“You will know that over the last few decades I have confided in you more than anyone else, and it is to you first that I have always come when legal problems have arisen …. The point is, I REALLY want to find a way to involve you in the Estate, even in this small mainly-symbolic way. Life ahead looks pretty rosy with the Hotel deal now signed, and I can think of no-one better suited to be a co-Trustee of the 51% share than your goodself. There are no meetings, you virtually never need to sign anything, except the occasional new lease. I will need to seek your guidance occasionally, but I do that anyway, as you know. Please say you will at least think about it. And don’t say ‘pressure of work’. You haven’t got to do anything much, apart from receive the occasional monthly report from me on how things are going on the Estate. It would be deeply wondrous if you would say ‘Yes’.”
“It was agreed that in spite of the fact that [Lord Cardigan] was prepared to stand down from trusteeship of the Settlement and there would be a scheme of appropriation of properties the Estate would continue to be managed as a whole. [Lord Cardigan] would fulfil the role of Estate Manager subject to the restrictions which had been previously discussed and which restrictions would be revisited in these minutes for the sake of the record.”
“[Lord Cardigan] is under enormous pressure on a number of fronts and is inclined to react rather severely to many of the twists in the … pathway to what he sees as a denial of his birthright. He is slowly coming to accept the concept of a new regime with its limitations on his control of the Estate but he is somewhat fragile and easily flashes over on hearing anything which relates to a tightening of controls on his freedom …. [Lord Cardigan] interprets the appointment of Land Agents to manage the Estate as a usurpation of his birthright and a serious blow to his dignity, self respect and standing in the community. [Lord Cardigan] was somewhat taken aback by what he saw as something close to a reversal in your position in relation to him, since he met with you as he heard, a couple of months ago … that you were content with Land Agents managing the Estate. I have told [Lord Cardigan] …, and he largely accepts, that you and any new trustees have no choice over the appointment of Land Agents to manage the Estate, as that is a requirement of the bank …. Whilst I think [Lord Cardigan] is reluctantly resigned to the way the Estate must be managed he is eager to know more of the detail as to his own role, as he hopes to retain some role in the management.”
“We will need to be explicit over what Lord Cardigan can and cannot do. He may act as the eyes and ears of the retained agents, dealing with access by members of the public eg DofE scheme hikers, Scouts etc. He might also be a useful go-between for minor repairs, but he will not be able to pay bills or authorise their payment. He will not be able to negotiate with tenants and must not hold himself out as being able to do so.”
“The reason for the Court appointment [of Mr Moore and Mr Cotton] is Richard Ford’s expectation of delays and difficulties being used to frustrate the main cause for the action, i.e. David Cardigan’s absences, illnesses and waywardness and, to an extent, cussedness.”
“From [Thring Townsend’s] point of view I should have thought the real and justifiable requirement for the Consent Order [i.e. what was to become the Tomlin order of21 October 2008 ] would be for it to contain provisions which substantially exclude Lord Cardigan from management of the Estate subject to the discretion of the Trustees (who may or may not relax this in minor ways as we have discussed) because there is no other effective way of preventing Lord Cardigan from holding himself out as having management of the Land.”
“Option 1 is to accept that the legal position is you have no choice about whatever the trustees decide to do as far as the running of the estate is concerned. If you press the trustees too hard at this stage to enlarge your role from whatever they say it needs to be you will cause them to shut down that role to a far greater extent and you will have no choice about compliance …. Assume that as the experience of the trustees increases they will realise that the Estate needs your input. After a lot of argument and psychological warfare the Order has now left this possibility of enlargement of your role open ….”
“Cardigan remains the Manager as Wilson Cotton always assured me would be the case, but there will be greater involvement by professionals, especially while I remain off the Estate”
“This is all getting out of control and John [Moore] and I have never told him [i.e. Lord Cardigan] that he would remain the manager. Quite the contrary, the court order specifies otherwise and what we have been exploring is a modest but useful role that softens the blow.”
“Yet again, this is an example of Lord C making untrue claims about his future role in the management of the Estate which will, because of the paper in which they are printed, come to the attention of many of the people living around the Estate and in the local area. It seems to me that there is a serious risk that statements like this will become taken as the truth in the local community, which is clearly extremely undesirable. … Once the new agents are appointed, would it be sensible to write a letter to anyone living on the Estate, and anyone with whom the Estate has done business in the recent past, giving [Strutt & Parker’s] contact details and stressing that Lord C now has no role in the day-to-day management, with all decisions being made by the trustees in conjunction with S&P?”
“If you are saying BOTH that the breathtakingly-insensitive way that the Trustees have started is likely to be the way they continue, AND that Thomas [i.e. Viscount Savernake] approves of that, then we are looking Partition and Disinheritance. I have already consulted [Mr Davidson] on suitable Solicitors to handle that for me. I can see no viable alternative. I have lost my marriage. I am ejected from my Home for years on end. And now you seek to deprive me of my raison d’etre.”
“Saw David and Joanne. Joanne tried hard to encourage David to accept that he should re-establish diplomatic relations with me. David held his head in his hands and was shaking throughout the hour we spoke …. He several times declared that he was trying to deal with the encounter in polite terms ….”
“Thank you for that. But ghastly though it has been, it has not caused me anything LIKE as much pain and worry as you not following through with the undertaking you gave me when we last met, that you would improve on the 1 e-mail a month you were previously sending me. Today’s e-mail aside, you have now changed that to zero e-mails per month.”
“I certainly do mean to abuse all those who have kept me without the means to get myself into Hospital when I have to, and three weeks after that are still preventing me buying food or vital anti-depressants. Your silly idea that this is some weird Cardigan wheeze just makes things worse.”
“Telling me I have a secret stash out here, and that you don’t believe I am penniless, is the final straw. What part of PISS OFF don’t you get?”
“You have known for 10 days that I have just under$3 in the Bank. You have known for 24 hours that John Hill [i.e. the present Lady Cardigan’s former husband] has now decided to cut off all Joanne’s [i.e. Lady Cardigan’s] alimony payments. From your silence I take it you are quite content with that state of affairs.”
“If I don’t eat, you and Monique [i.e. Mr Moore’s wife] don’t get to sleep.”
“And after a sleepless night for you, I will see what John Gardiner, Francis Kilpatrick, and Jonathan Peacock [i.e. barristers in the chambers of which Mr Moore is the senior clerk] think of your antics.”
“Closing down all devices now, until shortly after I calculate you will have fallen asleep.”
“As trustees we are therefore heavily constrained, not least by the current substantial bank borrowings, in the financial assistance that we can give you. In short, the cupboard is bare. You have told us that you need funds. Could you please let us know how much you are seeking and what it is for, so that we can give your request proper consideration?”
“Listen you stupid man, don’t you understand what ‘2k and a ticket’ means?”
“I don’t think we have sent anything in the way of a sustenance payment to David Cardigan since July. Whilst he has not asked for anything do you think we should send a modest amount off on humane grounds – perhaps£2,000 ? He must be in some difficulty by now.”
