²See Midland Bank Trust Company (Jersey) Ltd v. Federated Pension Services (1995) J.L.R. 352, 371.

³Loi sur les teneures en fideicommis et l'incorporation d'associations.

⁴Paul Matthews & Terry Sowden, The Jersey Law of Trusts, 3rd ed., 1993, Key Haven Publications Ltd (hereafter "Matthews & Sowden"), at 2.36- 2.43.

⁵Matthews & Sowden, 2.44.

⁶ Re Malabry Investments Ltd (1982) JJ 117.

⁷See Article 1(5).

⁸Trusts (Amendment) (Jersey) Law, 1989, Trusts (Amendment No. 2) (Jersey) Law, 1991, Trusts (Amendment No. 3) (Jersey) Law, 1995.

⁹ Inland Revenue Commissioners v. Broadway Cottages Trust [1955] Ch 20.

¹⁰ Such a power to add beneficiaries was held to be valid in Re Manisty's Settlement [1974] 1 Ch 17. It is now commonly encountered in discretionary trusts.

¹¹ The classic example is "all the residents of Greater London": McPhail v. Doulton [1971] AC 424, 457, per Lord Wilberforce. See also Re Manisty's Settlement, above, at 29.

¹²Re Hay's Settlement Trusts [1981] 3 All ER 786, 792.

¹³Turner v. Turner [1984] 1 Ch 100.

¹⁴Re Gestetner (deceased) [1953] Ch 672, 688, per Harman J.

¹⁵ Armitage v. Nurse [1997] 2 All ER 705, 713, per Millett LJ.

¹⁶Jersey became subject to the 1985 Hague Convention on the Law Applicable to Trusts and on their Recognition on 1 March 1992.

¹⁷Donovan Waters QC, The Protector: New Wine in Old Bottles? in Trends in Contemporary Trust Law, ed. A.J.Oakley, Oxford, 1996, at p.114.

¹⁸(1804) 9 Ves. 399, affd. (1805) 10 Ves. 522.

¹⁹ [1971] A.C. 424.

²⁰ Matthews & Sowden, 8.18.

²¹ Burrows v. Walls (1855) 5 De G M & G 233, Hawkesley v. May [1955] 3 All ER 353. There is some uncertainty in English law as to whether this rule is restricted to inter vivos trusts, as a will containing trust is, following the grant of probate, a public document to which anyone has the right of access: see Re Lewis [1904] 2 Ch 656. However, it is thought unlikely that this (much criticised) doctrine would undergo an effective translation into Jersey law.

²² Re Tillott [1892] 1 Ch. 86, Chaine-Nickson v. Bank of Ireland [1976] I.R. 393, Spellson v. George (1987) 11 NSWLR 300, 315.

²³ The irreducible core content of trusteeship, in Trends in Contemporary Trust Law, above(hereafter "Hayton") at p.49. A version of the same paper can be found at (1996) Journal of International Trust and Corporate Planning, Vol.5, No.1.

²⁴Hartigan Nominees Pty Ltd v. Rydge [1992] 29 NSWLR 405, 432, per Mahoney JA.

²⁵ Re Manisty's Settlement [1974] 1 Ch 17, 25.

²⁶ Hayton, at p.49 fn. 17

²⁷ See, e.g., Article 17(5): "A trustee shall keep accurate accounts and records of his trusteeship."

²⁸By Article 2 thereof, one of the characteristics of a trust is that "the trustee has the power and the duty, in respect of which he is accountable, to manage, employ or dispose of the assets in accordance with the terms of the trust and the special duties imposed upon him by law."

²⁹ [1965] 1 Ch. 928. The first instance decision of Plowman J is reported at [1964] Ch. 594. Re Londonderry's Settlement has been applied in Jersey in West v. Lazard Brothers & Company (Jersey) Ltd (1987-88) J.L.R. 414, 420, Re Representation of Herminia Uberti, also known as Re Lombardo Settlement, Royal Court of Jersey, unrep., 5 December 1990, and In the Matter of a Settlement (1994) J.L.R. 139.

³⁰Re Beloved Wilkes' Charity (1851) 3 Mac & G 440. The principle has not escaped criticism: see Gardner, An Introduction to the Law of Trusts (1989), p.175; Hartigan Nominees Pty Ltd v. Rydge [1992] 29 NSWLR 405, 419, per Kirby P. If trustees volunteer reasons, and it is proved that they have failed to take account of relevant considerations, or taken account of irrelevant ones, their distribution may be set aside: Re Hastings-Bass [1975] Ch. 25.

³¹ "The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own. Action or no action, he is entitled to access to them." O'Rourke v. Darbyshire [1920] A.C. 581, 626, per Lord Wrenbury.

³² [1965] 1 Ch. 918, 940. Any legal advice. obtained by the trustee concerning his own personal liability (for breach of trust, or to tax authorities) will not be disclosable, although such advice should of course be paid for out of the trustee's personal resources.

³³ This list is based on the order approved by the Court of Appeal: see [1965] Ch. 918, 939

³⁴Butt v. Kelson [1952] Ch. 197.

