A. Introduction
These submissions are made on behalf of the first and second appellants, who are the grandchildren of the deceased and members of the discretionary class.
B. The trustee's position
The trustee's case is that a discretion which has not been exercised produces no decision, and that in the absence of a decision there is nothing the court can review. That proposition is stated at its highest in paragraph 14 of the respondent's skeleton.
We say the proposition proves too much. On the trustee's analysis, a trustee who deliberated annually for thirty years and distributed nothing would be beyond review throughout, provided only that it never wrote down a refusal.
C. The relevant authority
The court is invited to prefer the reasoning in Rowley v. Ash [2019] 1 WLR 44 at 61, where the distinction between the act of deliberating and the act of declining is drawn but not developed.