“It is very odd that we haven’t had any squawks about this, which indicates that either he is living off the generosity of others, or he has access to a secret piggy bank. I agree that we should send something and am happy for£2,000 to go to his account.”
“Just realised that I never thanked you for the Savernake photos you sent me the other day. On the assumption that it was meant as an Olive Branch, I should have thanked you right away, and not weeks later. Thank you for your thoughtfulness.”
“I hope no Olive Branches need to be extended – I just knew that the beautiful colours that the Forest takes on as autumn sets in at Savernake would make you feel at home. I know times have been more than tough for you and dire financial straits have made it impossible for me to deliver assistance when I should have liked to. If I may say so, you seem a bit better now and whilst you may not think the same I really don’t think you and I need to overcome past incidents of raised blood pressure due to extreme stress imposed by the outside and perhaps the inside world.”
“There can’t be a WORD of truth in the rumour that with me safely out of the country, you are threatening to sell a 500-year old [painting] collection from Savernake Lodge, can there?”
“Your being out of the country has nothing to do with the steps we are obliged to take to prevent the sale of the last remaining real property assets of the trusts. Due to the divorce settlement and the settlement of fees incurred in connection therewith together with … tax of£249,561.60 just paid on property sales, the current account overdraft stands at£325,835.49 whilst there is also a term loan of£861,883.85 ie indebtedness to the bank of£1,187,716.34 The interest on these loans is insupportable from the regular income of the Estate and the bank requires asset sales to discharge a large slice of the loans. I trust it will be clear that your not being here is not relevant to the options available to manage the debt. Actually nothing has yet been sold but may well have to be and in any event many of the pictures are deteriorating in storage at the Lodge.”
“You have been inundating me with telephone calls in the middle of the night, on my mobile at all hours and at my place of work in London. When my wife, myself or work colleagues have answered your calls only breathing has been heard and you have not uttered a word.”
“There is a dispute as to the true ownership of these paintings and a process will shortly commence to remove this Trustee [i.e. Mr Moore] from his role, for actions inconsistent with the best interests of the beneficiaries.”
“Whilst the defendants continue to waste vast amounts of my family’s money on misadventures, they do not provide a penny in a stipend to me, the main beneficiary of the Estate, nor have they done so for many years. I am therefore in a position of having no money nor any income. Naturally, if the ultimate Order of the Court is that I should repay the£1,000 proceeds of sale to the Trustees, then I will do so. But my treatment at the hands of these Trustees is causing me and my new wife enormous hardship.”
“We are working round the clock for your removal.”
“Moreover, it is intolerable from my client’s perspective for matters to continue as they are and changes need to be made and made as a matter of some urgency. So far as we see it, the relationship between the Trustees and Lord Cardigan is quite beyond repair and cannot continue …. We also consider that the Trustees are in breach of Trust on 14 different grounds.”
“That scum Moore has been defeated. Strutt & Parker have just said that it will NOT be Juniper who comes here.”
“It is very short-sighted of you to ally yourself with creatures like John Moore. Because when he is torn down from his position at Savernake – and I work tirelessly 7 days a week to that end – his allies will find that their position at Savernake is a thing of the past too.”
“Don’t you think I should take the 25,000 pounds? I think I should.”
“Which way should I go? And why? And can you tell me in a civil tone?”
“The note of caution that both Shona [i.e. Ms Shona Alexander of Forsters] and I would sound, having got a better handle on how [Lord Cardigan’s] mind works is that if you send a letter that could goad him into action. From what I can gather, he last made threatening noises on about 16 April, which is before he comprehensively lost the court action that he brought against John and me. If that is not the case, could you let me know? On that basis, our advice, uncomfortable though it might be, is to sit tight and do nothing this weekend. We can then reconsider things on Monday, if we need to. Just to put your mind at rest on a few things: 1. If it got to the stage when you felt it necessary to obtain an injunction, I think it would be very difficult for him to obtain legal representation without stumping up quite a bit of money, which he doesn’t have, or giving financial undertakings that he is not in a position to. 2. He is unlikely to want to represent himself in court given his recent experience and the fairly damning evidence that I gather his e-mails to you contain. 3. No newspaper group would underwrite his costs unless they thought his stories were likely to sell a shed load of newspapers; and they would certainly not back him if they felt that he was lying. I hope that helps and that you can go out and kick enormous quantities of ass this weekend. Huge hugs from me and an exceptionally loud shout from Pippa [i.e. Mr Cotton’s wife].”
“I will do what I can to shield [Lady Catherine] from her father. Obviously the longer she lasts in the competition, the higher her stock will rise. That means two things: 1. Her story becomes more valuable. That said, Cardigan has rather shot himself in the foot with his e-mail assertion that he is prepared to lie about her. 2. Lawyers/record producers etc. are more likely to take a punt on her and underwrite any legal costs in protecting her. In the meantime however, if Shona advises that a letter needs to be sent to Cardigan, I think we should underwrite the cost.”
“As you are aware, during the Voice, Cardigan sent Catherine a series of abusive e-mails …. Her lawyers did the preparatory work for a restraining order, but did not proceed with an application. They did this work on a pro bono basis, but the money has now run out, and if they are to proceed with an order, which is what Catherine wants, their costs will need to be underwritten. I do not know what they are likely to be and have asked her manager to get her lawyer to call me. The police have been put on notice, but will not act without an order being put in place. As the only source of funds is the estate, this puts us in a tricky position. As a trustee of the children’s trust, and having spoken to Tom [i.e. Viscount Savernake], to whom I am copying this, I am aware that this is something that they both want and whilst I have some sympathy for Cardigan’s desire to attend, I firmly believe that it is in Tom and Catherine’s best interests that he is kept away. There is certainly enough evidence of harassment to justify the order. Nevertheless as a trustee of the estate as a whole, I am conscious of the need to act fairly on behalf of all the beneficiaries. If the estate were to underwrite the costs, this would undoubtedly be viewed by Cardigan and Bloom as a hostile act. The question then arises as to whether it is in Cardigan’s best interests to have a restraining order put in place. Sadly I believe it is. His presence at the funeral would cause untold distress and could well result in the sort of scene that would jeopardise his already precarious position in the eyes of the police and the courts. A restraining order would therefore be as much for his protection as Catherine’s. In the circumstances therefore, I believe that it would be appropriate for the trustees to underwrite the costs.”
“As the head of the family, I have been giving careful consideration to the affairs of the Savernake Estate and two things strike me: 1. Although my son, Lord Cardigan, can undoubtedly be difficult at times to deal with, it seems to me that the level of hostility which now exists between David and the two of you as Trustees to the estate has reached a level whereby all objectivity has been lost and the Trust simply does not and cannot function in anything like the way my Father and I envisaged it should at the time of establishing it. 2. It has been brought to my attention that in recent years you have paid yourselves in the order of almost£600,000 for services rendered. Putting aside the legitimacy of such gargantuan sums, the practical reality is that the estate simply cannot afford these amounts; especially if, as we have always desired, it is to remain in the hands of The Family. In the interests of all concerned therefore, and with particular regard to the original purpose of the Trust, I would respectfully ask that you both step down forthwith, in favour of two replacement Trustees; whose nomination I will be more than happy to have a hand in, so as to ensure the best outcome for the estate and its two principal beneficiaries my son David, and my grandson Thomas. Currently we are very far from those objectives being fulfilled and a change of Trustees seems to be the only possible and practical way forward from here.”
