The objection to the view of the majority is the classic one: their
approach is, if this be the law of England, how can it not be the law
of all jurisdictions that recognise the trust? Moreover, none of the
court has been fully advised as to what the Scots law, so far as
relevant, is. And in an open issue, why should the Guernsey court not
be left to decide what Guernsey as opposed to English law is?

Hector

--
Hector L MacQueen
Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222


Quoting Robert Stevens <robert.stevens@ucl.ac.uk> on Thu, 30 Jun 2011
19:26:56 +0100:

>
> My objection to Lady Hale's deference for the views of the Guernsey court
> of appeal is that she is supposed to be applying Guernsey law as a member
> of Guernsey's ultimate appellate court, not deferring to what a lower
> court thinks the law is. Similarly if a Supreme Court judge sits on an
> appeal from Scotland she is not supposed to defer to the views of the
> Court of Session, even if she happens to be English. This is not a case of
> the judicial review of a public body's decision.
>
> I agree that the law of Guernsey is not necessarily the same as England,
> but the majority, for good or ill, determine that in this case that it is
> and then go on to determine what English law is.
>
> I can't myself see any good reason why English law should be different
> from Scottish law on the point (as it apparently is) and one would have
> thought that this difference would have forced the court into addressing
> the question as a matter of principle. But apparently not.
>
> What the correct position is as a matter of policy I have no idea.
>
> It is certainly odd that Lord Clarke writes that his advice is that "of
> the board", but the other two in the majority whilst agreeing with him
> don't make any reference to this.
>
>
>> Thanks Rob for these thoughts. I agree that only Lord Kerr really did
>> the appellate court's job of high level rational analysis rather than
>> shuffling of authority.
>>
>> You have accepted on face value Lord Clarke's reasoning that the local
>> /bon pere du famille/ standard in Gurensey trust law is to be measured
>> by whatever /Armitage v Nurse/ may have decided (the reasoning of which
>> case itself may well have been per incuriam at the time of decision
>> because of misreading of the authorities especially from Scotland that
>> were used to justify the decision). Lord Kerr forcefully argues that
>> English law (whether clear, murky, controversial or whatever) does not
>> provide the right metric for deciding Guernsey law, though obviously it
>> may be consulted. So Lord Clarke's judgment has to be taken to decide
>> two points - he is right to impose English doctrine on Guernsey because
>> that is the determinative body of doctrine; and he is right to ratify
>> the controversial English doctrine of /Armitage/ in so doing. Lady
>> Hale's deference to the local Guernsey law at the appellate level of
>> their court system opposes this reasoning, and it is not at all odd; she
>> is saying that the Guernsey courts in deciding their law may look at
>> English or any other trust law for analogies and ideas, but that
>> /Armitage v Nurse/ at thet point of time in question does not make the
>> cut as overwhelmingly clear and authoritative law an ddoes not bind or
>> compel Guernsey trust law. The majority argument that trust law is and
>> only is English law and that a "Norman" legal system that has trusts
>> cannot differ from the norms of English law is decidedly odd. I'd be
>> very wary if the Supreme Court applied that technique to reform Scottish
>> trusts law.
>>
>> From Rob's take on /Spread Trustee /I have to accept - with heavy
>> heart - that reasonable English lawyers may end up accepting the case as
>> good authority for the /Armitage v Nurse/ doctrine. But there are
>> further reasons to doubt both the authority and policy sense of the
>> majority judgments endorsing that case. In my old essay on "Duty of
>> care" in Birks and Pretto's edited volume on /Breach of Trust/ I tried
>> to lay out justifications for directing the doctrinal traffic in the
>> opposite direction to that of the /Spread Trustee /majority - namely
>> that the civilian /bon pere du famille/ since the early 18th century is
>> the proper approach for /English /trust law on both precedential and
>> policy grounds and that it was fecklessly displaced by Millett LJ's
>> decisions in the late 1980s and 1990s. I take cheer from Rob's
>> distinguished restatement of English tort theory to resist the instinct
>> that every corner of our private law should be irradiated with an
>> undifferentiated mid-20th century tort negligence standard. We should
>> make it simple but not too simple.
>>
>> On a minor point of precedent - if the strong tradition in Privy Council
>> judgments is for a single-speech expressing the majority view, then what
>> is the status of the Auld and Mance add-ons?
>>
>> Josh
>>
>>
>> Having now read the case (thanks Colin) I don't think I can endorse Josh's
>> view that the case contains nothing more than "speculative dicta" on the
>> question of whether a trustee may exclude liability for gross negligence.
>>
>> So, the majority are forceful in their endorsement of the view of Millett
>> LJ in Armitage v Nurse, rejecting the view of Professor Matthews to the
>> contrary and the doubts of the Law Commisssion (see Lord Clarke at [57],
>> Lord Mance [106], Auld [122]). What the position of English law is was
>> necessary to determine for the outcome of this case because in relation to
>> the position prior to legislation in 1989 Guernsey law would have been
>> (and is) determined according to the position found in England (see Lord
>> Clarke at [45], Lord Mance [109]).
>>
>> Lord Mance and Auld are agreeing in full with Lord Clarke and are giving
>> judgements out of deference to the fact that there are dissentients.
>>
>> Lady Hale's reasons for dissent are summarised at [140]
>>
>> "English law on the subject was not settled in 1988, I see no reason why
>> we should disagree with the Guernsey courts' conclusion as to how Guernsey
>> law would have decided the matter then."
>>
>> This is odd. The judge's job is to authoritatively determine the question
>> of law before her. She is sitting to determine Guernsey law.
>>
>> Auld states (at [127])
>>
>> "What matters is what a pre-1991 Guernsey Court should have decided as a
>> matter of Guernsey law on a logical and otherwise legally correct process
>> of reasoning -- an outcome that might also have required examination by
>> the
>> Board at the time. It is an issue on which the present Board -- given the
>> extensive material and submissions put before it -- is as well placed as
>> the Lieutenant Bailiff and Court of Appeal, then or now, to determine."
>>
>> I don't think that is quite right either.The law is not just a prediction
>> about how an earlier court would have decided the case. The only issue is
>> what the position of Guernsey law is in relation to breaches by a trustee
>> not covered by the legislation. The Privy Council is the ultimate Guernsey
>> court, its job is to state the law not predict what it or another court
>> would have done before 1989/91.
>>
>> The disappointing aspect of the decision is, for me, the failure to
>> analyse whether as a matter of principle the trustee should be able to
>> exclude liability for gross negligence. The majority seem to me to content
>> themselves with the mechanical citation of authority without any further
>> analysis. So, I have some sympathy with Lord Kerr in dissent that the duty
>> of a fiduciary to subordinate his interests to those of his principal is
>> simply incompatible with his at the same time excluding liability for
>> gross negligence. However, the majority have endorsed Millett LJ's views
>> in Armitage v Nurse to the contrary, and I don't think that this can be
>> readily dismissed as a matter of authority.
>> -- Robert Stevens Professor of Commercial Law University College London
>>
>>
>>
>
>
> --
> Robert Stevens
> Professor of Commercial Law
> University College London
>
>
>



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