Rolls mjldiQ7..Fettcr
Before :
MASTER PRICE
Bet" cen :
AB
- and -
(I)CD
(4) HD
(9) NM
Richard Wilson QC (instruetgd by Bryan Cave Leighton Paisner LLPQ n Ibr the Claimant
Emily Campbell (Instructed hy Kuit Steinart Levy) for LLP tur the I . 2 and 3rd Defendants
Judith BO ant (instructed by DDB Pitmans LLP) for the 8th and 9th Defendants 
I he 4 th , S tb , 6 th and 7th Dcfendant* did not appear and were not represented
Approved Judgment
direct that pursuant to CPR PD 39A para 6 1 no official shorthand note shall be taken or this
Judgtncnt and that copies or this version as handed down may be treated as authentic
the shpt( Otle
Master Price:
This judgment follows on from an earlier judgment in this case "hich was circulated in draft in July following a hearing in May of' that year. A hearing "as scheduled for January of this year. 2019, but had to be postponed as I fell ill. 
intended that the earlier Judgment should bc handed at that hearing and that was also the purpose of the hearing betöre , me. on 8 May 2019, but (hat remains outstanding pending the handing down or this judgment which deals Mith matters which have arisen consequent upon the dran judgment from 2018. In the earlier
trustees (that is to say the first to third defendants) of how they should exercise a poMec ot uppointmcntt nfnrlunately, that reconsideration has failed to resolve (he impasse between trustees.
I do not propose to go back 10 square une, as it Ytere, in this judgment and this 
iudgmcnt i; to be rcad together Mith the earlier one once finaliscd. Inevitably 
however. J will have to pick up on various matters which I dealt "ith in the earlier judgment.
As I have said the case concerns the exercise of a or appointment in relation to a trust established by 'the grandparents of the fourth to ninth defendants. They v.erc the parents ofthe first defendant v,ho is the Cather of the fourth 'to seventh defendants. The claimant is trustee with the first and third deiuldant> and by this action seeks directions in relation to the excreise the poncr ol' appotntmgnt. The fourth ID seventh detendanls have played no active role, and that was also the case in relation to the eighth and ninth defendants until reccnlly. The eighth and ninth dePcndants arg the children of the fist dercndant•s sister. For reasons which atv referred to in the earlier judgment the iätnilies arc estranged. Although the eighth and ninth defendants did not actively participate in the earlier hearing they are represented by counsel and solicitors.
4, *I'he ease was brought because or the claimant•s concerns at the disparity in treatment which they hud received and •were recei%ting compared to the fourth to seventh delundants. At the earlier hearing 1 was primarily concemed with submissions as to whether the court should imccvcnc in the circumstances which had arisen and the extent to which certain funds then known as the M Fund (after the property in respect Of Which 'the fund; represent the procccd$ ol' sale). v.as to be taken into account and used fur the purposes of distribution. I directed further consideration and indicated that in the abscncc or some agrccd position between the trustees thought it appropriate that the court should itself' exercise the power of appointment. I tOund that the first defendant had not at least in the past acted in a manner which was consistent with his duties as a •fiduciary and had l'ailed to takc into account all ant matters. to act impartially and had sought to fulfil purposes which were impermissible. Looking 'forward I took the view that. so far as it was appropriate at that stage jl)r the Court to c.xprcss a view, the claimant had the better of the argument in relation to the proposed exercise of the power of appointment in seeking •to reach an adjustment to move closer to the original Icttcr of wishes tn relation to the trust fund, and to that extent the particular letter of wishes in relation to thc M Fund should be discounted and it was necessary to take into account the availability or the M Fund which had for administrative reasons been distributed to the discretionary trust in favour of the grandchildren, although earmarked by a separate Ictter or wishes tar
to entgr the short title
distribution to the first deticndant. I did not think it tight there and then to impose the claimant's solution that a range 01.' possibilities arose by which this might be done. In this I acccpted the submissions the dc(ending trustees in to the argumenl or the claimant (hat the court should thcre and then grasp the nettlc and intervene. er, no resolution has emerged despite the passage of 10 months since my draft judgment cireula(cd, ()n that basis it seems to me as indicated in the 2018 draft judgment, that the court should inten eng for the Ii)llowing reasons.
