| Return to Contents Case Summaries Civil Procedure Costs L’Eau des Iles (Jersey) Limited v A.E. Smith & Sons Limited Royal Ct: (Crill, Commissioner and Jurats Myles and Bullen) August 6th, 1999 unreported. M.J. Thompson for the plaintiff; P.C. Sinel for the defendant. The plaintiff sought to set aside an order of the Greffier Substitute of March 4th, 1999, requiring the beneficial owner of the plaintiff to provide security for costs in the form of cash and a guarantee. Held, granting the plaintiff’s application, -
that r Substitute had correctly stated the principles applicable on a security for costs application by reference to the English Court of Appeal case of Keary Developments Ltd. v Tarmac Constructions Ltd; [1] -
that the Greffier Substitute had nevertheless reached the wrong conclusions on the evidence as the Court felt that the plaintiff’s claim would be stifled if the application for security for costs were granted; and -
that in considering an application for security for costs the Court ought to have particular regard to the consequences for a beneficial owner of a company if an order for security is made. Payne v Pirunico Trustees (Jersey) Limited and others Royal Ct: (Bailhache, Bailiff and Jurats Le Ruez and Querée) May 27th, 1999 unreported. M.L. Preston for the plaintiff and the party convened; C. Deacon for the first and second defendants; J.A. Clyde-Smith for the third and fourth defendants. This case raised the issue as to whether a guardian ad litem appointed under Rule 4/3 of the Royal Court Rules 1992 to bring proceedings on behalf of a minor can be held personally liable for costs awarded against him (with a right of indemnity out of the assets of the minor if any), as is the position under English law, or whether he can only be held personally liable if he has mis-conducted himself, as is the position of a tuteur under Jersey law. In this case the guardian, having had his potential personal liability brought to his attention by the defendants, applied ex parte to the Judicial Greffier and obtained an order appointing the minor’s (impecunious) father as guardian in his place. Held, -
that in making his ex parte application the guardian had not made full and fair disclosure to the Judicial Greffier of all the relevant facts known to him (including, inter alia, the impecuniousity of the father); -
that the appointment of the minor’s father should be set aside, and the original guardian reinstated. Editor’s Note: The Court did not however directly address the issue of a guardian’s potential personal liability for costs, and this therefore remains unresolved. Conflicts Of Law Gheewala v Compendium Trust Company Limited & others CA: (Carlisle, Southwell and Goldring JJA) July 14th, 1999 unreported. W.J. Bailhache for the appellant; M.J. Thompson for the second, eighth, ninth and tenth respondents. In his Order of Justice the plaintiff alleged that he and some of the defendants were or had been members of a Hindu Joint Family which owned property in sundry jurisdictions including Jersey, England and Kenya. The remaining personal defendants were joined as being interested in the estate of the plaintiff’s elder brother, in whose name or under whose control the plaintiff alleged many of the Joint Family assets were held. The first defendant was a Jersey registered company which the plaintiff alleged held Joint Family assets on constructive trust for the Joint Family. The action was in effect a partition claim by which the plaintiff claimed an account and delivery to him of his share of the Joint Family assets pursuant in the alternative to a structured formula agreed many years previously, or to Hindu Law. Orders for service out of the jurisdiction on the second to tenth defendants were made and were not challenged. On the return date the action was placed on the Pending List. Subsequently the second and eighth defendants issued a summons to stay the whole action on the grounds of forum non conveniens; a similar summons was issued by the fourth and sixth defendants but was not proceeded with. Of the personal parties to the litigation (including the plaintiff) all were domiciled in Kenya; five were resident in the United Kingdom and five were resident in Kenya. The Royal Court was advised:- -
that a compromise had been reached between the plaintiff and the third defendant and that it would be requested to make a Tomlin order; -
that the first defendant took a neutral stance; -
that the fourth and sixth defendants rested on the wisdom of the Court; -
that the seventh, ninth and tenth defendants supported the application without in fact issuing a summons of their own. The fifth defendant issued no summons and made no submissions. No party argued for a stay in favour of the English jurisdiction. The Royal Court found, contrary to the plaintiff’s submissions, that the action might be tried more suitably in Kenya because the issues had a closer connection with that country than with Jersey, and accordingly it granted a stay, rejecting further assertions by the plaintiff that for personal reasons he was not amenable to the Kenyan jurisdiction and that there were defects in the administration of justice in Kenya, particularly related to delays and alleged corruption. The plaintiff appealed. Held, allowing the appeal, -
