Gourley's Case and the Unemployed

Publication Date01 Mar 1965
AuthorG. Ganz
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01062.x
224
THE
MODERN LAW REVIEW
VOL.
28
It
is submitted that it is quite extraordinary that trustees should
be criticised for an
irregularity
by going
on
their own initiative
to the court to seek directions, albeit general directions, for the
performance of their duties. Surely they are entitled to know before
they act whether their proposed conduct would be proper
or
not?
Surely they are not required always to take their decision and act
on
it and hope that they
will
be vindicated
in
any action that may
be brought by an aggrieved beneficiary? Apart from any particu-
lar dispute with a particular beneficiary over a particular document,
the trustees may wish, not unreasonably, to know where they stand
for
the future
in
this sort of situation.
It
should be axiomatic
that trustees should be able to take the preventive course of seeking
the directions of the court in a case of genuine di5culty and dispute.
At first instance
l4
Plowman
J.
had ordered the disclosure of
all the documents in question. The trustees appealed. Again
Harman and Danckwerts
L.JJ.
stigmatised this as an irregularity,
on the ground that the trustees were protected by the order of the
court below and
it
was not for them to appeal. This is an extra-
ordinary proposition. The successful beneficiary at &st instance
had
no
reason to appeal, end indeed had
no
grounds for appeal.
Trustees who simply rely upon technicalities would not seem to be
acting in that conscientious manner which the spirit of their office
demands.
As
Salmon
L.J.
pointed out ls-correctly
it
is submitted
-
“.
. .
it was their duty to bring the appeal
. . .
since they believed,
rightly,16 that an appeal was essential for the protection of the
general body of beneficiaries.”
It
is unusual for successful appel-
lants to be criticised for being successful
!
The trustees might feel
that it is necessary to bring an appeal to protect the interests
of
the other beneficiaries, the judge at first instance may express grave
hesitation at his decision, counsel may strongly advise that an
appeal would have every chance
of
success. However,
if
all the
other beneficiaries, of
full
age and capacity, expressed satisfaction
with the decision of the judge of first instance then the trustees
might be said to be unjustified in pursuing an appeal simply to gain
a decision more acceptable to themselves personally.l7 Trustees are
liable
to
pay the costs personally
if
they act improperly
in
litigation. and this should act as a sufficient deterrent against abuse.
ALEC
SAMUELS.
GOURLEY’S
CASE
AND
THE
UNEMPLOYED
IT
would probably have surprised the House of Lords which
decided
Gourley’s
case that the principles laid down there to
wrongly
on
the arguments submitted
17
1
am,indebted to
my
colleague
Dr.
A.
J.
McClean
for
this
point.
1
[1956]
A.C.
185.

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