5, Firstly, there is in my vie». ample authority that the court should intervcnc in special circumstance; based on the decisions (GtWrcd in (he 2018 draft judgment at 
paragraphs 14 and .18. namely ( ;urnhant v PC.' 120121 JRC 050 Klug and Klug
1918) 2 Ch. 67. Those cases gere dirjurvnt in so tur as they required approval of discrete and simple proposals, but the categories of special circumstances cannot in my view be so circujnscribed and are not closed.
Secondly it is, think, common ground between the trustees and all concerned tbat these trusts should bc wound up $0 •possible with a view to minimising administrative nnd profissiontll costs jn future,
Thirdly, the significant costs oj• this litigation may, depending on i" hat orders I ultimutely decidc to make. substantially erodc the trust iünd$. 'I'he latest estimale ot 
COS(s to date presented to mg by the eighth and ninth defendants is approximutel}g 
Ofcourse, illese costs continue to be incurred minute by minute and this ig in itseJf'a reason the court to cut 'the (iordian Knot, as it were. and endeavour to 
bring this liligatipn and the accruing co»ts to an end.
Fifthly, the history of the matter as related in earlier judgrnent and thc first defendgnt•s stance. even though he appears to have resiled from that, nccess,lri'l} 
colour one's thc mutter gften that the truq(ees retntlin unable agree a common approach.
Sixthly, the refusal or titilure ot•all the trustccs agree surrender their discretion so that the impassc might bc broken. •rhe elaimant did so agree but the first to third 
indicated they would do so only in certain circumstances. but anyqoy 
matters have been overtaken by the indication I gave in the earlier judgment as to how 
the court should proceed if the impasse continued. as is the case.
Seventhly, the cost and delays involved ili finding another alternative professional trustee to replace thc elaitnant. and the not insignificant risk ot• further deadlock
Although the court is understandably reluctant to accept a sunvnder of' trustees' discretion in so far as the court may not bc best placed to exercisc a broad discretion as a result Of adversarial argument. the ditTteulty of reaching an appropriate solution cannot in the 'final analysis dictate how the court should procccd, where a decision by the court is the most pragmatic cour$es as $cems to me to be (he case here.
follows 'therctbrc (hat in the abscnec of agreement and sincc the claimant rcitcratcs his earlier proposal with which the first to third defendants will not concur, notwithstanding the directions which Were given in the carlicr judgment and the terms in which they wcrc couched, I think it right. (hat the court should decide how the
to enter die Short tille
power should be exercised with a view to winding up the particular discretionary trust involved.
As matters stood entirely as they were in July 2018 when the dran judgment was promulgated, I Mould thcrefbrc have proceeded to endorse the proposal put forward by the claimant in preturencc to the delZndants' positions.
14, Whilst it is true that the first to third 
hase tnade a further alternative proposal uner c.xtensiyc correspondence the considered position of thc claimant as set out in a iitrther 'öjtness statement is that his original proposal represent* thc mini:num amount jn all the circumstances which could properly be distributed to the eighth and ninth defendants. Ile also indicates in his (Bidence that there Mere and are other options by v,hieh matters could be arranged so as to redress the imbalance wbieh has arisen in respect or the treatment betv,een •lhe grandchildren including the possibilit) 
at' oeation of earlier appointments in favour the first dercndan% and he has also rejected the suggestion that the court should only decide bctv'een those proposal* put li)rward hy himsgH'nnd thc defending trustees
15, The dejutding trustees' proposal which bus emerged. from 'öhat appears •to be some" hat advcrsarial correspondence between solicitors, docs not in .tny view adequately meet the problem ofdisparity as identitied by the claimant and in vie" 
this conclusion is reint•orced by submissions which hmg now been made to me on behalf of the eightb and ninth defendants who now appear by counsel. They argue Ibr a solution and their argument sheds a difli.•rent light and ofil•rs a different perspective. It is perhaps regrettable that these matters were not- raised earlier but it has to be said that in my view the belated submissions on behalf of the eighth and nimh defendants have enabled the court to review a wider range of' options than uould other.,vise have been the case.
