Rule for the Personal Liability of the Trustee III. The Personal Liability of Protectors IV. Procedure and Parties V. Personal Liability for Breaches of Trust as between Co-trustees VI. Trustee"s Responsibility for Asset Managers, Agents and Companies VII. Defences of Concurrence and Release by a Beneficiary VIII. Defence under Exculpatory Provisions in the Trust Instrument IX. Power of Court to Relieve a Trustee from Personal Liability 8 Conflicts of Interest and Unauthorised Profits I. Introduction II. Conflicts of Interest III. Conflicts of Duties IV. Conflicts of Interest in the Exercise of Powers V. Defences VI. Trustees" Remuneration VII. Remedies 9 Remedies against Wrongful Recipients of Trust Property I. Introduction II. Recovering Trust Funds Paid Away by Mistake III. Actions of Knowing Receipt IV. Trustees de son Tort V. Unjust Enrichment 10 The Retirement, Removal or Replacement of the Trustee by the Royal Court I. Introduction II. Removal of Trustee under an Express Power in the Trust Instrument III. Removal of Trustee-Removal by the Court under its Inherent Jurisdiction IV. The Transition between Outgoing and Incoming Trustees 11 The Trustee"s Protection from Personal Liability:The Trustee"s Indemnity I. Introduction II. General Principles III. Common Liabilities of Trustees IV. Mechanism for Satisfaction of the Trustee"s Right of Indemnity V. Insolvency and the Trustee"s Indemnity VI. Insolvent Trusts 12 Remedies against Accessories to a Breach of Trust and Miscellaneous Claims against Third Parties other than in Respect of Breach of Trust I. Introduction II. Impounding a Beneficial Interest in Order to Indemnify the Trustee III. Dishonest Assistance IV. The Liability of a Director of a Corporate Trustee-"Dog-Leg" Claims V. Economic Torts163 VI. Derivative Claims by Beneficiaries VII. Claims for Breach of Duty in Relation to Companies in which the Trust Has an Interest-Claims for Reflective Loss 13 Proprietary Remedies against Trustees and Third Parties I. Introduction-Tracing in Jersey II. Terminology Relevant to Proprietary Remedies and Tracing in Jersey Trust Litigation III. Proprietary Remedy IV. Remedies against a Trustee V. Proprietary Remedy against Purchasers with Notice and Volunteers VI. Proprietary Remedy between Innocent Contributors to a Mixed Substitution VII. Mixed Substitutions in a Bank Account VIII. Mixed Substitutions-Tracing into Assets Acquired with Trust Monies IX. Improvements to Traceable Assets X. Mixtures and Identification-Shares in Companies XI. When Assets Become Untraceable XII. "Equity"s Darling"-a bona fides Purchaser for Value without Notice 14 Trust Property and the Proceeds of Crime I. Introduction II. Jersey"s Money Laundering Offences III. Jersey"s Anti-Terrorism Finance Offences IV. Disclosure and Non-disclosure V. Confiscation Orders and Saisie Judiciaire VI. Civil Recovery of Criminal Property 15 The Recognition and Enforcement of Judgments against Jersey Trust Assets and Trustees I. Introduction II. Recognition and Enforcement III. Enforcement and Recognition of Foreign Judgments at Customary Law IV. The Enforcement and Recognition of Foreign Judgments under Statute V. Article 9 Trusts (Jersey) Law 1984-The Firewall 16 Prescription of Actions I. Introduction: Prescription or Limitation? II. Article 57(1) of the Trusts (Jersey) Law 1984-Actions to Recover Trust Property from the Trustee and Frauds to which the Trustee Was a Party or Privy III. Article 57(2) of the Trusts (Jersey) Law 1984-Actions Founded on a Breach of Trust IV. Constructive Trusts and Similar Liabilities V. Extension and Postponement of the Prescription Period VI. Prescription Periods in Miscellaneous Claims Appendix I Appendix II Appendix III Appendix IV Index