Jersey: Judgment Summary: Directions Re Disclosure To Foreign Courts

In The Matter Of M And Other Trusts [2012] JRC127 28-Jun-12
Last Updated: 7 December 2012
Article by David Dorgan


In 2011 the trustee applied for directions from the Royal Court to approve two "momentous" decisions, namely (1) the disclosure of trust information to beneficiaries knowing that the beneficiary was likely to pass the information to a non-beneficiary (a spouse) and the Family Division of the English High Court ("Family Division") in divorce proceedings; and (2) not to submit to the jurisdiction of the Family Division in a beneficiary's divorce proceedings. These directions were held in private.

In 2012 a new application for directions was made to the Royal Court by the beneficiaries seeking leave of the Royal Court to disclose the information to the Family Division, if it requested the beneficiaries to do so. Leave of the Court was required for this purpose because the 2011 directions were held in private and to make a disclose without the Royal Court's permission would place the beneficiaries in contempt of Court.

Directions in Private

Whether a trustee is surrendering its discretion to the Court or not, directions hearings are an important part of the supervisory jurisdiction of the Court and are invariably held in private. Privacy is required for the following reasons:

  1. directions often relate to legal or commercial sensitive administrative matters rather than adversarial matters;
  2. the trustee is under a duty, and must feel able, to make full and frank disclosure to the Court;
  3. the trustee must be able to summarise arguments for and against the proposed course of action, including any weakness or possible risks;
  4. information and documents received by those who are convened as parties to the directions hearing should be held in confidence; and
  5. it is essential that directions serve the purposes for which they are intended.

Consequently to disclose information received only as part of a directions hearing held in private will result in contempt of court. A party cannot be held in contempt of court if he was already in possession of the information beforehand (Westbond International Bank Limited v Cantrust (CI) Limited [2004] JRC111).

Disclosure to the High Court

Previously the Royal Court has refused the Family Division's request for disclosure of information made to the Royal Court pursuant to a directions application on the basis that the trustee must be able to apply to the Court to make a candid appraisal of its position and the problems which are to be addressed (Deery-v-Continental Trust Company Limited [2010] JRC 001).

In this instance the Royal Court invited the Family Division to consider carefully whether it needed the disclosure relating to the 2011 directions. The Royal Court was concerned that if the Family Division began routinely to make orders for disclosure of directions applications held in private, the Royal Court would then have to reconsider its procedures and either:

  1. heavily redact any material disclosed to English residents subject to the jurisdiction of the Family Division; or
  2. preclude information being sent out of the jurisdiction and allowing inspection only in the Island.

Therefore the Royal Court hoped the Family Division would have regard to the different categories of material which should not be disclosed.

Categories of material not be disclosed

The Royal Court identified two categories of material which it was not willing to grant consent to disclose and hoped the Family Division would recognise that these two categories of material needed protection and, therefore, would not request their disclosure. The two categories are:

  1. legally privileged material;
  2. sensitive material which had been disclosed for and which sets out the trustee's thinking in respect of the 2011 directions application.


The Royal Court held that the beneficiaries were correct to bring an application for permission to disclose information to the Family Division. In the circumstance of the case, the Royal Court acknowledged that the beneficiaries had given an undertaking to the Family Division (under whose jurisdiction they were subject) which required them to produce material within 24 hours, if required to do so, meaning that there may not be time to seek the leave of the Royal Court at that stage.

On the basis that the material to be disclosed to the Family Division was not particularly sensitive, the Royal Court granted leave for the beneficiaries to disclose the material to the Family Division if required to do so. However, the Court hoped the Family Division would respect the nature of the 2011 hearing and not order disclosure of the sensitive material.


This case is interesting because it highlights the potential conflict with orders made, or which might be made, by the Family Division. It is hoped that the Family Division will recognise the sanctity of directions hearings being held in private, and thus the confidentiality of material disclosed at such hearings, particularly legally privileged and sensitive material.

Furthermore any party to a directions hearing should remember that if they have come into possession of information and/ or documentation only by virtue of the directions hearing, any disclosure by them thereafter, without permission of the Court, will result in them being in contempt of court.

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.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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