TM v AH [2016] EWHC 572 (Fam)

[2016] EWHC 572 (Fam)Case No ZC 15 D 00268
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 th March 2016
Before
Mr Justice Moor.
Between
TMApplicantAHRespondent
Miss Bangay QC and Mr Hilliard QC appeared for ClaimantMr Cusworth QC appeared for RespondentMs Angus QC appeared for interested partiesHearing Hearing dates: Friday 4 th March 2016
Judgment
[1]I have to decide on an application dated 24th February 2016 that is made by the wife in this case. I am going to call the parties "the husband" and "the wife". I don't mean to be offensive to them by doing so. I just do so for the sake of convenience.[2]The application is to join the trustees of the A Trust and the B Trust as parties to this litigation. I propose to say as little as possible about the merits of the case itself. I believe the settlor of both trusts was the husband. At one point the husband and the wife were beneficiaries. As I understand it, they have now both been irrevocably excluded. The wife is applying to vary both trusts on the basis that they are nuptial settlements.[3]I am told that the minor children are also no longer beneficiaries but that it is intended that they will become beneficiaries again at the age of their majority. The only beneficiary at present is the second child of the parties, namely X. He was born in 1998 and is therefore a beneficiary because he is now an adult.[4]I understand that Y, who was born in 1997, has been irrevocably excluded from one trust and revocably excluded from the other. Y was adopted by the parties.[5]The trusts are not based in this jurisdiction. One is subject to BVI jurisdiction and the other to jurisdiction of the Swiss court. It is entirely right to say that the trustees have not simply buried their heads in the sand. They have instructed solicitors in this jurisdiction. Those solicitors have provided information to the court but it has been made very clear that the trustees are not submitting to the jurisdiction. It has also been indicated that they need to apply to the BVI court and the Swiss court for guidance or directions as to what they should do in relation to this litigation. That of course is something that is very familiar to the court in these cases.[6]The question therefore is simply whether or not I should join the trustees. I have been referred to the decision of Mr Justice Mostyn in DR v GR [2013] EWHC 1196 in which trustees were originally joined. Again they were overseas trustees. I am told that there was an English care home that the parties were arguing about. The trustees applied to be disjoined as parties. I don’t know if “disjoined” is the right word as it is not a very attractive word. I propose to use the word “discharged”.[7]Mr Justice Mostyn discharged the trustees as parties. He said in the course of his judgment that:- "The applicant for joinder must show either (a), that there is an existing matter in dispute which requires for its resolution the joinder of the new party or (b), that there is a matter in dispute between a party and a proposed new party which is connected to the main matters in dispute between the parties and that it is desirable to resolve all of the issues together."[8]Under sub-paragraph (v) of the same paragraph he said:
"Under the first limb it must be clearly shown that an existing matter in dispute between the parties cannot be effectually and validly resolved without the joinder of the proposed party."
[9]I consider that I can determine this case without disagreeing with those two paragraphs, but I recognize that it would be too simplistic to do so without recognizing that I disagree with his conclusions. It is quite clear that Mr Justice Mostyn took the view that, once you had served trustees, you could then determine matters in issue without the need for them to be parties. He said at an earlier paragraph of his judgment that this is a common occurrence in the Family Division, adding that:
"From the very inception of the judicial power to vary settlements the law has not required joinder of the trustees. Instead the rules requires that notice of the application is given to the trustees and also to the settlor, if living."
[10]I have to say that it is not my experience that the court regularly deals with such matters without joining the trustees. Indeed, my experience is to the contrary, namely that the trustees are joined when there is an application to vary the trusts of which they are the trustees. In A v A and St George's Trustees, a decision of Mr Justice Munby, now of course President of the Family Division, he made it very clear in argument, if not in his published judgment, that trustees had to be joined for orders to be binding upon them. I consider it a tenet of article 6 of the European Convention on Human Rights that requires a fair trial that trustees should be joined before a court varies the trusts of which they are trustees. It is hard to see how a court can make such an order without them being parties to that litigation, let alone to say that such a variation is binding on them in such circumstances.[11]I have therefore come to the extremely clear conclusion that there is an existing matter in dispute in this case which requires for its resolution the joinder of a new party, namely these trustees. I am not making any comment whatsoever on the effect that joinder may have in either the BVI or Switzerland. It seems to me that that is irrelevant. This wife is applying to make very substantial changes to these trusts. The trustees should be joined so that they can have their say, if they wish to do so, on those very serious applications.