‘GET OUT OF JAIL FREE’ CARD: THE COURTS’ OFFER OF ASSISTANCE TO ERRANT TRUSTEES

Abstract

Decisions taken by trustees have consequences. When trustees make mistakes, especially mistakes that cost the trust fund dearly, can the courts ever erase those errors and let the trustees unwind what they have done and start afresh? To do so, of course, has obvious advantages for both the trustees and those beneficiaries affected by the mistakes, but it is correspondingly disadvantageous for any outsiders who might be equally affected by the court’s decision to erase - in England most typically Her Majesty’s Revenue and Customs. For a long time, the answer to the question posed seemed to be yes. This invaluable ‘get out of jail free’ card was delivered to errant trustees by virtue of what was routinely known as the ‘rule in Re Hastings-Bass.’ The Supreme Court, the highest court in the land, has now indicated that this is not right, that Re Hastings-Bass has been misunderstood for over 23 years, and that trustees are not so roundly protected by such a rule. However, in reaching its conclusions, it appears that the Supreme Court may have abolished one rule and replaced it with another, which also seems to benefit trustees.