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Public Trustee (Liability and Fees) Act 2002

Commentary on Sections

13.Section 1 (liability) repeals section 7 (liability of Consolidated Fund) of the Public Trustee Act 1906. The repeal means that, by virtue of section 2, the Public Trustee is liable for breach of trust in the same circumstances as a private trustee acting in the same capacity. It also removes the Consolidated Fund’s liability to make good any sums required to discharge the Public Trustee’s liability. In accordance with modern financial practice, it will be the Lord Chancellor from his Estimate, and not the Consolidated Fund generally, that will meet any liability incurred. It is not necessary to make special provision for this in the Act.

14.Section 1 also makes consequential amendments on the repeal of section 7 to remove the reference to the “Consolidated Fund of the United Kingdom” in section 40(2) of the Crown Proceedings Act 1947, and the reference to section 7 contained in section 3(6) of the Public Trustee and Administration of Funds Act 1986.

15.Section 2(fees) amends section 9 of the Public Trustee Act 1906 in order to make the Lord Chancellor responsible for fixing fees in respect of the Public Trustee’s work under the Act. Subsection (1) also repeals the requirement in section 9 that fees charged by the Public Trustee must be fixed to produce an annual amount sufficient to discharge the salaries and other expenses incidental to the workings of the Act. It makes further amendments to remove from the section specific reference to the Treasury's power to require that such accounting requirements as it directs be followed and to authorise the application of fees as an appropriation in aid. Such references are unnecessary on the face of the Act given that departments are required to follow Treasury guidance in this regard in any event.

16.Subsections (2) to (4) make consequential amendments removing references to the power of the Treasury to fix fees from section 138 of the Law of Property Act 1925, and section 1 of the Public Trustee (Fees) Act 1957 respectively, and removing a reference to section 9(4) in section 19(5) of the Law of Property (Miscellaneous Provisions) Act 1994.

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