ITG Ltd and others (Respondents) v Fort Trustees Ltd and another (Appellants) (Guernsey)
Case ID: JCPC 2021/0002
Jurisdiction: Guernsey Court of Appeal
Should the assets of an insolvent trust be distributed: on a pari passu basis between current and former trustees or between former and current trustees on the basis that their rights rank according to time? Does a trustee or former trustee have priority for sums claimed by it ahead of the claims made by third parties through that trustee or former trustee?
This appeal is the latest round within litigation which has been taking place in the courts of Guernsey, Jersey and England and Wales over the past decade concerning issues relating to the administration of the Tchenguiz Discretionary Trust (the "TDT"). The proper law of the TDT is Jersey. The Privy Council determined the substantive issues between the parties in Investec Trust (Guernsey) Limited and others v Glenalla Properties Limited and others  UKPC 7. In that decision, the Privy Council confirmed (among other things) that a creditor has no direct recourse against the trust assets and may only enforce his claim by subrogation to the trustee’s right of indemnity for expenses and liabilities properly incurred in the administration of the trust.
The present matters which came back to the courts of Guernsey arose out of an application which sought to have a judicial resolution to the working out of the consequences of the Privy Council’s final decision.
In September 2018 the BVI Companies (which are the First to Fourth Respondents) through the liquidators brought an application seeking directions authorising the Joint Receivers to take possession of all of the assets held for the TDT and to identify liabilities which would properly fall to be met from those assets. That process has been identifying the propriety and scale of various claims and it is from this part of the overall process that the present appeal arose.
By the time of a CMC in May 2019, the judgment debts owed to the First and Second Defendants (with accrued interest) totalled almost £230m. On or about 22 March 2019, Fort Trustees Limited and Balchan Management Limited, as trustees of the TDT, took an assignment of the judgment debts due to the BVI Companies and of costs orders. Formal notice of assignment was given to ITG Limited and Bayeux Limited and to the Joint Receivers by the BVI Companies on or about 26 March 2019. Similar assignments of claims under judgment debts had been made to Fort Trustees and Balchan Management as trustees of the TDT by Messrs. Smalley, Brown and Grunnell.
The Royal Court of Guernsey determined the assignment and priorities issues against Fort Trustees and Balchan Management. The Court of Appeal of Guernsey dismissed Fort’s and Balchan’s appeal. They now appeal to the Judicial Committee of the Privy Council.
- Fort Trustees Ltd
- Balchan Management Ltd
ITG Ltd and others
Lord Reed, Lord Briggs, Lady Arden, Lord Stephens, Lady Rose, Sir Nicholas Patten, Sir David Richards
Hearing start date
15 June 2021
Hearing finish date
17 June 2021