Representation of C re P Trust (Royal Court : Hearing (Civil) : Thompson : Trust) [2025] JRC 200 (1 August 2025)

judgment the commissioner: Introduction 1. This judgment contains my reasons for making certain directions in relation to third party costs claims brought by Fenlight Trustees Limited ("Fenlight") and D against F, the first Third Party and Company 10 the Second Third Party. It is not in issue that F owns Company 10. Background 2. This judgment follows on from my two judgments dated 31 July 2024 reported at Representation of C re P Trust [2024] JRC 299 ("the 2024 Judgment") and 3 February 2025 reported at Representation of C re P Trust [2025] JRC 028 ("the 2025 Judgment").

3. As noted at paragraph 142 of the 2025 judgment, C has subsequently passed away.

4. This led to an Act of Court dated 3 February 2025 pursuant to which the proceedings brought by the late C were discontinued by consent, other than for determining the costs of the 2024 judgment and the 2025 judgment.

5. The same order contained directions for Fenlight and D to set out if they were seeking any third party costs orders.

6. The same directions also required Fenlight and D to set out why the Court should order discovery of information about third party payments.

7. Paragraph 8 of the same order further provided that if the Court decided that third party costs orders should be considered and that disclosure was required, the Court would notify the affected parties that such a costs order was sought against them.

8. Pursuant to email correspondence received from Fenlight and D by an Act of Court dated 24 April 2025, Fenlight and D were directed to inform F at a costs hearing then set for 20 and 21 May that a costs order would be sought against F.

9. The costs hearing did not take place on 20 May 2025. Instead, directions were issued. These directions required Fenlight and D to file points of claim in relation to third party costs orders being sought against F. F was also required to file an answer to the points of claim.

10. I also directed Baker and Partners and Mourant as officers of the Court to set out the amount of costs incurred by C, who had paid those costs and who had provided instructions. The Representor was also required to file an affidavit setting out the costs incurred to date by the late C.

11. The same act also fixed the dates for this hearing. At its conclusion, I issued further directions relating to discovery and the fixing of the costs hearing, as well as a ruling in relation to the answer filed by F.

12. This judgment contains the reasons for those decisions. The pleadings 13. D's points of claim contained the following assertions: "9. On 27 March 2025, the Representor's lawyers sent an email to D's Advocate stating as follows - "... the Administrator can now confirm the following additional information.

1. Without waiving privilege, from our discussions with Baker & Partners we understand that the Letter of Engagement relevant to these proceedings was between Baker & Partners and [C]. [C] discharged 4 invoices rendered by Baker & Partners. She discharged the first 2 invoices connected with the proceedings from her own bank account.

2. Thereafter on 8 February 2024 an invoice was discharged by a [Company 10] in the sum of E195,047.78. On the 9 May 2024, a further invoice was discharged by the same company in the sum of £215,517.35.

3. On 29 January 2025 we received an unsolicited letter from [Country 3] advocates, [Company 11] who are acting for [F]. In that letter, they stated as follows "the deceased received the benefit of funding from one of our client's [F's] companies from July 2023 until date of death. This funding was provided to enable the deceased to continue to pay her legal representatives in the Jersey proceedings, given her lack of financial means. We have asked for further details, but as at the date of this letter, we have received no further relevant details nor any evidence supporting the alleged loan to the Deceased. For the avoidance of doubt, we make no comment whether the statement made by [F's] advocate actually constitutes third-party funding contemplated by paragraph 5 of the Order of the Jersey Court or whether it merely constitutes an alleged loan to the deceased which she then used to pay legal fees. Finally, for completeness, please note that the unsolicited letter we refer to was marked "without prejudice subject to costs". In our opinion the letter is not covered by "without prejudice privilege" as it was not written in an attempt to settle an existing dispute. We immediately informed [Company 11] of the same and confirmed that we are treating their letter as an open letter. To date we have received no substantive response to this point." 10. At a directions hearing on 20 May 2025, F's Advocate confirmed that [F] had paid four of the invoices of Baker & Partners, the Deceased's Advocates of record, for fees in connection with these proceedings, in two tranches.

11. In an email dated 15 May 2025 from [F's] [Country 3] lawyers, [Company 12], the following is stated in relation to [F's] claim against the Deceased's estate - "We are instructed that the claim will be for more than £450,000 and that it will be for many millions. We will be putting together a formal claim in the coming weeks." 12. It is asserted that the claim for "many millions" is in relation to the funds that [F] had provided for the funding of the Deceased's claims in the proceedings.

