Guernsey: In The Matter Of The E Trust

The Supreme Court of Bermuda continues to produce a significant number of interesting decisions which serve to develop Bermuda's trust law.

A recent example is In the Matter of the E Trust [2017] SC (Bda) 103 Civ in which the Chief Justice grappled with a potential clash between the jurisdiction of the Bermuda and Jersey Court over a Bermuda law trust. The trust was administered in Jersey and the only connecting factor with Bermuda was the governing law. The Bermuda Court struck out the Bermuda proceedings brought by the settlor and a beneficiary against the Jersey based trustee, allowing proceedings to continue in Jersey. In doing so, the Chief Justice agreed with the Royal Court that Jersey was "clearly the most convenient forum" for the proceedings.

The facts

In June 2017, the Jersey based corporate trustee of the E Trust ("Trustee" and "the E Trust") commenced proceedings in the Royal Court of Jersey ("Jersey Proceedings" and "Jersey Court", respectively) seeking directions that (a) the Trustee was not required to retire; (b) any purported removal of the Trustee under section 26(1) of the Bermuda Trustee Act 1975 ("1975 Act") was invalid; and (c) approving the Trustee's decision to sell certain real estate held in the E Trust ("Property"). Section 26(1) of the 1975 Act provides a statutory power of appointment of new trustees that can be exercised in a range of situations, including where a trustee refuses to act, is unfit or incapable of acting.

On 10 July 2017, at an inter partes hearing of a jurisdictional challenge brought in the Jersey Proceedings by the settlor and one beneficiary ("Bermuda Plaintiffs"), the Jersey Court ruled that: (a) Jersey was clearly the most appropriate forum; (b) approved the Trustee's decision not to retire; (c) ordered that the Trustee was to remain in office until further order; and (d) approved the decision of the Trustees to market the Property (see Representation of G Trustees Limited [2017] JRC 162A).

The Bermuda Plaintiffs issued the Bermuda proceedings 2 days later on 12 July 2007 by which they sought (a) an order under section 31 of the 1975 Act removing and replacing the Trustee (this section sets out the Court's power of appointment of trustees under Bermuda law); and (b) setting aside the purported decision of the Trustee to sell the Property and alternatively declaring that the decision of the Trustee in this respect was invalid ("Bermuda Proceedings"). The Bermuda Plaintiffs then sought and obtained ex parte leave from the Bermuda Court to serve the Bermuda Proceedings on the Trustee out of the jurisdiction arguing that despite the potential for conflicting decisions in Jersey and Bermuda, only the Bermuda Court had competence to deal with the question of the removal of the Trustee.

As would be expected, the Trustee promptly applied to set aside leave to serve the Bermuda Proceedings out of the jurisdiction and stay the Bermuda Proceedings on the basis of forum non-conveniens. In his decision in favour of the Trustee, the Bermuda Chief Justice went further and struck out the entire Bermuda Proceedings.


The Bermuda Plaintiffs conceded that as a result of the decision of the Jersey Court and their unsuccessful attempt to appeal in Jersey, the Bermuda Proceedings were liable to be struck out, in part only, in so far as they related to directions as to the sale of the Property. However, they argued that the relief sought under section 31 of the 1975 Act (removal of the Trustee) ought to remain on the basis that only the Bermuda Court was jurisdictionally competent to remove a trustee of a Bermuda law trust, notwithstanding the Jersey Court's personal jurisdiction over the Jersey Trustee in this instance.

In rejecting this submission, the Chief Justice placed considerable emphasis on:

  • the Jersey Court's personal jurisdiction over the Trustee (considering it to extend to jurisdiction over the question of the Trustee's continuation in office);
  • the Bermuda Plaintiffs' voluntary submission to the jurisdiction of the Jersey Court in the Jersey Proceedings; and
  • the Jersey Court's competence to administer a Bermuda law trust (or any foreign law trust).

It is this latter point that is particularly interesting from a Bermuda perspective. While the Chief Justice made no mention of the expansive nature of the jurisdiction of the Bermuda Court over trusts which are governed by a foreign law, such jurisdiction is clear from section 11 of the Trusts (Special Provisions) Act 1989. This provides that the Bermuda Court has jurisdiction where (a) a trustee is resident in Bermuda; (b) where any trust property is situated in Bermuda (but only in respect of such property); (c) where the administration of any trust is carried on in Bermuda; or (d) where the Court thinks it appropriate.

In his decision in In the Matter of the E Trust the Chief Justice pointed to several provisions of Jersey law referred to in the decision of the Jersey Court (in particular, Article 5 of the Trusts (Jersey) Law 1984) which indicated that the Jersey Court had similarly wide jurisdiction in respect of a Jersey resident trustee (even when the governing law of the trust in question was a foreign law). The Chief Justice pointed to the lack of any exclusive jurisdiction clause in the E Trust and compelling public policy grounds saying that "it would... be inconsistent with comity for [the Bermuda] Court to permit its processes to be used to undermine the exercise by the Jersey Court of its lawful supervisory personal jurisdiction over trustees resident within its jurisdiction". He also quoted with approval from the decision of the Jersey Court that "... we would expect the courts of Bermuda, for reasons of comity, to afford respect to the directions we have given to a Jersey resident trustee of a Bermud[i]an trust, in the same way we would afford the same respect to directions given by the courts of Bermuda to trustees of Jersey trusts resident in its jurisdiction".


In explaining why the Bermuda Court was prepared to go so far as to strike out the Bermuda Proceedings in their entirety (rather than granting a stay of the removal claim), the Chief Justice noted that keeping the Bermuda Proceedings alive would potentially undermine the efficacy of the Jersey Court's orders in relation to the Property by creating unfounded legal doubts as to the Trustee's authority to sell the Property under the governing law of the E Trust. He held that the further prosecution of the Bermuda Proceedings would amount to an abuse of process of the Bermuda Court. In a theme that is to be found in many of the Chief Justice's rulings, he concluded with a rallying cry for comity by saying "were the roles to be reversed and this Court were to be exercising its supervisory jurisdiction over Bermudian trustees in relation to a trust governed by Jersey law, this Court would expect the Jersey Court to support rather than undermine our jurisdiction. In the highly internationalised offshore world, the role of comity and cross-border judicial cooperation, whether active or passive, carry greater public policy significance for the efficacy of Bermuda's courts".

While only referred to briefly by the Chief Justice, the Jersey Court had on 31 October 2017 granted its blessing of the decision of the Trustee to proceed with the sale of the Property. This was on the basis that it was a momentous decision (see Representation of G Trustees Limited [2017] JRC 189). The Jersey Court applied the well known principles in such applications laid down in Public Trustee v. Cooper [2001] WTLR 903, which principles are common to both Jersey law and Bermuda law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions