Macfarlanes secures important judgment in Bermuda Court of Appeal

24 April 2023

Macfarlanes secures important judgment in Bermuda Court of Appeal about the role fiduciary protectors of trusts should play when exercising standard-form consent powers.

Judgment has been handed down in the Bermuda Court of Appeal in the so-called X Trusts litigation in which the Court reached an unanimous decision following full argument that the role of a fiduciary protector having a power of consent over the exercise of trustee powers is “narrow” rather than “wide”.

This highly anticipated judgment has decisively clarified a question which has come to the fore in courts in recent years: is a fiduciary protector’s role as regards the provision of consent to a proposed exercise of a trustee power to satisfy itself as to whether the trustee’s proposed exercise of the power vested in the trustee is a proper one (the narrow role), or to decide in its own separate and independent fiduciary discretion whether the trustee’s otherwise entirely proper proposed exercise of its power may proceed (the wide role).

The Macfarlanes team acting for the successful respondent to the appeal included partners Piers Barclay and Charles Lloyd, senior counsel Paul Hardwick and senior associate Sarah-Louise Fernandez. They instructed Brian Green KC and Anna Littler of Wilberforce Chambers as counsel.