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

Fecha: 14-Nov-2025

Section 48 of the AJA 1985

Section 48 of the AJA 1985

32.

Mr Cumming submits that the purpose of section 48 of the AJA 1985 is to provide a summary procedure by which trustees can obtain protection from any subsequent complaint that they have wrongly administered the trust by doing so, in accordance with an order under the section, on the basis of the Court’s construction of the relevant instrument.

33.

He says that it is clear that an order under section 48 does not bind the beneficiaries of the trust: see [39-082] of Lewin on Trusts, (20^th edition, 2020), and [41] of the judgment of Snowden J in BCA Pension Trustees Limited [2015] EWHC 3492 (Ch).

34.

In BCA Pension Trustees Limited [2015] EWHC 3492 a claim was brought by the sole trustee of an occupational pension scheme seeking authorisation to act on the opinion of counsel that the Consolidated Rules should be construed as if some words had not been inadvertently omitted from the consolidated text.

35.

The learned Judge concluded that he agreed with counsel’s opinion and went on to explain that he had originally proposed to make his order under section 48 conditional on the claimant giving notice of the order to members of the scheme together with permission to apply to set aside or vary the order. However Counsel for the trustee objected to that course on grounds including that (i) it was not consistent with the purpose and effect of an order under section 48 and (ii) it might be difficult and expensive to give notice. Snowden J was persuaded by these arguments not to make his order conditional, but required that notice of his order be communicated to scheme members.

36.

No order in this claim under section 48 that the claimants seek would affect proprietary rights of the beneficiaries under the Trust, and those beneficiaries would be able in the future, (i) to pursue proceedings for declaratory relief to the effect that the Child is not a beneficiary of the Trust, and (ii) to pursue a third party claim against the Child, if assets are appointed to them in the future, on the basis of arguments that they are not a beneficiary of the Trust.

37.

Accordingly Mr Cumming submits that it would be wrong in principle (i) to make any order that might be made under section 48 conditional upon the giving of notice to beneficiaries, or (ii) to grant any permission to beneficiaries to apply to set such an order aside.

38.

Mr Cumming addressed two further matters:

(i)

how the court should approach section 48(2) of the AJA 1985 in the light of the communications that there have been with the adult members of the beneficial class to date regarding the question in these proceedings;

(ii)

what, if anything, should be said to those beneficiaries about the making of an order under section 48 once it has been made, assuming it is.

39.

The claimants’ position on these points is as follows:

(i)

by a letter dated in June 2024, the claimants informed the adult members of the beneficial class that a question had arisen whether the Child was a beneficiary on the proper interpretation of the Trust documentation. In the year to the issue of the claim no beneficiary asked for any more details of the question of interpretation or suggested the Child not be treated as a member of the beneficial class;

(ii)

by letter dated in June 2025, the claimants explained that they had been consulting with solicitors and leading counsel and the advice received indicated it was highly probable the Child is a beneficiary, but referred to a complex array of relevant statutory provisions and the small possibility that these provisions could be interpreted differently. The letter went on to explain that the claimants were making an application to the English court for permission to treat the Child as a member of the beneficial class, but that the legal question whether the Child is a member of that class would not be dealt with;

(iii)

by further letter dated in September 2025, the claimants provided further updating information including that there was to be a hearing of the issued proceedings in private on 29 September 2025; and

(iv)

no beneficiary has to date asked for any further details of the Child’s circumstances or the application to Court or suggested the Child should not be treated as a beneficiary.

40.

Mr Cumming submits that there is no basis to conclude that any of the beneficiaries disputes whether the Child is, or should be treated as, a beneficiary of the Trust and thus that there is any appearance that “a dispute exists” for the purposes of section 48(2) of the AJA 1985. He says that that analysis applies notwithstanding that the beneficiaries have not been informed, in terms, of the particular delicate circumstances of the Child. The present actual position is that there is no dispute. Accordingly the claimants are not required to give any notice to the beneficiaries and given their failure to ask further questions in circumstances where the information they have been given might have been expected to prompt questions, were they minded to raise a dispute, the court should not assume there might be any dispute.

41.

Mr Cumming submits that the claimants have acted throughout with proper regard to the Child’s interests and privacy rights under article 8 and article 14 of the European Convention on Human Rights (as applicable under the Human Rights Act 1998), and their wider duties in law and in equity so far as their approach to sharing information with the beneficiaries is concerned.

42.

If the claimants obtain the order that they seek they propose to seek a direction (for the avoidance of doubt) that they may inform the adult beneficiaries of the Trust (and I infer the parents of the Child) that the court has made an order authorising them to administer the Trust, and to take any step in relation to the Trust, on the basis that the Child is a beneficiary of the Trust in reliance on an opinion of counsel of appropriate standing.