that the jurisdiction to stay an action in Jersey so that the dispute is resolved in another clearly and distinctly more appropriate jurisdiction is one which is exercised whenever it is necessary to prevent injustice; -
that the burden of proof lay on the applicant to show that there was another available jurisdiction which was clearly and distinctly more appropriate; -
that even if the Court is satisfied that there is a clearly and more distinctly appropriate available forum, no stay will be granted if the plaintiff persuades the Court that justice so requires; -
that it is essential in a multi-party action for the precise position of each party to be clearly ascertained by the Court; -
that in this case the Royal Court did not fully consider the separate position of each defendant. Furthermore, no consideration was given to whether the parties could be made parties to an action in Kenya or whether as a condition of the stay in Jersey they should be required to undertake to submit to the jurisdiction of the Kenyan Courts. In the premises there was doubt whether the plaintiff could successfully make all the defendants parties to an action in Kenya; -
that the applicants had not for a number of factual reasons established that Kenya was clearly and distinctly a more appropriate forum than Jersey and had not therefore discharged the burden of proof. Indeed the Court of Appeal considered on balance that the Jersey Court was the more appropriate forum; -
that in the premises it was unnecessary to consider the second stage, i.e., the personal obstacles and the alleged defects in the administration of justice in Kenya. Ashbourne Marketing Ltd v Mosca and another Royal Ct: (Hamon, Deputy Bailiff and Jurats Myles and Herbert) April 22nd, 1999 unreported. A.D. Hoy for the plaintiff; M.P.G. Lewis for the first and second defendants. The plaintiff had obtained leave for service out of the jurisdiction and at first instance had obtained an order for substituted service on Jersey lawyers. The Court of Appeal had stayed the order for substituted service which had enabled the defendants to commence an action in Maine and thereby claim that their action came first in time. The defendants applied to stay the Jersey proceedings on the grounds of forum non conveniens. The Court had regard to a number of factors; -
the degree of advancement of the proceedings in Maine. The defendants to the Jersey proceedings had started two actions in Maine. Answers had been filed in relation to both of them and the defendants to these actions had pending a separate action for their dismissal, which might be subject to an appeal in the Supreme Court; -
the American claim went far beyond the limited claims as contained in the Jersey proceedings, but shared the same underlying facts; -
the principal witnesses at trial for the American claim involved persons based in Jersey, Angola and USA; -
the main substance of the claim had no real connection with Jersey; -
the American courts had a tried and sophisticated procedure for dealing with cases assigned to a ‘complex track’, that dealt with numbers of parties and complex issues; -
the delay created by the stay for substituted service had not on the evidence allowed the defendants to steal a march on the plaintiffs, as was claimed, since pre-litigation letters were being exchanged between the parties in early 1998. -
the defendants had taken no steps in the Jersey proceedings save to protest the jurisdiction; Held, applyiliada Mme Corporation v ulex Ltd [2] as approved in Wright v Rockway Ltd [3] and distinguishing The Abidin Daver [4] , the application for stay on grounds of ‘forum non conveniens’ would be granted. The American jurisdiction of Maine was considered to be the most appropriate and natural forum. Courts Representation of the Bâtonnier re an advocate Royal Ct: (Harman, Commissioner) July 1st 1999, unreported. R.J. Michel, Bâtonnier; N.M. Santos Costa, Crown Advocate, for the Attorney General; D.E. Le Cornu for the advocate. The advocate had sworn an affidavit for use in proceedings of the US District Court which was highly critical of the administration of justice in Jersey and of the conduct of certain judges and of the Attorney General. A complaint was made by a member of the Bar to the Bâtonnier alleging that the advocate was guilty of professional misconduct, and that complaint was referred by the Bâtonnier to the Royal Court. The advocate objected to the jurats forming part of the Court sitting as a disciplinary tribunal on the grounds that they would be judges in their own cause and that justice should not only be done but be seen to be done. He also objected to a Crown Advocate representing the Attorney General as amicus curiae on similar grounds. Held, applying the test sen R v Gough [5], and dismissing the objections, that there were no grounds for concluding that there was a real danger of bias on the part of any jurat or of the Crown Advocate representing the Attorney General. Criminal Procedure Att. Gen. v Travis Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and Georgelin) May 28th, 1999 unreported. S.C. Nicolle, Q.C., Solicitor