13. By reason of the matters set out in paragraphs 9, 10 and 12 above, it is apparent that the costs of the Deceased in the proceedings were funded entirely or in part by [F] and /or [Company 10]. The Representor did not have sufficient funds (save for those which she was holding for [D] and [F]) to pursue the proceedings." 14. Paragraph 14 alleged that the proceedings were directed and controlled by F leading to the following assertions at paragraph 20: "20. It is alleged that these proceedings were at all times driven and controlled by [F] for his benefit and/or for an ulterior motive and/or to oppress [D] and Fenlight as part of the ongoing increasingly acrimonious dispute between [F] and [D] in which [F] sought to - (a) take control of [Company 1] by gaining control of [P] through these proceedings; (b) cause damage to [D] by preventing the trust structure from operating effectively; and ( c) protect himself from his misconceived notion that [D] was seeking to take away his shares indirectly held in [Company 1]." 15. The position of Fenlight was summarised at paragraph 3 of its points of claim as follows: "3. Fenlight seeks that its costs in these proceedings, as it set out on 14 February 2025, be ordered to be paid on a joint and several basis by the First Third Party ("F") and the Second Third Party ("Company 10"). Fenlight seeks the same on the basis that [F] funded,

directed and/or controlled, in whole or in part, the proceedings on behalf of [C], as original Representor, and/or that such funding was provided by [Company 10], and that [Company 10] is a corporate vehicle owned and/or controlled by F." 16. It is also pertinent to set out the allegations of control made by Fenlight at paragraphs 4 to 14 of their points of claim: "4. It has been the belief and stated position of Fenlight for the duration of the proceedings, that the real dispute underlying the same was between the Second Respondent, [D] and his brother [F] (see affidavit of [K], dated 12 January 2024, paragraphs 79 to 87). Over the duration of the proceedings and beyond, Fenlight has been the subject of multitudinous attempts by [F] or those effectively acting for him (whether [Company 2] as trustee of N, [C's] representatives in these proceedings, or [F's] other advisers and appointees to positions within the structure underlying [P] and [N]) to obtain information or control over [Company 1] (as the central wealth-generating asset of the sister trusts) or over other parts of the structure sitting above it. In parallel to the oppressive approach taken in these proceedings, multiple firms of Jersey advocates (Ogier, then Carey Olsen, and then Ogier again) and lawyers in other jurisdictions have been retained by the trustee, from time to time, of the [N] Trust. There has been

a consistently aggressive and combative approach by the [N] trustees towards Fenlight, with the effect of risking impediment to the management of the structure and causing significant costs to be incurred in responding to unwarranted attacks and threats to bring further legal proceedings and provoke tax investigations and other matters transparently designed to make Fenlight's work more difficult and expensive. This is intended to increase [F's] control over the structure, and in the same vein to motivate Fenlight (over whom he does not have control) to capitulate and to step down as trustee of [P] (the same relief sought in the Representation proceedings). 5. [C] was, at all material times, a lady advanced in her years, in ill-health, and unlikely to have been swift to wish to instigate formal legal proceedings with one of her two sons as an adverse party, which proceedings were inevitably going to be lengthy and expensive. It is equally unlikely that she would also be personally driven to wage an aggressive corporate attack which serves only to further inflame relations between family members and to perpetuate underlying personal disputes. We sadly know now that [C] was to pass away before the proceedings were concluded, and not before vast sums of money had been expended on her behalf in that vain and fruitless cause.

6. Because [F] has always been a stranger to the [P] Trust, but appeared to have influence over his mother who was a beneficiary and potentially a co-settlor of [P], he was able to cause the instigation and continuation of the proceedings, and provided funding, directly or indirectly. [F's] close relationship with [C] has been recognised by the Royal Court - "[C has a] very good relationship with [Company 2] and with [F] " (judgment dated 6 August 2021, paragraph 43(iv)).

