It therefore follows, in our view, that the Act clearly envisages trustees who remain out of the British Islands for more than twelve months as being fit and proper persons to act as trustees because the provision is not that the remaining trustees must replace such persons but the remaining trustees may replace such persons. Faced with the obvious answer to his first argument, that being out of the British Islands for more than twelve months, does not automatically render a trustee unfit to perform his duties, Mr Conti then suggested that section 38 should be interpreted so as to insert the word "properly" after the word "perform" so as to read, "at least two individuals to act as trustees to perform properly the trust".

This begs the question; assuming the insertion of the word 'properly' though we are inclined to think that such a word would add nothing to the section because the section probably means that already, the real issue that then arises is what renders somebody unfit to perform the trust or what renders him not being capable of performing the trust properly?

Plainly, by simply being outside the British Islands for more than twelve months will not do, because under section 35 it is clear that such a person may continue as a trustee. It therefore seems to us that the attempt by Mr Conti to add words to the clear words of section 38 simply will not do.

Questions arose during argument as to what might be the position if a trustee desiring to retire with the blessing of the remaining trustees was doing so because he felt that the remaining trustees were not able properly to perform the trust. That is an interesting question; we do not need at the moment to provide an answer. All we are concerned with is whether Mr Moore himself retired validly pursuant to section 38. We can see no conceivable argument to suggest that his retirement was invalid and consequently this appeal fails.

Signed by B.A. Hytner, Q.C. 15.2.97