Personal liability of trustees

An interesting decision of the English Court of Appeal in First Tower Trustees Ltd v CDS (Superstores International) Ltd [2018] EWCA Civ 1396, where trustees granted a lease of property that they knew was contaminated by asbestos but gave misleading replied to enquiries: were they personally liable for misrepresentation? They contracted “in their capacity as trustees of the … Trust”. Points to note:

  • The words quoted were good enough to exclude contractual liability (that was common ground) but not to exclude a statutory liability for misrepresentation or a liability in tort.
  • An attempt to rely on Trusts (Jersey) Law 1984, art. 32 (limit on trustees’ personal liability) failed for being too late but the court queried (i) whether an English choice-of-law clause in the contract might override the statutory protection and (ii) whether the counterparty needed to know only that he was dealing with trustees or had to know that he was dealing with Jersey trustees.

Nicholas Le Poidevin, Q.C.
New Square Chambers