Albemarle John Cator & Ors v Ceawlin Henry Lazlo Thynn, Marquess of Bath & Anor

Introduction

1. On 20 January 2026, I heard an application by the claimants in this claim to join Caroline Jane Miller as the second defendant to the claim, to represent various beneficiaries of certain trusts which I shall describe shortly below. The claimants (who are the trustees of the trusts concerned) and Ms Miller were both represented by solicitors and counsel. The first defendant, who is the Eighth Marquess of Bath, was neither present nor represented, he having previously explained in a letter to the court that he agreed with the approach of the claimants, and saw no need for him to be either present or represented on this occasion. At the end of the hearing, I said that I would make the representation order sought, and joined Ms Miller as second defendant, but that I would give my reasons in writing. This judgment expresses those reasons.

2. The family trusts concerned in this claim are three. The first is known as the Longleat House and Chattels Settlement. It was created in 2004, following the amalgamation of two earlier settlements established in 1993 by the Seventh Marquess. The second is known as Lord Bath’s Own Longleat Settlement. It was created in 1987 by the Seventh Marquess before he succeeded to that title, when he was known as Viscount Weymouth. The third is known as Lord Bath’s Longleat Settlement (Ceawlin’s Fund). This also was created in 1987 by Viscount Weymouth, later the Seventh Marquess. By virtue of the working out of provisions in the first and second settlements, the assets of those settlements are now held on the trusts of the third settlement. The first defendant is the life tenant of the third settlement. The claim

3. The substantive claim itself is one under the first and/or second head of the well-known Public Trustee v Cooper [2001] WTLR 901 jurisdiction. In cases under the first head, as Hart J said in his decision (at 923), “the issue is whether some proposed action is within the trustees' powers. That is ultimately a question of construction of the trust instrument or a statute or both. The practice of the Chancery Division is that a question of that sort must be decided in open court and only after hearing argument from both sides.” In cases under the second head, “the issue is whether the proposed course of action is a proper exercise of the trustees' powers where there is no real doubt as to the nature of the trustees' powers and the trustees have decided how they want to exercise them but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the court for the action on which they have resolved and which is within their powers”,

4. In the present case, the claim is for the court’s approval of the claimants’ decision to exercise a power of advancement for the benefit of the first defendant in the family trusts so as to make potential provision for the first defendant’s second son, Henry (who is currently a minor). This is because Henry, although genetically the son of the first defendant and his wife, was born to a surrogate mother, in America. The family trusts expressly retain the pre-1970, common law, meanings of descriptions of family relationships, such as child, grandchild and issue. These expressions are construed to mean persons who are themselves legitimate, and so far as necessary trace their relationship through other persons who are also all legitimate: see eg Sydall v Castings [1967] 1 QB 302 , CA.

5. There is therefore uncertainty as to whether Henry falls at present within the class of beneficiaries or discretionary objects of those settlements. The first defendant and his wife consider it would be unfair and unfortunate if their second son and his issue were excluded from benefit. The claimants as trustees of those settlements wish to confer power upon the first defendant to add Henry and his issue to the class of beneficiaries, on the basis that this would be for the benefit of the first defendant (for whose benefit the power of advancement can undoubtedly be exercised). At this stage the intention is simply to confer power to add Henry to the class, but not yet to exercise it. This is to avoid any problems with US tax, as he was born in America to an American surrogate mother. A decision can then be taken at a later stage, in the light of appropriate advice, whether to exercise the power to add him.

6. The proposed method of conferring this power is to exercise the power of advancement in the trusts of the third settlement referred to above, “for the benefit of” the first defendant, by way of an advancement of the trust assets on trusts which mirror the existing trusts, but which include the power to add Henry and any of his issue and their respective spouses, widows or widowers, to the class of beneficiaries. This application

7. The effect of the conferment of power to add further persons to the class of beneficiaries will be potentially to prejudice the interests of all those who might otherwise have been the lawful objects of the power, and of all those who otherwise would benefit from the trust funds subject to the exercise of that power. This is a very large number of persons, more or less remote from the nuclear family constituted by the first defendant, his wife and their children. (Indeed, the class of such persons is not yet closed.) But it also includes their first son, John (who is also a minor), and any future legitimate children of the first defendant. The preliminary question therefore arises as to how best to constitute this claim so as to enable the court to reach a proper decision on the issues raised. This application is made to resolve that preliminary question. However, in order to explain why the application is made in the way that it is, it is necessary first to consider the procedure involved in the substantive application, and the effect of recent Court of Appeal authority upon that procedure. Guidance to trustees by the court History

8. Ashburner’s Equity , 2 nd ed 1933 by Browne, said (at 132): “A trustee has been entitled from an early time to protect himself where any reasonable doubt arises how he shall execute the trust by acting under the direction of the court, and he is safe from any liability for acts done under its authority.” The authority cited for this proposition was Leech v Leech (1675) 1 Ch Cas 249, before Finch LK (later Lord Nottingham LC). The report of this case, which is short, begins as follows: “The Bill was by Trustees to guide and direct them in diverse Trusts, and to protect them in executing the same, which the Court now did … ”

9. However, historically, the only way that trustees could obtain guidance from the court as to how to exercise their powers was to commence an administration action, ask for and obtain the guidance required from the court, and then stay the proceedings. As Charles Dickens’s famous novel Bleak House (set in the 1820s) shows, this was a slow and expensive exercise. But in 1859 Lord St Leonards, a former Lord Chancellor, managed to secure parliamentary support for reforming legislation which included a provision for a simpler and cheaper method of obtaining that guidance. In introducing the bill which became the Act, Lord St Leonards said that his bill proposed “to give trustees a summary right by petition, without rendering it necessary to file bills, to obtain the opinion of the Court of Chancery upon any point which might arise in the administration of the trust estate. This would be a great benefit to trustees, and, by substituting a cheap and simple process of determining questions, prevent the necessity of expensive suits”.

10. Accordingly, section 30 of the Law of Property Amendment Act 1859 (also known as Lord St. Leonards' Act) provided that: “XXX. Any Trustee, Executor, or Administrator shall be at liberty, without the Institution of Suit, to apply by Petition to any Judge of the High Court of Chancery, or by Summons upon written Statement to any such Judge at Chambers, for the Opinion, Advice, or Direction of such Judge on any Question respecting the Management or Administration of the Trust Property or the Assets of any Testator or Intestate, such Application to be served upon or the Hearing thereof to be attended by all Persons interested in such Application, or such of them as the said Judge shall think expedient and the Trustee, Executor, or Administrator acting upon the Opinion, Advice, or Direction given by the said Judge shall be deemed, so far as regards his own Responsibility, to have discharged his Duty as such Trustee, Executor, or Administrator in the Subject Matter of the said Application; provided nevertheless, that this Act shall not extend to indemnify any Trustee, Executor, or Administrator in respect of any Act done in accordance with such Opinion, Advice, or Direction as aforesaid, if such Trustee, Executor, or Administrator shall have been guilty of any Fraud or wilful Concealment or Misrepresentation in obtaining such Opinion, Advice, or Direction; and the Costs of such Application as aforesaid shall be in the Discretion of the Judge to whom the said Application shall be made.”

11. It will be seen that the trustee obtained a statutory indemnity “in the Subject Matter of the said Application” by acting upon the judicial opinion expressed, provided that he or she was not “guilty of any Fraud or wilful Concealment or Misrepresentation in obtaining such Opinion, Advice, or Direction”. It created a form of domestic (often now called supervisory ) jurisdiction of the court, in addition to the existing contentious jurisdiction.

12. Writing about this section, Ayckbourne, in The Practice of the High Court of Chancery , 1870, 614, said: “The object of the act is to enable trustees and others to act safely in the management of trust property, but not to obtain the opinion of the court on questions of construction; neither does the act empower the court to decide the rights of parties, upon an instrument of doubtful construction; in which case a bill should be filed.” In other words, the procedure dealt with questions under what we should now classify as the second head of Public Trustee v Cooper , but not under the first.

13. The author cited a number of authorities in relation to this passage. One of them seems to me to be useful to mention briefly here. In Re Mary Hooper (1861) 29 Beav 656, a petition was filed under this section by trustees for the court to give its opinion on the effect of a limitation contained in an instrument. At the hearing only the trustees appeared. The entire judgment is reported thus: “THE MASTER OF THE ROLLS [Sir John Romilly] stopped the case, observing that the object of this clause was to assist trustees in the execution of the trusts, as to little matters of discretion; and that this was not a case of that description. That when, as in this case, a question arose as to the effect of a limitation in an instrument, it ought, for the assistance of the Court, to be argued by the opposite parties.” It will be noted that the judge contemplated that, in principle at least, trustee applications under section 30 could proceed without any other party becoming involved, though in the present case it was not appropriate to do so. And subsequently there were cases where application was made successfully under the Act without joining any respondent: see eg Re French’s Trusts (1872) LR 15 Eq 68 .

14. Thomas Lewin, a few years later, in the last edition of his treatise on trusts for which he was himself responsible (6 th ed, 1875, pp 515-17), said this: “15. In concluding the subject of the powers of trustees we should call attention to the important enactment, 22 & 23 Viet. c. 35, s. 30 , by which trustees may now apply by petition to any judge of the Court of Chancery, or by a summons upon a written statement to any such judge at chambers for the opinion or direction of such judge respecting the management or administration of the trust property. [ … ]

17. In proceeding under this enactment there is no investigation of the facts, but the correctness of the petition or statement is assumed, and if there be any suggestio falsi or suppression veri the order of the Court pro tanto is no indemnity to the trustee. No affidavits, therefore, ought to be filed, and the costs of them would be disallowed (b) . The Court has jurisdiction in England, though one of the trustees be resident in Ireland (c).

18. What parties are to be served is in the discretion of the judge, and V.-C. Wood was of opinion that the proper course was not to serve the petition on any one in the first instance, but to apply at chambers for a direction as to the persons to be served (d), and V.-C. Malins thought the question of service ought to be dealt with at the hearing of the petition (e). But V.-C. Kindersley said he would never allow a petition under the act to be brought on for the purpose of ascertaining who were to be served; and that the petitioners must serve such persons as they thought proper, and state in the note at the end whom they had served, and that the V.-C. and the other judges had agreed upon that course (f). On a petition by the trustees where the beneficiaries were infants absolutely entitled, it was held that the infants need not be served (g). And on a petition by trustees for the opinion of the Court as to the propriety of certain proposed investments, it was held that no one need be served (h). And so the Court dispensed with service on any party where the question submitted to the Court by trustees, was, whether they could make an advancement to a child out of a share to which the child was presumptively entitled (a).

19. As the Act does not give any right of appeal, it was not intended to authorise adjudications upon nice questions of law (b). The object of the Act was to procure for trustees at a small expense the assistance of the Court upon points of minor importance arising in the management of the trust … So the Court will advise trustees as to investment of trust funds, payment of debts or legacies, &c. (d); and whether trustees of a remainder can with propriety concur with the owner of the particular estate in the sale of the fee simple (e); and whether trustees can properly exercise a power of sale (f) or a power of advancement under the circumstances stated (g) … But the Court will not give an opinion under the Act upon matters of detail which cannot be properly dealt with without the superintendence of the Court and the assistance of affidavits, such as the laying out a particular sum on improvements (i); nor will the Court adjudicate upon doubtful points, the decision of which would materially affect the rights of the parties interested (k).”

15. It will be seen that amongst the matters which the court could deal with under this section was the propriety of the exercise by the trustees of a power of advancement (footnote (g)) above). For this proposition, Lewin cited Re Kershaw’s Trusts (1868) LR 6 Eq 322 . In that case, Malins V-C said this (at 323): “The words of this power are very large; the trustees may apply any part not exceeding half the share at any period of the daughter's life for her advancement—that is a word appropriate to an early period of life—or otherwise for her benefit. The husband of one of the daughters requires a capital of £5000 for the purpose of carrying on a business which, in the opinion of the trustees, is likely to be successful, and if he cannot get this capital he must go abroad, and leave his wife and children. I think that in such a case what is for the benefit of the husband is for the benefit of the wife, and I shall answer the question in the affirmative, that the trustees may and ought to advance the money to the husband on the terms proposed by him.”

16. Legislation similar to section 30 was introduced in Australia, and within the last 20 years it has been subject of considerable judicial opinion. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, the High Court of Australia traced the history of both the English and the Australian legislation. I record my own debt to that judgment for supplying some important historical details for this judgment.

17. In England, section 30 of the 1859 Act was repealed by the Trustee Act 1893, section 51 and Schedule. But by that time the Judicature Acts of 1873 and 1875 had reformed the civil court system, and in particular had transferred the jurisdiction of the pre-existing Court of Chancery to the Chancery Division of the new High Court of Justice. The Rules of the Supreme Court (“RSC”) contained in the legislation (which made limited provision for administration applications, because the 1859 Act still applied) had been replaced by the RSC 1883 (which did make such provision, by Order 55).

18. The new rules in RSC Order 55 enabled any question which could have been raised in a suit for administration to be dealt with by originating summons: see Re Medland (1889) 41 Ch D 276 , 492, per Fry LJ. And, as Lewin on Trusts , 11 th edition (by Dale, 1904), said, “the improved procedure under the new Rules of Court [ ie Order 55] rendered [ section 30 ] obsolete”. Under Order 55, rule 5.A(a), the trustees’ summons asking for directions whether to do or abstain from an act, or for approval of a transaction, was to be served on “the person, or one of the persons, whose rights or interests are sought to be affected”. There was no requirement that all the beneficiaries should be joined.

19. One consequence of the repeal of section 30 of the 1859 Act was that the statutory indemnity of trustees disappeared. Order 55 did not on its face contain any similar indemnity. However, if under Order 55 the trustees surrendered their discretion to the court and made full and frank disclosure, the court could if it thought fit direct them what to do (this in fact is the third head of Public Trustee v Cooper ). If the trustees then implemented the court’s direction, the trustees would not be liable to the beneficiaries for doing so. In Re Londonderry’s Settlement [1965] Ch 918 , 930, for example, Harman LJ said tersely, “Trustees seeking the protection of the court are protected by the court's order … ” It would be the court’s decision and not theirs.

20. The question is whether the position was different if the trustees did not surrender their discretion, but simply asked for approval of their own decision, having however made similar full and frank disclosure beforehand. This was not the same exercise, because it was not the court’s decision. But the court was still saying that it could see nothing wrong with the proposed decision. It was still saying that it lay within the range of lawful decisions by the trustees. To that extent, at least, the answer must be the same. Provided that they have made full and frank disclosure, the trustees should not be liable on any complaint that the decision lay outside the range of possible decisions.

21. Giving evidence to the Parliamentary Select Committee on Trusts Administration in 1895 (whose report led to the enactment of the Judicial Trustees Act 1896, and later still the Public Trustee Act 1906 ), Sir Nathaniel Lindley (then a Lord Justice of Appeal, later Master of the Rolls, and subsequently a law lord) said this: “I think that trustees have been very harshly dealt with by the Court of Chancery from time out of mind, and the only justification for it is that they have the compensating protection of the Court; that is to say, they can always file a Bill, or bring an action for the administration of a trust … [ … ] Under the old practice it could only be obtained by a suit for the administration of the trust, which meant considerable expense, and the machinery was very cumbrous. That is to a great extent relaxed now, because a trustee can obtain the opinion of the Court by a summons which acts as a protection to him; but, at the same time, although that is relaxed, the judges have kept up the stringent rule of responsibility, I think, far too strictly.”

22. Following the recommendations of the Select Committee, the Judicial Trustees Act 1896 was passed. Section 3(1) of that Act (later re-enacted as section 61 of the Trustee Act 1925 ) provided as follows: “If it appears to the court that a trustee, whether appointed under this Act or not, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the passing of this Act , but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve the trustee either wholly or partly from personal liability for the same.”

23. For present purposes, two points can be made about this provision. The first is that it enabled (and section 61 now enables) the court to confer “after the event” exemption upon trustees from what would otherwise be breach of trust liability. The second is that the provision expressly refers to “omitting to obtain the directions of the court”. This presupposes that obtaining the directions of the court (as well as acting reasonably and honestly) should mean that there was no liability in the first place. In Perrins v Bellamy [1899] 1 Ch 797 , 800-01, Sir Nathaniel Lindley MR said this of those words: “As to not applying to the Court for advice, I apprehend that the words were put into the section in order to give the trustees an answer to the argument which is sure to be urged, ‘Oh, you ought to have applied to the Court’.” In other words, if the trustees had applied to court for approval of their decision, and it had been given, that approval would have protected them.

24. In the same case, Rigby LJ made a similar point, when he said (at 801): “I remember well in my early days cases in which, there having been inadvertent breaches of trust involving no moral blame, the consequences were visited upon the trustees. It was said, ‘The Court of Chancery was open to you, and if you chose to incur the risk of going on without asking the direction of the Court, you must take the consequences’.” Romer LJ agreed with both judgments.

25. Sir Arthur Underhill, who practised at the Bar both before and after the repeal of the 1859 Act , and its replacement by RSC Order 55, expressed the same view in the eighth edition, 1926, of his treatise on Trusts and Trustees (the last for which he was solely responsible). He said, at 458, “Para (f) [of order 55 rule 3] has been held to be restricted to the approval of a sale, purchase, compromise, or other transaction which has been conditionally agreed to, and which the trustees have power to carry out, but which power they wish to exercise under the court’s sanction, so as to protect themselves from future charges of negligence and the like…”

26. And, indeed, that is still how judges have interpreted the position since then. Thus, in Richard v Mackay (1987) [2008] WTLR 1667, 1671, Millett J (as he then was) said “one consequence of authorising the trustees to exercise a power is to deprive the beneficiaries of any opportunity of alleging that it constitutes a breach of trust and seeking compensation for any loss which may flow from that wrong.” This passage was cited with approval by Hart J in X v A [2006] 1 WLR 741 , [29], and by the Court of Appeal in Cotton v Brudenell-Bruce [2014] EWCA Civ 1312 , [13]. Modern practice

27. The RSC 1883 were replaced in their turn by the RSC 1965, and Order 85 of those rules dealt with administration applications. The CPR 1998 have now replaced the RSC 1965, and CPR Part 64 has taken on the role formerly played by RSC Order 85. Thus, until the decision of the Court of Appeal in Denaxe Ltd v Cooper [2024] Ch 65 (discussed below), the usual practice was broadly as follows, with variations to suit individual cases. CPR Part 64 dealt (and still deals) with applications by trustees and others to the court for directions of the kind sought here. CPR rule 64.4(1)(c) provided (and still provides) that “the claimant may make parties to the claim any persons with … an interest under the trust, who it is appropriate to make parties having regard to the nature of the order sought.”

28. Accordingly, there was (and is) is no statutory requirement that all beneficiaries be joined. And CPR PD 64B says (paragraph 4.1), “Often, especially in the case of a private trust, it will be clear that some, and which, beneficiaries need to be joined as defendants. Sometimes, if there are only two views of the appropriate course, and one is advocated by one beneficiary who will be joined, it may not be necessary for other beneficiaries to be joined since the trustees may be able to present the other arguments.”

29. The real question in such cases was whether the relevant arguments would be sufficiently debated before the court so as to enable the court properly to deal with them. In some cases, indeed, an application for directions by trustees brought under the CPR Part 8 procedure, could (and still can) be issued without naming a defendant at all. As paragraph 4.2 of the same Practice Direction said (and still says), “In some cases the court may be able to assess whether or not to give the directions sought, or what directions to give, without hearing from any party other than the trustees. If the trustees consider that their case is in that category they may apply to the court to issue the claim form without naming any defendants under rule 8.2A.”

30. In fact, the Practice Direction of Sir Andrew Morritt V-C dated 25 May 2001 ( [2001] 3 All ER 765 ) went even further in relation to applications for permission to distribute the estate of a deceased Lloyd’s name following the decision in Re Yorke [1997] 4 All ER 907 . That Practice Direction provided (at [4]) that not only need the claim form not name any other party, but also that it might be issued without an application for permission under CPR rule 8.2A.

31. The second head of the Public Trustee v Cooper jurisdiction, as approved by the Court of Appeal in (amongst other cases) Cotton v Brudenell-Bruce [2014] EWCA Civ 1312 , [12], involves the court in being “satisfied, after a scrupulous consideration of the evidence, of three matters as follows:- i) That the trustees had in fact formed the opinion that they should act in the particular way relevant to that case; ii) That the opinion of the trustees was one which a reasonable body of trustees properly instructed as to the meaning of the relevant clause could properly have arrived at; iii) That the opinion was not vitiated by any conflict of interest under which any of the trustees was labouring.”

32. In Re MF Global Ltd [2014] EWHC 2222 (Ch) , David Richards J approved the following passage from the then current 18 th edition of Lewin on Trusts (now found substantially at [39-095] of the now current 20th edition, 2020): “The court's function where there is no surrender of discretion is a limited one. It is concerned to see that the proposed exercise of the trustees' powers is lawful and within the power and that it does not infringe the trustees' duty to act as ordinary, reasonable and prudent trustees might act, ignoring irrelevant, improper or irrational factors; but it requires only to be satisfied that the trustees can properly form the view that the proposed transaction is for the benefit of beneficiaries or the trust estate and that they have in fact formed that view … ” The same paragraph in the 20 th edition goes on to deal also with the need to be satisfied that the proposed exercise is untainted by any collateral purpose such as might amount to fraud on the power.

33. It will be seen that this does not involve the court in making the same decision as the trustees, and the court does not have to be satisfied that the trustees have reached the “best” or the “right” decision. Moreover, this is a process under the Part 8 procedure, and therefore usually carried out without mutual disclosure or cross-examination. It is simply not as rigorous a procedure as breach of trust litigation after the event. And, indeed, the old chancery practice was that a claim for breach of trust could not be brought in an administration action, to which CPR Part 64 is the modern successor: Dowse v Gorton [1891] AC 190 , 202. Nor indeed was Order 55 suitable for any case where the facts were in dispute: Re Powers (1885) 30 Ch D 291 .

34. Yet, because the consequence was, as Millett J said in Richard v Mackay (1987) [2008] WTLR 1667, 1671, to deprive the beneficiaries of any opportunity of alleging that it constitutes a breach of trust and seeking compensation for any loss which may flow from that wrong, “ … the court will act with caution in such a case…”

35. But the need for caution was not to be overdone. In Cotton v Brudenell-Bruce , Vos LJ said: “84. The authorities that I have mentioned above that emphasise the need for caution in approving a trustee’s decision to undertake a momentous transaction need, I think, to be placed in context. The court will not approve a trustee’s decision without a proper evidential basis for doing so. But the court should equally not deprive a trustee of approval without good reason. [ … ]

86. The decision that these trustees have reached is indeed a momentous one. The court is not a rubber stamp and must be cautious to ensure that it is satisfied that the trustees are indeed justified in proceeding in accordance with their decision. But the court should not place insurmountable hurdles in the way of trustees in the position of those before this court. The court has a supervisory jurisdiction that needs to be exercised in appropriate circumstances. Caution cuts both ways.

87. Finally, in this context, the fact that the beneficiary is in a weaker position than he would be, after full disclosure and cross-examination at a trial of an action to challenge the trustees' actions, cannot, by itself, mean that the court should withhold consent. It is true that court approval will prevent a later challenge. But if the court is given sufficient and appropriate material on which to act, it should not withhold consent just in case something better might in the future turn up.”

36. On the other hand, and as I have mentioned, the “price” that had be paid for the protection of the trustees was that they had to give the court all the relevant information. This was expressly made clear in section 30 of the 1859 Act . In modern times, CPR PD 64B, read (and still reads): “7.1. The trustees’ evidence should be given by witness statement. In order to ensure that, if directions are given, the trustees are properly protected by the order, they must ensure full disclosure of relevant matters, even if the case is to proceed with the participation of beneficiaries as defendants.”

37. In Tamlin v Edgar [2011] EWHC 3949 (Ch) , Sir Andrew Morritt V-C emphasised this point, when he said: “25. … The very fact that the decision of the trust is momentous, taking that word from the description of the second category, and that the decision is that of the trustees, not of the court, makes it all the more important that the court is put in possession of all relevant facts so that it may be satisfied that the decision of the trustees is both proper and for the benefit of the appointees and advancees. It is not enough that they were within the class of beneficiary and the relevant disposition within the scope of the power. It must be demonstrated that the exercise of their discretion is untainted by any collateral purpose such as might engage the doctrine misleadingly called a fraud on the power. They must satisfy the court that they considered and properly considered their proposals to be for the benefit of the advancees or appointees. All this requires the full and frank disclosure to the court of all relevant facts and documents.” This passage was approved by the Court of Appeal in National Westminster Bank v Lucas [2014] EWCA Civ 1632 , [53].

38. In tracing the history of the directions procedure, I have looked in vain for any suggestion in the authorities before 2023 that the protection afforded to a trustee was based upon issue estoppel or abuse of process. The critical question was not whether someone had been joined as a party, but rather whether all sides of the argument were presented. This is of course consistent with the fact that it was possible to seek a direction from the court without joining a defendant. Before the decision in Denaxe Ltd v Cooper , therefore, it was considered that the protection conferred upon the trustees following the approval by the court of their proposed course of action was the result of the court’s approval, and not by virtue of there having been a trial of any issue between the relevant classes of beneficiaries affected by it: see eg National Westminster Bank v Lucas [2014] EWCA Civ 1632 , [54]. But that view appears to have been overtaken by the decision of the Court of Appeal, even though it is not a case about trusts at all. Denaxe Ltd v Cooper [2024] Ch 65

39. In Denaxe , the court appointed receivers over certain assets by way of equitable execution against Denaxe Ltd, the respondent to an unfair prejudice petition under section 994 of the Companies Act 2006 , who had not complied fully with the buyout order made on the petition. Subsequently, the receivers applied to the court to sanction the sale of certain of those assets on certain terms. The details do not matter for present purposes. But the application was highly contested by Denaxe. Nevertheless, Marcus Smith J sanctioned the sale, and the receivers sold the assets. Thereafter, Denaxe issued a claim against the receivers alleging that they had breached their duties of care and had sold the assets at an undervalue. The receivers applied to strike out the claim, or for reverse summary judgment on it. Fancourt J acceded to the primary application and struck out the claim. The Court of Appeal dismissed the appeal.

