Tchenguiz case 'will lead to greater due diligence'

Friday 13 December 2019

Trustees in Guernsey and Jersey have been given "greater certainty as to their rights" in relation to their predecessor and successor trustees, and therefore to creditors claiming through those trustees’ rights of indemnity, according to Nick Robison, partner at Babbé and Guernsey Advocate.

The latest ruling in Investec v Glenalla, the long running litigation relating to the affairs of London property developer Robert Tchenguiz, was handed down this week by the Royal Court of Guernsey.

Mr Robison said: “The Court’s decision on the Global Priorities Issue has great significance for retiring and successor trustees, and perhaps even more so for those advising them. Given the “first in time” finding by the Court, a successor trustee ranks behind its predecessor (as well as any other previous trustees) when seeking to have recourse to the trust assets in the event of a later insolvency.

“The decision will undoubtedly sit uncomfortably with successor trustees, who do not have full visibility on the affairs of their predecessors and may be concerned that liabilities that they have incurred, even many years after their appointment, will only be paid after those liabilities that were incurred by prior trustees.

“It is perhaps now even more important than ever before for a successor trustee to exercise caution when deciding whether to accept an appointment.”

Explaining what Trustees can do to ensure they are protected, Babbé associate Gareth Parr said:

“A successor should fully understand the affairs of the trust and should thoroughly investigate the likelihood of potential claims against its predecessors before accepting its appointment; and they should look to mitigate risk as far as possible by procuring appropriate indemnitees from the retiring trustees.”