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There is a Right to Privacy – Even in the Offshore World

The Supreme Court of Bermuda (Kawaley CJ) handed down a decision revisiting the existing practice of hearing applications to restructure Bermuda law trusts in private when appropriate.

In the Matter of the G Trusts [2017] SC (Bda) (15 November 2017) discussed and determined three substantive trust law issues (which are each addressed in separate ‘Conyers Alerts’), but the Court also engaged with recent media critiques of offshore ‘secrecy’ after the publication of stolen material.

In a robust defence of the fundamental right to privacy, the Court upheld the right of applicants to restructure trusts in camera where the circumstances justified confidentiality for private matters:

“The present proceedings concern the internal administration of a private trust into which the general public have no right to pry. Persons administering, interested in or settling Bermuda trusts should rest assured that this Court’s firmly established practise of making confidentiality orders in appropriate cases, which is merely designed to enable law-abiding citizens to peaceably enjoy their actual and contingent property rights, has a venerable legal basis. The existing practice will continue to be applied in appropriate cases such as the present.”

By confirming the “existing practice” in Bermuda – which allows for trust applications to be heard in private in appropriate circumstances – the Chief Justice reinforced the reasoning in the earlier decision of Re BCD Trust (Confidentiality Order) [2015] Bda LR 108 (“Re BCD Trust”). In Re BCD Trust, the Applicant (represented by Conyers) obtained an order that the application to restructure the trust be dealt with in private. In that case, the Court held:

“[T]he history of what is essentially Chambers hearings is that they were traditionally private hearings. The notion of a more open approach to Chambers hearings has developed in the public interest within a constitutional framework which specifically blesses the idea of the Court departing from the public hearing principle in the interest of privacy and other countervailing public interests. …it is inherently consistent with the public interest and the administration of justice generally that applications such as these be anonymised and dealt with as private applications, where there is no obvious public interest in knowing about an internal trust administration matter.”

 

To continue reading full articles in PDF format:
There is a Right to Privacy – Even in the Offshore World

 


Scott Pearman
Director

Bermuda   +1 441 294 5925



Alec R. Anderson
Director, Global Head of Private Client & Trust

Bermuda   +1 441 299 4945


Paul Smith
Partner, Head of Cayman Islands Litigation & Restructuring Practice

Cayman Islands   +1 345 814 7777


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Alerts

There is a Right to Privacy – Even in the Offshore World

The Supreme Court of Bermuda (Kawaley CJ) handed down a decision revisiting the existing practice of hearing applications to restructure Bermuda law trusts in private when appropriate.

In the Matter of the G Trusts [2017] SC (Bda) (15 November 2017) discussed and determined three substantive trust law issues (which are each addressed in separate ‘Conyers Alerts’), but the Court also engaged with recent media critiques of offshore ‘secrecy’ after the publication of stolen material.

In a robust defence of the fundamental right to privacy, the Court upheld the right of applicants to restructure trusts in camera where the circumstances justified confidentiality for private matters:

“The present proceedings concern the internal administration of a private trust into which the general public have no right to pry. Persons administering, interested in or settling Bermuda trusts should rest assured that this Court’s firmly established practise of making confidentiality orders in appropriate cases, which is merely designed to enable law-abiding citizens to peaceably enjoy their actual and contingent property rights, has a venerable legal basis. The existing practice will continue to be applied in appropriate cases such as the present.”

By confirming the “existing practice” in Bermuda – which allows for trust applications to be heard in private in appropriate circumstances – the Chief Justice reinforced the reasoning in the earlier decision of Re BCD Trust (Confidentiality Order) [2015] Bda LR 108 (“Re BCD Trust”). In Re BCD Trust, the Applicant (represented by Conyers) obtained an order that the application to restructure the trust be dealt with in private. In that case, the Court held:

“[T]he history of what is essentially Chambers hearings is that they were traditionally private hearings. The notion of a more open approach to Chambers hearings has developed in the public interest within a constitutional framework which specifically blesses the idea of the Court departing from the public hearing principle in the interest of privacy and other countervailing public interests. …it is inherently consistent with the public interest and the administration of justice generally that applications such as these be anonymised and dealt with as private applications, where there is no obvious public interest in knowing about an internal trust administration matter.”

 

To continue reading full articles in PDF format:
There is a Right to Privacy – Even in the Offshore World

 


Scott Pearman
Director

Bermuda   +1 441 294 5925



Alec R. Anderson
Director, Global Head of Private Client & Trust

Bermuda   +1 441 299 4945


Paul Smith
Partner, Head of Cayman Islands Litigation & Restructuring Practice

Cayman Islands   +1 345 814 7777