40. At first instance the judge had proceeded on the basis that the immunity conferred on an office holder, such as a trustee, who asked for and received sanction for a “momentous” decision, and which was exemplified in decisions such as Public Trustee v Cooper , and Richard v Mackay , was derived from the approval of the court itself. Moreover, it would apply just as much to a court-appointed receiver who had asked for and received sanction for a decision to sell assets and who was subsequently sued for common law negligence for having done so. However, in the Court of Appeal, Snowden LJ (with whom Asplin and Falk LJJ agreed, though Asplin LJ added a short concurring judgment, with which Falk LJ also agreed) disagreed with the judge’s approach, although dismissing the appeal.

41. Snowden LJ said this: “127. In my judgment, the concept of ‘immunity’ flowing from an approval decision is most easily understood as judicial shorthand for the bar on subsequent proceedings that results from an issue estoppel. Although it is not entirely apposite to speak in terms of the applicant trustees or office-holders having a ‘cause of action’ when making an approval application, the essence of the point is that if the judge hearing the approval application determines a particular issue as a step in deciding to give his approval, that will operate as a bar to a party to the application (or one of their privies) seeking to relitigate that issue in subsequent proceedings against the trustees or office-holder. Although this is simply shorthand, the concept of a trustee or office-holder having the status of ‘immunity’ from subsequent suit is also consistent with Lord Sumption's point [in Virgin Atlantic Airways v Zodiac Seats UK [2014] AC 160 , [25]] that issue estoppel is a substantive principle of law, rather than being a broader discretionary means by which it is the court that seeks to protect its own process from abuse. [ … ]

130. Understood in this way, if, for example, the issue which the court was to ask itself on an approval application was whether the trustees were acting honestly and rationally in deciding to enter into a transaction, then the trustees would be protected by the court's approval against a subsequent claim to set aside the transaction and for any consequential relief on the basis that they were not exercising their powers honestly or rationally in the best interests of the beneficiaries. Even that exercise would, of course, require the trustees to satisfy the court that they had put all information relevant to those issues before the court, and the comments on the caution required before granting approval are perfectly understandable, even on that limited basis.

131. At the other end of the spectrum, if, for example, the issue which the court was asked to determine was whether trustees had reached a decision to sell an asset in accordance with their equitable duty of care, then one might well expect the court to be even more cautious about determining that issue. The precise procedure to be adopted would be a matter for the court, but if the matter was contested, one might ordinarily expect a judge to be very wary of determining that issue, at least in the absence of disclosure, production of expert evidence and/or cross-examination. That was, I believe the point that Hart J was alluding to in X v A at [30] and Vos LJ was making more explicitly in Cotton at [78] and [87] concerning the procedural differences between applications for approval and claims in hostile litigation. As Vos LJ further observed, a court asked to approve a transaction in advance might very well consider it inappropriate to embark upon a lengthy and detailed fact-finding process better suited to a trial after the event.

132. For the sake of completeness, I should add that the extent of the ‘immunity’ conferred by an approval decision will also depend upon the identity of the parties to the approval decision and the subsequent claim.

133. As I have indicated, it is an essential requirement of issue estoppel that the claimant in the second set of proceedings should also have been a party (or a privy of a party) to the earlier decision. This is the underlying reason why, for example, trustees seeking approval to a proposed transaction will join all potentially interested beneficiaries, or, if that is not practical, seek the appointment of representative respondent beneficiaries … [ … ]

147. I also do not agree with the way in which the Judge framed his analysis of immunity at [79], [82] and [86] of the Judgment, which depended on the proposition that if the court approved a specific transaction with a specific third party at a specific price, that necessarily conferred a wide immunity in respect of all subsequent claims. The Judge's reasoning was that a subsequent claim that the transaction had been wrong, improper, irrational or a breach of a duty of care, would all be tantamount to saying that the applicant should not have entered into the specific transaction that the court had approved. It is, however, frequently the case that trustees or office-holders seek approval for a specific transaction on specific terms. But just because the subject matter, counterparty and terms of the proposed transaction are specifically identified, that does not mean that the approving court will think it appropriate to decide every potential issue that might be raised in a subsequent complaint, and for the reasons that I have outlined (and to borrow Miles J's expression in [ Re Sova Capital Ltd [2013] EWHC 452 (Ch) ]), approval does not confer blanket immunity: each case depends on its own facts.

148. In my view, in determining whether there was ‘immunity’ in the sense in which I would prefer to use that term, the focus must first be on identifying the issues that were decided by Marcus Smith J, and then asking whether any of the same issues is a necessary ingredient of the Claim that Denaxe is now making.”

42. Asplin LJ said this in her concurring judgment: “169. It seems to me to be quite clear that the protection afforded to officers of the court or trustees seeking directions and the approval of the court for their proposed conduct, must depend on the nature of the approval sought, the issues which the court is required to consider in order to reach its decision and the parties which were before the court. If an issue has been decided as part of the process of giving approval, a party to the approval application or one of their privies, cannot seek to re-litigate the issue in subsequent proceedings against the trustees or office-holders.

170. When considering the extent of any protection afforded, it is important, therefore, not only to take into account the issues which were decided on the approval application but also the identity or interest of the parties who were before the court. A party to the approval proceedings will not be allowed to raise the same issues in subsequent proceedings. It is for this reason that it is usual for trustees or office-holders to seek to join all interested parties or to seek representation orders so that all interests are before the court on the hearing of the approval application.” The effects of Denaxe

43. Notwithstanding that Denaxe was not a case of trustees seeking approval of a “momentous” decision, it is clear that the members of the court intended their decision to apply just as much to them as to other office-holders, such as court-appointed receivers by way of equitable execution. Denaxe is a significant departure from the law of trustee directions as previously understood. What the decision appears to mean is that, although the CPR Part 8 procedure can still be used by trustees when seeking Public Trustee v Cooper directions from the court, from now on it will always be necessary to have at least one defendant, otherwise there can be no issue estoppel, and thus no protection. As I have said, this is contrary to the previous practice, where it was sometimes possible to have no defendant. Trustees who have previously sought and obtained court approval for their actions under the practice then in force, and have thought themselves protected, may in fact be exposed in future to claims which they are ultimately unable to defend on the basis of issue estoppel.

