8th October 2026
Tristan Salter of Five Paper’s Private Client team, has provided the following summary on Trusts.
Who represents the unrepresented?
Reviewing Cator v Thynn [2026] EWHC 209 and how trustees must navigate making momentous decisions in a post Denaxe era, with an increased emphasis on joining parties to proceedings or making representation orders under CPR r19.9.
Introduction
- In Denaxe Ltd v Cooper [2024] CH 65, the Court of Appeal wrestled, for the first time, with the precise protection which is given to trustees and other office holders when they seek to gain the court’s approval for a question arising in the administration of a trust. Such applications (often referred to as Public Trustee v Cooper directions) are both commonplace and understandable; a trustee can find themselves in the midst of a battle of opposing ideas without any other solution than to seek the court’s guidance. They seek guidance but also protection from third parties for their subsequent actions.
- However, in analysing the position the Court of Appeal found that there was no binding authority on the degree or nature of the immunity which flowed from the court approving a decision. Indeed, using the word “immunity” was something of a misnomer, Snowden LJ stating that it does not exist as a discrete concept but is “judicial shorthand” for a bar on subsequent proceedings based on an issue estoppel. This raised the salient point that for an issue estoppel to arise the claimant in the second set of proceedings should have also been a party to that earlier decision (see §133).
- This obviously raised a real question for trustees about who and indeed how they would join all interested parties in order to gain “immunity” from future proceedings. Cator v Thynn
- To this new legal landscape, the decision Cator v Thynn [2026] EWHC 209 (Ch) is an interesting route to explore how trustees might have to navigate the need for protection, the efficient operation of a trust, and costs.
- The trustees in Cator v Thynn sought and gained a representation order under CPR r19.9 for an independent solicitor to represent a class of beneficiaries. The trust (or trusts) in questions where three family trusts involving the Eighth Marquess of Bath. The trustees were faced with a decision whether to permit a child born of surrogacy to be a beneficiary (the family trust having retained pre 1970 definitions of family relationships) but obviously concerned their actions could have an impact on wide number of beneficiaries such was the nature of the family trusts and presumably concerned an individual might challenge any decision in the future.
- While the court was focused on making the representation order sought, it had to delve at length into the issues raised by Denaxe. On its way the court managed reference to Bleak House, showing that disputes over trusts have exercised (and frustrated) practitioners for over two centuries.
- In Cator v Thynn the court noted that the “Denaxe approach” appeared to be contrary to previous practice and the governing parts of the CPR. For instance, the court suggested that the requirement under CPR 64B paragraph 7.1 to give full and frank disclosure was otiose, given that the approach called for a contested fight between two opposing sides. And the criticism of the approach did not stop there. The Judge noting that this was likely to either cause increased delay or paralysis, with trustees not making decisions for the efficient operation of a trust.
Conclusions - The position we are left with is one where a dispute, whether manufactured or not, might have to arise to provide trustees with “immunity” and it appears representation orders will become more common. Whether this is to deal with a class of individuals who are remote or indeed unknown, trustees might want to have a protracted fight before a decision is taken rather than seeking to unravel it later. But undoubtably this could cost more, and professional independent third-party representatives becoming an increased feature to represented the unrepresented.