I hey point out that in accordance with the letter of wishes the (rust assets are held us to one third tor the tirsl detuldunt and two thirds tur all the grandchildren equall.v per capita. Thc first defendant is treated entirely separately so that trom the outset the lirst defendant's side of the family. if one may so describe it. given pretercntial trealtllcnt, I er. it is nonetheless the casc that the two thirds divided between the six grandchildren should leave each grandchild with I l per cent. It is not clear what ihc current value of the trust assets is, including the distributed properties but a range of figures has been put mc from which it appears that thc rcleascd titnd, that is the distributed properties appointed to the first defendant are worth in cxcvss ol' Ed million and quite possibly morc than that. No up to date valuations have been obtained and although there was some suggestion that that might be necessary by the eighth and ninth 
I have bccn reluctant to proceed on that basis as this could only involw tUrther delay and costs. particularly gi\ctl thc submission on behalf or the eighth and ninth detuldants that whatever the precise figures the range involved inevitably shows a considerable disparity in the treatment between the grandchildrcn which requires rcdrcss. Upon the basis that the valuation of the funds overall exceeds {4 million (which appears to be common ground) then the cighth and ninth 
might have had a lcgitimatc expectation ofrccciving upwards of E850,000.00 whcrcas to date they have not yet received an.v distribution at all. although they are set to rcccive an equal share with the first defendants children in relation to the nondiscretionary element of their grandfather•s will trust, as was accepted prior to thc last heanng We arc of coursc only concerned with the exercise of discretion in relation to
k ct'ter 'he shon 11t
the pov,cr of appointment over the discretionary funds, apart from the appointed properties but including thc M funds. The M Fund also owns a share of one the appointed properties. where a lease extension was obtained for a payment 40 000 paid out of the M Fund in return for a 16.4 percent share in that properly. It is not clear hou this share might be realisable, and in practice has (0 be distrihuted 10 the first dcrendont or his children,
On one of the proposals put forward by the claimant it appears that, depending upon precise values, the eighth and ninth defendants would rece•ve between 6.2 and 7.1 percent ol' the total ulluc and on the first defendant's proposal bctv.,een 5 and 5.7 percent against the expectation in accordance with the original letter of wishes of 22 percent. Although the released funds, that is the appropriated properties, hau• been appointed 'to the first defendant, the terms of the appointment operate to create successive interests and the income from the properties is appointed to the first 
in his lifetime. '14he trustees have power to advance the property to or il)r his benefit bul the first defendant also hms power to appoint a life interest in favour his wife upon his death which he has in fact done. Subject to those provisions the properLics are held on trust the first defendant's children on their attaining (he age of 25 during the trust period. eighth and ninth 
are entirely excluded from these anafigemenl$ which in effect appoint the lion's share of the trust fund 
must inevitably have been anticipated at the time) in favour Of the first defendant and his children. This was a mattcr of concern at the (imc of the appointments in 2002 as was raised jn an email from the second dctundant trustee. It was contemplated then that there Bould be arrangement; so thul "[qighth and ninth detundants would not bel prejudiced". Tn vic.», of the precise dispositions I do not think it can be said that the interests ol' the fourth to seventh defendants are as "spectral". as suggested hy counsel 
the fits! to third defendants und are more than a mere spes. Since 
interests in possession are created, (essentially Cur lax planning purposes). the likelihood is that the assets so distributed v.ill ultimately find their way, subject 
whatever tax may prove to be payable. to the ti)urth to sc%tenth 
and it is necessary to luke that into account in deciding on further distribution,
It is also appropriate take into account the position of the grandchildren themselves. 'Che first defendant has described his children as being "independently wealth) but that docs not appear to be the case in relation to the eighth and ninth 
based on the evidence tiled by them some time ago, It cannot bc said that cither of them appears to be in dire eircumstances or need. howe„r. and both uppcar to have good prospects. Standing atone, it seems 10 me this evidence would not displace a presumption, if such there he, in favour orequality betwccn the grandchildren