General, for the Crown; S.E. Fitz for the accused. The accused appealed against a decision of the magistrate who had indicated that he would be prepared to grant bail in the sum of £100,000 in respect of serious charges alleging, inter alia, conspiring to import drugs valued at over £400,000. The accused was effectively without means but his father-in-law possessed substantial assets. Held, allowing the appeal, that the magistrate had erred in taking into account the means of the father-in-law who had not agreed to stand surety; the case was remitted to the magistrate with a direction to fix the amount of bail within the reach of the accused taking account not only of his own resources but also those upon which he was reasonably able to draw. B ail Stevenson v Att.Gen. CA: (Carlisle, Southwell and Beloff JJA) May 10th, 1999 unreported. S.A. Pearmain for the applicant; T.J. Le Cocq for the Crown. Having been refused bail by the Royal Court, the applicant applied to the Court of Appeal for bail pending the hearing of his application for leave to appeal against his conviction and sentence for robbery. His application was made on the ground that the Court of Appeal had jurisdiction to grant bail either on appeal from the Royal Court’s refusal to admit the applicant to bail or on the basis of an original jurisdiction to grant bail to an applicant pursuing an appeal before it. The applicant also maintained that the Royal Court had erred in identifying the correct principles for the grant of bail and applying them in the applicant’s case. In addition the applicant prayed in aid the European Convention on Human Rights as supporting a right to bail until his guilt was determined on appeal. Held, dismissing the application, -
that the Court of Appeal did not have either appellate or original jurisdiction to grant bail. Article 35 (2) of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law") expressly placed the jurisdiction to grant bail to an appellant in the hands of the Royal Court (in contradistinction to the statutory position in Guernsey which reserved that jurisdiction to the Court of Appeal) and the general powers set out in Article 28 of the 1961 Law did not extend the Court’s statutory jurisdiction, but merely gave the Court power to determine matters arising within that statutory jurisdiction; -
that the principles to be applied by the Royal Court in considering an application for bail pending appeal were those set out in R v Watton [6] to the effect that bail would only be granted where it appeared prima facie that the appeal was likely to be successful or where there was a risk that sentence would have been served before the appeal was heard. The true question was: were there exceptional circumstances which would drive the Court to the conclusion that justice could only be done by the granting of bail? -
that the E Convention was not part of Jersey law and its effect did not go further than that stated in Benest v Le Maistre [7] . Whilst the Convention did not deal with bail specifically, the judgment of the European Court in the case of Wemhoff [8] and tess wording of Article 6(2) of the Convention make it clear that the presumption of innocence does not survive for the benefit of an appellant after he has been convicted by a competent court. Nothing in the Convention suggests that the test to be applied should be other than set out in (2) above. C onduct Of Trial Shewan v Att. Gen. CA: (Nutting, Smith and Clark JJA) July 16th, 1999 unreported. N.F. Journeaux for the appellant; C.E. Whelan, Crown Advocate, for the Crown. The appellant and a co-accused were tried at Assize for affray and related offences. On the first morning of trial, in chambers and before the jury was empanelled, defence counsel reported that ‘Radio Jersey’ had earlier that morning included in its hourly bulletins reports that the trial was to commence that day. The reports had included the assertion that "some witnesses were too scared to come forward." Defence counsel expressed the fear of prejudice and asked that the panel of jurors be polled. He helped formulate the question: "Did you hear a broadcast about the trial on Radio Jersey this morning?" A jury was empanelled from those who replied in the negative. Later that day, after the jury was sworn, it came to the Court’s notice that the offending broadcast had not been on Radio Jersey but on a commercial radio channel of comparable audience ratings in Jersey (103 FM). The judge mentioned this to the jury "to put the record straight" and warned them "not to take any notice of what appears in the press." He did not ask if any of the jury had heard a report on 103 FM. There was no application at any stage to discharge the jury. At the conclusion of the trial the appellant was convicted by unanimous verdict and the co-accused was acquitted by majority verdict. Following a subsequent investigation, the radio station 103 FM was warned by the Attorney General that it had committed a contempt of court but, in the extenuating circumstances which existed, would not be prosecuted. On appeal against his conviction, the appellant argued inter alia that the broadcasts on the morning of his trial may have caused him prejudice. Held, allowing the appeal, -
