(Family Division, Moylan J, 22 November 2013)
The husband and wife were married for 7 years and had one child. The husband had three adult children from a previous marriage who were beneficiaries under certain off shore discretionary trusts which the wife sought a variation of in order to satisfy her financial remedy claim when the parties divorced. The husband had £7m of assets in his own name and a further £20m held in nuptial settlements of which he was the primary beneficiary. In addition there were assets held within family trusts settled by the husband's father of £130m. The beneficiaries of those trusts were the husband, his spouse, or widow, his children and remoter issue.
During heavily litigated financial remedy proceedings, the judge found that the trustees would be in the best position to assist the court with enquiries as to whether they would be likely immediately or in the foreseeable future to exercise their powers to provide benefit to the husband. However, they declined to take part and so the adult beneficiaries of the trusts were joined as parties to the proceedings. The court ordered disclosure by the beneficiaries of documents submitted to the Royal Court of Jersey. The Royal Court permitted disclosure but invited the court not to require disclosure. Despite the concerns of the Royal Court, the judge in the Family Division ordered disclosure of materials including those categorised as sensitive.
When deciding whether to vary a settlement, the trustees would be best placed to provide information as to the interests of the beneficiaries. The less direct the evidence available to the court, the more the court would be driven to draw inferences or make assumptions. In the instant case the only evidence available to the court in relation to the interests was a letter of wishes which was broad in its nature and added nothing of significance. The importance of the issue was heightened in this case because the bulk of wealth accumulated during the marriage was held in trusts. Given the potential relevance and importance, including in particular the sensitive material, disclosure had to be ordered notwithstanding the strong judgment of the Royal Court and the demands of comity.