JOHN CONTI ESQ

KATZ WILL TRUST

NOTE ON PRIVY COUNCIL DECISION

5. Mr Francis, for the Respondent, had stated that the Respondent did not disagree with that position. He had then gone on to state, however, that the Petitioner could apply for leave to amend his pleadings, but that such application would be contested. In our respectful opinion, Mr Francis appears to have missed the point of what their Lordships decided. If the, questions (a) whether the retirement was valid and (b) whether the retirement, although valid, was a breach of duty, are still open to the Petitioner, then they are open without his needing to amend his pleadings. The only reason the, Committee refused leave to appeal was that the Manx courts had determined a very narrow point indeed, a point which the Petitioner was no longer maintaining, with the consequence that the claims of the Petitioner in his Statement of Case still fell to be adjudicated by the Manx courts .

6.The statement at paragraph 25 of the Respondent's Observations that the Petitioner cannot recover contribution because the Respondent was not liable for the same damage as the Petitioner, is clearly misconceived. All that is necessary is that the damage is the same. It is not necessary that the Plaintiffs had the same causes of action for breaches of the same duty against the Petitioner and the Respondent. If the Respondent's retirement as a trustee was invalid, then he was liable to the Plaintiffs for breach of trust in not retaining control and management of the trust property. That breach would no doubt have caused the same damage as was the subject matter of the claims of the Plaintiffs against the Petitioner, except in so far as they were claims to restitution of trust property. In the alternative, if the Respondent validly retired but should not have done so, then he would have been liable for breach of trust in so retiring. Again, the consequences of his breach would include the very same damage as in the previous case, so that normally it would make no difference.