19, J e earlier referred to the defending trustees' latest proposal. and I should also deal with the submissions which were made to me at thc hearing by counsel for the defending trustees as to how the court should exercise its discretion having decided ta take control, Whilst •standing by the earlier proposal as being within the permitted range J was urged not to align the interests of the first deiendant for whom a one third sharc was earmarked by the tetter of wishes anyway. with those or his children, Il'he appointments of the properties were madc within the lituitne of his mother, one or the seltlors, and in all the circumetances it was submitted that fairness to the first defendant's children should tncan equality of treatment between the grandchildren, but I am unable to accept this approach is appropriate given the cfTect Ote the
enter 
appointments already madc and the trustees? evident concerns at tb„• tirne as to the disparity in the treatment; I have already mentioned the precise tenns or the appointntents, and the interests of' the first 
children under thosc
drawing all these various threads together. I have to deal "ith the question ol' costs since this has an impact on lhc runds available, claimant and decending trustees are entitled an indemnity in respect or their costs and I was rcfcrrcd in this connection to the decision of Kekewich J. In Ijuckron v Buckton 9071 2 Ch. 406 at 414 uhere he said:
"In a large proportion the surngnonse$ into court for argument the applicants arc trustees or a Mill or settlement q ho ask the court to constitute the instrument trust (or their guidance and in order asccrlain the interests of' the beneficiaries or else to hme some question to determine '*bich bas arisen in the adtnini$tmtion trust, In cases ot• this character I regard the eosls or all parties as necessarily incurrcd [Or the benefit of the estate and I direct them to be taxed as 
sotieflor and client and to he paid out the estate. It is, of course, possible that trusteee may come to court without due caUSC, A question of construction or adntinistratioo may be tot 
clear ti)r argument, or .it may be a duty of' trustees to illii)rm a claimant that they must administer their trust on thc liN)ting that his claim is unrounded and leave him to take course he thinks fit. But, although 1 have thought it necessary sometimes (o caution timid trustees against making applications which might with propriety be avoided. i act on the principle that trustees arc entitled to the filllgst possible protection which a court can give them and J give them credit for not applying thc eourt except under which though it may appear to me unsound, must not bc readily (reatcd as unwise."
I was also rejerred to Lewin on 'Crusts 19th edition (2015) at paragraph 27-14 i , as to circumstances in '901ich a trustee might be deprived of his costs where he ceases to be neutral and takes the side of one faction or beneficiary ggains( the others. It is of course the case (as I referred to in paragraph 9 Of the earlier judgment) that 
considered the first de(cndant to have acted unreasonably and there i$ a forceful argumcnt that these proceedings were prqcipituted by the first defendant's stance, if not intransigence, but at *the end ol' the day i! has to bc said that there werc legitimate issues as to competing letters of wishes and on the law relating to intervention by the court such that it was appropriatc lhcsc bc brought bcti)rc the court. is also the case that the first detuulant•s unreasonableness lapsed on service of his evidence in this casc. at which point he Was prepared to accept that the eighth and ninth defendants were cntitlcd to thcir fair share, I do not theretore think it would bc appropriate to categorise this case as one involving exceptional unreasonable behaviour on the part of the detulding trustees. 'Ihc particular difficulties which have arisen in my vieu 
really arise from the disparity in treatment which arose by reason of the releascd funds and those difficulties prcdatc the appointment QC the claimant as a substitute trustee, and it appears to be common ground these cannot now in practice be undone. Ilowcver, lhcy must, in Iny be takcn into account looking forward. I do not
Dotible•click cnter 
accept cithcr the submission on behalf' ol' the eighth and ninth 
that 
thc circulation of the draft 2018 judgment the failure of the trustees to reach agreetncnt is a tnatter which can lead to disallowance of' costs in all the circu:nstancee 
Equally it seems to Inc that the involvement on the eighth and ninth defZ•nd 