“Having myself discovered the wrongful dealings in and retention of trust monies by my father, Lord Cardigan, prior to his removal as a trustee, I became and remain powerfully opposed to his having any part in the management of the Estate. I am, of course, also vehemently opposed to the appointment of alternative trustees who are unlikely to be in a position to exercise the vigilance which I have been able to rely upon from the present trustees who have since acted to prevent further wrongful acts being perpetrated. My father’s activities prior to his removal as a trustee and manager of the Estate [were] such that I recognise the considerable advantage there has been in having a locally resident trustee in whom I have had and continue to have considerable confidence and a professional trustee whose experience has been of great assistance to me and my sister.”
“We then touched on Tottenham House and in particular Tom’s [i.e. Viscount Savernake’s] attitude to the estate. If the deal with Golf Club Investment Holdings fell apart we would have to remarket the property. It was undoubtedly the case that the negotiations with Golf Club Investment Holdings had been made more difficult by David’s [i.e. Lord Cardigan’s] involvement in the deal. Any new occupant would seek a long lease of the property which would effectively take it out of the control of the family for at least the lifetime of the current generation and it may be that a better deal could be obtained by a sale of the freehold. That would also take away the risk for the current trustees of any property that is subject to supervision by English Heritage. Although there would be disappointment on Tom’s part if the house were to be sold, Ros [i.e. Lord Cardigan’s first wife] was surprisingly helpful on this pointing out that one of the earlier Marquess had been keen to get rid of Tottenham House which had been a millstone around the family’s neck for many generations. As Richard Ford pointed out the house was never completed by the Marquess who commissioned it …. If it were to be sold, it could transform the family’s finances enabling them to bring the remaining estate properties into a proper state of repair as well as to diversify away from the estate.”
“The whole thrust of what we have been doing, in particular in relation to Tottenham House, is to enable the family to retain what is left. … [I]t would enable repairs to be carried out to retained properties that the family could live in, at least Savernake Lodge and Sturmy House. It would enable Tom Savernake to pay the inheritance tax due on his mother’s death so as to be able to retain Leigh Hill House. That would enable a key part of the Estate to be retained by the family. Tottenham House is sadly, and for many years has been, a liability rather than an asset. It is something that the family cannot afford to keep but it is the solution to retaining the rest of the Estate in the family’s ownership.”
“It is … envisaged that a sale of Tottenham House might ultimately lead to the [Trust] being brought to an end with distributions being made to [Lord Cardigan] and the beneficiaries of the [Children’s Trust]. As regards [Lord Cardigan], it is envisaged that one of the properties held by the Trustees (Savernake Lodge) would be appropriated to [Lord Cardigan].”
“As you will appreciate, the Trust does not have sufficient income to warrant a borrowing of this magnitude, and as such I have only been able to secure our ongoing support for a further period on the strict understanding that you are committed to achieving asset sales sufficient to repay the borrowing within this period. You have advised that you are endeavouring to sell Tottenham House, which we see as a sensible proposal.”
“Thank you for your kind assistance today when The Thief [i.e. Mr Moore] – supported by at least 5 people – used force to try to strong-arm his way into Savernake Lodge, and to forcibly turn my electricity supply to the water pump back on, to force me to pump private Savernake Lodge water to third parties, water for which Moore admitted in writing … that I am not responsible for – in that I am responsible for paying the Electricity bill for the power that takes that water to others.”
“I understand that you have turned off the electricity supply to a pump that provides water to Crabtree Cottage and animal drinking water troughs. The trustees have paid the most recent electricity bills relating to Savernake Lodge and have previously suggested that in the absence of separate electricity metering, a reasonable contribution should be made towards the cost of electricity consumed by other properties, with the balance being charged to your current account. The trustees will now take steps to have separate electricity meters installed and understand that you will now assume responsibility for settling any bill relating to Savernake Lodge. The trustees will pay any bills relating to the other properties …. I also understand that you have turned the supply off again. This prevents the tenant Mr Shuttleworth, an elderly gentleman, who I understand is quite frail, from having proper enjoyment of the property he rents from the estate and could be injurious to his health. We therefore require you to restore the supply to his cottage immediately.”
“The decision whether to exercise a discretion will remain, as it is now, a matter for the trustees to determine. That decision will not be subject to the new duty of care. However, once trustees have decided to exercise a discretionary function which is subject to the new duty, the manner in which they exercise it will be measured against the appropriate standard of care.”
“Nor must the court be astute to fix liability upon a trustee who has committed no more than an error of judgment, from which no business man, however prudent, can expect to be immune: see Lopes L.J. in In re Chapman[1896] 2 Ch. 763 , 778: ‘A trustee who is honest and reasonably competent is not to be held responsible for a mere error in judgment when the question which he has to consider is whether a security of a class authorized, but depreciated in value, should be retained or realized, provided he acts with reasonable care, prudence, and circumspection.’”
“If trustees make a decision upon wholly wrong grounds, and yet it subsequently appears, from matters which they did not express or refer to, that there are in fact good and sufficient reasons for supporting their decision, then I do not think that they would incur any liability for having decided the matter upon erroneous grounds; for the decision was right.”
“The roof appeared to be in a stable state and mostly weather tight, the external walls reasonably sound, although some windows in a poor condition, but the interior appeared in a perilous state with some evidence of past and continuing rainwater penetration.”
“Our preliminary inspection has revealed that the stable block is in a seriously dilapidated condition having been unoccupied and un-maintained for some considerable time. Whilst the main elevations appeared to be relatively intact, given the sagging of the first floor that was observed, there is cause for concern as to the condition of the timber first floor structure and potentially the timber roof structure. The apparent subsidence of the ground floor cobbles and the apparent cavitation needs further investigation” and “There was generally noticeable staining to the walls caused by damp penetration and/or condensation.”
“Due to the limitations of our inspection …, this report does not attempt to document every structural defect and it should therefore be presumed that the buildings will contain numerous other structural defects than those referred to specifically hereinafter.”
“The main slate roof is in poor condition – lead work and flashings are dislodged. Roof leaks are evident from within the First Storey” and “Poor stone with blown faces, and of stone damaged and heavily stained due to continual leakage from broken or missing rain water pipes, are all in evidence.”