that the timing of the offending broadcasts was a crucial factor. They were so proximate to the trial that their potential mischief could not have been cured by even the strongest direction to the jury to disregard them; -
that the polling of the jury had been the minimum step necessary to safeguard the integrity of the trial. The fact that the question had been framed by reference to the ‘wrong’ radio station left open the possibility that the jurors may have heard the offending broadcasts, without realising that they were being called upon to declare that fact. Per curiam: The Court declined to place weight either upon the fact that there had been no application to discharge the jury or upon the fact that the co-accused had been acquitted on the evidence in the case. The Court ordered a retrial (the first to take place in Jersey) under the new power given at Art. 26(A) of the Court of Appeal (Jersey) Law, 1961, as amended. Powers Of Magistrate Forrest v Att. Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and de Veulle) February 22nd, 1999 unreported. S.A. Pearmain for the appellant; S. Sharpe, Crown Advocate, for the Attorney General. The appellant had complained to the police about an assault upon her by her husband who had pleaded guilty to the charge. The appellant had later sought to withdraw the complaint. At the Magistrate’s Court the appellant was called forward from the public gallery and admitted that she had been equally at fault for the argument which preceded the assault. The Magistrate thereupon bound over both the appellant and her husband to keep the peace for twelve months. Counsel for the appellant submitted that the Magistrate had no power to bind over a person not convicted of nor charged with an offence. Held, allowing the appeal, that the Magistrate did not have the powers available to Justices of the Peace in England under the 1361 Act to bind over all persons brought before them. Se ntence Knowles v Att. Gen. Royal Ct: (Bailhache, Bailiff and Jurats Gruchy, Potter, de Veulle, Le Brocq, Bullen and Le Breton) February 8th, 1999. A. Messervy for the applicant; S. Sharpe, Crown Advocate, for the Crown. The applicant pleaded guilty to a single count of grave and criminal assault. Sentencing was adjourned so that counsel for the prosecution and for the defence could agree the facts upon which the applicant was to be sentenced. The issue was not wholly resolved but the applicant was later sentenced by the Inferior Number to 2 years and 9 months’ imprisonment on the basis that whether or not there had been provocation could not be proved one way or the other. The victim could remember nothing and the matter was peculiar to the applicant’s own knowledge. On appeal the applicant argued that there was a dispute on the facts which should have been resolved either by a Newton hearing or by the sentencing court accepting the applicant’s version of events. The following passage was cited from Newton and the Reverse, in England and in Jersey (C.E. Whelan), with reference to one of the exceptions to the Newton rule; that is where the sentence will not be affected by the factual disputes: ‘Tases [9] together with ing [10] make the point that because sentence will not be affected, no hearing is necessary, but in passing sentence it is advisable for the Court expressly to indicate that it has accepted the accused’s version. As the sentence would be the same in either case, this course does not damage the public interest, while avoiding the accused being left with a sense of grievance." When passing sentence the Inferior Number did not expressly state that it was accepting the applicant’s version of events. Held, the requisite test was "whether that omission left the applicant with a justifiable sense of grievance". Whilst the court accepted that it was unlikely that sentence would have been affected by the facts relied upon by the applicant, "in order to avoid any possible lingering sense of grievance on the part of the applicant", the sentence was modified. The appeal was accordingly allowed and the Court substituted the sentence of 2 years and 9 months’ imprisonment for a sentence of 30 months’ imprisonment. Family Law Financial Provision Brownhill v Southern and another Royal Ct: (Bailhache, Bailiff and Jurats Myles and Le Breton) April 22nd, 1999 unreported. M.E. Whittaker for the petitioner and R.G.S. Fielding for the respondent. The Registrar, Family Division, referred to the Court pursuant to Rule 50(2) of the Matrimonial Causes (Jersey) Rules 1979 the issues of how the interests in contributory pension schemes of parties to a divorce should be valued, and whether and to what extent they should be taken into account in the settlement of ancillary matters. The parties both qualified as nurses at the same time; while the petitioner had continued to work part-time her career prospects had been curtailed because of child care and support for the respondent in his career moves. As a result their respective pension entitlements under the States of Jersey P.E.C.R. Scheme were different. Some provision had been made for the petitioner by way of insurance/pension plans and the parties agreed that these should be taken into account at current valuation. The petitioner contended that the P.E.C.R. pension provisions should also be taken into account on the balance sheet of assets, valued at cash equivalent transfer value with enhancement having regard to the ages of the parties; the respondent contended that the pensions should be excluded from the balance sheet as being no more than a contingent income stream; should maintenance continue to be paid by the respondent to the petitioner after retirement, then there would be an unfair double benefit to the petitioner. Held, -
