Jeremy Kosky reports on a billion-dollar family row

Jeremy Kosky is a litigation assistant at Clifford Chance, which is acting for Heini Junior in the case. Norton Rose is acting for the trustee and protector.

A storm is raging in Bermuda over the validity of a billion-dollar trust set up in 1983 by Swiss Baron, Heini Thyssen-Bornemisza. The trust holds the shares in worldwide company TBG.

The baron is pursuing a claim of presumed undue influence when he set up the trust. He argues that his eldest son, Heini Junior, misrepresented the effect of the trust. The baron is suing Heini Junior for equitable compensations, and the trustee and protector of the trust for the return of shares in TBG.

He has recently set up the Vlaminck Trust to ensure that the action will continue after his death. Under that trust, the baron's wife, Baroness Tita, contributes to the costs of pursuing the litigation; on the baron's death, she will be entitled to claim the entire trust fund.

The defendants say the presumption of undue influence does not arise. But even if it does, the baron received advice from lawyers and advisers which rebuts the presumption.

The baron tried to resist giving discovery of his advisers' files by asserting legal professional privilege over them. He also sought to stop his former advisers speaking to the defendants. The defendants claimed it was unfair to claim privilege and confidence in a case of presumed undue influence.

In June 1998, the Bermuda Court of Appeal accepted this argument and decided it would be "unconscionable" for the baron to rely upon a presumption of undue influence and then prevent his advisers revealing whether they had explained the effects of the trust.

The baron disclosed most of his advisers' files, but tried to argue that some advice was given in the course of joint retainers owed to the baron and the baroness and he could not disclose the material without her consent. The defendants had to apply again, this year, for further relief.

In August 1999, the court handed down another ruling, holding that because the baroness has a direct interest in the proceedings and is liable under the trust to pay for the costs of the litigation, it would be "unconscionable" for her to rely on a joint professional privilege, even though she is not technically a named party.