“Fixing battens were highly vulnerable to decay and in some locations adjacent to failing external rainwater goods, were subject to progressive and structurally significant decay. At ground and first floor level, timber fixing battens or bonding timbers were built into the brickwork and these were either decayed or highly vulnerable to decay in areas of penetrating damp. The first floor structure to the north-east was supported on blockwork columns acting as structural support in areas of suspected overloading”; v) As for fungal decay: “Initial assessment indicated that most fungal decay was a combination of wet rots. Limited occurrence of dry rot was noted. Masonry fungus exploiting the saturated masonry and various condensation moulds were also noted. Current decay was extensive but localised”; and vi) The following was recorded in relation to one of the photographs included in the report: “First floor; showing an area of significant damp penetration at mid-point to the east wall of the east range. Built-in bonding timbers were either decayed or highly vulnerable to decay and incipient dry rot fruiting bodies together with slime moulds and masonry were identified in this location. The latter is indicative of saturated conditions of the masonry mass.”
“Given the GCIH plan for its entire renovation it was considered at that time by the GCIH company directors, as well as by me, that intermediate care measures were initially unnecessary in respect of the Stable.”
“My recollection is that it was thought at the time by the company directors of GCIH that such remedial works were then not warranted given that the – by then anticipated – not too distant commencement of the redevelopment of the stable block would in any case involve the complete overhaul and refurbishment of its roof-scape, as well as the replacement of the entire first floor system.”
“If GCIH reasonably expects to be in a position to continue with this project, the Trustees may consider that it is in the trust’s best interests to continue to work with GCIH, even if the company is not currently in a position to clear all arrears. On the other hand, if the Trustees conclude that there is no realistic prospect of GCIH’s financial position improving, there seems little benefit in allowing the arrears to continue to accrue simply so that there is, on paper, someone ‘on the hook’ for the rent and other charges payable under the Lease.”
“[E]ntering the Property under the Lease will, itself, waive the Trustees’ right to forfeit in respect of any s146 notice which has already been served, and in respect of any ‘once and for all’ breach that has occurred. This means that if the Trustees do decide to take steps to forfeit the lease, we will serve fresh s146 notices at that time”; v) The Trustees could serve on GCIH a notice requiring it to carry out repairs “within two months from the date of the notice (or sooner in the case of emergency)”
“It may be that, ultimately, we shall have to consider forfeiture of the lease and the possibility of marketing the lease together with the planning consents. Forfeiture is not an attractive option from a cost point of view as there is a realistic prospect of GCIH making an application for relief which could take costs to a level of£50,000 to£100,000 and it is likely that the terms on which a new lease is granted would be less favourable to the Estate. We have discovered that the interest of GCIH in the lease has been charged in favour of a bank as security for a substantial loan. We have recently approached that bank to explore the possibility of our acting together to procure that all or a substantial proportion of the monies owed to the Estate are paid.”
“had clearly suffered far more water penetration through the roof …, culminating in wall and ceiling plaster coming down, large areas of the timber plates and infills being saturated, and wet and dry rot evident throughout”
“Carry out temporary repairs to roof finishes to prevent further ingress of water. Allow for replacement of a percentage of rotten gutter boards and supports before applying ‘Derbigan’ waterproof sheeting in lieu of missing lead, and replace missing slates as appropriate” or “As an alternative …, provide a temporary roof over the whole building enclosed on all sides with ‘monoflex’ sheeting to exclude water ingress. Note: this option will involve a cost for leaving the access scaffold and temporary roof in place until the main project progresses”
“Some time ago, GCIH had told us they expected to raise ‘interim’ funding, which would meet the cost of the remedial work and should enable them to meet other obligations. Two deadlines have passed by which GCIH had told us they expected complete funding for the project to be in place but no funding at all has apparently been obtained. We believe that some attempts to raise finance are being made by GCIH but as no satisfactory result has as yet emerged, we are taking parallel steps to establish whether there is a market for the property in the event that GCIH is unable to fulfil its obligations and thus forfeits the lease.”
“It seems we must now contemplate forfeiture but before doing so think it may be worth issuing proceedings for unpaid rent and insurance. Restricting the action to the recovery of a simple debt will hopefully minimise the costs of proceedings against GCIH. This may provoke a useful reaction from GCIH or HSBC.”
“We have now entered into an exclusive negotiating position with a consortium of Far Eastern investors who in a short period of time, once due diligence is completed, will provide us with the interim funding to not only bring us up to date but also provide for the repairs and all insurance to be met.”
“GCIH’s failure to confirm funding was typical of a catalogue of missed deadlines and broken promises by the company over the years and both [Mr Moore] and [Mr Cotton] were now minded, reluctantly, to take the decision to implement forfeiture proceedings.”
“We also advised [previously] that a court would be disposed to granting any application for relief from GCIH if it could show that it had remedied, or was remedying, breaches of the Lease. The fact that there is a judgement of the court against GCIH for a substantial amount of unpaid rent and insurance premiums will undoubtedly make the threshold GCIH must pass, before the court decides in its favour, a higher one. Nonetheless, there is a risk that a court may still grant relief in these circumstances. However, in order to be successful GCIH would need to show that it will satisfy the outstanding judgements, any other outstanding rent and insurance premiums and that it will undertake the necessary repairs to comply with its covenants under the Lease. The court would have to be very convinced before they grant any relief to GCIH. It seems unlikely that GCIH will suddenly be in a position to do this. If it was, it may be that the Trustees would be prepared to let GCIH continue as tenant under the Lease in any event.”
“Every cheque we write out has to fall within parameters of expenditure set by the bank. We are maxed out on the overdraft and the security we have to offer to obtain a greater overdraft. Not only are we unable to offer more security but we are seriously struggling to service interest payments on the current overdraft. In any event, the bank now insists we REDUCE the overdraft and not increase it.”
“In our opinion the stables should be considered a repairable shell for complete gutting and replacement of all interior components structures and finishes. Some of the interior may be found salvageable on detailed internal inspection once the building has been made safe.”
“Subject to the provisions of this clause 5 no damage or destruction to the buildings on the Property or any deterioration in their condition, however caused, by an event which is neither a risk covered under the Existing Insurance Policy nor a Notional Risk will entitle the Buyer either to any reduction of the Purchase Price or to refuse to complete or to delay completion.”
“My interpretation is the fact that the tarpaulins would be 100 per cent effective for the majority of the time. There would be short times under heavy winds and other disturbances where it becomes only 80 per cent effective but subject to the maintenance regime of replacing and repositioning the tarpaulins they would remain close to 100 per cent.”
“Once the stonework is saturated it will take some time to dry out and therefore once saturated, even with the tarpaulin over it, it will still take some considerable time, subject to its effectiveness, to return back to a dry condition and the weakness is that the moisture in the stone will expand and it breaks the surface of the stone under frost conditions.”
“In fact, up until the collapse of the first floor and the roof structure itself, there would have been benefit in protecting the building from further water ingress. In my opinion, it is likely that the collapse of the first floor after 2008 and the recent collapses of the roof would have been prevented if the Stable Block had been weather-proofed (at least a few months) in advance of those collapses albeit, that the primary timbers would have required strengthening thereafter.”
