Beneficiaries of a trust do not have an automatic right to see all trust documents, but trustees will rarely be justified in a blanket refusal to provide them. Two recent decisions, Aabar Holdings v Glencore [2024] and Jardine Strategic v Oasis Investments [2025], have prompted a fresh look at how privilege operates between parties with a shared interest. This article examines the law relating to privilege, confidentiality and the trustee’s duty to account, and what these recent cases mean for trustees and beneficiaries.

Legal professional privilege is a fundamental protection under English law. It allows clients to obtain legal advice in confidence and, where litigation is in prospect, to prepare their case without having to disclose certain communications and materials to opponents or the court.

In trust disputes, however, privilege does not operate in isolation. It often sits alongside the court’s supervisory role over trusts. Trustees also have a duty to account to the beneficiaries and provide them with information about the trust and its administration, albeit this is sometimes tempered by a countervailing need to keep certain matters confidential either from the beneficiaries as a whole or certain of them. Those tensions explain why privilege issues can be particularly sensitive in this area. The issue of privilege often involves wider considerations, such as why the document in question was created and in what context disclosure is sought.

At the same time, privilege is not coextensive with confidentiality: not every confidential communication is privileged, and the mere involvement of a solicitor is not enough if the communication is primarily commercial or administrative rather than legal in substance.

Trustees’ obligations when faced with requests for disclosure are also different from the issue of legal professional privilege (as the Court of Appeal made clear in Dawson-Damer v Taylor Wessing LLP [2020] EWCA Civ 352).

The main types of privilege

Legal advice privilege protects confidential communications between solicitor and client made for the dominant purpose of obtaining or giving legal advice. That concept is broader than advice on black-letter law alone and can include advice as to what should prudently and sensibly be done in a relevant legal context.

Litigation privilege is often wider in scope. It can protect communications between solicitor and client, solicitor and third party, or client and third party, where the dominant purpose is for use in litigation that is ongoing or reasonably in contemplation. Unlike legal advice privilege, it can extend to third-party communications, and, in some circumstances, internal materials created for the litigation. The proceedings must be adversarial in nature, and there must be more than a mere possibility of litigation.

Without prejudice privilege serves a different function. It protects genuine attempts to settle disputes, allowing parties to negotiate freely without fear that discussions will later be used against them in court proceedings. Whether the privilege applies is assessed objectively. Labelling correspondence “without prejudice” may assist, but the real question is whether the communication forms part of a genuine attempt to settle. This protection is generally joint, so one party cannot usually waive it unilaterally, subject to recognised exceptions.

Trustee approach to disclosure requests and confidentiality

Trustees often receive disclosure requests before any litigation is even intimated; indeed, beneficiaries are usually well-advised to make such requests without any indication of contention in order to avoid being viewed as hostile by the trustees and treated accordingly. In such circumstances, the modern approach is not that beneficiaries enjoy any automatic proprietary right to inspect every trust document. Rather, the issue of disclosure is treated as part of the court’s inherent jurisdiction to supervise and, where appropriate, intervene in the administration of trusts. The right is qualified rather than absolute. Even a beneficiary with a vested interest may not be entitled to disclosure in every case, particularly where confidentiality concerns arise.

A trustee should furnish a beneficiary with information, or the means of obtaining information, about how the trust property, or the beneficiary’s share thereof, has been invested or otherwise dealt with, and accounts in relation to it. That obligation applies whether the beneficiary’s interest is present or contingent. Generally speaking, a trustee should allow a beneficiary to inspect trust accounts and the core documents relating to the trust. In contrast, documents revealing the reasons for the exercise of a discretion need not be disclosed.

That distinction remains central in practice. In Re Londonderry’s Settlement [1965] 2 WLR 229, beneficiaries were entitled to see the trust instrument, deeds of variation, documents that created interests or gave effect to trustees’ decisions, and trust accounts, but not minutes of meetings, resolutions recording deliberations or trustee correspondence and memoranda.

Although Schmidt v Rosewood [2003] 2 WLR 1442 moved away from the notion of any absolute proprietary right to disclosure and recast the matter as part of the court’s supervisory jurisdiction, it did not remove the practical importance of distinguishing between documents that explain the trust and its administration and documents that reveal trustees’ confidential deliberations.

