Use of Trust Documents Disclosed in Private Proceedings

The ongoing Tchenguiz Discretionary Trust proceedings continues to rumble its way through the Guernsey courts with the Royal Court releasing its latest judgment in February.

The case concerned an application for leave to use documents disclosed in the predominantly private administrative "Guernsey 2" proceedings in open English proceedings which had been commenced against the applicant and other parties (who were not party to "Guernsey 2").

The applicant was a party to the "Guernsey 2" proceedings and received disclosure of documents in the course of those proceedings. The trustees in the Guernsey 2 proceedings gave full and frank disclosure of information in a confidential setting, and so it was in that context that the applicant came to be in possession of the documents.

The applicant was unable to identify which documents from the "Guernsey 2" proceedings it wished to rely on in the English proceedings. As a result of this it sought permission to share the disclosed documents with the other English defendants and permission to review those documents for relevance to the English proceedings. Once the documents had been reviewed the intention was for the applicant to apply to the Royal Court to seek permission to disclose the documents identified as relevant to the English proceedings.

Following an agreement between the parties to limit the review to defined terms, the Royal Court granted permission to use the documents but was keen to stress the importance of maintaining the confidentiality of the documents. The fact the Royal Court were only sanctioning a review of the documents (rather than permitting the disclosure of those documents to the English Courts) balanced this concern.

This case is an important reminder of the rule that documents which are disclosed to parties in the course of court proceedings do not become the property of those parties to do what they want with them. The objective of this rule is to ensure that parties feel able to provide full and frank disclosure to the court so that justice can be done. This is of particular importance in the context of administrative trust proceedings where such documents are usually disclosed in a confidential setting where there is a higher expectation of privacy.

You can read more about the judgment here.

Even more recently, on Monday 23 April, the Privy Council (on appeal from the Guernsey Court of Appeal) handed down its much anticipated judgment in Investec v Glenalla [2018] UKPC 7, the latest judgment in the long running litigation in respect of the Jersey law Tchenguiz Discretionary Trust (TDT). You can read more about it here.