“In the case of the north wing, the collapse of the roof there, it is my firm opinion that that was principally caused by dry rot.”
“in my own opinion and experience of dealing with listed buildings, removal and renewal of the floor is the only way that the building could be given a functional future life”
“[T]he basic rule on the personal liability of a trustee is that he must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach of trust or failure to account properly for the trust fund, or compensation for such loss …. If specific restitution of the trust property is not possible, the trustee must pay sufficient compensation to put the estate back to what it would have been had the breach not been committed.”
“The obligation of a defaulting trustee is essentially one of effecting a restitution to the estate …. The cases to which I have referred demonstrate that the obligation to make restitution, which courts have from very early times imposed on defaulting trustees and other fiduciaries is of a more absolute nature than the common law obligation to pay damages for tort or breach of contract …. Moreover the distinction between common law damages and relief against a defaulting trustee is strikingly demonstrated by reference to the actual form of relief granted in equity in respect of breaches of trust. The form of relief is couched in terms appropriate to require the defaulting trustee to restore to the estate the assets of which he deprived it.”
“If the court takes the view that it would be unreasonable for the plaintiff to insist on reinstatement, as where, for example, the expense of the work involved would be out of all proportion to the benefit to be obtained, then the plaintiff will be confined to the difference in value.”
“Intention, or lack of it, to reinstate can have relevance only to reasonableness and hence to the extent of the loss which has been sustained.”
“the principle that a plaintiff cannot always insist on being placed in the same physical position as if the contract had been performed, where to do so would be unreasonable, is not confined to building cases”
“In my opinion a similar approach applies to the measure of damages for both the tortious destruction of real property and for breach of contract in circumstances such as those in Ruxley.”
“Thus far the decision and the reasoning in Ruxley support the proposition that, at any rate in the case of damages for breach of contract and for tortious destruction of property, where the claimant asserts the right to recover the cost of reinstatement of the property, he must persuade the Court that it would be reasonable for him to insist upon reinstatement. I can see no reason in principle why the same approach should not be adopted to the tortious destruction of a chattel such as the crane.”
“Although the remedy which equity makes available for breach of the equitable duty of skill and care is equitable compensation rather than damages, this is merely the product of history and in this context is in my opinion a distinction without a difference. Equitable compensation for breach of the duty of skill and care resembles common law damages in that it is awarded by way of compensation to the plaintiff for his loss. There is no reason in principle why the common law rules of causation, remoteness of damage and measure of damages should not be applied by analogy in such a case. It should not be confused with equitable compensation for breach of fiduciary duty, which may be awarded in lieu of rescission or specific restitution.”
“The position with Sturmy is that we have stripped everything down (ceilings, floors and walls where necessary), dried out the masonry, cleaned up the place having disposed of Mr Doherty’s belongings and started to decorate rooms unaffected by the flooding. We had been obliged to down tools for a while until funding was in place before we could continue. We are using inexpensive local contractors but I must be sure we can pay them before commissioning any more work. The work to be done is a mixture of that which I would regard as 100% recoverable from insurers and that which has a large element of betterment about it. Until the strip down it has not been possible to obtain a commitment from insurers to meet the costs of refurbishment …. When we know how much of the work will be paid for by insurers (hopefully within a couple of weeks) we can commission the work we deem necessary. The various categories of work could, to some extent, be executed concurrently subject to the availability of traders and materials at the required times.”
“As anticipated, Insurers are prepared to agree a cash settlement in respect of the building repairs at£30,353.80 as claimed, in spite of the fact that not all of the works have yet been completed. However, with regard to loss of rent, the maximum that they are prepared to pay is£35,400 based on 12 months at£2,950 per month. They see no reason why the remedial works could not have been completed within such a period ….”
“The Surveyors have been unable to agree an appropriate rental figure for Sturmy House. DH [i.e. Mr Desmond Hampton, called by Mr Cotton] remains at£36,000 per annum (£3,000 pcm) and EB [i.e. Mr Edward Briggs, called by Lord Cardigan] remains at£48,000 per annum (£4,000 pcm). The extent of this disagreement is in part caused by a lack of clarity as to the standard of repair and refurbishment of Sturmy House. The Surveyors do agree that because of its unusual layout and situation, it is a difficult property on which to assess a rental value.”
“[I]t was a constant consideration of the trustees that [Sturmy House], being the only other … major property on the estate, was something that was earmarked, to use the regularly used language in minutes and other places, for Lord Savernake and I suppose new interest in that property on the part of Lord Savernake was ignited when he asked me, I think at the beginning of 2012, whenever it was, if he could go round the property with his then girlfriend with a view to having a proper look at it.”
“I had intimated my wish to have Sturmy House retained as the only property, apart from Savernake Lodge, which I might wish to occupy in the near future, should I marry or for other reasons seek accommodation on the Estate. In January 2012 I asked the trustees if I could then visit Sturmy House with a view to forming a view of the property as a home for me. I was shown round the property by John Moore and enquired about the likely availability of the property which at that time I had envisaged possibly wishing to occupy within perhaps six months of the viewing. Mr Moore and Mr Cotton had both told me on a number of occasions that the property was earmarked for my occupation and Mr Moore particularly was aware of my wishes in relation to Sturmy House. I understood that financial pressure may have affected the freedom of the trustees to retain the property in the Estate and make it available for my occupation.”
“[The bank] wanted us to sell Sturmy House and we wanted to keep it for as long as we could.”
“TS [i.e. Viscount Savernake] raised the issue of occupation by The Marquess of Ailesbury and his half-brother Lord Charles Brudenell-Bruce of Estate property at Peppercorn rents. DC [i.e. Lord Cardigan] said that it was inconceivable to him that Lord Charles B-B or DC’s father should suddenly be charged market rents, and that if it really was the case that the trustees felt unable to sanction occupation by these individuals on favourable terms DC would feel obliged to subsidise the rents out of his share of the partnership so as to maintain the status quo.”
“TS [i.e. Viscount Savernake] expressed concern that his grandfather’s half-brother (Lord Charles Brudenell-Bruce) had two other houses apart from the Savernake Estate cottage that he occupied rent-free. DC [i.e. Lord Cardigan] said that that was not so; Lord Charles had a tiny house in Fulham, and no other properties. And although he lived rent-free, he had agreed with DC some years ago that in future Lord Charles would pay 50% of all insurance bills usually paid by the Estate, and 50% of all repair bills undertaken by the Estate. This Savernake Estate property had recently [been] re-thatched, and Lord Charles had contributed some£7,000 towards that.”
“With the exception of DC and TS family members entering into occupation of Estate properties in the future should pay rent. As regards those family members presently occupying Estate property rent free the continuation of this arrangement should be referred to the new Trustees and they should be asked to make proposals with which they are satisfied as being consistent with their duties as trustees and equitable as between the relevant family member and the Estate.”
