| Bartlett v Barclays Bank Trust Co Ltd | |
| Court: | Court of Appeal |
| Date Decided: | 31 July 1979 |
| Citations: | [1980] Ch 515; [1980] 2 WLR 430 |
| Judges: | Brightman J |
Bartlett v Barclays Bank Trust Co Ltd (No. 2) [1980] 1 Ch 515 in an English trusts law case. In it Brightman J gave a comprehensive discussion of the duties of trustees in connection with companies whose shares are part of the trust property. Although it is common to hear lawyers refer to "the rule in Bartlett v Barclays Bank", the case only restated law that had been accepted since Speight v Gaunt.[1]
Barclays Bank was the sole trustee of the Bartlett trust, set up by Sir Herbert Bartlett. The sole asset of the trust was 99.8% of the issued shares in the family company. On the company board were two surveyors, an accountant and a solicitor. The trustee appointed none. In an attempt to raise cash, the trust appointed merchant bankers to consider taking the company public. The bankers advised that a public offering would be much more successful if the company expanded its business from managing property to developing property as well. Barclays Bank as trustee agreed to this policy (so long as the income available to the beneficiaries was not affected). The board then embarked on speculative developments, one of which ended in disaster when planning permission could not be obtained for a large development (the Old Bailey project), and the trust suffered a significant loss.
Brightman J held that the bank, as trustee, had not discharged its duty as trustee in failing to supervise the new ventures of the company. He held that, given the size of the shareholding, the bank should have obtained the fullest information on the conduct of the business, and it was not sufficient to rely merely on the supply of information that they received in the ordinary course as a shareholder. Their defence, that they honestly and reasonably believed the board of directors to be competent and capable of running the business, was rejected. The court reiterated older propositions as to the duty of trustees, "to conduct the business of the trust with the same care as an ordinary prudent man of business would extend to his own affairs." However, the implication was that where a prudent man of business holds the majority of shares in a company, he would actively engage himself in the company's undertakings rather than leaving it to the board. Brightman J distanced the court from suggestions made in Re Lucking's Will Trusts [1968] 1 WLR 866 (at 874) that a controlling shareholder should insist upon being represented on the board, although he agreed that this would be one way in which the trustee could ensure that all of the necessary information was available to him.
This rule bears a striking similarity to that enacted in s 1 Trustee Act 2000. It can, however, be excluded in a trust instrument (see Sch 1, para 7 TA 2000). The Act essentially adopted and strengthened Brightman J's principles. There was also, under the Stewardship Code, a codification of principles regarding becoming active in use of corporate governance rights in companies.