PT-2025-000706 - [2025] EWHC 2928 (Ch)

The procedure under section 48 is confined to questions of construction and confined to cases in which there is no dispute which would make it inappropriate to make the order in the absence of argument, see [39-081] of Lewin.

The effect of an order would be to permit the Trustees to act on the interpretation of the Trust documentation in light of the relevant legislation that, by the Opinion, they have been advised is correct, so as to protect them against a claim for breach of trust. The Trustees recognise, that the order sought would not bind the beneficiaries of the Trust, who would remain free to contend later for a different interpretation, and, if necessary, follow any trust property distributed in reliance on the order: see [39-082] of Lewin.

The question of construction that has arisen out of the Trust documentation is whether the Child, in the particular delicate circumstances that pertain, falls within the beneficial class. The criterion in section 48(1)(a) of the AJA 1985 is, accordingly, met.

The Trustees have obtained the Opinion on this question. Edward Cumming KC has “a 10 year High Court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990”, having been called to the Bar in 2006. The criterion in section 48(1)(b) of the AJA 1985 is, accordingly, also met.

No dispute exists and section 48(2) of the AJA 1985, accordingly, does not preclude the court making the order sought.

Although it is not necessary for the Court to hear argument before making any order under section 48, Mr Cumming’s oral exposition would be of considerable assistance in deciding whether or not to make the order the claimants seek. I will accordingly list a further hearing but not require any other party to be joined as a defendant or notified.