“10.1 There was a discussion of the difficulty of stewardship of the Estate being to strike an acceptable balance between running the Estate efficiently so as to maximise profits on the one hand and on the other hand to exhibit some sensitivity or compassion over the way in which the Estate is run particularly with regard to family members, where such considerations could be difficult or impossible to justify on commercial grounds. It was agreed that at the present time it was difficult for the Estate to bear the expense of rent free accommodation for family members but recognised that fortunes would hopefully change with a rising income stream from the Hotel project. 10.2 JM [i.e. Mr Moore] proposed and it was accepted that the status quo on this issue would be preserved for a period of two years and then reviewed in the light of the ability the Estate assist the family members concerned in letting properties to them at peppercorn rents ….”
“[Y]ou didn’t mention that you do have unspoken concerns about your tenure of LLH [i.e. Little Lye Hill Cottage] in years to come, which really is a non-issue. Thomas [Savernake] does not want you to leave LLH.”
“There is an astonishing amount of bitterness towards Lord Charles, which I cannot comprehend. They would all happily turf him out of his house if they could. They seem to hold much store by a letter that is supposedly on Thring Townsend’s files under which it was originally agreed that Charles would pay rent following his thirtieth birthday. They also seemed to think that he had an annual licence to occupy. Whatever the situation, I am sure that the failure of the previous trustees to charge and collect a rent could have created some form of tenancy at will and I am not particularly keen to pursue the point. In any case it does show the three of them in rather a bad light.”
“I fear that I cannot countenance signing a witness statement as there is another ghastly drain ongoing, namely, litigation. Everyone knows of the ruinous divorce settlement and now the current rounds in Court are draining away God knows how much more of money The Estate Does Not Have. If this continues, what will be forced to go next? If you can see your way to making up with John Moore, even in the capacity of Trustee and fight together rather than against each other as anyone can see in the papers, I can only think that co-operation would be beneficial while I know that confrontation will be utterly disastrous. David, this litigation Has To Stop.”
“continued to send multiple email, texts and have threatened to make phone calls to my business number and there has been other mischief”
“Although the Defendants [i.e. the Trustees] do not have to sell assets, should they wish to do so they could sell Little Lye Hill, a valuable non-income producing asset, in preference to the paintings, and this would generate greater after-tax cash-flow than the sale of the paintings. Whilst, as I recall, Little Lye Hill is leased under a 20 year lease, the lease is granted to my Uncle, Lord Charles Brudenell-Bruce on a peppercorn rent. To the extent that the Defendants claim, as they do, that granting a lease on a peppercorn rent comprises a Breach of Trust and thereby makes a lease voidable, then the lease on Little Lye Hill, according to their own logic, is voidable; all the more so because the tenant is not a beneficiary under the Trust.”
“The Defendants have allowed Lord Charles Brudenell-Bruce to live rent free in Little Lye Hill Cottage for a 5 year period. This has caused the trust to lose around£88,500 in lost rent over the 5 years since the defendants were appointed.”
“I formally ask you to write a letter to Mr David Bloom … stating that you no longer agree with the present Trustees staying in their post, stealing a combined total of over£500,000 , and that you now support calls by the Marquess of Ailesbury and the Earl of Cardigan for them to be relieved of their duties. IF you are going to write it, I am going to ask that that letter be received no later than 5pm on Friday. If no such letter arrives, you will have crossed the Rubicon.”
“Wilson Cotton – staring at Defeat at my hands in the High Court in December along with his co-Trustee – earlier today ran up the White Flag. The VERY first item on the new Agenda is the sale of Little Lye Hill. You have spent your last-ever Summer there. That is certain.”
“[H]e being unemployed, I didn’t think his finances would make such a thing possible.”
“The Defendants have failed to derive any income from the Estate’s grazing rights in the period since their appointment. Based on grazing of 521.66 acres, at an open market value of£12.50 per acre, the failure of the Defendants to fulfil their duty to act responsibly has caused the trust to lose£6,520.75 per annum or£32,603 in the five year period since their appointment. In addition, when on 30th March, 2013, the First Defendant [i.e. Mr Moore] signed a Herbage Agreement for nil income, he did so with the ulterior motive of assisting the prosecution of his and the grazier’s complaints to the police about the Claimant.”
“The surveyors AGREED that the area of grazing which they had both adopted was 521 acres. The surveyors AGREED that the grazing area suffered from a number of defects – poor fencing, inadequate water supply, the presence of archaeological trenches across part of the area and environmental restrictions resulting from the Countryside Stewardship Scheme. In these circumstances the surveyors AGREED that it was difficult to be precise about the level of rent that would be achieved in the current market. The surveyors AGREED that the potential rent would be in the region of£5,200 per annum.”
“Certainly in the earlier years …, the rental agreements or the herbage agreements were dealt with by Strutt & Parker and Mr Moore followed the practice that they had had or the form of their licence that they had put in place, and Strutt & Parker had not charged a grazing rent.”
“… I understand that the Claimant had, during his tenure as trustee of the trust, entered into Herbage Agreements with M&C Farming, for which no licence fee was payable. Finally, it is also important for me to say that I had little involvement in dealing with the Herbage licences during the period of my trusteeship as this was an aspect of the estate management that John [Moore] dealt with. It was not sensible and/or cost effective for John and I both to be involved in every single aspect of the estate’s management.”
“Mr Moore provided no evidence in relation to herbage rights in his witness statement. Consequently, there was nothing which Lord Cardigan needed to challenge.”
“The grazier who now holds the Herbage Licence was first licensed whilst C [i.e. Lord Cardigan] was a trustee and was managing the Estate. C knows that the Defendants were not able to charge a rent for grazing whilst at the same time claiming the Single Payment Supplement. It is only in the last half year that the Defendants could have charged a rent. C has harassed the grazier extensively. Lambs have had their throats torn out by a dog and leg muscles torn away from the bone. Another mature sheep had an ear almost torn off and another an ear torn off …. D1 [i.e. Mr Moore] received complaints from the grazier following these incidents and D1 gave instructions for notices to be put up in the vicinity of the fields warning dog owners that their dogs were liable to be shot if they interfered with the sheep. C saw fit to tear these notices down. C also regularly walked his dog through fields of sheep in an obvious attempt to provoke the shepherd …. This is another contrived and utterly absurd allegation.”
“I agree about the scrub encroachment in various places and we have already asked the grazier to take on the fencing at the roadside of Tottenham Park (little by little), working to the original fencing line, as Mark [Juniper] suggests. However, issues which involve the grazier are currently sensitive. The grazier has been assaulted, insulted and threatened by Cardigan and has reported the assault to the police. The grazier called me yesterday to tell me that in addition to the assault Cardigan has let his dog loose amongst the sheep in spite of polite protestations from the shepherd. Having let the dog loose, Cardigan then sat in the field opposite and watched the dog menace the sheep …. The field in question is part of the area the grazier is licensed to use. The grazier we have is extremely useful to us and very cooperative. I think it would be a mistake to lose him. I think the answer to dealing with this is to get the lease of Savernake Lodge firmly signed up so as to make it crystal clear which land is treated as ‘garden’ for Savernake Lodge and which fields are included in the grazing licence. So far as the issues involving the grazier are concerned, I think there is no desperate urgency about the tasks Mark suggests we require him to undertake but I don’t think the negotiation would go well at the present time ….”
