High Court makes Bankers Trust disclosure order against foreign trustee in relation to assets in foreign trust and bank accounts

The High Court has made a Bankers Trust disclosure order requiring a foreign trustee to provide information and documents in relation to assets held in a foreign trust and foreign bank accounts. The application was made following judgment on a fraud claim by a group of companies against an individual in relation to the unauthorised extraction of company funds: Tonstate Group Ltd & Ors v Wojakovski & Ors [2024] EWHC 975 (Ch).

The decision provides guidance on the circumstances in which the courts are willing to make disclosure orders to assist the recovery of misappropriated assets, particularly in a cross-border context.

As well as having personal jurisdiction over the party against whom the order is sought, in the sense that there is a basis on which they can properly be served with the proceedings, the court must also be satisfied that there is a sufficient connection with England and Wales that it can properly regulate the respondent's conduct abroad – what the court described as the question of "subject matter jurisdiction", though that term is more commonly used in the US. The same point could also be referred to as the territorial limits of the court's powers. This applies even where the disclosure order is sought post-judgment so that, as the court found in this case, it need not consider the usual test of forum non conveniens (ie where the case may most suitably be tried in the interests of justice). However, similar factors may to be relevant to both questions.

For more information see this post on our Banking Litigation Notes blog.