7. Despite not being a formal party to the proceedings, the importance of [F's] position in relation to the same has been recognised by the Court on multiple occasions. At the very earliest directions hearing before the Royal Court, Commissioner Bailhache mooted to counsel the possibility of joining both [F] and [Company 2] (as then trustee of the [N] Trust; for all intents and purposes '[F's] trust') to the proceedings. At paragraph 1 of the learned Commissioner's judgment of that date, he said as follows - "To delay this litigation to enable some other problem to be mediated is not to deal with the litigation before me and not, therefore, to deal with it in accordance with the overriding objective. So I am not prepared, at the moment, to make an order for a stay of the present proceedings, but nothing in the orders which I am about to make prevents either of the parties coming back later on with a renewed application for a stay and, equally obviously, nothing which I am about to say prevents [F] and [D] and their respective trustees from trying to mediate their differences which seems to me to be a very desirable course of action; and it may well be that if that were satisfactorily dealt with, the other problems would be soluble." 8. In the judgment of 6 August 2021, Commissioner Clyde-Smith said as follows - "That concern [for the confidentiality of Fenlight's discovery

documents] is justified by the following - (i) The underlying hostility between [D] and [F] and, no doubt wholly or partly as a consequence of that hostility, the conflict between the two trusts." (at paragraph 43) 9. Concerns over [F] using the proceedings as a means of obtaining access to commercial information to which he would not ordinarily be entitled provoked Fenlight's application to constrain the dissemination of its disclosure. The judgment of Commissioner Clyde- Smith and learned jurats dated 6 August 2021 records the Court's agreement that such concerns were justified and restrictions were duly imposed; in terms in fact which went beyond what Fenlight had sought, such were the concerns of the Court.

10. The attempts by [F] to use the proceedings to obtain confidential information have been repeated, including in multiple court applications to i. remove the privacy regime over the proceedings, ii. extend the confidentiality club and thereby remove some of the restrictions on the dissemination of discovery documents, and iii. seek specific discovery of documentation in large part being management and commercial reports pertaining to [Company 1] which he had been separately seeking outside of the proceedings. In all cases the applications failed entirely or in large part.

11. It is one of the most transparent examples of F's exercise of control and direction of the proceedings through [C], that he installed his own choice of advisers and representatives to assist her. This is particularly so in the form of [E], a tax adviser of [Company 3] in [Country 3], who was said to be the 'trusted adviser' to [C] whilst being at the same time instructed by [F] and by [Company 2] (see judgment of 6 August 2021, paragraph 29). [Company 3's] role was described by [C's] own advocate as follows - "Whilst [Company 3] is a firm of tax advisers, the support it has provided to the Representor has broadened over the course of its instruction, and it currently provides general assistance to the Representor in coordinating and managing these proceedings and her interactions with her other advisers ... Whilst it was accepted that [Company 3] was also instructed by [Company 2] and [F], Advocate Speck said those instructions did not conflict with [Company 3] providing critical support to the Representor." (judgment of 6 August 2021, paragraph 34(iii)) 12. The Court did not agree with Advocate Speck's assessment of the difficulties presented by the overlap of advisers between [C], [F] and [Company 2], and the conflict of interests - "The Representor's key adviser is [E], who also acts for [Company 2] and [B]. His conflict is, in our view, obvious and fundamental. It

cannot be right for confidential or commercially sensitive documentation pertaining to the P Trust to be disclosed to an adviser to [Company 2] and [F]. It is not as if different partners within [Company 3] are acting for them with a firewall established to maintain confidentiality. [E] personally acts for all three. It is of concern to the Court that an adviser to [Company 2] and [F] should be playing such a key role in these proceedings. (judgment of 6 August 2021, paragraph 43(v)) 13. That [E], and other acolytes of [F], have subsequently been given roles managing the trusteeship of the [N] Trust and through the underlying structure, yet further betrays [F's] modus operandi in seeking greater control over [Company 1], as it has been in these proceedings. [E] was even appointed as executor of [C's] estate upon her death. 14. [F's] control over [C's] general dealings with Fenlight and [P] and [N] is also revealed in the private communications between them produced through discovery. Those messages betray [F's] control over [C's] dealings generally, including in the context of a dispute with Fenlight and its chairman, [K]. It is so likely as to be virtually certain that that control will have continued on to the time of the issuance and the continuation of the proceedings." 17. The position of F and Company 10 was summarised at paragraph 8 of the third party submissions as

