Trustee PTA & Ors v No Named Defendant

:

1. The claimants are trustees of a trust fund ( the Trust ). In these proceedings they seek authorisation under section 48 of the Administration of Justice Act 1985 to administer the Trust in reliance on the opinion of Leading Counsel dated 5 June 2025 ( the Opinion ). The Opinion concludes that a child, in particular delicate circumstances ( the Child ), falls within the beneficial class of the Trust. The other members of the beneficial class are all adults.

2. The claimants issued these proceedings on 10 July 2025 without naming any defendant. The claim form and the first witness statement of James Lister of Stevens & Bolton LLP, solicitors for the claimants, dated 2 July 2025 filed in support referred to the subject matter of the claim being sensitive and to the wish of the claimants that the fact of the claim, information about the particular delicate circumstances and information about the Trust should not be divulged in a way which might trespass on the manner in which relevant information might be shared with any members of the beneficial class in future. The Court was invited to proceed without a hearing, alternatively to allow the claimants the opportunity to apply for a suitable privacy regime. The court file was marked “SECURE”, as an administrative matter, without any reference to a Judge or Master, with the effect that no third party might access any documents on the file.

3. Shortly thereafter the file was referred to me for review and I directed as follows: “It is not appropriate for this matter to be dealt with without a hearing. I am prepared to consider a formal application for the hearing to be held in private and for a suitable privacy regime to apply to the case; that application will need to be supported by evidence.”

4. The claimants issued an application on 23 July 2025 by which they sought orders that: (i) the claim be listed for a hearing in private; (ii) the court file be sealed; and (iii) there be no reporting of the proceedings and any order or judgments in the claim not be published on the Judiciary website.

5. That application was supported by the second witness statement of Mr Lister dated 22 July 2025 which invited the court to determine the application on the papers and, if the application were not granted in full, to make an interim order until the hearing of the claim. The witness statement referred again to the sensitive subject matter of the claim and the protection of the interests of all members of the beneficial class. Particular reliance was placed on the fact that certain steps previously taken in respect of the circumstances underlying the claim were taken in private.

6. Deputy Master Jefferis dealt with the application without a hearing and on 30 July 2025 ordered: (i) the claim be listed for a hearing in private; (ii) the court file remain marked “In Private” (the marking was at some point changed from “SECURE” to “In Private”) and no documents be released to anyone save the claimants and their solicitors [without] judicial authority; (iii) there be no reporting of the proceedings without further order; and (iv) the order need not be served on anybody. That order was not published on the Judiciary website as had been requested in the application.

7. The claim was listed to be heard by me remotely and in private on 29 September 2025. In advance of the hearing I raised two questions with counsel: (i) the question of the appropriate procedure for and substantive terms of any withholding order/reporting restrictions order/anonymity order and referred then to the recent decision of the Court of Appeal PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126 ; and (ii) the extent to which the other members of the beneficial class knew what the issue is that might be the subject of any dispute for the purposes of section 48 .

8. Mr Lister signed a further witness statement on 26 September 2025. In it he explained that the adult members of the beneficial class had been informed that it was as a result of the Child’s “particular circumstances” that the Trustees were making the present application to the Court and none had raised any concern about the Child being a beneficiary or raised any concern about the approach being taken by the Trustees.

9. I asked Mr Cumming to address my questions at the start of the hearing, which he did, and reserved my judgment. Mr Cumming and Ms Lavelle have helpfully produced a Note of their submissions following the hearing. Privacy/Anonymity/Confidentiality

