Untamed judicial discretion

Savage v Savage [2024] EWCA Civ 49

by Emilia Carslaw

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) introduced pivotal substantive reforms to English land law, in particular ridding it of the outmoded concept of the trust for sale and replacing it with the trust of land. Fundamental to these reforms is the power granted to the court under section 14 TOLATA, which grants the court a discretion to make, on the application of a trustee or anyone with an interest in a property of a trust of land, any order "as it thinks fit" in relation to the trustee's exercise of their functions or in declaring the interests in a property. Guidelines for the court's exercise of its discretion under section 14 are provided in section 15 TOLATA, which sets out a non-exclusive list of factors to which the court "is to have regard".