44. Moreover, and despite what Snowden LJ says in Denaxe at [130]-[131] (see at [41] above), and the terms of CPR PD 64B, paragraph 7.1, since the juridical basis on which trustees acquire immunity is issue estoppel, or perhaps Henderson v Henderson (1843) 3 Hare 100 abuse, rather than simply court approval, it is difficult to see why there is any obvious need for the trustees to give full and frank disclosure to the court. Under the Denaxe approach, there is an issue fought between competing parties, each of whom has its own say. Each party looks after its own interests, deciding what points to raise, and seeking disclosure of documents or other information if necessary. No doubt this is something that will be refined in further decisions. But this is not the hearing of the substantive claim in the present case, and therefore I need say no more about it now.

45. A further point concerns delay. Given the need to join at least one defendant (and possibly several), and to give all of them an opportunity to file evidence and to appear at the hearing to make oral submissions, it will be much harder for the court to deal with such applications quickly. It is therefore possible that trustees will simply not make applications for approval in some cases, because the decision, if made at all, would have to be made more quickly than the court could deal with the matter. That may in turn mean trustees not exercising powers that formerly they would have been confident in exercising. But, again, I need not concern myself with that now.

46. I add that the appellate decision in Denaxe was discussed and applied by Fancourt J (the first instance judge in that case) in the recent case of Wythe v Zavos [2024] EWHC 2784 (Ch) . That was the case of an application by trustees under the second heading of Public Trustee v Cooper . They sought approval of a restructuring that they had decided to undertake, involving the transfer of assets of certain trust funds into the ownership of a single limited company, in return for which that company would issue shares to the trustees on certain terms. It is not necessary to set out the details.

47. Fancourt J said this: “42. As a matter of law, it is not necessary to join any or all beneficiaries as defendants to a trustee’s application of this kind, though the court may decide that joinder is desirable and direct the trustees to do so. In light of the decision of the Court of Appeal in Denaxe Ltd v Cooper [2024] Ch 65 , which explains that the protection that trustees obtain from the court’s approval depends on the principles of res judicata and abuse of process, not immunity arising from the approval, the protection may be more limited if beneficiaries are not joined; however, in this case the Claimants are willing to take that risk. In In the matter of the Portman Estate (application by Roy Matthew Dantzic and others) [2015] EWHC 536 (Ch) , Birss J held that, in view of minimal impact of that application on the beneficiaries, the large number of them, and the cumbersome and costly process of joinder, the claim should be permitted to continue with no beneficiary as defendant. [ … ]

52. The approach of the Court on an application under the second category in Public Trustee v Cooper is simple to state. The Court is asked to confirm only that the decision that the trustees have taken is one which a reasonable and appropriately advised set of trustees could properly come to, in the exercise of their discretion. In other words, regardless of whether the Court considers that the decision is the best decision, was it a rational decision within the powers of the trustees to make. Accordingly, once the Court is satisfied that the trustees have taken the decision, the Court will consider: i) whether the decision was one which a reasonable body of trustees, correctly instructed as to their powers, could properly have arrived at; and ii) Whether the decision was vitiated by any actual or potential conflict of interest: see Public Trustee v Cooper at pp. 925-6 and Cotton v Earl of Cardigan [2014] EWCA Civ 1312 ; [2015] WTLR 39 at [12].

53. The Court is therefore also concerned with the decision-making process, in order to be satisfied that the trustees have acted as prudent men of business and taken into account relevant considerations and not been influenced by irrelevant ones. To enable the Court to be satisfied on these matters, the trustees are required to make full disclosure, so that all relevant matters are before the Court.” Discussion

48. As the authorities make clear, the Public Trustee v Cooper jurisdiction, second category (unlike the first), does not apply to questions of law, for example, as to whether the relevant power exists at all. It is confined to cases where there is no doubt about the existence of the power, and it is simply a question of the propriety of its exercise in the circumstances. In the present case, the question on which the trustees seek the court’s directions is whether, having decided that they wish to exercise the power of advancement “for the benefit of” the first defendant, they may properly do so on the facts of this case.

49. To the extent that the question here is the meaning in law of the phrase “for the benefit of”, it would fall within category 1 rather than category 2 of Public Trustee v Cooper . But to the extent that the question is as to the propriety of the trustees’ exercising that power on the facts of this case, then it is category 2. Under the previous practice for category 2, set out in Public Trustee v Cooper , the court simply had to be satisfied that the trustees had actually made up their minds to exercise the power in this way, that their decision was one which a reasonable body of trustees properly instructed as the meaning of the relevant clause could properly have arrived at, and that there was no conflict of interest vitiating their decision.

50. But it seems that is no longer enough in such a case. In order for the trustees to be protected, they must create an issue between them and one or more defendants, which is then debated, and which is resolved in their favour. This may mean (but I am not deciding the point, since I have heard no argument on it, and it may arise on the disposal hearing of this claim) that the court will have to be positively satisfied that the proposed exercise of the power is indeed for the benefit of the first defendant. If so, the relationship with the third category of case in Public Trustee v Cooper , that is, where the trustees surrender their discretion, and the court takes the decision, may be less clear than it was.

