In the recent judgment in Cunningham v. Cunningham &
Others  JRC 124, the court considered the concept of
a trustee de son tort and whether an agent, appointed by a duly
constituted trustee, could itself be a trustee de son tort in
circumstances where the agent's actions caused loss to the
The plaintiff and the First Defendant (two brothers) were
beneficiaries under a Jersey trust who became involved in a
litigious dispute. The First Defendant, who was also the settlor
and protector of the trust, exercised his power to appoint/remove
trustees in order to remove the existing trustee and replace it
with the Second Defendant ("Sovereign International"),
which then excluded the plaintiff as a beneficiary.
The plaintiff sought to join Sovereign Gibraltar (an associated
company of Sovereign International) as a defendant on the basis
that it had done the work on behalf of Sovereign International and
had therefore acted as a trustee de son tort.
Commonplace In The Trust Industry
It was argued on behalf of both Sovereign International and
Sovereign Gibraltar that it was commonplace in the trust industry
for the administration of a trust to be carried out largely by
another company (other than the trustee) within the same group of
companies as the corporate trustee. It was submitted that it would
cause considerable surprise in the industry if such a company was
to find itself designated a trustee de son tort. It was further
submitted that because it was common practice it was important that
an authoritative decision be given as to whether such an
administrative company should be treated as a trustee de son
The court considered various formulations as to what constitutes
a trustee de son tort.
It quoted from Lewin on Trusts (18th Edition) which says at
"If a person by mistake or otherwise assumes the
character of trustee when it does not really belong to him, he
becomes a trustee de son tort and he may be called to account by
the beneficiaries for the money he has received under the colour of
the trust. A trustee de son tort closely resembles an express
trustee. The principle is that a person who assumes an office ought
not to be in a better position than if he were what he pretends; he
is accountable as if he had the authority which he has assumed.
While it is essential, if a person is to become a trustee de son
tort, that he consciously takes the office of trustee, it does not
matter whether he knows all the trusts or the extent of his
The court also quoted from Thomas and Hudson, The Law on Trusts
which says at para 30.03:-
"... trustees de son tort are not expressly declared by
the settlor to be trustees but rather are deemed to be constructive
trustees by operation of law, due to their meddling with trust
affairs, they are therefore constructive trustees. Smith LJ [in
Mara v. Browne  1 Ch 199 at 209] stated the nature of this
form of constructive trust in the following way:
"...if one, not being a trustee and not having
authority from a trustee, takes upon himself to intermeddle with
trust matters or to do acts characteristic of the office of
trustee, he may therefore make himself what is called in law,
trustee of his own wrong – i.e. trustee de son tort, or,
as it is also termed, a constructive trustee."
The court found that of critical importance in the various
formulations was that a person who intermeddles in a trust must be
one "... not having authority from a trustee" or
who "takes it upon himself" to act as a
In the court's judgment, an agent or delegate acting with
the authority of a duly appointed trustee in not committing any
'wrong' by acting within the scope of his
delegation and is not 'intermeddling' in the trust
so as to constitute him a trustee de son tort. In such
circumstances the agent or delegate is acting in the capacity in
which he has been authorised to act, and it is the trustee who has
delegated who is acting as trustee of the trust.
The court explained that the underlying rationale for imposing
liability on a trustee de son tort is that if there is no trustee,
and a person intermeddles as if they were a trustee, the only
person against whom the beneficiaries would have a remedy would be
the intermeddler and so he should be liable as if he were a
trustee. In circumstances where, as in Cunningham,
there is a trustee then the beneficiaries have a remedy against the
trustee, who in turn may or may not have a remedy against their
agent. Thus, there would be no justification in such circumstances
in constituting the agent a trustee de son tort.
This article first appeared in the autumn 2009 issue of the
Appleby Jersey's Resolution newsletter.
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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