10. The Chancery Guide includes the following: Privacy, Anonymity and Confidentiality 3.32 Open justice is a fundamental principle of common law. Any derogation from the principle of open justice should be the minimum strictly necessary in the interests of justice and for the proper administration of justice. 3.33 Applications for part or all of a hearing to take place in private, or for anonymity and/or confidentiality in respect of some or all of the court file must be supported by evidence. Applications for anonymity and/or to limit access to the court file are often made in the same application but may be made as separate applications. In all cases the evidence in support must justify the derogation from the principle of open justice. Such applications are often made before issue or at the point of issue although they can be made at any stage including after judgment. Further guidance can be found in CPR 39.2, Chapter 15 (Urgent Applications), Chapter 25 (Trusts) and Chapter 26 (Pensions) of this Guide. Privacy 3.34 As a general rule, hearings take place in public. The circumstances in which a hearing must be held in private are set out in CPR 39.2(3). 3.35 Even if the parties are in agreement, the court will have to be satisfied that one or more of the matters set out in CPR 39.2 (3) (a) to (g)) applies and that it is necessary to hold part or all of the hearing in private to secure the proper administration of justice. An order that a hearing to be held in private will rarely be made without a hearing. It will usually be considered at the commencement of the hearing in respect of which privacy is sought. However if, unusually, an order is made on paper or an interim order has been made, even if not contentious between the parties, it will be considered afresh at the start of the hearing. Any order for privacy once made shall be published on the judiciary website unless the court orders otherwise (see CPR 39.2(5) and the Practice Guidance: Publication of privacy and anonymity orders. Even if part or all of a hearing takes place in private the court may consider it appropriate to publish any judgment, if necessary in redacted form. Anonymity 3.36 In an appropriate case the court may order that the identity of a party or witness is not disclosed where this is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness (CPR 39.2(4)). It most commonly arises where additional safeguards may be needed to protect the identity of children or protected parties or where an application for a freezing injunction or search and imaging order is issued. Further guidance on anonymity applications can be found at paragraphs 15.66 to 15.68 (Urgent Applications) and paragraphs 25.39 to 25.45 (Trusts). In some circumstances it may be considered appropriate to issue an application to seek permission to anonymise some or all of the identities of the parties to a claim prior to issue. In such a case the applicant should have regard to the guidance in paragraph 13.39. In a simple case the judge may be willing to deal with such an application on paper. Confidentiality 3.37 CPR 5.4B, 5.4C and 5.4D set out the rules on the provision of documents from the court file (upon payment of the prescribed fee) to parties and non-parties with and without permission of the court. Where permission is required the party or non-party should apply using form N244. Although the application can be made without notice the court may direct that notice should be given to any person who may be affected by the decision. 3.38 However, CPR 5.4C(4) enables the court to restrict who can access documents and what documents (individually or as classes) may be accessed by non-parties. In every case the court will need to consider the balance between the importance of open justice, the risk of harm and the legitimate interests of others. Variation of Trusts 25.39 Where the parties consider that a question of confidentiality or anonymity arises, they should, when they issue proceedings, include a covering letter together with an application for confidentiality or anonymity if sought, requesting that the assigned Master consider the application before any other step is taken. Further guidance on applications relation to privacy, anonymity and confidentiality can be found paragraphs 3.32 to 3.38 and paragraphs 15.66 to 15.68. 25.40 In some circumstances it may be considered appropriate to issue an application to seek permission to anonymise s one or all of the identities of the parties and/or for The Business and Property Courts of England & Wales Chancery Guide 2022 confidentiality in relation to some of the documents that would be on the court file before the claim is issued. 25.41 If the parties wish to apply for confidentiality or anonymity before the claim is issued, the application together with any covering letter requesting that the assigned Master consider the application on paper should be issued on CE-File as a pre-issue application and marked confidential. A note should be added to the Comment Box on CE-File so that the nature of the application is clear to the court staff. In an appropriately sensitive case in may be considered appropriate for the application and covering letter to be emailed to the Master’s clerk to seek the order before even the application for anonymity and confidentiality is issued on CE-File. Such a course of action will be exceptional. However, as set out in Chapter 3 and Chapter 15 any derogation from the principles of open justice will be the minimum necessary. 25.42 If an order is made, when the claim is subsequently issued, the claimant must write to the court requesting that the claim be assigned to the same Master who dealt with the confidentiality or anonymity application and case managed with the application (the application and claim form will otherwise, generally, have been given separate case numbers). 25.43 The covering letter should propose case management directions so that the claim (whether issued or not) can be progressed following disposal of the confidentiality or anonymity application. 25.44 It will be unusual for a confidentiality or anonymity order to made without a hearing. The Master must be satisfied that it is necessary and in the interests of justice for an order to be made. Any order made will be the minimum necessary to achieve that purpose. Any order exceptionally made on the papers will be reviewed at the first directions hearing of the claim. 25.45 The orders may include anonymising some or all of the parties, listing the first hearing in private, listing the hearing in public but with a reporting restrictions order, managing how the parties and key facts are referred to in court. The court may order that parts of the court file, that might otherwise be available, will only be released to non-parties upon written application on notice and a hearing is likely to be listed. A Variation of Trusts Confidentiality Order is at Form CH43