51. As to the surrender of discretion, in Richard v Mackay (1987) [2008] WTLR 1667, 1670, Millett J said: “Where the court is invited to exercise an original discretion of its own, whether by appointing trustees under the Trustee Act 1925 or by approving a scheme under the Variation of Trust Act 1958 , or where the trustees surrender their discretion to the court, the court will require to be satisfied that the discretion should be exercised in the manner proposed. The applicants must make out a positive case for the exercise of the discretion … ” (See also Pilkington v IRC [1964] AC 612 , 640; Re Allen-Meyrick’s WT [1966] 1 WLR 499 , 503; In re Drexel Burnham Lambert U.K. Pension Plan [1995] 1 WLR 32 , 39G-H; Public Trustee v Cooper [2001] WTLR 901, 925; cf Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198 , 201.)

52. The impact of the decision in Denaxe on the practice for trustees’ applications for approval is uncertain. Accordingly, trustees seeking the court’s blessing now must tread carefully, at least until there is greater clarity. No doubt such extra care will cast more expense on trustees (and, therefore, beneficiaries) than before. It is in this context that the claimants in the present case were concerned to secure the joinder of an appropriate representative defendant to this claim, to represent the interests of all those beneficiaries and objects in whose interest it is that their decision should not in fact be implemented. They accordingly sought an issue-based representation order. Trusteeship is always an onerous, often a difficult and expensive, and sometimes a thankless task. In my judgment the claimants were entitled, in light of the apparent change in the law effected by Denaxe , to take the further steps in this case which they have. Representation orders

53. The Chancery Guide , as revised in September 2025, states: “25.11. Where the claim relates to the internal affairs of the trust or estate it may be appropriate for a representation order to be made so that the interests of all classes of beneficiaries are represented and protected but they are also all bound by the decision (CPR 19.9).” In the present circumstances, and especially in light of the decision in Denaxe , it does indeed seem appropriate for a representation order to be made in relation to those that the court’s approval should not be given to the trustees’ decision.

54. CPR rule 19.2 relevantly provides: “(1) This rule applies to claims about – (a) the estate of a deceased person; (b) property subject to a trust; or (c) the meaning of a document, including a statute. (2) The court may make an order appointing a person to represent any other person or persons in the claim where the person or persons to be represented – (a) are unborn; (b) cannot be found; (c) cannot easily be ascertained; or (d) are a class of persons who have the same interest in a claim and – (i) one or more members of that class are within sub-paragraphs (a), (b) or (c); or (ii) to appoint a representative would further the overriding objective. (3) An application for an order under paragraph (2) – (a) may be made by – (i) any person who seeks to be appointed under the order; or (ii) any party to the claim; and (b) may be made at any time before or after the claim has started. (4) An application notice for an order under paragraph (2) must be served on – (a) all parties to the claim, if the claim has started; (b) the person sought to be appointed, if that person is not the applicant or a party to the claim; and (c) any other person as directed by the court. [ … ] (7) Unless the court otherwise directs, any judgment or order given in a claim in which a party is acting as a representative under this rule – (a) is binding on all persons represented in the claim; but (b) may only be enforced by or against a person who is not a party to the claim with the permission of the court.”

55. In the present case, that rule applies by virtue of rule 19.9(1)(b), because there is property subject to a trust. The persons to be represented fall within one or more of rule 19.9(2)(a), (b), (c) and(d). The application has been made by the trustees, who are parties to the claim (rule 19.9(3)(a)(ii)), and has been served on the proposed representative (under rule 19.9(4)(b)). The court has not directed service on any other person. The power to make a representation order is therefore in principle available to the court. Since the decision is binary, and the trustees will put forward one side of the argument, then whether it is a category 1 or category 2 case, it will be necessary to appoint only a single representative, in order to put the other side. Decision

56. I was satisfied on the evidence that there was no suitable adult member of that class who could adequately represent the members of the whole class. The first defendant and his wife would obviously find it impossible to argue that the trustees should not exercise their power in the way indicated. The first defendant’s elder sister was also in a difficult position. The next nearest adult beneficiaries were remote. I was invited therefore to agree that an independent and suitably qualified solicitor should be appointed for this purpose.

57. This course is established in the case law. The Chancery Guide , referred to above, states: “26.23. CPR 19.9(2) does not specifically require that the representative be a member of the class represented, although this is usually the case. The court’s overriding concern is that the interests of all those represented are protected. The court will be willing to appoint a non-member of the class if the circumstances warrant it: see eg Sovereign Trustees v Glover [2007] EWHC 1750 (Ch) and Punter Southall Governance Services Limited v Hazlett [2021] EWHC 1652 (Ch) , in each of which solicitors were appointed as representatives.”

58. On the basis that this would be an appropriate case in which to appoint an independent solicitor, the claimants put forward Caroline Miller, a private client partner at Wedlake Bell LLP, for the position, and she agreed in writing to accept it. I was satisfied on the evidence that she was both suitably qualified and independent. I therefore ordered that she should be joined as second defendant to the claim, to represent the interests of those members of the class of beneficiaries who would be potentially prejudiced by the implementation of the trustees’ decision, so as to be able to provide an appropriate argument against such implementation. These are the reasons for the decision that I made.