that the contribution of a spouse (usually the wife) in minding the house and rearing children thus enabling the husband to build up greater financial security for the future than the wife should be taken into consideration. If the wife has contributed, albeit indirectly, to the creation of the pension entitlement then there is no reason why she should not derive some benefit from it in the event of divorce; -
that it is in the public interest to encourage ‘clean break’ financial settlements wherever possible; -
that a pension entitlement is an asset to which the Court should have regard in all cases. How it is treated in the context of settlement of ancillaries generally will be affected by all the other circumstances of each case; in the absence of legislation similar to that in England the options available are limited; -
that the valuation of a pension fund should generally be the cash equivalent transfer value of the benefits in the scheme at the date of the divorce. Dependent upon the length of the period between the date of the divorce and the normal retirement age, the value may require enhancement; -
that the valuation of a pension will usually be assisted by actuarial advice which should ideally be furnished on the joint instructions of both parties. The matter was remitted to the Registrar for adjudication on the above basis. Implied Undertaking Armco Inc & others v Donohue & others Royal Ct: (Hamon, Deputy Bailiff and Jurats Rumfitt and Bullen) March 31st, 1999 unreported. J.C. Martin for the plaintiffs; M. P. Lewis for the fifth and sixth defendants. The plaintiffs were a large corporate group based predominantly in the USA. They alleged, inter alia, breaches of fiduciary duty and fraud against the four individual defendants to the action, arising out of a secret agreement entered into by them prior to a management buy-out of a group of insurance companies belonging to certain of the plaintiffs. The fifth and sixth defendants were companies used by the plaintiffs and four individual defendants to facilitate the management buy-out. Substantive proceedings were commenced in New York with ancillary proceedings being commenced in several other jurisdictions to which assets had been traced, including Jersey. The Jersey action involved Mareva injunctions and disclosure orders. In the Jersey proceedings, the plaintiffs sought a relaxation of the implied undertaking not to use information obtained about the fifth and sixth defendants, as a result of the Jersey Mareva injunctions, for a collateral purpose. The reasons why the relaxation was sought were all connected to the New York proceedings:- -
the information was needed to assist in discovery in the New York action; -
the information was needed to assist the plaintiffs to trace assets into the hands of the defendants; and -
the information was needed to amend the plaintiffs’ complaint to particularise the fraud which was fundamental to the plaintiffs’ New York action. The fifth and sixth defendants argued, inter alia, that because discovery had been stayed, save in very limited circumstances, in the New York action pending an application to dismiss that action on the grounds of forum non conveniens, a relaxation of the implied undertaking would allow the plaintiffs to obtain further information in the USA which they had been prevented from doing because of the stay of discovery. The fifth party cited, which had actually provided the information in question, did not appear but wrote confirming its intention to rest à la sagesse de la cour. The Court applied the principles set out in Guinness v Market Acquisitions Cultants Limited. [11] Held, granting the application; -
that in the circumstances, there was no prejudice to the fifth and sixth defendants if the implied undertaking was relaxed. If the New York Court decided that New York was not the appropriate forum, and that the case should proceed in the High Court of England and Wales, the information could not be used by the plaintiffs without further leave of the court; and -