11. In the PMC case Sir Geoffrey Vos MR provided a useful terminological classification at [2]: “An order sought within court proceedings to withhold or anonymise the names of a party or a witness, including withholding information that would identify that person, will be referred to as a withholding order (WO). An order sought within court proceedings which has the effect of restricting the reporting of material disclosed during those proceedings whether in open court or by the public availability of court documents will be referred to as a reporting restrictions order (RRO). An order made within court proceedings which has the effect of both withholding or anonymising the names of a party or a witness and restricting the reporting of material disclosed during those proceedings whether in open court or by the public availability of documents will be referred to as an anonymity order (AO).”

12. Section 48 of the AJA 1985 provides: “(1) Where— (a) any question of construction has arisen out of the terms of a will or a trust; and (b) an opinion in writing given by a person who has a 10 year High Court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 , has been obtained on that question by the personal representatives or trustees under the will or trust, the High Court may, on the application of the personal representatives or trustees and without hearing argument, make an order authorising those persons to take such steps in reliance on the said opinion as are specified in the order. (2) The High Court shall not make an order under subsection (1) if it appears to the court that a dispute exists which would make it inappropriate for the court to make the order without hearing argument.” The Claimants’ Submissions on Privacy/Anonymity/Confidentiality

13. Mr Cumming submitted that there was nothing in the PMC case to support a conclusion that Deputy Master Jefferis’s order should not have been made or should not be continued.

14. He pointed out that PMC concerns the court’s power to make withholding, reporting restriction and anonymity orders in proceedings for court approval of a compromise on behalf of a protected person under CPR r.21.10.

15. Prior to PMC , the leading authority on the proper approach to be taken to such orders in such proceedings was JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 . At [34-35] of his judgment in Dartford , Moore-Bick LJ set out guidance that first instance judges have subsequently followed.

16. This guidance is summarised at [54] of the judgment of the Master of the Rolls in PMC . Relevantly: (i) at [35(i)] of Dartford , Moore-Bick LJ suggested that the hearing of the application for approval of a compromise under CPR r.21.10 should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order had already been made (thereby contemplating that an anonymity order be made without a public hearing at a suitably early stage of proceedings); and (ii) at [35(iv)] of Dartford , Moore-Bick LJ suggested that, at such a public hearing, submissions be invited from the parties and the press before making an anonymity order.

17. In PMC , the Master of the Rolls essentially endorsed the approach that Moore-Bick LJ had set out in Dartford , but suggested modifying the two aspects of Moore-Bick LJ’s guidance that are noted in the previous paragraph: (i) At [99] he said: “The first thing I would respectfully suggest should be changed about Moore-Bick LJ’s guidance is the suggestion at [35(i)] that the application for an [anonymity order] at an approval hearing should be listed under the name of the child or protected party. It seems to me that it would be better to avoid publicity being given to the name before the application for an [anonymity order] is determined.” (ii) At [102] he said: “I agree that, in a case where the parties are aware that the media or other non-parties have published information about the case or have shown a specific interest in doing so, those non-parties ought to be notified of the court’s consideration of the application so they can be heard if they wish. Where the media are present at an approval hearing, they should be afforded an opportunity to be heard on anonymity questions (see [35(iv)] in Dartford). I cannot, however, see why, in cases where no third party is known to have an existing interest in the case, the media needs to be notified in advance of an anonymity application being made. The media will become aware immediately after an [anonymity order] is made because of the provisions of [CPR Part 39.2(5)] requiring a copy of the court’s order to be published on the Judiciary’s website… The media can then apply speedily, if they wish, to set aside the [anonymity order].”

