Soton Equity and Trusts - alastairhudson.com

3) The new approach
**Schmidt v Rosewood Trust Ltd [2003] 2 WLR 1442, 1463, per Lord Walker:-
‘… no beneficiary … has any entitlement as of right to disclosure of
anything which can plausibly be described as a trust document. Especially
when there are issues as to personal or commercial confidentiality, the
court may have to balance the competing interests of different
beneficiaries, the trustees themselves, and third parties. Disclosure may
have to be limited and safeguards may have to be put in place.’
4) Traditional applications of the new approach
Crowe v Stevedoring Employees Retirement Fund [2003] PLR 343
Foreman v Kingstone [2004] 1 NZLR 841
5) Problems with the Schmidt and Londonderry approaches
*Breakspear v Ackland [2008] 3 WLR 698, Briggs J
6) No obligation to give reasons for decision
Re Londonderry [1965] Ch 918 (management information to be given, exercise of discretions
not)
Re Beloved Wilkes Charity (1851) 3 Mac & G 440
Klug v Klug [1918] 2 Ch 67
Wilson v Law Debenture Trust Corpn plc [1995] 2 All ER 337, per Rattee J
7) Confidential information
Re Londonderry [1965] Ch 918
(Lemos v Coutts & Co (1992) Cayman Islands ILR 460)
**Schmidt v Rosewood Trust Ltd [2003] 2 WLR 1442
**Breakspear v Ackland [2008] 3 WLR 698
8) Duty to render accounts; falsification and surcharge of accounts
Hudson, para 8.4.8
Ultraframe (UK) Ltd v Fielding, [2005] EWHC 1638 (Ch), para [1513] per Lewison
J:
‘The taking of an account is the means by which a beneficiary requires a
trustee to justify his stewardship of trust property. The trustee must show
what he has done with that property. If the beneficiary is dissatisfied with
the way that a trustee has dealt with trust assets, he may surcharge or
falsify the account. He surcharges the account when he alleges that the
trustee has not obtained for the benefit of the trust all that he might have
done, if he had exercised due care and diligence. If the allegation is
proved, then the account is taken as if the trustee had received, for the
benefit of the trust, what he would have received if he had exercised due
care and diligence. The beneficiary falsifies the account when he alleges
that the trustee has applied trust property in a way that he should not have
done (e.g. by making an unauthorised investment). If the allegation is
proved, then the account will be taken as if the expenditure had not been
made; and as if the unauthorised investment had not formed part of the
assets of the trust. Of course, if the unauthorised investment has
appreciated in value, the beneficiary may choose not to falsify the account:
in which case the asset will remain a trust asset and the expenditure on it
will be allowed in taking the account.’
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