that the relaxation of the implied undertaking should be granted in the interests of justice to assist the New York Courts. Charities Re Insinger Trust (Guernsey) Limited CA of Guernsey: (Southwell, Bailhache & Smith JJA) June 10th, 1999 Guernsey unreported. Insinger Trust (Guernsey) Limited was the trustee of an irrevocable trust, charitable under Guernsey law, and established on October 27th, 1998. Apart from recognition by the Guernsey tax authorities as charitable, the only means for a trustee to establish the charitable status of a Guernsey trust was to ask the Guernsey courts so to determine. The trustee needed an official statement of the charitable status of the trust for certain purposes outside Guernsey, and therefore brought an action in the Guernsey Royal Court, seeking a declaration that the trust was in fact charitable. Notice of the application was given to HM Procureur (who did not in fact appear before the court, but by letter indicated his position). The Royal Court of Guernsey, even though recognising that the trust was charitable, held that it did not have the power to grant the declaration sought, and accordingly refused the application. The trustee appealed to the Court of Appeal of Guernsey. Held, -
Under Guernsey customary law, the Guernsey court had the power to decide whether a trust was a valid charitable trust or not, and if it was charitable, how it was to be administered as a charity, and any other question arising in relation to the charity. Under Guernsey law the courts could have made a declaration that a particular trust was a charitable trust, and that power had not been taken away by the Trusts (Guernsey) Law 1989 (see section 74(2)(b)). -
Under the Trusts (Guernsey) Law 1989, section 63(1)(a)(i), the Royal Court could make an order in respect of the execution, administration or enforcement of a trust, and this could include a declaration as to whether or not the trust was charitable on any preliminary question arising in relation to those matters; moreover under section 63(1)(b) the Royal Court could make a declaration as to the validity or enforceability of a trust, and again if a preliminary question arose as to whether or not a trust was charitable in relation to a case in which the validity was in question, then the court would have to decide the preliminary question and could if appropriate declare that it was charitable; similarly under section 11(2)(c), in considering whether a trust was created for a charitable purpose, the court could declare that the trust was charitable. Accordingly the Royal Court had statutory jurisdiction to make a declaration that a trust was charitable. -
The appeal would therefore be allowed, and the declaration made that the trust in question "is a validly constituted charitable trust under the law of the Island of Guernsey" and that the objects of the trust "are those of a non-commercial, non-profit organisation having the charitable purpose of the advancement of education and research in the fields of medicine, ecology and pharmaceutics". Per curiam: the trustee had correctly given notice to HM Procureur of the application, and of the appeal. Trusts N & N v Spread Trustees Company Limited & others Royal Ct: (Hamon, Deputy Bailiff, and Jurats Myles and Tibbo) March 25th, 1999. N.F. Journeaux for the representors; M.H.D. Taylor, W.J. Bailhache and J.C. Martin for the respondents. A non-resident accumulation and maintenance trust had been settled in Jersey in 1989, primarily to avoid UK capital gains tax. Although the trust had the appearance of a discretionary trust, the powers granted to the trustees were limited, and there was a requirement that trustees distribute assets upon each beneficiary reaching his or her 25th birthday. The beneficiaries of the trust were the settlors’ children. As a result of the introduction of the Finance Act 1998, the absolute vesting of trust capital in any of the beneficiaries would result in the settlors’ facing a substantial liability to capital gains tax. The settlors therefore applied to the Court under Artic3 of the Trusts (Jersey) Law 1984 for approval of a variation of the trust on behalf of minor beneficiaries. The variation proposed the resettlement of the trust property to a new and separate settlement. The Court stated that it could only approve a new arrangement if the purpose of the original trust would be maintained, and if it was for the benefit of the minor beneficiaries, who could not themselves consent. The Court considered and approved the wide meaning given to the word "arrangement" in the leading case of In re Osias Settlements. [12] One of the minor beneficiaries was 19 years’ old, an adult in both his country of domicile, Israel, and in the UK, but a minor under Jersey law. The Court found that, although it could consider his expressed views, he was to be treated as an "infant", as defined by the Trusts (Jersey) Law. The Court found that, if approved, the variation would reduce the beneficiaries’ entitlement by around 50%. However, the alternative would leave the settlors’ facing a substantial and unexpected capital gains tax burden. If the trust was not varied, there was a risk that the parents and children would be drawn into litigation if the parents as settlors sought an indemnity from the trust fund in respect of their tax liability. The Court found that, in the context of a close-knit family where the trust fund had been established for their benefit, the children had a moral obligation to their parents. In addition, the proposed new arrangement would bring a framework and flexibility more suited to a large trust fund, allowing the trust to generate further gains and offset any loss suffered by the beneficiaries. As a result of all these considerations, the Court approved the variation. |