Ashley Dawson-Damer v Grampian Trust Company Ltd and another (The Bahamas)

In exercising a discretionary trust power, a trustee must consider the settlor’s wishes and the relevant needs and wishes of beneficiaries. For a corporate settlor, those wishes are attributed under ordinary corporate rules. A formal board resolution is unnecessary where the constitution prescribes no particular decision-making form, and the board’s intention may be inferred from the evidence. Inadequate deliberation amounts to a breach only where the failing is sufficiently serious to breach the duty of proper consideration. Breach and remedy are separate stages. A resulting disposition is voidable, not void, and the court has a flexible equitable discretion. Whether the trustee would or might have acted differently is relevant but not decisive. The disposition may remain in place where neither possibility is established.

Ashley Dawson-Damer v Grampian Trust Company Ltd and another (The Bahamas) concerned two appointments by Grampian, the trustee of the Glenfinnan Settlement, transferring approximately 98% of its assets into new discretionary trusts which excluded Ashley. Ashley alleged that Grampian misunderstood the corporate settlor’s intention and failed properly to consider her circumstances.

Winder J dismissed the claim in proceedings numbered 2015/CLE/gen/00341. The Court of Appeal of the Commonwealth of The Bahamas dismissed her appeal in SCCivApp No 30 of 2022. The appeal to the Board concerned corporate attribution of Spey’s wishes and intentions, the existence of a breach through inadequate deliberation, and the consequences of any such breach.

Appeal dismissed. The Board upheld the result reached below, but held that the lower courts had analysed inadequate deliberation incorrectly.

1. Corporate attribution. The settlor’s intention was a relevant consideration. Applying the ordinary corporate attribution rules described in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, the intention of Spey meant the intention of all or a majority of its board. Because Spey’s articles did not prescribe a particular method for management decisions, a formal resolution or minute was unnecessary. The intention could be inferred from the oral and documentary evidence, including later material. Although the 1992 Memorandum was not itself attributable to Spey, Winder J was entitled to infer that the majority of the board intended the Glenfinnan assets primarily to benefit future generations.
2. Inadequate deliberation. Following Pitt v Holt [2013] UKSC 26, the Board distinguished an exercise outside the scope of a power from inadequate deliberation within its scope. Inadequate deliberation requires a sufficiently serious breach of the duty of proper consideration. Grampian was entitled to consider the settlor’s intention, but Ashley’s current needs and wishes were also relevant. The absence of updated information about her financial circumstances meant that Grampian had committed a sufficiently serious breach. A trustee is not generally obliged to consult a potential beneficiary, but that does not remove the duty to obtain and consider relevant information.
3. Consequences. Breach and remedy are separate stages. The disposition was voidable, not void, and the court retained a flexible equitable discretion. The question whether the trustee would or might have acted differently was relevant but not decisive. Ashley could establish neither possibility. The settlor’s primary purpose, her considerable wealth and the 2% retained as a safety net meant that the appointments should not be set aside. They remained valid.

The Board would humbly advise His Majesty that the appeal be dismissed.

1. Privy Council — dismissed the appeal, upholding the outcome below while correcting the analysis of inadequate deliberation: [2025] UKPC 32.
2. Court of Appeal of the Commonwealth of The Bahamas — dismissed Ashley’s appeal from Winder J: SCCivApp No 30 of 2022.
3. Trial court (Winder J) — dismissed Ashley’s claim on 17 January 2022.