follows: "Summary of the Third Parties' Submissions 8 The Third Parties' position is as follows:- 8.1 There should be no order as to costs against the Deceased or her Estate in respect of the Proceedings Cost awards usually follow success. No party has been successful in these Proceedings. The Deceased passed away on 20 July 2024 during the course of the Proceedings, proceedings which she was actively pursuing on her own behalf and under her own unequivocal instruction. Reference is made to paragraphs 9 to 15 of this Answer. 8.2 Should the Court determine a costs order is to be made in the Proceedings, any costs orders should be made against Fenlight. But for the conduct of Fenlight in respect of, inter alia, its administration of the [P] Trust ("[P]"), being the sole reason the Proceedings required to be issued by the Deceased, the Proceedings would not have been necessary. The Deceased had no option but to instigate proceedings and which proceedings would have continued but for her untimely passing. Reference is made to paragraphs 16 to 47 of this Answer. 8.3 No TPCO should be made against [F] or [Company 10]. It is respectfully submitted that an application for a TPCO is bound to fail and for the following reasons:- (i) the Proceedings are not exceptional, (ii) [F] has no personal interest in the litigation and does not stand to benefit from it (iii) [F] does not and never

has controlled or in any way directed the Proceedings, and (iv) the costs would, in any event, have been incurred even if [F] had been involved in the Proceedings (which involvement is denied). Reference is made to paragraphs 48 to 79 of this Answer." 18. It is not necessary to refer to the detail of the submissions for the purposes of this judgment. Affidavits filed 19. To date, the following affidavits have been filed pursuant to the directions given by the Act of Court of 28 May.

20. The Representor (Mr Furness) firstly explained that he reviewed the sole bank account of the late C and identified payments up to the date the account became a joint account on 20 June 2023. Out of this bank account, fees of £1,484,597.86 were paid to Signature Litigation, Mourant Ozannes and Baker and Partners. Approximately £218,000 was paid to Baker and Partners, £150,000 was paid to Mourants, and over £1 million was paid to Signature Litigation.

21. I observe at this stage that at no point during the proceedings has there been any reference to Signature Litigation and this was the first time that the Court was aware that they had been involved.

22. Advocate Speck filed an affidavit explaining that his firm had incurred total fees of £581,168.30 plus third party disbursements of £79,651.77. He explained that these costs were either met by C personally or by [Company 2].

23. Given that the Representor identified that C had paid only £150,000 of costs directly to Mourant, whereas the total costs of that firm amounted to £568,000 plus the third party disbursements, it appears that some of the costs may have been paid through Signature Litigation. This position still needs to be clarified.

24. Advocate Speck for Mourant confirmed that he had received instructions through E or a Mr Elliot Philips of Signature Litigation, or that instructions were provided directly.

25. Advocate Baker provided an affidavit on behalf of Baker and Partners. Between November 2022 and July 2024, four invoices totalling £228,000, were paid out of a bank account in the name of C and approximately £410,000 of fees were paid by Company 10 on 8 February 2024 and 9 May 2024. Advocate Baker also explained that until the present costs issue arose, he was not aware that the firm's costs had in part been paid by Company 10.

26. As at the date of C's passing, approximately £350,000 was still outstanding. These were paid by the Representor. This followed an agreement between the Representor, O and D. It is not necessary for the purposes of this judgment to set out the detail of that agreement.

27. Baker and Partners confirmed that their instructions came from Mr Philips who had advised Baker and Partners that the instructions he was providing to that firm came from C and E in his capacity as adviser to C. However, Signature Litigation ceased to be involved from mid-April 2023. Thereafter instructions came either from C directly or from E. Paragraph 11.2 of the affidavit states: "Indeed, [C], her husband [O], and [E] were usually present together on video calls and [C] was usually copied in on emails received by this Firm from [E]." 28. Advocate Baker further explained that he did not receive any instructions from F or Company 10. Submissions 29. In advance of the hearing, D filed a written skeleton argument which was supported by Fenlight. The skeleton argument referred to previous skeleton arguments filed for the hearing on 20 May 2025.

30. In his earlier skeleton, D had contended by reference to the case of Thomson v Berkhamsted Collegiate School [2009] EWHC 2374 , that the English High Court had power under its inherent jurisdiction to make requests for ancillary orders to disclosure in the context of an application for costs against non-parties.

31. The Representor did not dispute that, for that hearing or the present hearing, this Court possessed such a jurisdiction.

