The recent judgment of the Representation re Dunlop Settlement
delivered by the Royal Court of Jersey on 14 July 2011 demonstrates
and re-emphasises the importance of providing all trust
documentation and information to a new trustee.
In this case the Jersey Financial Crimes Unit ("JFCU")
had seized trust documents which had been retained by a former
director of the trustee of a Jersey proper law trust. The present
trustee had taken office due to a merger with the pre-merger
trustee. The JFCU was unwilling to release the seized documents
back to the trustee without the consent of the former director or a
court order. The former director failed to provide consent and
therefore the trustee applied to the court seeking an order that
the JFCU deliver the seized trust documents.
The Royal Court held that there was no doubt that the trustee
was entitled to the seized documents and it was not relevant that
they were now in the possession of the JFCU. The Court also said
that it was irrelevant that the present trustee was the result of a
merger with the pre-existing trustee as they are by law one and the
In respect of costs, the Royal Court referred to the landmark
case of Ogier Trustee Limited–v-C I Law Trustees 
JRC 158 where the Court stipulated that the normal order for costs
where a trustee fails in its duty to provide documents and
information to an incoming trustee is an order for indemnity costs.
This is a punishment upon the trustee for failing in its duty and
to ensure the beneficiaries are not required to bear any costs for
the trustee's failings. The Court extended the principal to
this case regardless that the order sought by the trustee was
against the former director responsible for the affairs of the
trust on behalf of the trustee rather than the former trustee
Therefore directors and employees of trust companies in Jersey
should be careful to ensure that upon their trust company retiring
from office, all original trust documentation and information is
provided to the incoming trustee.
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.
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