TM v AH

Trustees of settlements should ordinarily be joined to proceedings seeking to vary the trusts of which they are trustees. Joinder is required where an existing dispute cannot be effectually and validly resolved without them. Fair trial requirements under article 6 of the European Convention on Human Rights support their joinder, particularly because a variation may affect the trustees and its binding effect upon them.

The wife applied to join the trustees of two overseas trusts to matrimonial finance proceedings. The trusts were governed respectively by the law of the British Virgin Islands and Switzerland. The trustees had provided information through English solicitors but had not submitted to the jurisdiction, and required guidance from the relevant foreign courts.

The central issue was whether the trustees should be joined before the wife’s applications to vary the trusts as alleged nuptial settlements were determined.

1. The application to join the trustees was granted. The trustees were to be joined so that they could make representations, if they wished, on the proposed substantial changes to the trusts.
2. The court adopted the joinder principles stated in DR v GR [2013] EWHC 1196: joinder is appropriate where an existing matter in dispute requires the new party’s joinder for its resolution, or where a connected dispute should desirably be resolved together. The judge disagreed with the conclusion reached in that case that trustees could be discharged after service and the issues determined without them as parties.
3. The judge’s experience was that trustees are ordinarily joined where an application seeks to vary their trusts. The decision in A v A and St George's Trustees was treated as supporting the view that trustees must be joined if orders are to bind them.
4. It was a tenet of the fair-trial guarantee in article 6 of the European Convention on Human Rights that trustees should be joined before a court varied trusts of which they were trustees. The court considered it difficult to make a binding variation order without their participation.
5. The foreign governing jurisdictions did not affect the joinder decision. The court made no determination about the consequences of joinder in the British Virgin Islands or Switzerland.

First-instance decision. No prior appellate decision is stated in the judgment.