Hong Kong: Trust Litigation Update

Put not your trust in trusts? Lessons from the Thyssen litigation

Trust arrangements have in recent decades become an increasingly widespread aspect of Hong Kong commercial and family life (even if not quite yet as common as the BVI company). Many trust arrangements were set up in the late 1980s and 1990s, common motives including (i) protection of assets in the uncertain period leading up to the 1997 resumption of Chinese sovereignty; (ii) the securing of fiscal benefits. However, the long-term nature of trust arrangements means that it is not uncommon for schemes set up in the 1970s, ‘60s, ‘50s or even earlier to give rise to disputes many years later as the identities and interests of beneficiaries change, and sometimes simply because circumstances change fundamentally over the decades. Many disputes of this sort are resolved relatively discreetly, by arbitration, private court hearings or agreement. From time to time, however, they enter the public domain for one reason or another. The recently-resolved Thyssen trust litigation contain some useful lessons for those involved in either setting up such trusts or in dealing with any disputes which arise in relation to them.

In 1983, Baron Hans Heinrich Thyssen-Bornemisza settled some very substantial business assets upon trust in Bermuda. The trust was operated by an independent supervisory board.

The purposes for its establishment are said to have been three-fold: (i) to protect assets in connection with a divorce in which the Baron was at that time embroiled; (ii) to assist business stability after the Baron’s death; (iii) to minimise disputes between the Baron’s family after his death.

The Baron’s eldest son, Georg Heinrich, known as Heini Junior, was heavily involved in the establishment of the Bermuda trust and gave up certain rights of his own in the business assets when the trust was established Shortly after establishment of the trust, Heini Junior was appointed Chairman of the supervisory board of the controlling trust entity.

The proceedings

In January 1997, the Baron, together with a trust established for the benefit of his fifth wife, commenced proceedings in the Bermudan courts to set aside the 1983 trust and to claim compensation. The essence of the Baron’s case was based upon allegations that Heini Junior had, by exercising undue influence over the Baron, committing misrepresentations and abusing an alleged fiduciary relationship with the Baron, caused the trust to be established in terms which conflicted with the Baron’s express wishes and that the Baron had not properly understood what he was doing when he established it. These allegations were hotly contested by Heini Junior and the trustees

Following commencement of proceedings, most of the next three years were taken up with interlocutory litigation on discovery and other issues. The trial finally commenced in October 1999 before an English judge appointed on a short term contract by the Bermuda Government. Six months after the start of the trial, in April 2000, the defendants applied to strike out the proceedings. The strike out application was dismissed in June 2000 and the trial commenced again. A further flurry of interlocutory activity stalled the trial again in late 2000. It re-commenced once more in January 2001, but in March of that year it was adjourned again, after more than 100 trial days, when the judge’s appointment came to an end. This led to a further controversy, with the plaintiffs intimating a claim for compensation against the Bermuda government for failing to provide a judge to see the case through to an end.

Following the judge’s withdrawal, various possibilities were canvassed, including re-starting the trial before another judge in Bermuda and moving the whole case to London. In the event, however, the parties managed to agree a settlement in February 2002 which left the trust structure essentially intact but with the Baron and his fifth wife’s interests gaining certain additional rights. The Baron passed away shortly afterwards. Legal fees are estimated to have been in excess of HK$1 billion, a figure approaching 5% of the reported value of the assets at stake.

For those involved in the establishment of trusts, the case reiterates the need to adopt a rigorous approach to ensuring that appropriate structures are set up and that the relevant parties are fully advised, with there being documented evidence as to the understanding of what is being done. The more significant the assets, the more likely it is that huge teams of legal advisers may be deployed years after the event to pore over the materials in order to attack the trust. It is relatively uncommon that the person who chooses to attack it is the settlor himself (as in Thyssen). Perhaps more common are attacks by third parties, such as tax authorities or the settlor’s creditors, estranged spouses or heirs, any of whom may have an interest in showing that the trust was a "sham" and that the trust assets in reality remained within the settlor’s de facto ownership.

Perhaps the most remarkable aspect of the case is the degree to which it was fought through the press. Without casting any aspersions in relation to this specific case, it may be noted that, as a matter of general principle, courting publicity for tactical reasons can be a potentially dangerous tactic in the context of large private trusts, given the potential existence of third parties with an interest in exploiting disputes of this sort. If one party chooses to do so, the other will have a difficult tactical decision to make as to whether to say nothing (thereby leaving the other sides version publicly unchallenged) or whether to respond publicly (thereby risking further publicity).