“The Defendants failed to derive any income from sporting rights since becoming trustees which had previously generated either£9,000 or£4,500 per annum from the main syndicate shoot, but instead declined such income as was offered. As a result, the trust has lost£4,500 per year for five years totalling£22,500 . The Claimant further avers that this failure to obtain income was influenced by an ulterior motive of the First Defendant [i.e. Mr Moore] preferring the game keeper who has been an active participant in the campaign of harassment orchestrated by the First Defendant ….”
“In September last year, the Hotel, which had been prevaricating since February, finally announced it would not be taking shooting, despite having said that it would. This of course placed Mr Peter Tilley, the Shoot Gamekeeper, in an impossible position, with birds ready to go to wood, suddenly no employer and the season opening a few weeks thence …. While I had been requested by Lord Cardigan to attend the Shoot to oversee the proposed Hotel guests, it was clear that something had to be done quickly to save it. Accordingly, Mr Tilley and myself put together a string of fifty bird days at the lower cost of£120 per gun, to make a last ditch sales pitch an attractive offer. The local response was extraordinary and Mr Tilley, beaters, pickers up with dogs, turned out for the whole season pro bono. We did this to preserve the stewardship of the Shoot as a holding operation in the interest of the Estate, pending future Hotel participation. We actually ended the season with a small surplus of a few hundred pounds which we offer to the Trustees as indication of good faith. I must add here that what is left over faces a deficit in the face of vehicle repair or replacement, works to holding pens, one of which has been destroyed by deer, to name but two. Should it be acceptable to the Trustees, Mr Tilley and myself propose a similar operation this year, but with several one hundred bird days, to ensure that he can earn a living wage, the beaters are paid and essential repairs be addressed. Mr Tilley would of course keep figures for you on chicks, feed, heating, fuel, pens, vehicles, insurance, wages and so forth – I would be available to attend whenever possible. We can not run this as a commercial venture; we have no experience of ‘Corporate Shooting’ which is alien to us, nor can we afford to pay ground rent up front should that be desired. What we can offer however is to keep the Shoot going this coming season and to carry out these badly needed repairs and maintenance. Whatever is left over would obviously be offered to the Trustees.”
“The sale of the shooting has resulted in gross income in the order of£52,000 whilst the costs associated with laying on those days has been£40,000 . These costs include the purchase of the day old chicks, the rearing costs, the feeding costs, beater and pickers up costs, fuel, vehicle repairs and insurance. The surplus (before costs for Peter’s time) is therefore just under£12,000 and out of this sum Peter [Tilley] has paid himself around£6,500 (which equates to just under£750 per month) by way of drawings for his labour. The surplus after all costs remaining in the bank account that Peter set up is therefore just over£5,000 and you need to decide whether this surplus should be split between the Estate and Peter, and if so how. I would point out that keepers tips have not been taken into accounts in the figures shown above and it is likely that Peter will have received somewhere in the order of£2,000 cash by way of tips over the course of the season.”
“I am doubtful that we can decently charge Peter Tilley anything. His drawings against the shoot, even allowing for some tips, can barely be enough for him and his wife and daughter to live on. I doubt he has made any accrual for ATV, new chicks for the next season which he will no doubt be ordering shortly, or maintenance items such as fence posts and netting. It seems to me that Pete Tilley is taking quite a significant risk to obtain an income of less than£10,000 per year. I imagine the whole of the bank balance will go on chicks for the forthcoming season. The shoot continues to be a benefit for us in terms of the land being kept …. I think we should put our heads together again if we were to face paying any rent for the shooting activity. Otherwise, I do not think it would be fair to charge Tilley anything for the shooting activity. Wilson [Cotton] will no doubt communicate his thoughts separately. Tilley’s keeping for the shoot takes him over quite a wide area of the Estate with regularity and this also gives [us] the benefit of a trusted pair of eyes on constant patrol.”
“I agree with the sentiments expressed by John [Moore]. As a shoot, this is only just viable and the previous arrangements only worked on the basis of an effective land swap. Can an effective shoot still be operated for which we will not have to pay any rent?”
“Charles [Brudenell-Bruce] has called me to say that Cardigan has again sabotaged the shoot by destroying all the stand markers Pete Tilley had put down for tomorrow’s shoot and also by running a dog through the cover so as to disperse the birds, which will wreck tomorrow’s shoot for which someone has paid a significant sum. Charles and Pete have walked the drives and there are no birds in sight!”
“Now that we are coming to the end of this shooting season I just wanted to tell you that we were sad to have had to close the Doctor’s Syndicate after so many years, and therefore could not join you. However the situation with David Cardigan interfering with the shooting and on one particular day Saturday17th December 2011 , sabotaging the drives, moving the gun pegs, putting his dog into the coverts and making completely inappropriate remarks to one of the guest guns, could not be risked again. I could not let this happen to my syndicate and, as you know, when there was the most trouble (there may have been other days as well) and because of the disruption we had a very poor bag and a ruined day. If only we can get back to the old days you could count me in to take some shooting. However, in the meantime, good luck with the case and my best wishes to you and Mrs Tilley for this year.”
“The court will … not exercise the jurisdiction unless it is satisfied having regard to the nature of the trust, the experience and skill of a particular trustee, the amounts which he seeks to charge when compared with what other trustees might require to be paid for their services, and to all the other circumstances of the case, that it would be in the interests of the good administration of the trust, and therefore of the beneficiaries, to award or increase remuneration. Remuneration may, for example, be awarded if that is necessary in order to secure the services of a particular trustee whose services are of special value to the trust.”
“Awards of remuneration for work done are typically made in cases where work of an exceptional character is performed, for example in relation to the development or realisation of land, and it may not be practicable to assess the size of the task to be performed until after completion, nor might funds for payment of remuneration be available until completion. The administration of trusts might therefore be better promoted if the application is made after rather than before the work is done, when the court is able to assess the merits of the application with the benefit of hindsight. There may, however, be an additional principle which is relevant in such cases, namely that remuneration might be awarded if a trustee has performed services of an exceptionally onerous character which can properly be regarded as wholly outside the scope of any duties which could reasonably have been expected to be rendered by trustees in the normal course of their duties, and have resulted in financial gain to the trust, and for which recompense should be made, not on the basis that there is an implied contract to pay remuneration, but on the basis that the trustees cannot be reasonably expected to have acted as they did without remuneration and the beneficiaries would be unjustly enriched if no remuneration were paid, or that he who seeks equity must do equity. But as the office of trustee is, as such, gratuitous, it will never suffice merely to show that a trustee, even a professional trustee, has acted properly and done work which had to be done, nor merely that the trustee’s scale of charges has become outdated.”
