Irwin Mitchell Trust Corporation v PW & Anor [2024] EWCOP 16

Judgment concerning whether a trust company's appointment of their own firm's asset managers to manage investment for PW breached the rules against conflict of interest.

PW had been awarded significant damages in 2017 arising from a hospital-acquired virus that resulted in global cognitive impairment. It was common ground that she lacked capacity to manage her financial affairs. In \March 2017 the Irwin Mitchell Trust Corporation was appointed as deputy and in December 2017 they appointed Irwin Mitchell Asset Management to look after PW's investments. In 2019 authority for a statutory will was sought and the Official Solicitor became involved. Although the will was agreed the OS raised concerns about the investment arrangements and IMTC were required to seek retrospective authority for the appointment.    

BY the time of this hearing both the OS and the OPG were of the opinion that the appointment was in breach of the conflict rules while IMTC argued their processes meant, while there was a theoretical possibility of a conflict, any "real sensible possibility" of the theory being realised was extinguished by the process adopted, mainly through reliance of beauty parades and involvement of family members in the decision. In a detailed judgment, HHJ Hilder rejects IMTC's arguments, partly as the processes put too much weight on family members who would not understand the issues, and at [93] concludes the appointment:

"clearly conflicts with the rule against self-dealing. There is actual conflict of interest in that the Irwin Mitchell group gains financially…... The processes adopted by IMTC do not and could not extinguish that conflict. In my view, that these proceedings have been necessary at all is a paradigm example of Lord Herschell's [Bray v Ford [1896] AC 44] wise recognition of the tendency of human nature to be swayed by interest rather than duty."

Read the judgment on Bailli