The renowned physicist, Professor Stephen Hawking, when considering time travel, has mused that, “…we have not yet been overrun by tourists from the future..” In the English law of trusts, the decision of the Supreme Court in Pitt v Holt, Futter v Futter, has resulted in turning back the ‘fiduciary clock’ by judicial order, which is rather problematic and unattractive. Going forward, trustee tourists from the future seem certain to be a rarity in English law. In several international financial centres, however, what the common law has taken away, the legislature has given back. This case note will examine the first decision of the Supreme Court of Bermuda on section47A of the Trustee Act 1975. This statutory provision has sought to replicate in Bermuda law the so-called rule in Re Hastings-Bass as it was understood in England and Wales before the English Court of Appeal decision in Pitt v Holt in 2011.

In the Court of Appeal in Pitt v Holt, Futter v Futter, Longmore LJ noted that the appeals in those cases: provide examples of that comparatively rare instance of the law taking a serious wrong turn, of that wrong turn being not infrequently acted on over a 20-year period but this court being able to reverse that error and put the law back on the right course.

The ‘wrong turn’ that Longmore LJ was talking about was the principle established in a succession of English cases and known as the ‘rule in Re Hastings-Bass’. Confusingly, the ‘rule’ had not, in fact, been established in Re Hastings-Bass at all, but rather in a line of cases starting with Mettoy Pension Trustees Ltd v Evans. The ‘rule’ held that the exercise of a discretionary dispositive power by trustees may be declared void and set-aside by the court (even many years after the event) on the basis that the trustees had failed to take into account relevant matters when exercising the power. This ‘rule’ has over the years proved to be particularly useful in a number of cases when, on the application of the trustees, the court had been persuaded to set-aside prior acts of the trustee on the basis of their own failure to take into account a relevant tax consequence of their actions.





Twitter LinkedIn Email Save as PDF
More Publications
20 Dec 2021 |

A Time Of Regeneration: Bermuda Can Bounce Back Better

Bermuda’s economy is a mixed bag of emerging opportunities and specific challenges. But if all sec...

17 Dec 2021 |

A Rising Tide: And Ships Are Choosing Bermuda

Bermuda must remain innovative, nimble and wary of too much regulation to stay ahead of the game, ac...

17 Dec 2021 |

A Silicon Valley For ILS

As the ILS market continues to innovate and evolve, driven by external forces including ESG, it will...

3 Dec 2021 |

Americas Restructuring Review 2022

This chapter discusses the defining features of Bermuda’s insolvency landscape and the primary ins...

2 Dec 2021 |

A growing hub for the life sector

Bermuda has become a flourishing focal point for long-term insurance and reinsurance, offering the I...

2 Dec 2021 |

Provisional liquidation in Bermuda and the selection of provisional liquidators

In the absence of a formal equivalent to English administration proceedings or U.S. Chapter 11 proce...

Contributors: Sam Riihiluoma
30 Nov 2021 |

Cryptocurrencies and estate planning

When a person dies having made a will, their personal estate is transferred to their personal repres...

26 Nov 2021 |

Whistleblowing issues for employers

In recent years there have been a number of high-profile scandals brought to light by the actions of...

24 Nov 2021 |

Hong Kong Harbours Long-Term ILS Ambitions

The launch of Hong Kong’s first catastrophe bond signals the start of a new era for Asia’s insur...

4 Nov 2021 |

The Insolvency Review – Ninth Edition

The ninth edition of The Insolvency Review offers an in-depth review of market conditions and insolv...