Trusts and Succession (Scotland) Act 2024

Damages

39 Damages for loss resulting from trustee’s act or omission in ordinary course of administration

(1) This section applies where—

(a) in consequence of a trustee’s act or omission (or of an act or omission of a person for whom the trustees are responsible) a person other than a trustee suffers loss, and

(b) that act or omission arises in the ordinary course of administering the trust.

(2) Subject to subsection (3), any damages awarded in respect of that loss are recoverable from the trust property only.

(3) In making any award in respect of that loss the court may, if satisfied that the act or omission was in any way attributable to the trustee’s failure to exercise such skill, care or diligence as is required of that trustee by section 31, determine that damages are recoverable, in whole or in part, from the trustee’s private property (to the extent of the trustee’s failure) and the balance (if any) from the trust property.

(4) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects an act or omission occurring after the section comes into force.

40 Bringing of action for damages for loss resulting from trustee’s act or omission in ordinary course of administration

(1) This section applies where—

(a) in consequence of the act or omission of a trustee (in this section referred to as “T”), a person other than a trustee suffers loss, and

(b) that act or omission arises in the ordinary course of administering the trust.

(2) Any action for damages in respect of that loss may be brought—

(a) against the body of trustees,

(b) on the basis of personal liability, against T, or

(c) jointly and severally, against both the body of trustees and T.

(3) At any time before final judgement in proceedings brought as mentioned in subsection (2)(a), the court may, under rules of court, allow the body of trustees an amendment—

(a) adding T, as an additional defender, to the instance of the principal writ, and

(b) directing existing or additional conclusions or craves, averments and pleas-in-law against T.

41 Delictual liability: trustee’s right of relief against other trustees

(1) Subsection (2) applies where a body of trustees incurs delictual liability but none of them incurs personal liability as respects the delict.

(2) Each trustee has a right of relief against the other trustees jointly and severally.

(3) Subsection (2) is subject to section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (which provides for contributions to be in such proportions as are deemed just).

(4) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects liability incurred after the section comes into force.

42 Trustees’ liability in relation to certain obligations

(1) This section applies where a body of trustees incurs liability in respect of an obligation under—

(a) environmental law, or

(b) the law relating to an occupier’s ownership or control of heritable property,

being liability incurred in the ordinary course of administering the trust.

(2) Subject to subsection (3), any damages awarded in respect of that liability are recoverable from the trust property only.

(3) In making any award in respect of that liability the court may, if satisfied that the liability was in any way attributable to a trustee’s failure to exercise such skill, care or diligence as is required of that trustee by section 31, determine that damages are recoverable, in whole or in part, from the trustee’s private property (to the extent of the trustee’s failure) and the balance (if any) from the trust property.

(4) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects a liability incurred after the section comes into force.