A and 6 others (Appellants) v C and 13 others (Respondents)

Hearing listed

Case summary
Appeal
Change log

Case summary

Case ID

JCPC/2024/0094

Jurisdiction

Bermuda

Parties

Appellant(s)

A and 6 others

Respondent(s)

C and 13 others

Issue

In exercising the Consent Powers, do the Protectors have the Wider Role or the Narrow Role?

Facts

The trust documents for a number of trusts (the “Trusts”) contain provisions for the appointment of what is referred to as the “Protector” or “Protectorate” and the conferral of certain powers on the person(s) so appointed. Two of these provisions provide that the trustees of the Trusts (the “Trustees”) shall not exercise certain powers conferred on them “without obtaining the prior written consent of the Protectorate” (the “Consent Powers”). An issue emerged as to the correct interpretation of the Consent Powers, namely whether the role of the Protectors in exercising the Consent Powers is: (a) to exercise an independent discretion as to whether or not to give consent to a proposed exercise of power by the Trustees which requires the Protectors’ consent, taking into account relevant considerations and disregarding irrelevant considerations, so that the Protectors might withhold their consent to a proposed exercise of a power by the Trustees even if the proposed exercise of power was one which a reasonable body of properly informed trustees was entitled to decide upon (the latter being a relevant factor, but not the only relevant factor, for the Protectors to take into account) (the “Wider Role”); or (b) to satisfy themselves that the proposed exercise of a power by the Trustees is an exercise which a reasonable body of properly informed trustees is entitled to undertake and, if so satisfied, to consent to the same (the “Narrow Role”). The Supreme Court held that the Protectors have the Narrow Role. The Court of Appeal dismissed the appeal against the Supreme Court’s decision. The Appellants now appeal to the Judicial Committee of the Privy Council.