32. In his written skeleton in support of his argument that further discovery should be made, D made the following points. (i) Significant costs had been paid by the N Trust (see paragraph 2 of the 2024 judgment for the description of the N Trust). It was D's position that it was common ground that N was established for F's benefit and all decisions regarding N were made with his input. Accordingly, any payments made by N were effectively payments by F. (ii) D further relied on the fact that F was seeking to reclaim from the estate of C the many millions he had paid for her benefit to fund her legal costs. (iii) D disputed that F was merely a funder. It was therefore asserted by D that the proceedings were at all times driven and controlled by F for his benefit and all for an ulterior motive and / or to oppress D and Fenlight as part of the ongoing increase in the acrimonious dispute between F and D. This manifested itself in (a) F seeking to take control of Company 1; and (b) causing damage to D by preventing the P Trust from operating effectively. (iv) D emphasised the amendment to the Representation in August 2022 alleging a claim for breach of trust which had the effect of cutting off funding from P to D and Fenlight. (v) D also emphasised that the proceedings were orchestrated by F through E. E, since 2019, according to the affidavits filed by K of Fenlight, was acting for F. In his own affidavit filed voluntarily for the proceedings, E described himself as the former adviser to C. He had also been a director of Company 10. The affidavit was filed by Collas Crill acting for F and Company 10.

33. D also alleged that C had no interest in the applications made, leading to the 2024 judgment and the 2025 judgment. There were also WhatsApp messages already disclosed showing from at least 2018 that F had been directing C's dealings with P and Fenlight. This direction and control was said to include: "(a) seeking to persuade the Deceased that D was seeking to take away F's shares indirectly held in [Company 1]; (b) taking steps on behalf of the Deceased while she was unwell; (c) drafting lengthy correspondence to the trustees for the Deceased to send in her name; and (d) ensuring that [E] was appointed by the Deceased as her personal advisor." 34. In addition, in relation to the role of E, D observed that E had not been admitted to the confidentiality club in this matter - see paragraphs 43.5 and 45(ii) of the judgment of Commissioner Clyde-Smith dated 6 August 2021, and paragraph 140 of the 2024 judgment.

35. This led to the following submission of D at paragraph 27 of his skeleton that it is worthwhile setting out in full: "27. The fact that by reason of his clear conflict of interest, [E] was excluded from the Confidentiality Club and did not have access to any documents disclosed by the other parties in the proceedings raises the serious issue as to how [E] could have possibly provided informed advice to the Deceased or sensibly discussed the proceedings with her prior to providing instructions on her behalf. The unavoidable inference is that either he was allowed to have access to all of the material documents in these proceedings, in breach of the Act of Court dated 6 August 2021, or the evidence set out in his affidavit is at the very least highly misleading." 36. D also relied on the failure by E to disclose the extent of his relationship with F. In that regard, D annexed to his skeleton argument a diagram prepared by him, showing F's links to E. This was said to be clear evidence that E was at all material times closely connected to F.

37. D also relied on the fact that E's evidence, in particular his affidavit at paragraph 13, that C was running the proceedings throughout and was meticulous in her approach, contradicted an email sent by Baker and Partners dated 23 August 2023, which contained the following statement: "[C] is 75. She is in ill health having suffered from strokes and bilateral carotid artery disease. In July she was admitted to hospital suffering from an infection and was diagnosed with sepsis. She is greatly stressed as a result of her poor health and also by these proceedings. She is unable to concentrate and engage with and give instructions to her lawyers in the way that she wishes. While we appreciate that this information as to her health is new to the court the other parties have been aware of her physical condition which is doubtless one of the reasons they consented to the adjournment sought." 38. D was therefore critical of E for failing to address these health issues which was why discovery should be sought.

39. The other issue D raised in advance in correspondence was whether any further material leading to the 2024 judgment and the 2025 judgment should be released to F and Company 10. By the time of the hearing, agreement had been reached that a certain amount of further material should be released, and F and Company 10 did not therefore seek any additional material. Had they done so, this would have been resisted by D and Fenlight, but in any event, the issue did not arise.

40. Advocate Renouf for Fenlight emphasised that the disclosure made in the affidavits, in particular the affidavit of E, begged more questions than it had answered.

41. He also emphasised the conflicting roles of E as acting for F, being a director of Company 8, the trustee that replaced Company 2, and was trustee of N, and also being personal adviser to C, a fact which had not previously been disclosed. In relation to E, he was also not a lawyer but a tax adviser, but tax issues were not relevant to the claims C had brought.

42. Advocate Renouf did not understand how E could act as representative and discuss matters with C when he was not entitled to see any information about the proceedings.

43. What he contended that F was trying to do was to avoid responsibility for his previous direction and control of the proceedings.

