CH-2025-BRS-000001 - [2025] EWHC 2373 (Ch)

Julian says that removal of the trustee of a discretionary trust requires specific findings of misconduct or breach of trust, which were neither properly alleged nor established in this case. He relies on the decision of Lewison J in the Carvel case. That case, of course, is not one about the removal of the trustee of a discretionary trust, but instead one about the removal of a personal representative of the estate of the deceased person. Leaving that point on one side, however, what is important to notice is that there is no requirement to make specific findings of misconduct or breach of trust in order for the court to exercise either its inherent jurisdiction to remove the trustee or the jurisdiction arising under section 41 of the Trustee Act 1925. Under the inherent jurisdiction, the main guide is “the welfare of the beneficiaries” and under section 41, is whether it is “expedient” to appoint a new trustee in place of an old one. The judge correctly cited the decision in London & Capital Finance plc v Global Security Trustees Limited [2019] EWHC 3339 (Ch D) (on which the appellant himself relies in his submissions).

Julian also says that the judge “wrongly failed to understand the differences between a bare trust and a discretionary trust, in particular the discretion bestowed upon the trustees”. Julian does not refer to any particular passages in the judgment demonstrating such a failure to understand, and I have not found any. The judge is an experienced district judge, and before that was an experienced and well-respected Chancery practitioner. I decline to believe that this judge did not know the difference between a bare trust and a discretionary trust. Nor, indeed, can I see what difference this point makes in the present case. The test for removing the trustee of a bare trust is exactly the same test as that for removing the trustee of a discretionary trust, whether under the inherent jurisdiction or under section 41. A trust is a trust is a trust. There is nothing in this ground of appeal.