From secrecy to transparency: the Guernsey Courts' stance on privacy in trust applications

"Publicity is the very soul of justice" said Jeremy Bentham, but there have long been exceptions to that principle. 

Among them are cases concerning children and people lacking full capacity, matrimonial matters, ex parte injunctions and certain trust matters. 

Where hearings are kept private, justice remains the rationale. Like their English counterparts, the Guernsey courts have long taken the view that justice must be done in public, unless a public hearing would itself frustrate justice. Then, privacy should prevail, but only to the extent necessary. 

That said, the courts in England and Wales have been moving towards an ever-stricter view of what is "necessary" and recent cases show that the Guernsey courts are following suit. One of the most recent is In the Matter of the B Trust (Royal Court, Unreported) [2025] GRC 0002 (Guernsey B Trust). So, what are the parameters for privacy to be considered strictly necessary?

Open justice: transparency in the Guernsey courts

The open court principle is said to be as old as English law itself, so even the leading case of Scott v Scott [1913] AC 417 (Scott) is new in relative terms, despite dating back to 1913. In it, Lord Atkinson said:

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."

That case was cited in an important Guernsey judgment, IFS Investments Limited v Manor Park (Guernsey) Limited [2003-04] GLR 77 (IFS Investments), where in 2003 Lieutenant Bailiff Day set out the powers of the court to apply privacy measures under its inherent jurisdiction and the principles it should apply. 

IFS Investments has in turn been cited in subsequent cases, including by the current Bailiff in Alpha Development Limited v Barclays Wealth Trustees (Guernsey) Limited (Royal Court, Unreported) [11/2015] (Alpha Development) and, most recently, by the Guernsey Court of Appeal within In the matter of L Trusts [2024] GCA 61 (L Trusts); Salem and Salem v Sequent (CI) Limited, Guernsey Global Trust Limited, Sequent (Guernsey) Limited and Sequent Services Limited [2024] GCA 064 (Salem); and Robin Fuller and Adam Ian Hayden Tattersall and Patrick Barry Maroney v Guernsey Financial Services Commission [2024] GCA 083 (Fuller). 

It is clear that the courts are taking the "strict necessity" test very seriously. That was particularly striking in Salem where, approving the Bailiff's comments in Alpha Development relating to the test of strict necessity, the Court of Appeal noted that privacy orders in earlier proceedings would not necessarily be carried over to an appeal court: 

"It is thus clear that this Court can and should re-evaluate the case for a privacy order on any appeal. Such an order is not to be made as a matter of course merely because one was made at first instance. The circumstances in which an appeal is made are not the same as those in which the order was made in the Court below. The matters in contention may be narrower, and the need to discuss private matters less. In our judgment, the application before this court is a fresh application, and must be judged accordingly."

Indeed, the Court of Appeal ultimately decided that privacy should be applied far more sparingly in the appeal than in the prior proceedings. Among other things, they were mindful that it was the trustees who were applying for privacy in the appeal, and that privacy in trust cases is not for the benefit of trustees but beneficiaries. Ultimately, limited anonymisation was applied to protect the efficacy of the existing Royal Court privacy order. 

The courts have also underlined the fact that privacy orders must never be anything but what is necessary. In Fuller, the Court of Appeal followed L Trusts in decisively rebuffing any suggestion that privacy is a question of balance: 

"the agreed test for determining whether this appeal hearing should take place in private is one of strict necessity in the interests of justice [...] there is no question of balance. This is a binary question. Either a hearing in private is necessary, or it is not."

While this may seem slightly at odds with the possibility of the limited measures such as the anonymisation ordered in Salem, it can be reconciled by taking the view that limited privacy measures still constitute an aspect of the case remaining necessarily "in private" as opposed to a full public hearing. 

Practical example of privacy in action: Guernsey B Trust 

It is clear, then, that privacy will not be granted lightly and will be kept to the minimum needed. However, while the Guernsey courts may be receding from any quick granting of privacy, it is still appropriate in the right case. 

In January, the Royal Court considered the Court of Appeal's binding comments in the context of an administrative application concerning the construction of a Guernsey trust instrument in Guernsey B Trust. 

The trustee of the B Trust, described by Judge Fionnula Connolly as "private in nature and established as a result of familial disharmony", called upon the court to decide a narrow issue of construction of the trust concerning its powers and those of a related limited partnership to terminate the services of an investment manager and custodian which had, to date, refused to accept notice of the termination.  

In his submissions, Advocate Horsbrugh-Porter noted that consistent with the guidance of the Court of Appeal of Guernsey in Salem, the application for privacy was limited to the minimum required to preserve the confidentiality of the information involved. That minimum was the redaction of all information from any written judgment or Act of Court which could identify the beneficiary or the settlor (who was the beneficiary’s mother, such that if she was identified it would be relatively easy to identify the beneficiary). 

In granting the application, Judge Connolly reviewed the established case law and recent judgments including L Trusts, Salem, and Fuller, and said:

"Applying the relevant principles of application […] I am satisfied, bearing in mind that this case concerns the administration of a family trust, that the privacy sought is strictly necessary to secure the proper administration of justice. 

"Accordingly, the Court file shall be sealed and any written judgment or Act of Court in these proceedings shall be redacted of all information that could identify the beneficiary or the settlor of the Trust. In this judgment and in any Act of Court, the Settlor shall be referred to as ‘S’, the beneficiary shall be referred to as ‘B’ and the Trust shall be referred to as ‘the B Trust’."

Moving forward: consider the beneficiary's perspective 

The starting point remains that court hearings are held in public. Although the courts are willing to depart from this principle, parties and practitioners should not assume a private hearing will be automatically granted. 

Guernsey B Trust is further important confirmation that when considering privacy applications, the courts will look at whether the applicant is really asking for the minimum measures necessary. Further, in trust applications privacy is generally for the benefit of the beneficiaries, not trustees. 

To be confident of success, applications should carefully demonstrate the beneficiary's perspective and the possible impact. 

How Ogier can help 

The Ogier team, led by partner Alex Horsbrugh-Porter with support from counsel Tim Richards, successfully acted for the trustee in In the Matter of the B Trust (Royal Court, Unreported) [2025] GRC 0002. 

At Ogier, our award-winning Trusts Advisory Group offers specialised expertise and a dedication to excellence. Our highly skilled experts are adept at navigating the complexities of trust law across multiple jurisdictions, ensuring our clients receive the highest standard of service and advice. With a comprehensive understanding of the offshore trusts' framework and the practical implications of recent developments, we provide tailored solutions to meet your unique needs. 

To learn more about our services and the key features of other jurisdictions, visit our Trust Advisory Group page.  

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This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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