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The judge refused to exercise his discretion under s.61 TA 1925 to allow MdR relief from the technical (non-negligent) breach of trust, having regard to their financial strength which included insurance.

Appealing the exercise of discretion is never easy unless irrelevant factors have been taken into account, or relevant factors have not been taken into account.

Query however the position for a small firm which would have had sufficient cover, but might never afford or obtain cover again. That would probably require expert insurance broking evidence.

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