18. The Master of the Rolls also observed, at [106], that: “All these cases and any strictly necessary derogation from the open justice principle that may be appropriate in them will be entirely dependent on their particular facts. It is worth mentioning, however, that those making applications for an [anonymity order] would be well advised to do so as early as reasonably practicable in the litigation process”.

19. Mr Cumming submitted that in appropriate circumstances: (i) there is no need for an application for an anonymity order in relation to an application for approval to be listed to be heard in public hearing; and (ii) there is no need to notify in advance the media or any other third party of such an application for an anonymity order where there is no third party known to have an existing interest in the case.

20. Mr Cumming went on to submit that the substantive application pursued in these proceedings is not an application for approval of a compromise under CPR r.21.10. He said that even if the approach to be taken to an application for an anonymity order in the context of an application under CPR r.21.10 were to be applied directly in relation to the claimants’ application for an anonymity order in these proceedings, the Court of Appeal’s judgment in PMC offers no ground on which to impugn the process that led to Deputy Master Jefferis making his order of 30 July 2025 or to call into question whether it should be continued. There was no need for the application for the anonymity order to be heard at a public hearing, or to notify in advance the media or any third party of that application, as [102] of the judgment in PMC makes clear.

21. Although Deputy Master Jefferis’s order dated 30 July 2025 was not placed on the Judiciary website, CPR r.39.2(5) does not (i) impose any obligation on a party that successfully obtains an anonymity order to procure that it is published on the Judiciary website, (ii) make or require an anonymity order to be conditional upon such publication, or (iii) otherwise require a party seeking such an order to undertake to procure such publication. Accordingly its non-publication on that website cannot impugn or undermine the appropriateness or the effectiveness of the order dated 30 July 2025.

22. The claimants recognise that publication of an anonymity order on the Judiciary’s website is an important part of the way in which the open justice principle should be protected and that CPR r.39.2(5) stipulates that anonymity orders should be so published.

23. Accordingly Mr Cumming said that Deputy Master Jefferis’s order dated 30 July 2025 should be continued in respect of these proceeding and the claimants suggest that it would also be appropriate to direct specifically that a suitably anonymised version of the anonymity order (as continued) should be advertised on the Judiciary website forthwith, and should expressly provide that any person may apply to set aside, or to vary, the anonymity order on notice to the Trustee’s solicitors.

24. Counsel submitted a draft anonymity order in which the names of the Trustees are included in the heading providing that: (i) an anonymised version of the Order (anonymising the names of the Trustees) be separately sealed and published on the Judiciary Website; (ii) any person might apply on notice to the Claimants’ solicitors to set aside the following provisions of the order; (iii) the Court file remain marked “In Private” and no documents from the court file, save the anonymised version of the Order, be released to anyone except the claimants or their solicitors without further order; (iv) there be no reporting of the proceedings without further order. Discussion and Conclusions on Privacy/Anonymity/Confidentiality

25. These proceedings do not concern approval of a compromise under CPR 21.10. They do however concern a minor and information about the Child which is sensitive and for which the Child is entitled to privacy such that CPR 39.2(3)(d) is engaged. In this case the Child is not a party and so their name would not in any event be published in the cause list. However publication of the name of the trustees as claimants in the cause list might enable the adult members of the beneficial class to identify the Child. In addition the Child’s name appears in the evidence and there is other material in the evidence which would lead to identifying the Child even if the Child’s name were to be redacted wherever it was mentioned.

26. It seems to me that the same sorts of considerations apply to this case as apply to cases for approval of settlements on behalf of children. The Child is entitled to be protected from their personal information being released into the public domain in circumstances where there is no suggestion that that information is already in the public domain.

27. I have no issue with the order made by Deputy Master Jefferis, although it should have been published (at least in anonymised form) on the judiciary website.

