Weighing Privacy vs Open Justice in a matter of Trust

The High Court was faced with a case focusing on the intersection of trust law as outlined in the Administration of Justice Act (AJA) 1985 and the fundamental legal principle of open justice (CPR 39.2), particularly concerning a minor’s privacy.

Facts:

The case was brought by claimants (trustees) of a trust fund seeking authorisation under Section 48 of AJA 1985. The authorisation was sought to allow the trustees to administer the trust based on a Leading Counsel’s opinion dated 5 June 2025, which concluded that a child in particularly delicate circumstances falls within the beneficial class of the trust. All other members of the beneficial class are adults.

The claimants issued the proceedings on 10 July 2025 without naming any defendant, requesting privacy due to the sensitive nature of the case, the child’s circumstances, and the desire to control how information was shared with beneficiaries. The Court initially marked the file “SECURE”.

Deputy Master Jefferis subsequently ordered, on 30 July 2025, that the claim be heard in private, that the file remain marked “In Private,” and that there be no reporting of the proceedings. In advance of the substantive hearing, the trustees informed the adult beneficiaries that the application was being made due to the child’s “particular circumstances” and that Counsel advised the child was highly probable to be a beneficiary, and no beneficiary raised any concern or dispute about this approach. The main issues before the Court were the appropriate privacy/anonymity regime (in light of the case guidance) and whether a “dispute exists” under Section 48(2) of AJA 1985, which would preclude the summary procedure.

Decision:

The High Court affirmed the privacy regime for the sensitive claim and confirmed the eligibility of the application to proceed under the summary procedure, but required a further private hearing before the final order is made.

The Court’s reasoning is focused on balancing the fundamental principle of open justice with the need to protect the privacy of a child, confirming the narrow statutory requirements of Section 48 of the AJA 1985. The Court needed to justify the derogation from the general rule that court hearings are public. Although the child was not a party, the Court found that publishing the names of the claimants (trustees) might enable the adult beneficiaries to identify the child, given the “particular delicate circumstances”. This necessitated an anonymity order for the claimants. The Court ensured the derogation was the minimum strictly necessary. It confirmed the file remains private and no reporting is allowed, but balanced this by ensuring the anonymised judgement is published and, crucially, that the order itself is placed on the Judiciary website, allowing any interested third party to apply to set it aside.

Implications:

This case confirms that the primary purpose of a Section 48 order is to provide protection to trustees against future claims for breach of trust when they act on a qualified legal opinion concerning the construction (i.e., interpretation) of a trust document.

The judgement emphasises that a Section 48 order does not bind the beneficiaries or affect their proprietary rights. Beneficiaries remain free to bring full proceedings later to challenge the construction adopted by the trustees. This reinforces the need for trustees to use this procedure primarily where they anticipate no immediate dispute.

The Court’s finding that the mere silence of beneficiaries (after being notified that a legal question had arisen) was enough to satisfy the finding that the “no dispute” requirement of Section 48(2) is significant. It suggests that trustees are not required to actively seek out disputes and that vague or speculative concerns do not necessarily preclude the use of the summary procedure.

The decision establishes that, where proceedings involve a child’s sensitive or confidential information, the Court will take substantial steps, including anonymising the parties’ names and sealing the file, to protect the child, even if the child is not a direct party to the claim.