A similar approach is reflected in relation to letters of wishes. In Breakspear v Ackland [2008] EWHC 220, the court confirmed that a letter of wishes is ordinarily confidential because it exists to assist the trustees with the confidential exercise of their discretion. It will not usually have to be disclosed, although there may be particular circumstances in which trustees choose to disclose it or the court orders disclosure.

The duty to inform, but not to advise

The duty to provide information should not be confused with a duty to provide legal advice. A trustee is under a duty to inform a beneficiary of the full extent of that beneficiary’s interest under the trust but is under no duty to advise the beneficiary on their legal rights. Trustees must be open enough to make the trust enforceable, but they are not required to step into the role of the beneficiary’s legal adviser.

The same principle is reflected in the law’s approach to acquiescence. A trustee will not generally be able to argue that a beneficiary has acquiesced in a breach, and is therefore prevented from suing, unless the trustee has fairly put the beneficiary in a position where they were aware of the right to sue. Transparency matters not just for administration purposes, but is also relevant to the court’s consideration of any later dispute.

Practical implications in disclosure requests, including for private trust companies

For those seeking disclosure, requests are likely to be more persuasive where they are tied to understanding the applicant’s rights under the trust or the trustees’ administration of the fund.

For trustees responding to those requests, a category-by-category analysis is usually preferable to blanket refusal or indiscriminate disclosure. It may also be important to consider whether confidentiality can be protected by narrower measures, such as redactions or limits on onward use.

These issues may become more acute where a private trust company (PTC) is a trustee. The law does not automatically treat every director or employee as the client for privilege purposes. The court will generally look closely at who was authorised to seek and receive legal advice on the PTC’s behalf. That means it may be important to distinguish between communications passing between the relevant decision-makers and the solicitor, internal materials generated within the company and documents that merely record underlying factual or administrative matters. That is likely to require a document-by-document analysis, particularly where the same individuals are involved in both trust decision-making and the governance of the corporate trustee.

Recent developments

Careful distinction should be made between joint privilege and common interest privilege. Where parties have a joint interest in the subject matter of the communication at the time it comes into being, neither can ordinarily assert privilege against the other in that material. That is reflected in the Court of Appeal’s decision in Dawson-Damer, where the court held that, where joint privilege applied between trustee, beneficiary and solicitor, the solicitor could not rely on privilege to exclude the beneficiary from obtaining the material.

Conversely, common interest privilege is better understood as a principle that allows privileged material to be shared with another party who has the requisite common interest without that disclosure amounting to a waiver as against the wider world.

In Aabar Holdings SARL v Glencore plc [2024] EWHC 3046 (Comm), Mr Justice Picken expressed the view that “the concept of joint interest privilege as a freestanding or standalone species of privilege is not supported by the authorities”. Rather, the authorities are better understood as cases in which privilege arises, or is shared, by reference to particular relationships and circumstances. That approach was reflected in Jardine Strategic Ltd v Oasis Investments II Master Fund No 2 [2025] UKPC 34, where the Privy Council rejected the assumption that there is always a sufficient alignment of interests between a company and its shareholders to justify access to privileged material.

These authorities do not determine the position as between trustees and beneficiaries, but they do underline the need to avoid broad assumptions that an alignment of interests is, by itself, sufficient to affect privilege. The better approach is to ask whether the material was privileged in the first place, whether the privilege was jointly held, whether the material was merely shared under a common interest without waiver and whether the relationship between the parties had become adverse by the time disclosure was sought. In trust disputes, that analysis will often require close attention to the capacity in which the trustee obtained the advice, the purpose for which it was obtained and an analysis of the trustee–beneficiary relationship.

Conclusion

In practice, disputes of this kind are rarely resolved by labels alone. Beneficiaries are generally considered to be entitled to sufficient information to hold trustees to account and to understand the administration of the trust, but ultimately this is a question of the court’s supervisory jurisdiction. They are not entitled to every document, particularly where confidentiality or privilege considerations apply, although the application of these principles needs to be carefully considered.