The High Court has refused two discretionary trustees’ application to join as notice parties to guardianship proceedings concerning two orphaned children. Mr Justice Max Barrett ruled on 10 November 2022 that their presence was not necessary to decide the case as it had been pleaded.
The underlying proceedings were brought by two maternal aunts and an uncle, who seek to have the children’s testamentary guardian, their paternal aunt, removed and one of the maternal aunts appointed instead. The judge said their pleadings focused on access to the children and their emotional and pastoral welfare, including an allegation that the guardian was seeking to alienate them from their mother’s family. The guardian disputes that allegation.
The trustees, appointed under two discretionary trusts created by the children’s late father, argued that they had a legal and pecuniary interest in who was guardian. They raised concerns about the guardian’s understanding of how trust funds could be used, her budget requests and spending, and her dealings with payments received from the State for the children. Those concerns were disputed by the guardian, who described the trustees’ conduct as chaotic and unprofessional and considered their decisions miserly.
The judgment also noted ongoing disagreements about expenses, including nanny costs, and a possible dispute concerning the family home. The judge said the maternal relatives’ current pleadings did not raise financial issues. He considered that the trustees could give relevant evidence by affidavit or in the witness box without becoming parties.
The judge considered the trustees’ application under Order 15, rule 13 of the Rules of the Superior Courts and the court’s residual discretion to permit joinder in the interests of justice. Even assuming the trustees had the legal and pecuniary interest they claimed, he found they had not shown that joining them was necessary. He also considered the children’s best interests, including the possible effect of trustees’ legal costs on trust assets and the uncertain prospect of future litigation between the trustees and the guardian.
The ruling decides only the trustees’ request to join the proceedings. It does not decide whether the guardian should be removed or replaced. The trustees’ application was refused; the judge said they could be called to give evidence if their account of dealings with the guardian or other relevant matters would assist the substantive case.