A trustee can apply to the Court for guidance under Part 64 of the Civil Procedure Rules (CPR). In practice this happens when the trustee feels that a decision might be criticised by a beneficiary. The trustee can request that the Court sanction such a decision. If successful that will mean a beneficiary can not later sue the trustee.
It is possible to seek retrospective approval, although there is always a risk that the Court will refuse.
The merits of each case need careful examination before making such an application. However, when properly advised it is likely that the Court will grant approval. If a trustee is genuinely acting in an impartial way, it is likely that the Court will be sympathetic towards the trustee on the issue of costs.
Although the recovery of costs is within the Court’s discretion, the usual position, as set out in CPR 46.3, is that the trustee will be entitled to recover their costs out of the trust fund or estate on an indemnity basis.
It should however be noted that the Court is very much alive to trustees presenting themselves as neutral, whilst pursuing their own agenda. In those circumstances, costs are not guaranteed.