Futter & Anor v Revenue and Customs

Case [2013] UKSC 26


    Summary


    Easter Term
    [2013] UKSC 26
    On appeal from: [2011] EWCA Civ 197

    JUDGMENT

    Futter and another (Appellants) v The Commissioners for Her Majesty's Revenue and Customs (Respondent)
    Pitt and another (Appellants) v The Commissioners for Her Majesty's Revenue and Customs (Respondent)
    before
    Lord Neuberger, President
    Lord Walker
    Lady Hale
    Lord Mance
    Lord Clarke
    Lord Sumption
    Lord Carnwath
    JUDGMENT GIVEN ON

    9 May 2013

    Heard on 12, 13 and 14 March 2013
    Appellant (Futter)
    Robert Ham QC
    Richard Wilson
    Jennifer Seaman
    (Instructed by Withers LLP)
      Respondent
    Philip Jones QC
    Ruth Jordan
    (Instructed by HMRC Solicitors Office)
         
    Appellant (Pitt)
    Christopher Nugee QC
    William Henderson
    (Instructed by Bolitho Way and Belcher Frost)
      Respondent
    Philip Jones QC
    Ruth Jordan
    (Instructed by HMRC Solicitors Office)
    LORD WALKER (with whom Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption and Lord Carnwath agree)
    Introduction
  1. These appeals raise important and difficult issues in the field of equity and trust law. Both appeals raise issues about the so-called rule in Hastings-Bass. One appeal (Pitt) also raises issues as to the court's jurisdiction to set aside a voluntary disposition on the ground of mistake. It is now generally recognized that the label "the rule in Hastings-Bass" is a misnomer. The decision of the Court of Appeal in In re Hastings-Bass, decd [1975] Ch 25 can be seen, on analysis, to be concerned with a different category of the techniques by which trust law controls the exercise of fiduciary powers. That decision is concerned with the scope of the power itself, rather than with the nature of the decision-making process which led to its being exercised in a particular way (see R C Nolan, Controlling Fiduciary Power [2009] CLJ 293, especially pp 294-295 and 306-309). The rule would be more aptly called "the rule in Mettoy", from the decision of Warner J in Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587. But the misnomer is by now so familiar that it is best to continue to use it, inapposite though it is.
  2. As Mettoy illustrates, the rule is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into consideration. It has also been applied to other fiduciaries (in Pitt Mrs Pitt was acting as a receiver appointed by the Court of Protection). Mettoy was concerned with the rules of an occupational pension scheme, as are some other cases on the rule. But since the turn of the century there have been several cases concerned with family trusts, and in particular with tax–planning arrangements involving trusts, where the arrangements have for one reason or another proved unexpectedly disadvantageous, and the court has been asked to restore the status quo ante under the Hastings-Bass rule.
  3. Futter is such a case, as Norris J pointed out in blunt terms at the beginning of his judgment, [2010] EWHC 449 Ch, [2010] STC 982, para 2:
  4. "This is another application by trustees who wish to assert that…

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[2013] UKSC 26
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