Another startling feature of the case is the sheer magnitude of the legal fees incurred over a significant period. The case was undoubtedly complex and it is understandable that a huge amount of lawyer time (and hence costs) were incurred in grappling with the complexities. Nevertheless, the combination of adverse publicity, huge costs, family hostility and the usual stresses of litigation must make all the interested parties regretful that it was not possible to conclude a settlement at a much earlier stage.

The Baron’s public statement in February 2002 is revealing in this regard: "The family very much regrets that misunderstandings have led to legal proceedings, which are all dismissed or withdrawn, and also that the family, its members and professionals who have worked with the family, were subjected to adverse media coverage connected with such misunderstandings."

If family disputes of this sort can be settled on rational terms, ideally relatively quickly and inexpensively, then of course that is desirable in principle. Nevertheless, it is sometimes unfortunately necessary to litigate such matters robustly to their conclusion. An illustration of a successful robust approach being taken by defendants is the recently decided Noboa case. On 7 November 2002, the English High Court dismissed a challenge to a very substantial family business structure following a trial which included extensive cross-examination. The judge came down firmly in favour of upholding the structure and characterised the challengers’ case as "contrived and untruthful." The judgment is publicly available and may serve as a cautionary tale for those who might be tempted to advance challenges of this sort without any responsible factual and legal basis¹. But perhaps that would be unduly optimistic.

The recent decision of the Hong Kong Court of Appeal in Hotung v Ho Yuen Ki (unreported, 7 November 2002) arises from another family trust dispute, raising a short but fundamental trust law issue.

In 1979 and 1980, Madam Ho executed declarations of trust in respect of company shares in favour of certain younger relatives who, at the time of the declarations, were minors. She thereby became a bare trustee or nominee, that is, she held the legal title to the shares but in equity they belonged wholly to the beneficiaries.

Many years later, having come of age, the Beneficiaries¹ wished to continue their status as beneficiaries (as opposed to legal owners) whilst at the same time obtaining practical control of the shares. They therefore requested Madam Ho to execute powers of attorney giving them full power to deal with the shares.

Madam Ho refused to execute the powers of attorney and the beneficiaries brought proceedings to compel her to do so.

One of the fundamental principles of equity, known as the rule in Saunders v Vautier² after the leading nineteenth century English case, is that a beneficiary under a bare trust who is sui juris (i.e. of full age and capacity) has the right to demand his or her trustee to transfer legal title to the trust property to him or her, or at his or her direction.

The underlying issue in this case was, in effect, whether the long-established rule in Saunders v Vautier was just one aspect of a larger principle whereby sui juris beneficiaries under a bare trust are entitled to control the trust generally, including (as in this case) requiring the trustee to execute a power of attorney.

To support the alleged broader principle, the plaintiff relied on a line of English, Canadian and US cases establishing that a beneficiary may direct a nominee how to vote shares.

The Court of Appeal decided unanimously that the plaintiffs’ claim failed because:

"On first principles, if a party wishes his legal relationship with another to be governed by a trust, then he should observe that relationship and not insist that he is still entitled to perform the role of trustee himself. If he wishes to do so, then the proper way is to terminate the trust and do whatever he likes with the property. What he can not do is to say to the trustee that since you have to obey my instructions on voting you may as well let me do the job for you. To us this is the answer to the plaintiffs’ claim. What the beneficiaries want here is to have all the rights of legal and beneficial ownership of the shares without assuming the burden of the ownership. We are not satisfied that they are entitled to do so.

Further…. [Madam Ho] is being asked to delegate her office as trustee. The court should not force an agency on an unwilling party. Why should an unwilling party be ordered to grant a power of attorney even if the agent is prepared to and will provide an indemnity. By granting the power of attorney, the trustee is exposed to claims by third parties."

In short, the beneficiary must elect between exercising his right to demand a transfer under the rule in Saunders v Vautier or else leave the trustee to manage the trust.

The line of cases concerning voting rights is therefore to be understood as being "in a class of its own" (in the Court of Appeal’s words) and not supportive of the wider proposition advanced by the plaintiffs.