28. It would perhaps have been preferable if an application for an appropriate regime directing measures to secure anonymity and privacy for the Child had been made at the outset either by separate application or by letter filed with the Claim Form drawing attention to the features of the case meaning there should be such a regime and asking that the Claim Form to be drawn to the attention of the assigned Master before issue for the matter to be considered. Such an application might then have been directed to be dealt with as a preliminary matter at a hearing which would, appropriately in these circumstances, have been listed in private and under the anonymised names of the trustees as the only parties and any order granting privacy been published on the Judiciary website.

29. As it has happened, the practical effect of Deputy Master Jefferis’ Order and the hearing on 29 September is that there has been a preliminary private hearing at which the appropriate regime for the case has fallen to be considered.

30. I do consider that it is appropriate to take steps to prevent the identification of the Child and thus protect the confidential information of the Child. That requires I make an order to anonymise the names of the Claimants and order that the court file remain marked “In Private” thus restricting the public availability of documents on the file. It is not however necessary for this Judgment not to be published and it may be of assistance to other parties considering making an application for a confidentiality regime if it is published. In addition, it seems to me highly likely that a judgment following the full hearing of this application should be published given the public importance of the substantive issue.

31. I consider that the correct course going forward is: (i) that I make an order in the following terms:

1. The version of this order (anonymising the names of the Claimants) that appears in the schedule to this order should be separately sealed and published forthwith on the Judiciary website.

2. Any person may apply, on notice to the Claimants’ solicitors (whose contact details appear at the end of this order), to set aside or to vary paragraphs 3, 4 and 5 below.

3. Subject to paragraph 1 above, the Court file shall remain marked “In Private” and no documents from it (with the exception of the anonymised version of this order) are to be released to anyone except the Claimants and their Solicitors, without further order.

4. There shall be no reporting of the proceedings without further order save that this Judgment (with the names of the Claimants anonymised) shall be published.

5. The hearing of the Claimants’ application will be listed to be heard in private.

6. The Court shall provide a sealed copy of this order and a sealed copy of the anonymised order to the Claimants’ solicitors. (ii) I will have the anonymised version of the Order placed on the Judiciary website and this judgment will be published in the usual way; and (iii) I will list a hearing of the substantive application to be held in private on dates convenient to counsel. If, however, any person has applied pursuant to paragraph 2 of the Order, I will hear that application at the outset of that listed hearing. Section 48 of the AJA 1985

32. Mr Cumming submits that the purpose of section 48 of the AJA 1985 is to provide a summary procedure by which trustees can obtain protection from any subsequent complaint that they have wrongly administered the trust by doing so, in accordance with an order under the section, on the basis of the Court’s construction of the relevant instrument.

33. He says that it is clear that an order under section 48 does not bind the beneficiaries of the trust: see [39-082] of Lewin on Trusts , (20 th edition, 2020), and [41] of the judgment of Snowden J in BCA Pension Trustees Limited [2015] EWHC 3492 (Ch) .

34. In BCA Pension Trustees Limited [2015] EWHC 3492 a claim was brought by the sole trustee of an occupational pension scheme seeking authorisation to act on the opinion of counsel that the Consolidated Rules should be construed as if some words had not been inadvertently omitted from the consolidated text.

35. The learned Judge concluded that he agreed with counsel’s opinion and went on to explain that he had originally proposed to make his order under section 48 conditional on the claimant giving notice of the order to members of the scheme together with permission to apply to set aside or vary the order. However Counsel for the trustee objected to that course on grounds including that (i) it was not consistent with the purpose and effect of an order under section 48 and (ii) it might be difficult and expensive to give notice. Snowden J was persuaded by these arguments not to make his order conditional, but required that notice of his order be communicated to scheme members.

36. No order in this claim under section 48 that the claimants seek would affect proprietary rights of the beneficiaries under the Trust, and those beneficiaries would be able in the future, (i) to pursue proceedings for declaratory relief to the effect that the Child is not a beneficiary of the Trust, and (ii) to pursue a third party claim against the Child, if assets are appointed to them in the future, on the basis of arguments that they are not a beneficiary of the Trust.

37. Accordingly Mr Cumming submits that it would be wrong in principle (i) to make any order that might be made under section 48 conditional upon the giving of notice to beneficiaries, or (ii) to grant any permission to beneficiaries to apply to set such an order aside.

