CONFIDENTIALITY IN TRUST PROCEEDINGS – SECTION 47 OF THE TRUSTEE ACT – PRIVACY OF BENEFICIARIES
Confidentiality in trust proceedings, especially non-contentious proceedings, can be a pressing issue for trustees. Trustees sometimes need to obtain the guidance of the Bermuda Court, or the exercise of the Court’s broad powers under Section 47 of Bermuda’s Trustee Act, on entirely non-contentious issues. The trustees may not, however, want undue press attention placed on the beneficiaries. Trustees may avoid seeking the assistance of the Court if, by doing so, they might undermine their beneficiaries’ privacy. For this reason, trustees often seek confidentiality orders, which typically provide that the names of the parties involved can be anonymised in the cause book, for the hearing to be heard in private and for subsequent access to court files by the public to be restricted.
Confidentiality, however, is increasingly hard to find in modern courts. The courts continually trend towards ever greater transparency. While non-contentious trust actions were, in the past, heard in chambers (which meant members of the public and the press were in practice, left outside), chambers hearings are now held in court rooms to which the public have ready access. Further, due to recent procedural reforms in Bermuda, court papers held in the Registry are increasingly open to public and media scrutiny.