In the recent high-profile case of Tchenguiz v Imerman (an English divorce case in which the wife was seeking financial relief by way of a variation of trusts), the English High Court ordered disclosure of sensitive trust information against the express request of the Jersey Royal Court that it not do so.
The trusts were governed by BVI law, but had a Jersey corporate trustee. The trustee did not submit to the jurisdiction of the English divorce court and applied to the Royal Court for directions. The beneficiaries were convened, and sensitive trust information disclosed to them in those private proceedings.
Certain English resident beneficiaries of the trusts also participated in the English proceedings, and gave undertakings to the English court to disclose documentation they had received in the course of the trustee's Jersey court application. Risking contempt if they refused, they sought and obtained the Jersey court's permission to disclose if ordered to do so by the English court.
Despite the Royal Court expressing the hope that, in the interests of comity (that is, the principle that courts will give effect to the judgement of other jurisdictions to the extent possible and appropriate), the English court would 'consider very carefully' whether it needed to make any disclosure order, the English Court ordered disclosure of the sensitive material anyway, fundamentally disagreeing with the Jersey court's stance that material showing the reasoning and decision-making process of the trustee and other parties should not be disclosed. It found that the trustee's ability to decide on the availability of wealth to the parties made the trustee's reasoning highly relevant to determination of the divorce proceedings.
Before this decision, the Royal Court had already suggested that the Jersey court may have to reconsider its approach to disclosure to the English courts if the Family Division began routinely to make orders requiring disclosure of supporting material used on applications by trustees brought in private. No doubt we have not heard the end of this issue.
Read the details in full in our article Trust Applications in Jersey - Confidentiality under threat: English divorce court denies Royal Court's request for restraint in the interests of comity.
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