In the matter of: THE NE HENCHLEY TRUST AND THE WCC HENCLEY TRUST
(1) CLAIRE HENCHLEY (2) ELIZABETH ANNE BAXENDALE (3) VIVIEN MASH (4) NATASHA JADE KHAMBHAITA (5) TORI BRITTANY KHAMBHAITA (6) CHARLES MARTIN MASH (7) NICHOLAS JOHN MASH (8) JAMES HENCHLEY MASH (9) CAROLINE ELIZABETH BEDDALLV
DAVID BRIAN THOMPSON
The claimants were the beneficiaries of two trusts created by the late WCC Henchley (‘Settlor’). The NE Henchley Trust (‘First Trust’), dated 1 September 1960, provided for the trust assets to be held upon trust for the Settlor’s wife for life or until remarriage with remainder for such of his children as were then living and if more than one in equal shares. The trust assets, which once included bank accounts and a portfolio of investments, now consisted of the residence of the Settlor’s wife at 395 Cockfosters Road, Whaddon Lodge (‘Property’). By a Deed of Appointment dated 20 November 1972 the Settlor’s wife purported to appoint the defendant as a new trustee of the First Trust. The appointment was treated as valid until 27 October 1998 when solicitors acting for members of the family pointed out that it was invalid. The defendant then endeavoured to retire as a trustee or de facto trustee, though title to the Property remained in his name until April 2011. The WCC Henchley Trust (‘Second Trust’), dated 12 September 1960, provided for the trust assets to be divided into two parts upon trust as to one part for two sons of the Settlor contingent on attaining the age of 21 and as to the other part upon trust to pay the income in equal shares to three daughters of the Settlor during their respective lifetimes with remainder during the lives of their respective children and grandchildren pending the dissolution of the trust. The trust assets consisted of shares in private limited companies which were run as family businesses by the Settlor. Although no document evidenced the defendant’s appointment as a trustee, there was no doubt that he acted as such together with others, including the book-keeper, Doris Watson, who died on 3 March 2003. No accounts were apparently prepared for the First Trust and the defendant had no recollection of what may have happened to the portfolio or its proceeds of sale. Copies of tax returns dating to the 1990s were obtained from HMRC in relation to the Second Trust. There were also financial statements, consisting of a balance sheet and an income and expenditure account. Tax computations were also available together with schedules showing the income received by the beneficiaries. However, there were no trust accounts. The claimants sought an order directing the defendant to provide a full account of his dealings with the assets of both trusts as a trustee or de facto trustee. They claimed to be entitled as of right, whether or not there had been any actual or suspected wrongdoing. The defendant’s response, in effect, was that he had already provided an account of his dealings and that it was impossible for him to provide more information or detailed accounts. Any claim to substantive relief was either statute-barred or defeated by laches. In any event it would, he said, be inequitable to order him to produce an account.