Cator v Thynn: representation orders and trustee protection post-Denaxe

In Cator v Thynn [2026] EWHC 209 (Ch), HHJ Paul Matthews examined the procedural requirements for trustees seeking court approval of momentous decisions, particularly the necessity of appointing representative defendants following the Court of Appeal's decision in Denaxe Ltd v Cooper [2024] Ch 65.

The case concerned three family settlements connected to the Longleat estate. The claimant trustees sought approval to exercise a power of advancement for the first defendant, the Eighth Marquess of Bath, to potentially include his second son Henry and Henry's issue within the class of beneficiaries. Henry, born to a surrogate mother in America, faced uncertainty regarding his status under the trusts, which retained pre-1970 common law meanings of family relationships requiring legitimacy.

The trustees proposed exercising the power of advancement by conferring upon the Marquess the ability to add Henry to the beneficiary class at a later stage, avoiding immediate US tax complications whilst preserving future flexibility. This fell within the second category of Public Trustee v Cooper jurisdiction, where trustees seek court blessing for a decision already taken rather than surrendering their discretion.

The application's significance lay in its timing, coming after Denaxe fundamentally altered the juridical basis for trustee protection. Previously, trustees obtained immunity through court approval itself, provided they made full and frank disclosure. The historical position, traceable to section 30 of the Law of Property Amendment Act 1859, contemplated trustee applications proceeding without defendants where appropriate, with protection flowing from judicial sanction rather than contested litigation.

Denaxe recharacterised this protection as grounded in issue estoppel and abuse of process principles. Snowden LJ held that immunity depends upon specific issues being determined between properly constituted parties, with the court's approval creating a bar to subsequent relitigation only where relevant parties or their privies participated in the original proceedings.

This doctrinal shift necessitated careful consideration of party constitution. The judge noted that Denaxe appeared to require at least one defendant to create the necessary issue estoppel, contrary to previous practice permitting applications without defendants. Trustees who previously obtained approval under the old procedure might find themselves exposed to claims they cannot defend through issue estoppel.

The court granted the trustees' application to join Caroline Miller, a solicitor from Wedlake Bell LLP, as second defendant under CPR 19.9. She was appointed to represent beneficiaries potentially prejudiced by the trustees' decision. The first defendant, agreeing with the trustees' approach, did not appear.

The judge found no suitable adult beneficiary could adequately represent the opposing interest. The Marquess and his wife could not argue against their own proposal, whilst other close relatives faced similar conflicts. More remote beneficiaries lacked sufficient connection to the issues.

Appointing an independent solicitor as representative was well-established practice, justified where class members cannot adequately protect their own interests. Ms Miller's qualifications and independence satisfied the court that she could properly present arguments against implementation.

The judgement highlighted uncertainty surrounding Denaxe's impact on trustee applications. Questions remain about disclosure obligations where protection derives from adversarial proceedings rather than court approval per se. The decision also raises concerns about delay and expense, potentially deterring trustees from seeking approval in time-sensitive matters.

This case illustrates the practical adaptation required following Denaxe, emphasising the importance of proper party constitution to secure effective trustee protection. The appointment of professional representatives may become standard practice where beneficiaries cannot adequately represent conflicting interests themselves.

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