Moffat's Trusts Law: Text and Materials (Law in Context) by Jonathan Garton & Graham Moffat & Gerry Bean & Rebecca Probert

Author:Jonathan Garton & Graham Moffat & Gerry Bean & Rebecca Probert [Garton, Jonathan]
Language: eng
Format: azw3
Publisher: Cambridge University Press
Published: 2015-08-30T16:00:00+00:00

We use the word ‘tenuous’ about the implications of the judgment because (i) counsel for the respondents conceded that ‘reasonableness’ was the appropriate test, and (ii) the propositions in the case would not necessarily apply to the English law of trusts. Nevertheless, in Scott v National Trust [1998] 2 All ER 705 at 717, Robert Walker J specifically adopted Lord Reid's words as representing a clear statement of the principle to be applied even where trustees are expressed as having an absolute discretion, although in that case in the context of charity law (see also Chapter 18). The Court of Appeal affirmed that this approach was equally applicable to the exercise of a discretion by pension fund trustees (Edge v Pensions Ombudsman [2000] Ch 602 at 627). However clear the language used by Lord Reid may be, we are now moving even further into the realms of uncertainty with terminology and concepts redolent of judicial review in administrative law. As with that area of the law, the key question is not ‘can the court intervene?’ but ‘in what circumstances will the court consider it appropriate to do so?’ To that question must be added in the present context the further one ‘what form would that intervention take?’

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