What remains to be addressed in future cases is whether a bare trustee must comply with specific directions from his beneficiary which fall short of a general delegation of powers and are arguably closer to the accepted case of directions as to the exercise of voting rights.

In one line of cases considered in Hotung, the English courts have held (or at least expressed the opinion in non-binding terms) that a trustee could not be required to execute a lease. The trustees in those cases were not bare trustees but the Hong KongCourt of Appeal in Hotung appeared unimpressed by that distinction.

One possible basis of distinction between the two categories of cases may be to ask whether the particular act demanded by the beneficiary potentially exposes the trustee to liability, whether to other beneficiaries or to third parties. If so, then it is arguably wrong in principle to require the trustee to comply. If not, then arguably the beneficiary’s wishes should always prevail. Time will tell whether this is the approach ultimately adopted by the courts.

It is well established that a person who assists another to commit a breach of trust in respect of that property, may himself be held liable to the beneficiary even though he did not himself hold the property in question. However, in contrast to the position of persons who actually hold and dispose of property (who are required to observe an objective standard of prudence), "assisters" are only held liable if proved to have acted with a significantly more culpable state of mind. Whilst that much is clear, the precise degree of culpability required has proved problematic. The House of Lords has to some extent clarified the English law test in March 2002, albeit with a powerful dissenting opinion by Lord Millett. However, the applicability of that decision in Hong Kong has already been questioned in a first instance Hong Kong judgment of May 2002, in which the Court of First Instance considered itself obliged to follow the majority House of Lords view yet appeared to prefer Lord Millett’s dissent. It remains to be seen how the Hong Kong appellate courts will finally resolve the matter

In Twinsectra Ltd v Yardley¹ , a borrower, Yardley, instructed two solicitors at different firms in connection with aspects of a single loan transaction: one of the solicitors, Sims, dealt directly with the lender; the other solicitor, Leach, did not. The lender paid the loan moneys into Sims’ client account upon Sims’ undertaking to the lender that the moneys would not be released to Yardley other than by way of application to property to be purchased by Yardley. Sims nevertheless agreed to release the money to Yardley in breach of his undertaking to the lender, on the basis of an assurance from Yardley to Sims that the money would in fact be used to purchase property. Yardley directed Leach to receive the money on Yardley’s behalf from Sims. Leach did so and subsequently paid the money out to Yardley. The lender sued Yardley, Sims and Leach. For present purposes, we are only concerned with the lender’s case against Leach. That case was based upon the theory that Leach had dishonestly assisted Yardley and Sims to commit a breach of trust in respect of the moneys held by Sims on trust for the lender²

Leach was held not liable at trial on two grounds: first, that Sims did not hold the money on trust for the lender, and secondly, that Leach was not dishonest.

The Court of Appeal allowed an appeal on both grounds, holding that Sims had held the money on trust and that Leach had been dishonest. Leach was therefore held liable. The House of Lords unanimously dismissed Leach’s appeal on the first ground but (Lord Millett dissenting) allowed it on the second ground, finding that Leach had not been dishonest and taking the opportunity to restate the test for dishonesty in this context.

Prior to the decision of the Privy Council sitting in a Malaysian appeal in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, there was a debate as to the level of culpability required for an "assister" to be held liable. One argument was that liability should be based on positive objective standards of reasonableness (e.g. negligence/constructive knowledge). However, in the Royal Brunei Airlines case, the Privy Council held that intentional wrongdoing was an essential ingredient of such liability.

The Royal Brunei Airlines decision has been followed in subsequent English and Hong Kong cases. However, the precise level of culpability required by the decision has been the subject of differing judicial opinions.

The House of Lords has now decided by a majority that assisters’ liability under English law requires dishonesty, and that the applicable test of dishonesty is a "combined" (or mixed subjective/objective) one.

The objective element is that the plaintiff must establish that the defendant’s conduct was dishonest by the ordinary standards of a reasonable and honest person. The subjective element is that the plaintiff must establish that the defendant realised his conduct was dishonest by the ordinary standards of a reasonable and honest person³

A purely subjective test has consistently been rejected by the courts as it is considered inappropriate, for obvious reasons, to make legal responsibility turn upon the professed private moral standards of a particular accused individual.

