Tony Pearce
In our early days as enthusiastic law students, many of us were able to make sense of the major principles by reference to quotes. Doubtless we can still recite, “Equity follows the law”, “Delay defeats equity” and my favourite, “He who seeks equity must do equity”.
The trust lawyers amongst us, while not perhaps able recite the relevant authorities, will be familiar with the saying that a trust cannot exist without satisfying the three certainties and that fiduciaries owe a duty of loyalty and (back to equity again) equity will not assist a volunteer (a cheer for Milroy v Lord 1862).
At first these principles appeared dissociated, resulting in periods of confusion and uncertainty but, eventually, the law started to take shape.
Themes developed, understanding dawned and while they have not always been easy to follow or apply, we started to think like lawyers.
Other aspects we start to appreciate are the developing nature of the law, the societies we serve and the changing nature of the legal horizon. In my brief presentation to The Law Association’s Trust Law Committee this month, I highlighted two cases I felt encompassed the often absorbing and challenging nature of what we do.
Trustee removal
Trust lawyers will be familiar with trustee removal applications. Whether under English or New Zealand law, the foundational authority is Letterstedt v Broers (1884). In the E & W case of Smith v Campbell [2025] EWHC 3011 (Ch) the court set out the applicable test and confirmed that under English law the jurisdiction to remove or replace trustees is highly fact specific.
It remains a discretionary remedy and, to recite the words of Lord Neuberger in the case of Crociani v Crociani [2014] UKPC 40, is not “…freewheeling unfettered discretion to do whatever seems fair when it comes to trusts” but one which must be exercised by applying a well-established test.
It remains the law of E&W that mere friction and hostility between a trustee and beneficiary does not, without more, justify the trustee’s removal. The judge determined in this case that he would remove two of the trustees and appoint a professional trustee to act together with two of the appointed trustees as continuing trustees.
The question of whether trustees ought to be removed appears regularly in the law reports of common law jurisdictions but small differences in approach can perhaps be discerned.
Under s 5(1) of the Trustee Act 1990, it appears that the court may, on an application for trustee removal, give directions to the trustees without removing them and removing trustees only if deadlock results.
Recently, in Kasanda v Sartarelli [2025] ONCA 27, the beneficiaries’ welfare test and the proper administration of the estate remain the primary concerns when removal is being considered. Strikingly familiar with recent decisions here and in New Zealand, as I am sure you will agree.
Now for something new (and possibly new to some).
Missing bitcoin
The subject matter of the decision in Howells v Newport City Council [2025] EWHC 22 (Ch) received widespread newspaper and TV coverage in the UK.
The claimant, James Howells, asserted that a hard drive containing a private key to his bitcoin was sent to a landfill site in error. Unlike the occasional item of jewellery (God forbid a wedding ring or similar), Howells claimed the bitcoin was worth about £600 million so he was keen to get it back.
A search of local refuse tips and similar over some12 years failed to locate the errant key so Howells went to court to seek declarations and an order that the city council allow his expert to excavate the site.
The court set out its view on how bitcoin operates and went on to address the ownership of bitcoin and the claim. Sadly, for Howells, the court determined his claim failed to show reasonable grounds or a realistic prospect of success.
Some legal challenges require only an occasional reminder: others the ability to think outside the box.
Read the Howells case here – Howells v Newport City Council [2025] EWHC 22 (Ch) (09 January 2025)
Tony Pearce
UK-based Tony Pearce is a partner at international law firm Spencer West and an offshore member of The Law Association’s Trust Law Committee
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