Court of Appeal hands down important guidance on anonymity in variation of trust applications
The Court of Appeal has recently handed down important guidance on anonymity in applications under the Variation of Trusts Act 1958 in the case of MN v OP & Ors  EWCA Civ 679, in which Claire van Overdijk was appointed by the Attorney General as advocate to the court.
The Court held that the default position is that set out in V v T  EWHC 3432 (Ch) and there should not be a departure from the court’s general approach to the issue of anonymity for applications under the 1958 Act. While the court’s jurisdiction, under the 1958 Act, like that in approval hearings, was a protective and enabling jurisdiction, that position should not be overstated as the instant proceedings were ordinary civil proceedings, not wardship proceedings.
It was emphasised that the courts had consistently cautioned vigilance when considering incursions into the principle of open justice and, in deciding whether to derogate from this, it was necessary to look to the underlying matters of the proceedings.
In this context, information about the individual shares of minor beneficiaries in a settlement was of a different order of sensitivity to the highly personal medical information which parties to approval hearings had to provide.
The court was bound to consider the real life implications of making an order, hence the different vulnerabilities of the individuals concerned in approval hearings on the one hand and variation of trust hearings on the other.
However, the Court did hold that it was necessary to provide a measured degree of protection to the rights of the minor beneficiaries until their majority, when they would be introduced to their settlement interests. Having regard to the need to ensure that the restriction on publication was the minimum encroachment necessary, and bearing in mind that the privacy rights were those of the minor beneficiaries, rather than those of the adult parties, those privacy rights should be afforded the necessary degree of protection by making an order under the Children and Young Persons Act 1933 s.39, which was a more acceptable alternative to an anonymity order.
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Barristers: Claire van Overdijk