However, a more objective test than that favoured by the majority of the House of Lords has some substantial supporters. In particular, Lord Millett in Twinsectra expressed the dissenting opinion that it should be sufficient for liability that the assister’s conduct is dishonest by the ordinary standards of a reasonable and honest person, and that the assister knew the relevant facts which objectively rendered it dishonest by those standards. Lord Millett would not also have required proof that the assister knew his conduct to be dishonest by ordinary standards.

It was established that Leach knew all the relevant facts which, it was held, rendered his conduct dishonest by the ordinary standards of a reasonable and honest person. However, the House of Lords held that it was not established that Leach knew he was acting dishonestly by those standards. In the words of Lord Hoffmann:

"… he took a blinkered approach to his professional duties as a solicitor, or buried his head in the sand (to invoke two different animal images). But neither of those would be dishonest.

Mr Leach believed that the money was at the disposal of Mr Yardley. He thought that whether Mr Yardley’s use of the money would be contrary to the assurance he had given Mr Sims or put Mr Sims in breach of his undertaking was a matter between these two gentlemen. Such a state of mind may have been wrong. It may have been, as the judge said, misguided. But if he honestly believed, as the judge found, that the money was at Mr Yardley’s disposal, he was not dishonest.

I do not suggest that one person cannot be dishonest without a full appreciation of the legal analysis of the transaction. A person may dishonestly assist in the commission of a breach of trust without any idea of what a trust means. The necessary dishonest state of mind may be found to exist simply on the fact that he knew perfectly well that he was helping to pay away money to which the recipient was not entitled. But that was not the case here."

Lord Millett, dissenting, noted that the effect of the dishonesty test adopted by the majority creates a technical distinction between liability of this sort and liability for the tort of wrongful interference with performance of contractual obligations (which turns on knowledge, not dishonesty):

"In my opinion, [Mr Leach’s knowledge of the facts] is enough to make Mr Leach civilly liable as an accessory for (i) the tort of wrongful interference with the performance of Mr Sims’ contractual obligations if this had been pleaded and the undertaking was contractual as well as fiduciary; and (ii) for assisting in a breach of trust. It is unnecessary to consider whether Mr Leach realised that honest people would regard his conduct as dishonest. His knowledge that he was assisting Mr Sims to default in his undertaking to Twinsectra is sufficient."

It is submitted that at least two major uncertainties remain in this area of Hong Kong law after Twinsectra:

The first major uncertainty is whether the Hong Kong courts will follow Twinsectra. Although post-1997 House of Lords’ decisions still have a very high level of persuasiveness in Hong Kong, they are not binding. In PBM (Hong Kong) Ltd v Tang Kam Lun (unreported, 24 May 2002), Deputy Judge Lam only followed Twinsectra in rather lukewarm terms, characterising Lord Millett’s dissenting reasoning as "cogent" and apparently applying the combined test only because "as a first instance judge, it would not be appropriate for me to adopt the view of Lord Millett when the point has not been fully argued before me." The case is subject to appeal.

The second major uncertainty is how to distinguish between dishonest and honest (or, at least, "not dishonest") states of mind in practice. The reader may care to reflect upon the practical issues raised by the subtle distinctions made in the following examples (all of which appear to be good law following Twinsectra), bearing in mind that there may be a regrettable tendency by certain defendants in this area to tailor their evidence with an eye to the applicable legal standards.

"The line between guilt and innocence in this region of activity… is a fine one: it runs between suspecting what was going on (and I have no difficulty in agreeing that [the defendant], who is no fool, must have suspected it) and either knowing or shutting one’s eyes to it." (Lord Justice Sedley in Heinl v Jyske Bank [1999] Ll. Rep. 511, holding that the defendant in question was not liable).

Avoiding The Bar On Reflective Loss Claims By Recourse To Trust Law

In Prudential Assurance Co Ltd v Newman Industries Ltd (No. 2)¹ the English Court of Appeal laid down a general bar upon shareholders suing in respect of loss suffered by them in their capacity as shareholders if the company also has a cause of action against the same defendant in respect of the loss in question. After much litigation exploring the various exceptions to this general rule, the House of Lords has recently affirmed and further explained the rule in Johnson v Gore Wood & Co.² In a judgment delivered on 18 October 2002, the English Court of Appeal has declined to apply the general rule to a case involving an alleged trust: Shaker v Al-Bedrawi³ It is considered likely that these issues will arise in Hong Kong before long.

