Trust the State: the relevance of principles of public law in trust law and practice

Abstract

Abstract Lord Walker, in Futter and Pitt v HMRC1, noted that there are “superficial similarities between what the law requires of trustees in their decision-making and what it requires of decision-makers in the field of public law.” We examine these similarities under the following headings: (1) natural justice; (2) the application of Wednesbury unreasonableness to trust law (an area in which there is far more common ground between public and private law than natural justice); and (3) the decision in Braganza v BP Shipping Limited2 and how this has been subsequently applied. We suggest that the similarities go beyond merely superficial and that public law principles are having an inexorable impact on trust law and practice.