Public Trustee v Cooper applications
Produced in partnership with Nicholas Holland and William Allum of McDermott Will & Emery UK LLP
Public Trustee v Cooper applications

The following Private Client guidance note Produced in partnership with Nicholas Holland and William Allum of McDermott Will & Emery UK LLP provides comprehensive and up to date legal information covering:

  • Public Trustee v Cooper applications
  • Background
  • The court's jurisdiction
  • The test
  • The evidential burden
  • Why make a category two Public Trustee v Cooper application?
  • Practice and procedure

In Public Trustee v Cooper, the English High Court recognised that it had the jurisdiction to bless the ‘momentous decision’ of a trustee, thus protecting the decision from future attack as a breach of trust.

Background

Before the decision in Public Trustee v Cooper, the court, as part of its supervisory jurisdiction over trusts, already had the jurisdiction to give declaratory relief as to the proper interpretation of trust instruments and to determine prospectively whether the trustee had the power to take a step which it contemplated taking. Furthermore, the court had the jurisdiction to accept the surrendered jurisdiction of the trustees where they were conflicted or locked in an irresolvable dispute as to the exercise of a power or discretion.

The court's jurisdiction

In Public Trustee v Cooper, a four-fold analysis sets out the different types of proceedings:

  1. first, there are proceedings for guidance as to whether some proposed action is within the trustees' powers, which is ultimately a question of construction

  2. second are cases where the trustees wish to obtain the blessing of the court for a decision that is particularly momentous. These cases are the focus of this Practice Note

  3. third, there are cases of a surrender of discretion, which the court will only accept for a good reason, eg the trustees are deadlocked or disabled