The appeal largely proceeded on the basis of assumed facts as the relevant issue arose prior to trial.

Simplifying somewhat, Shaker, the claimant, alleged that he was beneficially entitled to X% of shares in a Pennsylvanian company (alternatively, to X% of the company’s business), held on trust for him by the company’s sole director, Bedrawi and that Bedrawi was liable to account to him for X% of all profits which Bedrawi was enabled to make by use of those shares, including X% of the secret profit which Bedrawi is alleged to have made when the company sold certain assets to a third party. Shaker alleged that Bedrawi had subsequently taken the money out of the company.

At first instance, Shaker rested his case essentially on the basis that he had a direct interest in the company’s business and that the reflective loss rule therefore had no application. The judge rejected the contention that Shaker’s interest was in the business and concluded that, even making assumptions in Shaker’s favour, his interest would only have been in the company.

The judge then proceeded to analyse the case on the basis of his finding that Shaker’s interest could only have been in the company, and concluded that:

(i) The company was to be assumed to have a cause of action against Bedrawi because, in the absence of expert evidence as to Pennsylvanian law, it was to be assumed (in accordance with the usual conflict of laws rule) that English company law applied. Under English company law, Bedrawi’s taking of the money from the company would have been an unlawful distribution rendering Bedrawi personally liable, as director, to the company.

(ii) As the company was therefore assumed to have a cause of action against Bedrawi, it followed that Shaker’s action must fail under the reflective loss rule.

On appeal, Shaker’s case was put very differently: the argument that he had an interest in the underlying business was abandoned, and an application to adduce new evidence on Pennsylvanian company law was made, for the purpose of demonstrating that the Pennsylvanian rule was different from the English rule. It was argued on this basis that the reflective loss rule did not bar Shaker’s action.

The Court of Appeal allowed the appeal on the grounds that:

(i) Although the application to adduce new evidence would be refused, the judge was wrong to proceed on the assumption that English company law applied. The general conflict of laws assumption to the effect that English law applies in the absence of foreign law being pleaded and proved should not have been applied at this interlocutory hearing.

(ii) On that basis, it should not have been concluded that the company did not have a cause of action against Bedrawi.

(iii) The company therefore did not necessarily lack a claim against Bedrawi.

(iv) Shaker’s trust claim was not necessarily bad because, in the words of the Court:

"In our judgment the Prudential principle does not preclude an action brought by a claimant not as shareholder but as a beneficiary under a trust against his trustee for a profit unless it can be shown by the defendants that the whole of the claimed profit reflects what the company has lost and which it has a cause of action to recover. As the Prudential principle is an exclusionary rule denying a claimant what otherwise would be his right to sue, the onus must be on the defendants to establish its applicability. Further, it would not be right to bar the claimant’s action unless the defendants can establish not merely that the company has a claim to recover a loss reflected by the profit, but that such claim is available on the facts. If in the present case it could be shown that the $6 million was misappropriated from [the company] of unlawfully distributed so that [the company] was entitled to the whole of the $6 million, we would accept that the Prudential principle applied to bar Mr Shaker’s action.

However, for the reasons already given, that has not been, and cannot without a trial be, shown. It is possible that at least part of the $6 million was lawfully taken by Mr Bedrawi…

We confess that we are the happier to reach this conclusion in view of the improbability that [the company] would now bring an action against Mr Bedrawi when it has not done so for over eight years since the ayment of the $6 million to [a third party]. In circumstances where the Prudential principles applies to bar a viable claim on the footing of the company’s cause of action which it does not assert, the application of the principle can work hardship. Moreover in this case the application of the principle might serve to leave the trustee holding a profit without being accountable for it to his beneficiary, and that may run counter to a basic equitable principle."

(v) The whole matter could only be properly resolved at trial.

Matters such as this are extremely fact sensitive, but the case does illustrate that, notwithstanding the decision in Johnson v Gore Wood & Co., there is still significant scope for actions by aggrieved persons having an interest in shares notwithstanding the possibility of overlap with a possible claim by the company. Given the prevalence of informal business relationships in Hong Kong, it may be considered likely that this sort of issue will increasingly arise in the Hong Kong courts.