Email from Niall Coburn to Guernsey Bailiff, in response to the Manita Khuller judgment:
Dear Bailiff Collas,
I write to you as former Head of Enforcement and regulator and lawyer who has worked internationally and attended the Trial of Manita Khuller vs FNB Trustees on the 18-21st of November.
As a Barrister of 30 years, I am totally ashamed at this unfair judgment which not only misrepresents the facts as disclosed in court but actually failed to provide an analysis of the case competently as presented; where ample evidence was provided of FNB’s gross negligence .
The court completely failed to identify that FNB appointed and retained an unlicensed and unqualified adviser (PPI Advisory) without the most basic of checks such as licensing and regulation.
This is despite the evidence presented in the form of letters, investor alerts and emails from the Thai Securities and Exchange Commission.
FNB Trustees failed to respect Ms Khuller’s investment risk profile and with a “quick glance” doomed her pension savings to known failures of a major fund such as LMMPF.
It was clearly shown during trial that the LMMPF was not only unregulated but also “unregistered” and this was in the Fund prospectus that FNB had from the outset. It‘s was not a case of “hindsight” at all.
Matching fund risks to those of the investor investment profile is the most basic of due diligence that FNB did not do, and this is gross negligence that was causative of the loss. These were not funds meant for retail investors, which Ms Khuller is.
The causation is clear from then onwards.
The evidence displayed is that FNB was grossly negligent as a regulated trustee and fiduciary and that you very well know but you chose to “protect your turf”.
This is a totally incompetent decision of the highest order and I know that you will all not sleep well in its delivery.
Clearly, you put the implications for Guernsey before Ms Khuller, who was wronged by FNB.
There is no justice in Guernsey, but men protecting secrets.
So what is this about?
In a blog last week, I wrote about the impending court case brought by Manita Khuller in the Guernsey Courts of Justice.
Manita lost her case . She is considering an appeal. The verdict is a personal tragedy for Manita , but it casts a long shadow over the role of Trustees in Guernsey and what Guernsey means by Fiduciary Duties.
So what do we mean by Fiduciary Duties?
Australia has brought in their version of America’s “Fiduciary Rule” and introduced a “best interests duty”. One commentator explains that this falls into three parts.
“A duty to act in the client’s best interests, a duty to provide advice that is appropriate, and a duty to prioritise the client’s interests in the event of a conflict”.
There are similar principle-based rules in Canada – and here in the UK we have the FCA’s cover- all “treat the customer fairly“.
Guernsey has a “fiduciary standard“. Clearly that standard isn’t high enough.
Help for journalists
I know a lot of journalists read my blog and like to follow up.
For more information: Contact Manita Khuller on 077955 7067 or at email@example.com
August 2018 Mail on Sunday article about Manita’s court battle:
Bailiwick Express article, August 2019:
Henry Tapper piece, November 2019:
International Adviser story, November:
Recent case in Cyprus where the courts also ruled against investors, stunning many observers, and causing many to suggest that the courts were worried about setting a costly precedent that could harm local financial institutions:
Bloomberg article about “going to court without a lawyer is new normal for U.S. litigants”
Talk of Guernsey plans for “new fiduciary handbook and revised pension rules”, suggesting awareness of need for improvements
I am sympathetic to Manita, however we cannot replace the role of Guernsey Courts. We need to respect their judgement, and ideally Manita should appeal.
The trustees take advice from the financial advisor, and unfortunately, in Guernsey, there is not rule for the financial advisor to be licensed or regulated either in Guernsey or the client’s country of residence. It seems that it is for the client to satisfy that the financial advisor has the competence and skill to advice in the area requested to advice.
This is not the first case to fail in a Guernsey Court, the Tchenguiz brothers (property moguls who lost a fortune in the GFC) lost as well, when arguing the trustees should not have followed the advice of the financial advisor.
I know it is harsh, but it is what it is.
It unbelievable that the courts refused to accept the evidence provided i.e letters from the Securities and Exchange commission about the unlicensed advisor operating without the necessary regulatory licenses. Or accept the Fund Fact sheets which read, meant for professional investors – which I am not. Or accept the Expert Evidence which said that the funds were poorly invested and posed a risk for my pension money.
On paper there is Trust law in Guernsey, but it appears that the courts do not want to enforce their own laws. Shocking.
We were in the same courts last year as well. Our case isnt finished with so of course I cant go into details but I hear what your saying about the system. In protecting their own, they are allowing corruption to fester in the system. Its a small world in Guernsey. I wonder how many other people are in the same situation but don thave the resources to even start fighting bad trustees.
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“in Guernsey, there is not rule for the financial advisor to be licensed or regulated either in Guernsey or the client’s country of residence. ”
Irrespective of the above, exactly how did the trustee establish the financial advisor was in fact a financial advisor. Licensing and regulation are only 2 parts to due diligence. After all, the trustee is the ‘guardian of the asset’?
“It seems that it is for the client to satisfy that the financial advisor has the competence and skill to advice in the area requested to advice.”
If the above is true, then the client should be the trustee. Otherwise, exactly what is the purpose of the trustee?