Trustee PTA & Ors v No Named Defendant

Section 48 of the Administration of Justice Act 1985 provides a summary procedure enabling trustees to obtain authorisation to act on a suitably qualified counsel’s written opinion concerning a question of trust construction. The court must be satisfied that no dispute exists which makes it inappropriate to proceed without argument. An order under section 48 protects trustees against a later breach of trust claim, but does not bind beneficiaries or prevent them from later challenging the construction or pursuing trust property. Privacy and anonymity orders must represent the minimum derogation from open justice necessary to protect sensitive information, particularly information concerning a child.

The claimants were trustees seeking authorisation under section 48 of the Administration of Justice Act 1985 to administer a trust on the basis of leading counsel’s opinion that a child in delicate circumstances fell within the beneficial class.

The claim was issued without a named defendant. An interim order was made privately restricting access to the court file and reporting. The court then considered the appropriate privacy and anonymity regime, and whether communications with the adult beneficiaries disclosed a dispute preventing a section 48 order without argument.

1. The court continued the privacy regime. The child’s sensitive personal information was not shown to be in the public domain, and publication of the trustees’ names might have enabled identification of the child. The circumstances engaged CPR 39.2(3)(d). The trustees were anonymised, the file remained marked “In Private”, and reporting was prohibited save for publication of the anonymised judgment and order.

2. The order should have been published, at least in anonymised form, on the Judiciary website. Any person was permitted to apply on notice to vary or set aside the relevant provisions.

3. The section 48 procedure is confined to questions of construction and cases in which no dispute exists that would make it inappropriate to proceed without argument. The question whether the child fell within the beneficial class was a question of construction arising from the trust documentation. The written opinion had been obtained from counsel with the required ten-year High Court qualification. The requirements of section 48(1)(a) and (b) were therefore met.

4. An order under section 48 would authorise the trustees to act on the relevant construction and protect them against a breach of trust claim. It would not bind the beneficiaries, who remained free to contend later for a different construction and, if necessary, to follow trust property distributed in reliance on the order.

5. The adult beneficiaries had been informed sufficiently to raise the issue, but none had disputed the child’s status or the proposed approach. No dispute existed for the purposes of section 48(2), so that subsection did not preclude the order. The court nevertheless listed a further hearing because counsel’s oral submissions would assist in deciding whether to make the substantive order. No defendant or other party was required to be joined or notified.