Jersey: In The Ring, Round 2: Transparency v Right To Confidentiality

Last Updated: 7 February 2018
Article by Amita Chohan

In Round 2 of our series of 3 articles on Jersey's approach to the concept of transparency in respect of beneficial ownership information, we discuss the instances in which Jersey keeps matters confidential out of respect for the legitimacy of arrangements such as discretionary trusts.  In Round 3, we will provide an insight into the tension that exists between making details of beneficial ownership available to the public (as in the United Kingdom) and the rights of beneficial owners and how this interacts with the principles of transparency.


New wealth. Flexibility.  Professionally qualified and well-regulated trustees providing sophisticated levels of protection for beneficiaries.  Tax neutrality.  Global wealth preservation.  No registration required.  Internationally renowned legal and regulatory system.  These are just a few of the reasons which are used to promote Jersey's trusts industry as an attractive, safe and reputable one.

Beneficiaries have a legitimate right to confidentiality. Trusts are confidential but frequently (and pejoratively) described as "secret".  A key feature of the trust as a legal device is the separation of legal and beneficial title – the trustee is the legal owner of the trust assets rather than the beneficiary.  Whilst trusts that are managed by a professional trust company will be subject to regulations and anti-money laundering legislation requiring trust beneficiaries to provide details of their identities to the trust company, such information is kept confidential without court order or other legal compulsion.

Principles of transparency and confidentiality often conflict when third parties unconnected to the trust or related company seek disclosure from the court of beneficial ownership information through disclosure applications.

The Royal Court of Jersey plays a balancing role in ensuring that Jersey remains a well-regulated and attractive jurisdiction for business and personal wealth management whilst simultaneously ensuring that trusts and company structures are not misused for instance to unlawfully hide assets from judgment creditors or to defraud persons. The Court has a key role to play in ensuring that those with a legitimate interest can obtain information from trustees, which would normally be confidential. Where underlying beneficiaries form part of a trust structure one effect of such court orders for disclosure is to support Jersey's international obligations to ensure the transparency of beneficial ownership information when it is appropriate to do so.


Privacy and anonymity orders

As a starting point, the Jersey courts are clear that justice should be done in public. However, the courts also attach great importance to the confidentiality of private trusts.  Not only is this standpoint driven by a respect for the interests of trust beneficiaries but also the Jersey trusts' and fiduciary services industry as a whole.  Persons' private financial affairs should be kept private.

In order to reconcile public justice and confidentiality, the court may sit in private in non-contentious trust proceedings (such as an application to vary the terms of a Jersey trust or an application for direction regarding how the trustee may or should act in connection with any matter concerning the administration of a trust). Not only does this protect beneficiaries and trust information in the main, but a confidentiality embargo is attached to any documents that are disclosed in the proceedings; a party that discloses any of this material or exposes the nature of the material in breach of the privacy order is in contempt of court.

The courts will sit in public when dealing with hostile trust proceedings and non-administrative actions. It is the administration of trusts, which is kept private.

Confidentiality and privacy is particularly important in the context of trusts. It is much too simplistic to be dismissive of the emphasis given to confidentiality by the trusts industry.  There are very good reasons that the wealth and property holdings of individuals should not be made public not least the real risk of harm being done to individuals through kidnap.  In some areas of the world this is a real and significant threat.  Frequently, the wealth of individuals is not common knowledge even in the areas where they live.  Further, their wealth can be unknown elsewhere.

As a means of making as much information public as possible where a court has heard a matter in private, very frequently there will be a public judgment but with parties' anonymised as necessary to protect their privacy.

Private individuals can use trusts to arrange their family affairs and for international investment purposes. The practice of the Jersey courts to maintain the privacy and anonymity of trust beneficiaries in appropriate cases illustrates its respect for avoiding intruding upon private respectable financial affairs.  It largely mirrors the English courts' approach in this regard.

The key task of the court is to balance the interest of those connected with the trust in confidentiality and disclosure in appropriate cases to others who are strangers to the trust.

Disclosure Orders, hurdles and protection in the trusts and companies context

In appropriate cases the court can order disclosure of documents and information from a third party such as a trustee or a company. These are called Third-party Disclosure Orders or Norwich Pharmacal / Bankers Trust type orders named after old English cases.  Disclosure is typically granted in order to enable the plaintiff to identify the proper defendant or to obtain the information necessary to plead a claim (e.g. fraud).  It is also an effective tool for asset tracing pre-trial and identifying further assets for the purposes of judgment enforcement after trial.  In particular, if there is a suspicion that assets have wrongly been placed into a trust structure in such a way so as to place them beyond the reach of a non-beneficiary to a trust, Norwich Pharmacal relief can be sought in respect of such hidden assets.

In an offshore context, such applications are likely to be made against a trust company or a corporate service provider. An applicant for disclosure must show:

  • A wrong has been carried out against the victim or at least arguably carried out;
  • The applicant intends to assert legal rights against the wrongdoer;
  • There is a need for the court's intervention to enable the applicant to decide whether to act or commence proceedings in respect of the wrongdoing;
  • The respondent is more than a 'mere witness' of the wrongdoing – there needs to be reasonable grounds for supposing or a reasonable suspicion that the respondent was mixed up in that wrongdoing;
  • Without disclosure of the information sought, the applicant will be unable to protect itself from the wrongdoing;
  • It is in the interests of justice to order the respondent to make disclosure; and
  • The application for such relief is not deemed to be disproportionate, unnecessary or amounting to a fishing expedition.

The outcome of such an application can of course potentially lead to the discovery of the identity of an entirely innocent beneficiary or beneficiaries of a trust or an innocent beneficial owner of a company (and associated information). This is an aspect which will always be under consideration during an application for disclosure and forms part of the balancing exercise conducted by the court.


Requests before disclosure, ordered by the court, are protective of innocent beneficiaries of discretionary trusts. Specifically, through the instances identified in this article, Jersey continues to maintain respect for the law of confidence, the legitimacy of legal structures and international obligations towards transparency.

Protecting rights to confidentiality is an attractive feature of Jersey's fiduciary services industry. It is also important to ensure that those that have suffered harm are able to obtain disclosure.  It will be interested to see how the Jersey courts will strike a balance between these two objectives over the next 5 to 10 years.

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
Hatstone Lawyers
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Hatstone Lawyers
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