In the matter of the Representation of IFM Corporate Trustees Limited v Helliwell and Mountain[2015] JRC160 the Royal Court of Jersey was asked to exercise its discretion to make an order for rectification.  It warned that if a trust constitutes a scheme that is technically lawful but is so contrived and artificial that it would leave the court with distaste to endorse it, then it may be argued that the court ought to refuse to so exercise its discretion.

The court did acknowledge that the historical approach had been to apply the strict principles of law rather than what it described as 'inchoate and uncertain ethical considerations' in such applications for rectification.  However, that could change if the court finds itself, for example, faced with an aggressive tax avoidance scheme. If such an aggressive tax avoidance scheme does come before the court, then the court indicated that it would appoint an amicus to argue whether it ought to refuse to exercise its discretion in those circumstances.

For more details about the case please see our briefing here.

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