44. The discovery was therefore essential to enable his client and D to cross-examine E and F.

45. If E did not produce the information, and there was no reason not to given that he was the agent of C as her representative, then the Court had a power to exclude his evidence.

46. In addition to the contradiction between Advocate Baker's email of 22 August referred to at paragraph 37 above, and E's affidavit at paragraph 13, Advocate Renouf also referred to an email from C dated 3 October 2023 seeking extensive discovery. This email also contradicted Baker and Partners email of 22 August.

47. Advocate MacDonald, who we are grateful for stepping in for Advocate Robertson who was on holiday, in oral submissions made for D, was anxious to ensure that discovery was provided as soon as possible and certainly in August because there was a mediation due to take place on 8 and 9 September. His position was that the discovery would allow parties to know where they stand on the evidence in deciding whether or not to reach a settlement.

48. He also contended that it would be very helpful to know what the position was of N Trust and what communications had taken place between F and C in relation to distributions and the reasons for distributions to meet legal fees. He did not challenge that the Court had the power to make such an order pursuant to Rule 6/20(7A).

49. He also sought discovery of the payments into C's account so that his client could check where monies had come from to pay legal fees.

50. The communications he was seeking were between F, Company 10 and C, including communications between C and E. He wanted to see both the provision of instructions and revised strategy or direction, as well as the conduct of the present proceedings. He did not need to see any communications from any advocates of record, i.e. Baker and Partners and Mourant Ozanne.

51. He did not regard the requests as oppressive. If F only communicated by WhatsApp, then the discovery would not be difficult for him to provide.

52. In relation to the applicable legal principles, he emphasised paragraphs 14 to 16, 19, 20, and 29 to 30 of the Thomson decision.

53. The question of funding was also not a new point - see paragraph 129 of the 2025 judgment.

54. In advance of the hearing, Advocate Baker for the Representor, filed an email questioning whether the further discovery sought would assist in the resolution of proceedings. Advocate Baker also emphasised the high test of what was necessary for the fair determination of proceedings and that the Court should resist making orders which were likely to lead to a proliferation of hearings, delay and expenditure of more time, costs and resources. He therefore resisted disclosure of information about source of funds for the Barclays account as this was likely to be an extensive and expensive exercise. He also stated that the communications asked for were not in the control of the Representor and therefore no further order was required.

55. Advocate Baker's concern in his oral submissions ultimately was firstly keeping matters proportionate and secondly, ensuring that his client had sufficient funds to meet costs. He was clear that his client did not have funds to provide the discovery and therefore the consent of D was required to a further variation to permit funds to be released from the estate for the purposes of providing such discovery.

56. He fairly accepted that, as E was agent of C, he could ask E to provide all relevant communications and if E refused to do so, this could be recorded in an affidavit of discovery.

57. He also fairly accepted that any devices of C technically belonged to the estate and therefore assistance could be sought of O to gain access to such devices. If this was not forthcoming then again this could be set out in the affidavit of discovery.

58. In relation to any order made against N Trust, he helpfully observed that any such order should give liberty to N to apply to set aside the same as it was being made in their absence.

59. The question of to what extent matters were privileged was complicated and would also have to be dealt with in the affidavit.

60. He contended that the scope of the discovery sought was very broad and that paragraph 2a of the draft provided was not necessary.

61. Advocate Santos-Costa for F and Company 10 suggested that the approach of Fenlight and D in seeking a costs order was a big ask, to show that F was controlling or directing and had an agenda of his own.

62. He was also critical of Fenlight for acting in the way they did and ignoring the instructions of C. He therefore emphasised there were good grounds to have Fenlight removed.

63. In relation to funding by N, F only became a beneficiary in 2023 and C was always a beneficiary. It was therefore open to N to make distributions to her to permit her to pay legal fees.

64. In relation to E, F had no control over him, although Advocate Santos-Costa accepted that he had been a director of Company 10. He further emphasised the way the case was put, which was that it was F controlling and directing, but F merely helping his mother or helping her with strategy did not meet the threshold to make a third party costs order.

65. In relation to paragraphs 8.1 and 8.2 and paragraphs 9 to 46 of F's answer, he contended that he was entitled to make submissions that Fenlight should pay the Representor's costs as a response to a third costs order being sought against his clients 66. In relation to the timing of discovery, he contended this should be after mediation because he contended that providing discovery might make a successful mediation less likely. Decision 67. Firstly, in relation to the applicable legal principles, I am satisfied that this Court does possess inherent jurisdiction to make discovery orders in relation to third party costs order applications, just as the English High Court possesses such a jurisdiction. It is not necessary for the purposes of this decision to debate any precise differences between the inherent jurisdiction of the Royal Court and the English High Court as any such distinctions do not matter for the purposes of this judgment.

