19 September 2019 - Podcast
Facts of the Case
The husband and wife were beneficiaries of a Jersey trust. The trustee had submitted to the jurisdiction of the English Court in divorce proceedings between them. The English Court held the trust was a post-nuptial settlement and made an order varying the Jersey trust pursuant to the Matrimonial Causes Act 1973 by appointing the sub-trust in the wife’s favour. The trustees sought directions as to how to respond to the English order. The husband argued that the newly amended Article 9 (4) of the Jersey Trust Law made the English Order unenforceable and that the power of the Jersey Court to enforce the English order on the basis of comity had been removed by the amended Jersey legislation.
The Bailiff decided to enforce the English order. In reaching that conclusion the Court’s function was to apply the law of Jersey, not English law. The Bailiff did not consider that Article 9 as amended had excluded the doctrine of comity. This could only have been done by clear and express words. All parties has had the opportunity to address the English Court and the trustee had submitted to the jurisdiction.
Points of Interest
The Bailiff stated it would be better in such cases, if the English Court were to refrain from purporting to vary Jersey trusts. Instead, they could request the Jersey Court to be auxiliary to them. This would be similar to the approach adopted in insolvency matters. This would be a more appropriate approach between two friendly and civilised jurisdictions and would reduce the risk of the respective courts producing inconsistent judgments.