becn in so far as it has enabled the court IQ eonsider matters more broadly than on the basis of thc options for the exercise of power put torward by the claimant and the delulding trustees. •rherc is, perhaps, a .sense [n which their involu•ment has made Inatters iu)rse in so rar as it has perhaps Inade il more difficult for the claimant and deli:nding trustees to awid the further costs ol' bringing the matter back to court, but i! scetnq to me that it right thol they should takc a(ßice and having done so it nutst he assuntcd they hau• acted on that advice in order intervene and make the subnlissions a e to how the power should be exercised based on their particular perspectiw and their own interesth, In lhc circumstances it seen)$ to mc right therefore that th e ir costs also should he pnid from the trust. Apart trom the question or the incidence of' cost; as bcty,een the panics, Ihcrc also ariscs in this case the question as to the incidence of costs as bet"een the liquid funds and the distributed funds. rhis ariscs because there ure now, only liquid fund* in the order of the costs Incurred to date in lhesc proceedings (nou• estimated as sorne 
bc paid front the aniount available for distribution i' Mould in rfhet mean that neither the proposal or the claimant or lhc defendant could bc mct. In em•ct 
thc eighth and ninth would he called upon to pay for the costs ol' thesc proceedings by way dirninutton of any distribution in their ,l'avour. This; does not appear to me 10 be '1 fair outcome and it "as suggestgd 'that the app•uoriate course in those circumstances would be to order (hut the costs ol' the claimant to be paid from the liquid Cunds and those ()t' the defending trustees should bo paid from the distributed fund. *I'his would seem to be desirabic from the perspective (it' the claimant and to meet the justice the case,
I now have to draw all these threads 'toggthcr in ,order to reach a conclusion as to the exercise or the power. It is regrettable that such a large figure (Or costs has been incurred and with thc benefit of hindsight it might have been appropriate at the OUtsct to embark upon a costs budgeting exorcise so as to cap recoverable costs. it docs not seem to tne appropriate, as was submitted by counsel thc defending trustees, that the costs should be directed to be paid frotn the liquid assets and this would just be "tough luck" in regard to the eighth and ninth defendants. It was always the casc on the basis of thc letters ('t* wishes in play that the lion-4 $ share the estate "ould be distributed to the first delZndant's t•amily and the eighth and ninth defendants had an expectation at best pi' 22 percent in accordance with thc original letter ot• wishes. I have already mentioned the disparity of treatment in percentage terms that arises cither by acceptance of the claimant's proposal or the detZnding trustee's proposal, It would not bc right in my view to distributc the remaining funds on thc basis of equality between the grandchildren given the interests of' the first defendant's children under the prior appointments and the likelihood that they will inhe:i'. further monies from their father. In my view particular v.cight must be given to the views of the independent professional trustec who has brought thc matter betöre the court and has been anxious to achievc an accommodation which opcratcs pragmatically and does not unravel the historic appointments. Il docs not seem to me. even it' it were practicable, that it would bc right to revoke the appointments in respect of these funds. In the events that have happened and in view of the accrual ol' significant costs there is no answer which will do pcrfcct justice as betwccn the parties. 'I'hc submissions
enta short
'Inade to tne on behalf of the cighth and ninth defendants are that the merall disparity in treatment is such that whilst upsetting the c.xisting arrangements, thc available liquid funds, including the M Fund, ought in all fairness be appointed to thc eighth 
und ninth defendants and I will make an order which that. I accept theretorc the argu:nenls of counsel [Or the eighth and ninth defendants in this reepect, In tny view this is the justice of the ease requires in exercise of the discrction of' the trustees,
In the circumstances I would ask that counsel agree an appropriate draft minute [or Iny approval. If there arc any consequential matters then arrangements will have to be made beibre a firther hearing to deal with those, but the question of eosts should not arise in so far as is dealt with in Ibis judgment. Arrangements for an appointment ror the formal hnnding down of this judgment should bc made with thc court tnanager at Chancery Chambers, Mr (.Jddin, and provided that no hearing for conscqueu(ial matters is needed. it ought Lo be possible for that to be done by another Master. given my retircmcnt from office.