PUBLIC TRUSTEE BILL [H.L.] (Hansard, 11 May 1906)

LORD ELLENBOROUGH
It has come to my knowledge that some offence has been given by the Amendment which I moved to Clause 5 in Committee, providing that the public trustee should be appointed as additional trustee on the application of any trustee or beneficiary in any trust in which a solicitor is acting, or has acted, in the double capacity of solicitor and trustee. I wish to say that I had not the slightest intention of reflecting on the whole body of solicitors. I did, in fact, say that I felt sincerely grateful to some of them for good advice given to me in times of difficulty, and that several of those solicitors to whom I 30 felt grateful are still alive. But the papers, in reporting what I said, did not put in that qualification. I now move to alter the words inserted in the clause to "any trust in which any person is acting in the capacity of trustee, and also in any professional capacity."

§ LORD DAVEY
I would venture to ask your Lordships to consider whether this clause is necessary at all. There is ample opportunity in other clauses of the Bill for the appointment of the public trustee as an additional trustee whenever that may be necessary, and on application being made to the court for the purpose. The circumstance to which the noble Lord has drawn attention might very well be brought forward as a reason for exercising the power of appointing the public trustee as an additional trustee, but it appears to mo that the clause as it stands, even with the Amendment, is far too drastic, because it puts it in the power of any single beneficiary, however small his interest may be, to call upon the court to appoint the public trustee as an additional trustee, and to throw upon someone, very likely the solicitor trustee, the onus of showing why the appointment 'should not be made. It would not be enough to say that the creator of the trust—the testator—had desired that his own family solicitor should be on the trust to guide his inexperienced sons in the management of the trust property. It would not be enough to show that the solicitor trustee was a gentleman of undoubted reputation and integrity. I take it that under this clause you must show something more than that. The onus is thrown on those who support the arrangement which the testator himself has made for the execution of his trust. I sympathise to a large extent with the feeling which has dictated the noble Lord's Amendment, but I venture to think that, while meeting one possible evil, ho has introduced a clause of such stringency as possibly to lead to great inconvenience, and to the disturbance of arrangements made by testators 31 for the management of their business. It is, moreover, a clause which will be understood to cast some imputation on that body of gentleman to whom reference has been made. I should like, therefore, to move that Clause 5 be omitted altogether.

§ THE LORD CHANCELLOR
My Lords, the clause as it was amended in Committee was understood to give offence to a body of men on whom no one wishes in any way to reflect, but as it is proposed to be amended now it comes to this, that if one of the trustees is acting not only in his capacity as trustee but in his professional capacity—that is to say, is discharging the duty of a trustee, and also that of a professional man—then in those circumstances any person who is beneficially interested in the trust may apply that the public trustee shall be added as security, and unless the court thinks that in the interest of the beneficiaries it is undesirable he should be added, he is, by his consent, added. I am satisfied that the clause is simply designed as a precaution and safeguard for persons in a peculiarly helpless position. I therefore agree to the Amendment now before the House. As to the comission of the clause altogether, as suggested by Lord Davey, I would prefer that the clause should remain as it is proposed to be amended. There is, it is true, power under the other clauses of the Bill for the court to appoint the public trustee as additional trustee, but this clause has a point in it inasmuch as it indicates the rules which the court ought to pursue.