“The services rendered by the trustees were wholly outside their contemplation when appointed. They were appointed as trustees of a cricket club which had its own ground. They found themselves obliged by unforeseen circumstances to dispose of the ground. This proved far more difficult than would normally be expected and made great demands on the expertise of Mr Sealy and of Mr Foster, and on the time of all of them. I have no doubt that if they had realised what they were in for, they would have declined to act unless remunerated in some way.”
“So when Moore announced that he would not be taking a salary, I hurriedly told him that in that case I would find some other way to reward him for being a Trustee. I remember suggesting – off the top of my head – that I could give his wife and him a long weekend, at full-board, at the Ritz Hotel in Paris for instance, and he (embarrassed now) said something like ‘Oh well, we’ll talk about that sometime’, and we both rapidly changed the subject, there being no salary to discuss in the first place.”
“You write as if all the horrors that have happened in my absence are all being instigated by some unknown unseen force, when in fact logic tells me that you are 50% of each and every move.”
“Then I will charge 50% of the fee WC [i.e. Mr Cotton] is charging.”
“Thereby making a bad situation worse.”
“Providing SOME compensation for the ill deserved abuse and hours and hours of time I give this undertaking.”
“It is my GREATEST wish to eventually slice to shreds the amount of time you give the project.”
“[T]he decision to charge, or let’s say the comfort about charging at the time I invoiced … was to do … with covering the enormous volume of administrative work that had not been part of the job description …. The reason for my feeling it was legitimate to charge was because we had moved a thousand leagues away from the clear understanding that we had at the beginning.”
“A lot of the work that Mr Moore carried out was necessary. It was for the benefit of the trust and the beneficiaries as a whole. And it was work which would otherwise have had to have been carried out by either me, by Mr Hinkins of Cox Hinkins, by Strutt & Parker or possibly by Thrings, and it was, therefore, more cost-effective for him to carry out that work than those agents.”
“necessary to discriminate between remuneration for the trustees’ own time for work done in further execution of the trusts, and remuneration for their time in defending the claims against them for alleged breach of trust” (see paragraph 42). White J had earlier said (in paragraph 40): “[I]t is one thing to say that trustees should be allowed remuneration for their work in executing the trust. It is another to say that they should be allowed remuneration for their own time in defending claims brought against them by a beneficiary in the absence of any entitlement under the instrument creating the trust to be paid such remuneration.”
“The basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Thus, in relation to a traditional trust where the fund is held in trust for a number of beneficiaries having different, usually successive, equitable interests, (e.g. A for life with remainder to B), the right of each beneficiary is to have the whole fund vested in the trustees so as to be available to satisfy his equitable interest when, and if, it falls into possession. Accordingly, in the case of a breach of such a trust involving the wrongful paying away of trust assets, the liability of the trustee is to restore to the trust fund, often called ‘the trust estate,’ what ought to have been there.”
“But what if at the time of the action claiming compensation for breach of trust those trusts have come to an end? Take as an example again the trust for A for life with remainder to B. During A’s lifetime B’s only right is to have the trust duly administered and, in the event of a breach, to have the trust fund restored. After A’s death, B becomes absolutely entitled. He of course has the right to have the trust assets retained by the trustees until they have fully accounted for them to him. But if the trustees commit a breach of trust, there is no reason for compensating the breach of trust by way of an order for restitution and compensation to the trust fund as opposed to the beneficiary himself. The beneficiary’s right is no longer simply to have the trust duly administered: he is, in equity, the sole owner of the trust estate. Nor, for the same reason, is restitution to the trust fund necessary to protect other beneficiaries. Therefore, although I do not wholly rule out the possibility that even in those circumstances an order to reconstitute the fund may be appropriate, in the ordinary case where a beneficiary becomes absolutely entitled to the trust fund the court orders, not restitution to the trust estate, but the payment of compensation directly to the beneficiary. The measure of such compensation is the same, i.e. the difference between what the beneficiary has in fact received and the amount he would have received but for the breach of trust. Thus in Bartlett v. Barclays Bank Trust Co. Ltd. (Nos. 1 and 2)[1980] Ch. 515 by the date of judgment some of the shares settled by the trust deed had become absolutely vested in possession: see at p. 543A. The compensation for breach of trust, though quantified by reference to what the fund would have been but for the breach of trust, was payable directly to the persons who were absolutely entitled to their shares of the trust fund: see at p. 544. Accordingly, in traditional trusts for persons by way of succession, in my judgment once those trusts have been exhausted and the fund has become absolutely vested in possession, the beneficiary is not normally entitled to have the exhausted trust reconstituted. His right is to be compensated for the loss he has suffered by reason of the breach.”
“[I]f Viscount Savernake were to bring a claim in respect of the losses claimed by Lord Cardigan it would, at the very least, be open to Mr Cotton and Mr Moore to argue that Viscount Savernake was unable to bring such a claim. Accordingly, any order requiring the Trustees to falsify the Trust accounts for the full amount of any loss would be inappropriate because it would prejudge the outcome of any acquiescence arguments that the Trustees may make. Any order for compensation must be alive to the existence of those arguments while preserving Viscount Savernake’s future rights to bring a claim.”
“The pecuniary remedy for a breach of trust affecting the trust fund cannot involve a payment to a particular beneficiary, unless the beneficiary is absolutely entitled to the fund.”
“But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.”
“The trustees were undoubtedly guilty of a breach of trust, and they undoubtedly … expressed views which have occasioned the blame which has been attached to the trustees both by Buckley J. and myself, but, having regard to the fact that the Court has now the power of seeing that the trust is properly executed, to the fact that a large proportion of the beneficiaries do not require the trustees to be removed, and further (and this is of great importance), to the extra expense and loss to the trust estate which must be occasioned by the change of trustees, I think it would not be for the welfare of the cestuis que trust generally, or necessary for the protection of the trust estate, that these trustees should be removed.”
“It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicated by Story is merely ancillary to its principal duty, to see that the trusts are properly executed. This duty is constantly being performed by the substitution of new trustees in the place of original trustees for a variety of reasons in non-contentious cases. And therefore, though it should appear that the charges of misconduct were either not made out, or were greatly exaggerated, so that the trustee was justified in resisting them, and the Court might consider that in awarding costs, yet if satisfied that the continuance of the trustees would prevent the trusts being properly executed, the trustees might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.”
“As soon as all questions of character are as far settled as the nature of the case admits, if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, it seems to their Lordships that the Court might think it proper to remove him ….”
“a breakdown in relations between an executor and a beneficiary will be a factor to be taken into account, in the exercise of the court’s discretion, if it is obstructing the administration of the estate, or even sometimes if it is capable of doing so”
“There are many contexts in which trustees or those in equivalent positions, such as personal representatives of a deceased person, have to make judgments which involve striking a balance between different competing interests and which may thus adversely affect some persons claiming under the trust or in respect of the estate of the deceased. It is to be expected that in such cases there will often be an element of friction between the trustee or personal representative and those disappointed by their decisions. This is not in itself a good ground to remove the trustee or personal representative from their office.”