38. Mr Cumming addressed two further matters: (i) how the court should approach section 48(2) of the AJA 1985 in the light of the communications that there have been with the adult members of the beneficial class to date regarding the question in these proceedings; (ii) what, if anything, should be said to those beneficiaries about the making of an order under section 48 once it has been made, assuming it is.

39. The claimants’ position on these points is as follows: (i) by a letter dated in June 2024, the claimants informed the adult members of the beneficial class that a question had arisen whether the Child was a beneficiary on the proper interpretation of the Trust documentation. In the year to the issue of the claim no beneficiary asked for any more details of the question of interpretation or suggested the Child not be treated as a member of the beneficial class; (ii) by letter dated in June 2025, the claimants explained that they had been consulting with solicitors and leading counsel and the advice received indicated it was highly probable the Child is a beneficiary, but referred to a complex array of relevant statutory provisions and the small possibility that these provisions could be interpreted differently. The letter went on to explain that the claimants were making an application to the English court for permission to treat the Child as a member of the beneficial class, but that the legal question whether the Child is a member of that class would not be dealt with; (iii) by further letter dated in September 2025, the claimants provided further updating information including that there was to be a hearing of the issued proceedings in private on 29 September 2025; and (iv) no beneficiary has to date asked for any further details of the Child’s circumstances or the application to Court or suggested the Child should not be treated as a beneficiary.

40. Mr Cumming submits that there is no basis to conclude that any of the beneficiaries disputes whether the Child is, or should be treated as, a beneficiary of the Trust and thus that there is any appearance that “a dispute exists” for the purposes of section 48(2) of the AJA 1985 . He says that that analysis applies notwithstanding that the beneficiaries have not been informed, in terms, of the particular delicate circumstances of the Child. The present actual position is that there is no dispute. Accordingly the claimants are not required to give any notice to the beneficiaries and given their failure to ask further questions in circumstances where the information they have been given might have been expected to prompt questions, were they minded to raise a dispute, the court should not assume there might be any dispute.

41. Mr Cumming submits that the claimants have acted throughout with proper regard to the Child’s interests and privacy rights under article 8 and article 14 of the European Convention on Human Rights (as applicable under the Human Rights Act 1998 ), and their wider duties in law and in equity so far as their approach to sharing information with the beneficiaries is concerned.

42. If the claimants obtain the order that they seek they propose to seek a direction (for the avoidance of doubt) that they may inform the adult beneficiaries of the Trust (and I infer the parents of the Child) that the court has made an order authorising them to administer the Trust, and to take any step in relation to the Trust, on the basis that the Child is a beneficiary of the Trust in reliance on an opinion of counsel of appropriate standing. Discussion and Conclusions on section 48

43. The procedure under section 48 is confined to questions of construction and confined to cases in which there is no dispute which would make it inappropriate to make the order in the absence of argument, see [39-081] of Lewin.

44. The effect of an order would be to permit the Trustees to act on the interpretation of the Trust documentation in light of the relevant legislation that, by the Opinion, they have been advised is correct, so as to protect them against a claim for breach of trust. The Trustees recognise, that the order sought would not bind the beneficiaries of the Trust, who would remain free to contend later for a different interpretation, and, if necessary, follow any trust property distributed in reliance on the order: see [39-082] of Lewin .

45. The question of construction that has arisen out of the Trust documentation is whether the Child, in the particular delicate circumstances that pertain, falls within the beneficial class. The criterion in section 48(1) (a) of the AJA 1985 is, accordingly, met.

46. The Trustees have obtained the Opinion on this question. Edward Cumming KC has “a 10 year High Court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 ”, having been called to the Bar in 2006. The criterion in section 48(1) (b) of the AJA 1985 is, accordingly, also met.

47. No dispute exists and section 48(2) of the AJA 1985 , accordingly, does not preclude the court making the order sought.

48. Although it is not necessary for the Court to hear argument before making any order under section 48 , Mr Cumming’s oral exposition would be of considerable assistance in deciding whether or not to make the order the claimants seek. I will accordingly list a further hearing but not require any other party to be joined as a defendant or notified.