³⁵Re Representation of Herminia Uberti (also known as Re Lombardo Settlement), unrep., 5 December 1990.

³⁶ [1992] 29 NSWLR 405. It has also been considered in Canada: see Attorney-General of Ontario v. Stavro (1994) 119 D.L.R. 750.

³⁷ p.435.

³⁸See also note by R.E.M. in (1965) 81 L.Q.R. 192, 196: ""What documents can the beneficiaries see? Trust documents. What are trust documents? Those which the beneficiaries can see.""

³⁹[1965] 1 Ch. 918, 940.

⁴⁰ Hartigan Nominees Pty Ltd v. Rydge [1992] 29 NSWLR 405, 445, per Sheller JA.

⁴¹ (1994) J.L.R. 139, 146.

⁴²Trusts (Jersey) Law 1984, Article 1.

⁴³Para. 8.19.

⁴⁴ (1987-88) J.L.R. 414.

⁴⁵ See also Matthews & Sowden, 9.46, where the authors consider that the Royal Court was ordering wider disclosure than was necessary under the terms of Article 25.

⁴⁶Re A Settlement (1994) J.L.R. 139, 145.

⁴⁷ Ibid., at 147. See also Re Representation of Herminia Uberti, also known as Re Lombardo Settlement, unrep., 5 December 1990, surmising that the words in West v. Lazard Brothers & Company (Jersey) Ltd. "are to be read in the context of that particular case and may not be of general application."

⁴⁸Surinderpal Singh Bhander v. Barclays Private Bank & Trust Company Ltd., unrep., 7 April 1997.

⁴⁹ See Salmon LJ at 938B.

⁵⁰(1965) 81 L.Q.R. 192, 196 (R.E.M.)

⁵¹ "A beneficiary may support a case by discovery but may not use the process to ascertain whether a case exists." Hartigan Nominees Pty Ltd v. Rydge [1992] 29 NSWLR 405, 437, per Mahoney JA.

⁵²For an example of an application for discovery, see Attorney-General v. Stavro, below.

⁵³ Trusts (Jersey) Law, 1984, Article 47(1).

⁵⁴See generally In the Matter of a Settlement (1994) J.L.R. 139, 144. "..[I]f a settlor wishes to allow the beneficiaries to have unrestricted access to all the trustee's papers it is open to him to make specific provision to that effect in the trust deed." In the Matter of a Settlement (1994) J.L.R. 139, 146, per Sir Philip Bailhache, then Deputy Bailiff.

⁵⁵ Hayton, at p.49. ". .[I]f a settlor wishes to allow the beneficiaries to have unrestricted access to all the trustee's papers it is open to him to make specific provision to that effect in the trust deed." In the Matter of a Settlement (1994) J.L.R. 139, 146, per Sir Philip Bailhache, then Deputy Bailiff.

⁵⁶Hayton, at p.49.

⁵⁷ Paul Matthews, The Efficacy of Trustee Exemption Clauses in English Law, (1989) Conveyancer 42; Hayton, at p.58; Law Commission Consultation Paper on Fiduciary Duties and Regulatory Rules, Law Com No. 124, at 3.3.6, and 3.3.41.

⁵⁸ [1997] 2 All E.R. 705.

⁵⁹ See Millett LJ at 713.

⁶⁰ See further Paul Matthews, The New Trust: Obligations without Rights? in Trends in Contemporary Trust Law, above.

⁶¹ See the excellent article by Donovan Waters QC, cited above, where these and other issues concerning protectors are considered at length.

⁶² Satires, vi., 347.

⁶³See 8.22.

⁶⁴ It is also difficult to see how the proprietary approach could be applied to "beneficiaries" who are no more than objects of a power of appointment. Unlike beneficiaries behind a fixed or discretionary trust, they cannot combine together and instruct the trustees to distribute the trust assets. As individuals and collectively, they have a mere spes in the trust fund.

⁶⁵ [1920] A.C. 581.

⁶⁶ See Kirby P at pp.421- 422, Sheller JA at pp.443- 444.

⁶⁷ H.A.J. Ford & W.A. Lee, Principles of the Law of Trusts, 2nd ed., Sydney, Law Book Co, at p.425.

⁶⁸ Attorney-General for Ontario v. Stavro (1994) 119 D.L.R. 750.

⁶⁹ In the Matter of a Settlement (1994) J.L.R. 139, 146.

⁷⁰ Hayton, at p.52.

⁷¹ Such an order was made in West v. Lazard Brothers & Company Ltd., above, Lloyds Bank Private Banking (Channel Islands) Ltd. v. Cala Cristal S.A., unrep., 10 September 1996, Surinderpal Singh Bhander v. Barclays Private Bank & Trust Company Ltd., unrep., 7 April 1997, In the Matter of the Den Haag Trust, unrep., 9 April 1997.

⁷²Re Bosworth (1889) 58 L.J.Ch. 432.

⁷³ We should add that this view is endorsed by Mr John Mowbray QC, whose Advice was sought by the Jersey Law Commission prior to the current Paper being written.