TR v ST (Letters of Request)

In financial remedy proceedings involving a discretionary trust, the court must assess whether it is a resource by asking whether the trustees are likely to advance capital immediately or in the foreseeable future. The inquiry requires sufficient trust information and a realistic assessment of access, while respecting the trust structure and trustees’ duties.

A letter of request may issue where production is necessary for fair disposal or saving costs. In family proceedings, the court’s quasi-inquisitorial function means the applicant need not prove in advance that every requested document exists, but the request must be specific, targeted and proportionate rather than a fishing expedition. Trustee silence may support an adverse inference, but the court has a discretion whether to draw one. The request does not automatically stay the proceedings.

The applicant wife sought a letter of request to the judicial authorities of X Country for documents from the corporate trustees of an offshore discretionary trust. Companies owned by the trust held the former matrimonial home and other property. Both parties had disclosed negligible resources.

The trustees initially failed to respond and later resisted disclosure, relying on confidentiality and X Country law. A District Judge had previously ordered direct requests for trust and company records. The central issues were whether the requested documents were necessary, relevant, targeted and proportionate, and whether the financial remedy proceedings should be stayed pending execution of the request.

The application was granted. The High Court directed that a letter of request be issued to the judicial authorities of X Country for the specified trust documents.

1. Trust as a resource. The court applied the test in Charman v Charman [2005] EWCA Civ 1606: whether the trustee would be likely to advance capital immediately or in the foreseeable future. The court adopted a realistic approach, balancing worldly realism with respect for trust law, trustees’ duties and foreign jurisdiction. The relevant issue was access to resources rather than control, as explained in Whaley v Whaley [2011] EWCA Civ 617.
2. Necessity. The principles governing incoming and outgoing requests were the same. A request could issue only where production appeared necessary for disposing fairly of the application or saving costs. Family proceedings have a quasi-inquisitorial character, but the request must not be a fishing expedition. The requested documents were relevant and central to the trust-resource issue, specific, targeted and proportionate. The necessity threshold was therefore met.
3. Foreign trustees and procedure. The trustees’ assertion that X Country law prevented disclosure was not accepted. The confidentiality clause was not prohibitive on its plain reading. The application was governed procedurally by FPR 2010 rule 24.12 and PD24A. It was not usually necessary to join the person from whom documents were sought, following DR v GR [2013] EWHC 1196 (Fam).
4. Execution, stay and inferences. Under the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, execution could be refused only on the limited grounds in Article 12. Nevertheless, the court could not guarantee execution or its timing. The proceedings were therefore not stayed, although a short adjournment might be appropriate. The court retained a discretion, not an obligation, to draw adverse inferences from trustee silence or absence, applying the principles in Wisnieswki (a Minor) v Central Manchester Health Authority [1998] EWCA Civ 596 and Manzi v King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882.

This was a first-instance application. The judgment records that the District Judge ordered direct requests for trust documents at the First Appointment on 13 January 2026. A case-management order made on 11 May 2026 was suspended on 19 May 2026; discharge and fresh directions were left for the local family court. No appeal is stated.