68. As to the principles that should be applied in deciding whether or not to exercise such a discretion, these were considered in the context of the Civil Procedure Rules in Thomson at paragraphs 14 to 15 as follows: "14. No formal procedure is set out for applications for disclosure, cross-examination, service of skeleton arguments and the like. In my judgment this is because any orders that the court considers necessary are made in accordance with its discretionary judgment in pursuit of its inherent jurisdiction having regard to the over-riding objective and the intended summary nature of the proceedings. However, summary proceedings are not a term of art, and such a description is not inconsistent with whatever other orders the court might consider necessary to expeditiously and fairly determine the substantive issue.

15. Thus it would seem that a hearing of some two days where cross-examination may be ordered is not inconsistent with such proceedings - see PR Records Ltd v Vinyl 2000 Ltd and Ors [2007] EWHC 1721 Chancery, 18th July 2007 a decision of Mr Justice Morgan at [40]. See also Grecoair Inc v John Tilling and Ors [2009] EWHC 115, Queen's Bench 14th January 2009 decision of Mr Justice Burton, [42-52]. It is equally plain from those cases that the court has power to exercise disclosure orders in order to facilitate in an economical fashion a fair hearing of the application, although disclosure is often made without formal order." 69. The judge then stated the following at paragraph 16: ".... I consider that I should apply a high test of what is considered necessary for the fair determination of proceedings that are essentially summary in nature and should be determined speedily after the conclusion of the trial by the trial judge and bearing in mind the over-riding objective." 70. The judge then listed relevant factors to take into account at paragraph 19 as follows: "19. In considering whether, in the light of the particular facts and issues in the case, disclosure is necessary for the fair determination of the application I conclude that I should consider - i)The strength of the application as it now appears unassisted by disclosure; ii) The potential value to the fair determination

of the application of the documents of which the claimant seeks disclosure and whether they are likely to elucidate considerations highly probative of the exercise of the court's discretion, or threaten to drag the application into a side alley of satellite litigation with diminishing returns for the overall issue; iii) Whether on a summary assessment it is obvious that the documents for which disclosure is sought will be the subject of proper legal professional privilege; iv) Whether the likely effect of any order the court might be minded to make will be proportionate and just in all the circumstances." 71. The following observation by the judge at paragraph 20 is also pertinent: "20. Although this is a case of family funding I consider that there is strength in the defendant's contention that this is not a case of a pure and disinterested funder who ought not to be at risk of a third party costs order merely because he has made funds available to improve access to justice without seeking to benefit from the proceedings or having an agenda of his own in respect of them." 72. It is also however right to refer to the judge's qualification of these remarks at paragraph 29 as follows: "This is not a case of a commercial funder or a private or corporate entity that may be regarded as the alter ego of the litigant who was ordered to pay costs. The prospect of John securing a large

amount of damages as a result of this litigation would not necessarily directly have benefited the interested parties by putting assets into their own pockets. The hope for improvement in John's mental state by a successful outcome of this litigation may well be doubted to be an interest of the interested parties own of a kind comparable to financial benefit." 73. Applying these principles, in particular the questions at paragraph 19, I reached the following conclusions.

74. The present situation as set out in the affidavits of Advocate Speck, Advocate Baker, the Representor and, in particular, E beg more questions than they answer.

75. Firstly, for the first time, it was revealed that an English law firm was involved in this dispute which has charged some £500,000 over and above the fees of Baker & Partners and Mourant Ozannes. Yet they played no role in the matters leading to the 2024 judgment and 2025 judgment as far as I am aware. They did not file any evidence and I did not see any correspondence from that firm. I therefore firstly ordered that firm to provide the same information as had been provided by Baker & Partners and Mourant Ozannes.

76. Secondly, the affidavit of E clearly raises questions, including why he was acting as a representative of C when he was excluded from the Confidentiality Club by Commissioner Clyde-Smith, a decision which I confirmed and continued. As is set out in the 2024 judgment, a variation to that club was expressly sought so that E could see information which was emphatically refused. How could he therefore act as adviser unless he was breaching that order? This requires disclosure and explanation. Without it, D and Fenlight will be required to cross-examine E without having a full picture of what E was doing and for whom.

