This judgment of the Jersey Court of Appeal is helpful in reaffirming the test for leave to appeal and, also, in confirming that a nominee is a bare trustee and, as such, cannot be said to owe any duty under the trust or in tort to the beneficiaries (albeit that the court did acknowledge that the facts of a particular case might give rise to such a duty).
The case involved an application for leave to appeal a decision by the Deputy Bailiff (now the Bailiff) refusing leave to appeal.
The Deputy Bailiff, as he then was, had previously struck out the plaintiff's claim under Rule 6/13(1) of the Royal Court Rules on the grounds that it disclosed no reasonable cause of action against Maison Anley Property Nominee Limited ("MA"), the nominee company for the first defendant, BNP Paribas Jersey Trust Company Limited ("BNP"). The plaintiff applied for leave to appeal that decision which was refused by the Deputy Bailiff on the grounds that he had not been satisfied that any of the possible gateways for leave to appeal, as set down in Glazebrook -v- Housing Committee 2002 JLR N ("Glazebrook"), had been opened.
The simple question for the Court of Appeal was whether the Order of Justice disclosed a reasonable cause of action against MA and, in that context, whether the Deputy Bailiff was right to conclude that it was impossible as a matter of law that MA could owe the pleaded duties to the plaintiff.
The plaintiff had pleaded that both BNP and MA owed the same trust duties notwithstanding that MA was simply a nominee of the appointed trustee, BNP. As nominee, MA's sole purpose was to hold the legal title to freehold property. As such, the court determined that MA could not owe any duties under the express trust to which it was never a party.
Not only did the court reject the assertion that MA owed the plaintiff any duties under the trust, but it further dismissed the contention that MA accepted or indeed owed a duty of care in tort to those who BNP itself owed a duty by agreeing to act in place of BNP. The purpose of BNP's arrangements was to provide a measure of confidentiality for its clients and not to provide a substitute trustee. The court, again, did not rule out the possibility that there may be circumstances in which beneficiaries may have a claim against the agent of a trustee for economic loss but the same was not pleaded in this case.
In the circumstances, the Court of Appeal was satisfied that the requirements set out in Glazebrook for leave to appeal were not satisfied. The court held that there was no evidence that something had gone wrong; no question of general principle that was to be decided for the first time; and no important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage. The Court of Appeal determined that the pleading was unsustainable and that the Deputy Bailiff had been right to strike out the claim against MA.