77. In addition, while Advocate Santos-Costa emphasised that C had grounds to seek the removal of Fenlight, those matters could have been pursued without the applications that led to the 2024 judgment and the 2025 judgment. Why those applications were therefore put is a material question and justifies disclosure.

78. The material disclosed so far simply reveals that F was involved. The argument that F was a pure funder and lender of monies to his mother does not sit with the existing disclosure, as well as the affidavit of E. The material sought for by Fenlight and D was therefore, in my judgment, highly material to enable the Court to reach a conclusion on what costs orders should be made and whether a third party costs order should be made. What that conclusion might be is of course a separate question and for another day.

79. F's submission does also not sit with the fact that he sought to claim against the estate of his mother many millions of funds which he has advanced; yet he claims to have advanced only limited funds. This assertion requires testing.

80. The disclosure sought will also help to test F's assertion that he had no personal interest in the litigation.

81. In relation the question of privilege, I can see how complexities might arise depending on whether legal advice was being routed through E or Mr Philips. However, as noted above, E is not a legal adviser. There are therefore issues as to whether sharing information with him (when he was outside the confidentiality club) amounts to a waiver of privilege. I therefore made it clear to Advocates Baker and Santos-Costa that in providing discovery claims for privilege to be fully set out (see Smith v SWM Limited [2017] JRC 026 at paragraphs 43 to 46).

82. In reaching the conclusions I reached, I had in mind that the costs incurred in this litigation are significant. The total costs incurred involving Baker and Partners, Mourant and Signature Litigation appeared to be in excess of £2.5 million. Fenlight and D indicated that they had incurred similar sums I did not therefore regard making a discovery order as excessive given the total costs incurred to date.

83. Nor did I regard the draft order provided as producing significant work. What is ultimately required are communications relating to the litigation. These are primarily between three people, namely F, E and C, and, to a lesser extent, O.

84. I further concluded given the issues I have referred to above that, as long as funding was made available out of the estate, it was appropriate for the Representor to provide discovery.

85. Any devices owned by C which might contain pertinent communication covered by the order sought also belonged to the Representor as executor. While he might need the cooperation of O to gain access to such devices, if the Representor could not gain access that was not a reason for making such an order; rather, it should be explained in the affidavit in response.

86. This case also had similarities with the Thomson case and, in particular, the observations at paragraph 20. There is an argument that needs to be determined as to whether F was a pure and disinterested funder or whether he had his own agenda or was seeking to benefit from the proceedings. In that regard, benefit does not have to mean financial benefit alone and it is therefore arguable that, if the tactic was to cause damage to D, then this could benefit F given the dispute between them.

87. I also ruled that F was not allowed to advance the arguments set out at paragraphs 8.1 and 8.2 and 9 to 46 of his skeleton. F and Company 10 have been joined to these proceedings only in respect of the third party costs order being sought. What costs order should be made as between the parties is a matter for the parties alone. The arguments that F has set out are therefore matters for the Representor to raise if the Representor wishes to do so. F and N (where he has been a named beneficiary since 2023) could have applied to intervene in the present proceedings but chose not to do so although F was clearly aware of them. Having not become involved directly, he cannot now do so when the main claims have been dismissed. To allow otherwise would have turned a claim for third party costs orders into a trial of the claims of C when no such trial will ever take place. The arguments of F were therefore a disproportionate approach and fell foul of the overriding objective. I accordingly directed that F's submissions were limited to paragraphs 8.3 and 8.4 of his answer to the third party points of claim and the detailed paragraphs referred to in those two paragraphs.

88. Finally, I was satisfied it was appropriate for Company 2 as trustee of the N Trust to make disclosure of all communications relating to the payment of legal fees in relation to the present dispute, whether made by C personally or anyone on her behalf, including any responses to those submissions and the minutes recording any decisions. This is so that the assertion of F that these were ordinary distributions made at C's request could be tested. I regarded this evidence as pertinent to the assertions being put forward by Fenlight and D and disputed by F and Company 10. I gave the N Trust seven days to apply to vary this order. Authorities Representation of C re P Trust [2024] JRC 299. Representation of C re P Trust [2025] JRC 028 . Thomson v Berkhamsted Collegiate School [2009] EWHC 2374 Smith v SWM Limited [2017] JRC 026 . Page Last Updated: 25 Sep 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII