PAUL Y CONSTRUCTION CO. LTD. v. THE ATTORNEY GENERAL OF HONG KONG

HEADNOTE

Construction contract - Whether set-off arising under separate contract can be relied upon - Whether two contracts sufficiently connected. Crown proceedings - Whether Attorney General should be given leave under O. 77 r. 6 to plead set-off Interim payments - Whether need, hardship or prejudice are a prerequisite under O. 29 r. 12

Construction List No. 2 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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J U D G M E N T

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1. In this action, the plaintiffs claim against the Attorney General the sum of $2,424,166.00 being a certified sum said to be due and owing in relation to a contract entered into between the parties on the 27th May 1985 for the decking of a nullah in Tsuen Wan.

2. This seemingly simple and straightforward claim has thrown up some odd points of which it is as well for the profession to be aware.

3. Order 77 rule 7 of the Rules of the Supreme Court provides that:

"(1) No application against the Crown shall be made under Order 14 rule 1 or Order 86 rule 1 in any proceedings against the Crown nor under Order 14 rule 5 in any proceedings by the Crown."

4. Although the plaintiffs initially applied for summary judgment under Order 14, they were soon alerted to this rule. and applied instead for an interim payment under Order 29 rule 10.

5. The Attorney General accepts that the sum of $2,424,166.00 has been certified and he has no quarrel with that sum as a sum. However, he opposes the application for an interim payment on two quite separate grounds. Firstly, he contends that he has a valid set-off which he can plead. This set-off is in the sum of $3,888,636.00 which, it is said, arises under a quite separate contract entered into between the same parties on the 15th December 1981 and which relates to the construction of a by-pass in Tsuen Wan. By virtue of this alleged set-off, the Attorney General submits that the plaintiffs cannot bring themselves within Order 29 rule 11. The second basis of opposition depends on the proposition that an order for interim payments can only be made where the applicant can show need or hardship.

6. The plaintiffs seek to meet the Attorney General's opposition in three ways.

7. Firstly, they ask me to refuse the Attorney General's application for leave to plead the set-off.

8. Secondly, they contend that there is insufficient connection between the two contracts to justify the Attorney General being permitted to rely upon the other contract as a set-off.

9. Thirdly, they contend that the claim of $3,888,636.00 is hotly disputed and, in fact, they claim to be entitled to some $9m on the bypass contract.

10. It may be of surprise to practitioners, as it was to me, that by reason of the provision of Order 77 rule 6(2), the Attorney General cannot plead a counterclaim or set-off without leave of the court.

11. This rule reads as follows:

    "Counterclaim and set-off (O.77, r.6)

6. (1) Notwithstanding order 15, rule 2, and order 18, rules 17 and 18, a person may not in any proceedings by the Crown make any counterclaim or plead a set-off if the proceedings are for the recovery of, or the counterclaim or set-off arises out of a right or claim to repayment in respect of, any taxes, duties or penalties.

(2) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and 18, no counterclaim may be made, or set-off pleaded, without the leave of the Court, by the Crown in proceedings against the Crown, or by any person in proceedings by the Crown -

(a) if the Crown is sued or sues in the name of a government department and the subject-matter of the counterclaim or set-off does not relate to that department; or

(b) if the Crown is sued or sues in the name of the Attorney General.

(3) Any application for leave under this rule must be made by summons."

12. The statutory underpinning for this rule is section 30(2)(g) of the Crown Proceedings Ordinance Cap. 300. The English equivalent is section 35(2) of the crown Proceedings Act 1947. Order 77 rule 6 in Hong Kong is identical to the English equivalent

13. There appears to be no decided case as to the approach the court should take in considering the exercise of its seemingly unfettered discretion under this rule.

14. The rationale behind this rule would seem to be based upon the fact that the Attorney General can be sued in one capacity, but may seek to set-off or counterclaim in another. For instance, A could sue the Attorney General in respect of.medical negligence. This would, effectively, be an action against the Department of Medical and Health.The Attorney General could seek to set-off against any sums found to be due to A in the medical negligence action a sum said to be owed by A to another government department, for instance the Building Ordinance Office, in respect of the cost of work carried out by that office for which A is liable under that Ordinance. It is to keep an eye on situations such as this, that. the leave of the court is required.

15. In this case there is no doubt that the government department which the Attorney General represents is the same in respect of both contracts. Prima facie, therefore, it would seem proper to permit the Attorney General to plead the set-off, provided that I am satisfied that it. is a proper set-off to plead as a matter of law. I would have no hesitation in granting leave if it was a set-off in relation to the very contract in dispute, but as it is not, I must look at the situation very carefully and see whether the set-off sought to be made is a proper one to be made and if it is not, I should refuse leave to bring it, for to do otherwise would entail me making an order which would have no utility as it would not avail the Attorney General at all.

16. There is an additional factor in this case and that it is that Mr. Liu, who appeared for the Attorney General conceded that the counterclaim which he wished to bring had to be stayed in favour of arbitration as requested by the plaintiffs in their summons dated 19th February 1992.

17. In deciding how to exercise my discretion, I must look at all the circumstances of the case to see whether it is a proper case for the exercise of discretion and clearly the starting point should be Mr. Westbrook's submission for the plaintiffs that there is insufficient nexus between these two contracts to justify this set-off being relied upon.

Set-off

18. I start by noting that there is in neither of these contracts any provision which permits sums due under one contract to be set-off by sums allegedly due under another. A more recent version of the government's form of contract used in construction cases does now permit this to be done.

19. I note that in this contract, the subject matter of this action, there is no express term which excludes the right of set-off. (see Modern Engineering v. Gilbert Ash [1974] A.C. 689.)

20. When, therefore, is it permissible for a defendant to oppose an application under Order 14 or Order 29 by relying upon a set-off which arises from a quite separate contract between the parties, in this case one entered into four years earlier? A number of cases have grappled with this problem.

21. In Anglian Building Products Ltd v. W&C French (Construction) Ltd (1972) 16 BLR 1, Anglian supplied and delivered pre-stressed concrete beams to French for use in the construction of bridges being built over the M3, M4 and M6 motorways in England. Anglian obtained judgment in respect of the M4 and M6 beams. French sought a stay of execution on the ground that they had a set-off in respect of £600,000.00 relating to the.M3 beams. The judge refused a stay of execution and he was upheld by the Court of Appeal. Lord Denning said:

" The question is whether the counterclaim in respect of the M3 can also be used as a ground for staying the action in respect of the M4 and M6 goods. The judge has said No; he says it is a matter which should be fought out in the M3 litigation. It should not be used to stay the judgment or the execution of the judgment in the M4 and M6 action. And now French appeal to this Court.

This matter of a stay is primarily for the discretion of the judge. I must say that I see nothing wrong in the way he has exercised his discretion. There is no doubt as to the solvency of Anglian Building Products Ltd. They are a subsidiary of Ready Mixed Concrete. If there are any damages payable on any cross claim, Ready Mixed Concrete will see that they are paid. So that there is no question that French will get their money if they are right in their counterclaim. In those circumstances I do not see why this counterclaim on the M3 should be used to hold up payment for the work on the M4 and M6, for which, as I have said, French have actually had the money from the employers; they have actually been paid for these very units which have been delivered. I see no reason for interfering with the judge's discretion and I would dismiss the appeal."

22. It is to be noted that this was a case where a stay of execution was being sought.

23. In A.B. Construction v. Flaherty Brothers Ltd (1978) 16 BLR 8, A.B. agreed to carry out works for Flaherty at site A. After the work was completed, they carried out further works at site B for Flaherty. A.B. commenced proceedings for work done at site A. A consent judgment was entered into. The District Registrar granted a stay of execution of the judgment pending trial of Flaherty's counterclaim relating to site B, since Flaherty alleged that their claim in respect of the site B works would result in a sum greater than the £12,000.00 due to A.B. On appeal the judge removed the stay and Flaherty appealed. The appeal was dismissed. Again, it will be seen that the court there was only considering the question of, whether or not, a stay of execution should be granted and at page 11 of the judgment, Cumming-Bruce LJ said:

"... I find it unnecessary to determine as a question of law and procedure whether the matters relied upon in the defence and counterclaim would have constituted an equitable set-off, had they been so relied upon. They were not so relied upon, and I am content'to leave it at that.

24. He went on then to consider the appropriate principle to be applied to the situation before the court and.concluded that the test was as follows:

"Is the connection between the dealings of the plaintiffs and the defendants on (site A) so connected with their dealings on (site B) as to make it fair and sensible to require the plaintiffs to be kept out of their money on the judgment which they have obtained for £12,000.00 pending the determination of the issues in dispute in relation to (site B)."

25. The learned Lord Justice then went on to summarize the authorities in the following manner:

"... there is clear authority that where the issue on a defence and counterclaim arises out of the same transaction, the same contract, as the issues on the claim, it, is fair and reasonable, where judgment has been obtained on the claim, for the Court to impose a stay of execution pending the trial of the defence and counterclaim. That is one end of the spectrum. At the other end of the spectrum, there are two obvious classes of claim upon which, after judgment, there will be no stay of execution pending trial of a counterclaim. One is a judgment on a bill of exchange ... and, secondly, in the case of a claim for rent, a judgment on a claim for rent will not usually if at all, be made subject to a stay of execution to await the trial of other issues between plaintiff and defendant .... Here are two parties who first entered into contract A, which was performed then they entered into contract B, which was partly performed and which gave rise to the issues pleaded in the counterclaim. Is the history that the same parties entered successively into these two contracts, performed the first and partly performed the second, such as to give rise to the sort of close connection between the two transactions ... as to make it fair and reasonable to keep the plaintiffs out of their money on a judgment which they have obtained on contract A because, when the trial of issues on contract B takes place, provided that the defendants therein succeed they may obtain judgment for a sum which will either be greater... than the sum for which judgment has been obtained,.or at any rate is likely to diminish the money remaining in the hands of the plaintiffs, or entitlement to the plaintiffs, to a very substantial degree?

For myself, I.doubt that any broad principle or test can be sensibly suggested which is likely to apply to a large number of cases in the wide middle area which I have attempted to describe. Every case must be looked at on its own facts. Considering the facts as they have appeared in the affidavits which have been put in evidence and read in this court, I cannot see that there is such.a connection between the contract, at (site A) and the contract at (site B) as to make it just and equitable for the plaintiffs to be kept out, of the money for which they have obtained judgment pending the resolution by the Court or by negotiation of the dispute arising on the (B) contract."

26. In British Anzani (Felixstowe) Ltd v. International Marine Management (UK) Ltd (1979) 2 AER 1063, a preliminary issue was ordered to be tried as to whether the defendants were entitled in law or in equity to deduct or set-off against their admitted liability for rent and mesne profits, the damages claimed against the plaintiffs for breach of an agreement and the lease. Forbes J. held that the defendants were entitled to rely upon the doctrine of equitable set-off, but in order to rely upon the doctrine they had to show that their counterclaim was so directly or closely connected with the plaintiffs' claim as to go to the foundation of that claim,and they were unable to do that either from the lease itself or directly from the relationship of landlord and tenant created by the lease because the plaintiffs had not breached any covenant in the lease. The learned judge went on to state that it was not essential for the application of the doctrine for the claim and counterclaim to arise out of the same contract: it was sufficient if the defendant's counterclaim arose out of a transaction so closely connected with the lease that it would be manifestly unjust not to allow a set-off. He held that the defendants had established a sufficiently close connection between the transactions for them to raise their counterclaim as a set-off against the plaintiffs' claim.

27. In coming to his decision in the British Anzani, case, Forbes J. relied upon certain observations in the Court of Appeal decision of Federal Commerce and Navigation Ltd v. Molena Alpha Inc. (1978) 3 AER 1066, where the court held, inter alia, "in time charterparty cases, the equitable right to deduct should be limited to instances when the owner wrongly deprives the charterer of the use of the vessel or prejudices him in the use of it. It should not be extended to other breaches or default of the ship-owners, such as damage to cargo arising from the negligence of the crew. I did not consider it helpful to go into this case in any more detail, nor do I think it necessary to refer to the other case mentioned, Sim v. Rotherham Metropolitan Borough Council (1986) 3 AER 387.

28. The final case on this subject is Tubeworkers Ltd v. Tilbury Construction Ltd (1985) 30 BLR 67. This case is of particular interest because it does involve an arbitration point as does the case before me. The plaintiffs were sub-contractors to the defendants. The architect issued a certificate which included £54,728.00 in respect of the plaintiffs' works to which they became entitled. After that, the architect issued a certificate under clause 8(a) of the sub-contract and the defendants thereafter quantified their set-off and counterclaim in the sum of £97,069.00. The plaintiffs issued a writ for the amount certified. They applied for summary judgment under Order 14. The judge gave a judgment for the sum holding that the fact that the defendants had quantified their set-off or counterclaim before the issue of the writ did not provide a defence to the plaintiffs' claim. There was no appeal from this part of the judgment. The judge, however, stayed execution of the judgment pending prosecution of the defendants' counterclaim on the ground that it was a good,or arguable counterclaim. The plaintiffs appealed and the appeal. was allowed. The basis of the Court of Appeal decision was as follows:

(1) Since it was conceded that the counterclaim would have to go to arbitration the court had no jurisdiction to order a stay under Order 14 rule 3(2) because that applied only where there was going to be a trial of the counterclaim.

(2) The court did have jurisdiction under Order 47 rule 1(a) to order a stay of a judgment for a sum certified and due under clause 11(b) of the sub-contract provided there were "special circumstances" which made it "inexpedient" to do so.

(3) The issue in the present case was to be determined by reference to the sub-contract, the essential feature of which was that in the circumstances which occurred.the plaintiffs were not only entitled to summary judgment but on 4th October 1983 they became entitled to immediate payment of the sums certified without any relevant deduction. The order staying judgment had the effect of setting aside the terms of clause 11 of the sub-contract and had in effect replaced the contractual machinery by the process of the courts; this was prima facie wrong."

29. I was also referred to an article entitled "Set-off in the' construction industry" which appears in the Construction Law Journal and is, in effect, a brief synopsis of a detailed booklet entitled "Set-off in the construction industry" written by lawyers with Neil F. Jones & Co. and published by the Chartered Institute of Building. At page 86, under the heading "claims between the same parties under different contracts", one finds the following general^, proposition;

"If the same parties have two different contracts, it is exceptional for a party to be allowed to use a claim under one contract as a set-off in response to a claim made against him on the other. It will generally amount to a counterclaim only. However, if the transactions are so closely and directly related that the fact of there being more than one contract is almost accidental, then a set-off may be used by way of defence.

Generally, however, the set-off will be as a pure counterclaim and not as a defence.

30. The article goes on to deal with a number of cases to which I have made reference.

31. Mr. Liu who appeared on behalf of the Attorney General submitted that the following factors showed the necessary close connection between these two contracts. Firstly, he submitted that they were between the same parties. This is clearly irrelevant because if they were not the same parties I would not be considering set-off. Secondly, he said that the Attorney General was being sued in respect of the same department of government, and indeed that is accepted. If this were not so, the application for leave to plead the set-off would be more likely to be refused. The important point is not so much the identity of parties but the relationship between the contracts. Thirdly, he relies upon the fact that both contracts related to roads. This seems to me an irrelevant point. One related to the decking of a nullah, the other was the building of a bypass. It is true-that they were both connected with Tsuen Wan, but I was told that a considerable amount of work of this nature was carried out in Tsuen Wan and not all by the plaintiffs. This seems to me to be an irrelevant factor. Finally, Mr. Liu relied upon the fact that both certificates were issued at or around the same time

32. Mr. Westbrook poured scorn on the argument based upon the coincidence of time. He submitted that this was really not a coincidence at all and suggested that this was a situation engineered by the appropriate government department in order to justify a claim for set-off being made in this action. It does not appear to me to be at all relevant that the two certificates relating to these two contracts were issued at or about the same time.

33. The contracts were for completely different works. They were separated by some four years in time. There is a substantial dispute relating to the second contract. There is no dispute relating to the first contract. What is more, the Attorney General has conceded that his counterclaim which he has in relation to the $9m certificate has to be stayed in favour of arbitration because^. there was an arbitration clause in the relevant contract. That leaves the following most unsatisfactory position. It is argued that the set-off can be raised in this action to extinguish the plaintiffs' claim. Clearly, evidence will have.to be led to support this and factual findings and possibly issues of law will have to be made and decided in relation to the set-off. That would all be in court if I permit the set-off to be pleaded. On the other hand, in the arbitration which the Attorney General now concedes must take place, he will be relying upon his counterclaim, and there is a possibility that the arbitrator might come to a different decision on the facts or law to that which the court might arrive at in this action. This would be a most unfortunate state of affairs.

34. In the light of all the matters to which I have made reference and in the light of the authorities above cited, it seems to me very clear that the Attorney General is not entitled to 'rely upon this set-off which arises under a completely separate contract. I am not satisfied that there are sufficient connecting factors between the two contracts so as to make it fair or just that the claim in respect of the other contract can be put up in opposition to the plaintiffs' claim for interim payments.

35. As I have decided that the set-off would not, as a matter of law, avail the Attorney General, it seems to me proper to refuse him leave to plead this set-off because to do otherwise would to be to permit him to make an allegation in his pleading which would not, in the circumstances of the case, assist him in the slightest.

36. Even if I had granted him leave to plead the set-off on the simple basis that he was representing the same government department and that is all that the rule required me to take into account, I would still have gone on to consider the question of interim payments and would not have taken into account the set-off which, as I have said, I am satisfied is not a proper one to be relied upon on the facts of this case.

Application for Interim Payment

37. Order 29 rule 10 enables the plaintiff to apply to the court for an order requiring the defendant to make an interim payment. Order 29 rule 11. deals with interim payments in respect of damages. Order 29 rule 12 deals with payment in respect of sums other than damages and provides as follows:

"12. If, on the hearing of an application under rule 10, the court is satisfied-

(a) ... or

(b) ... or

(c) that, if the action proceeded to trial, the plaintiff would obtain judgment against the defendant for a substantial sum of money apart from any damages or costs,

the court may, if  it thinks fit, and without prejudice to any contentions of the parties as to the nature or character of the sum to be paid by the defendant, order the defendant to make an interim payment of such amount as it thinks just, after taking into account any set-off, cross-claim or counterclaim on which the defendant may be entitled to rely."

38. The position in this case is as follows. There is no defence to the plaintiffs' claim. They cannot proceed by way of order 14 for the reason I have mentioned. There is no set-off, cross-claim or counterclaim upon which the defendant is entitled to rely. It would seem, therefore, that this would be a most suitable case for an order that the Attorney General make an interim payment to the plaintiffs in the sum of the certificate. However, Mr. Liu, on behalf of the Attorney General, submits that I cannot order an interim payment unless I am satisfied that the plaintiffs would suffer hardship or prejudice if the order was not made. Clearly, no specific hardship or prejudice is relied upon by the plaintiffs other than the fact that it would be a hardship for them not to have the money which they say is due and owing to them. However, Mr. Liu says that there are a number of decisions, not all of them possible to reconcile, which indicate that an applicant for an interim payment has to show need, hardship or prejudice.

39. In Brian Breeze v. R. McKennon (1985) 32 BLR 41,Croom-Johnson L.J. added a gloss to Order 29 rule 11(l)(c) which enables the court to make an interim payment in respect of damages if the court is satisfied "that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent.." At page 50, Croom-Johnson L.J.:

"The court cannot be "satisfied" under rule 11(1)(c) without evidence. This should be provided by the affidavit under rule 10(3)(a) setting out the grounds of the application. The grounds of the application cover both the need for the plaintiff to have the money and also the reason why the respondent to the application is the proper person to provide it."

40. This gloss is criticized by the learned editor of the Building Law Reports at page 43.

41. In Shearson Lehman Brothers Inc. v. Maclaine, Watson & Co. Ltd (1987) 1 WLR 480, Lloyd L.J. dealing with an argument advanced by counsel that the provisions of Order 29 rules 9-16 "were only intended to apply in very special circumstances where the plaintiff can show real hardship", rejected such submission. At page 492 in the same case, Nicholls L.J. said this:

"Although the power given by each rule is a separate power, the underlying purpose of the two rules is the same: mitigate hardship or prejudice to a defendant which may exist during the period from the commencement of an action to the trial. Further, the underlying task of the court under each rule is the same: ordering an interim payment of such amount as is just, having regard to all the circumstances. Accordingly, when construing each rule, the court should be slow to adopt a construction which would, in a significant respect, defeat the evident purpose of both rules forming, as they do, part of a single code."

42. Sir John Megaw delivered a short judgment which did not deal with this point.

43. In Ricci Burns Ltd v. Toole (1989) 1 WLR 993, Ralph Gibson L.J. said at page 1002:

"The power contained in R.S.C., Ord.29, r.11 (payment in respect of damages) and rule 12 (payment in respect of sums other than damages) are separate but the underlying purpose of each rule, namely the mitigation of hardship or prejudice to a plaintiff which may exist during the period from the commencement of the action until trial, is the same and would be defeated if the rules were treated as being mutually exclusive."

Butler-Sloss L.J. agreed with Ralph Gibson L.J.

44. In Yeung Sek-Sung v. Cheung For-Ming (1991) 1 HKLR Jones J. followed Ricci Burns and held that "the object. of an application for an interim payment is to alleviate hardship or prejudice to the plaintiff during the period from the institution of the proceedings up to the date of trial". That, was a case where the plaintiff claimed damages for personal injuries and consequential loss.

45. The final case to which I wish to make reference is Schott Kem Ltd v. Bentley (1991) 1 QB 61. The court consisted of Neill and Glidewell, L.JJ. and the judgment of the court was given by Neill L.J. He started considering interim payments at page 69 of his judgment. At page 71, he noted that Order 29 had been considered in a number of cases and referred to most of the cases to which I have already made reference. At page 73, he considered the submission that it is for the plaintiff to satisfy the court of his need for an interim payment or that he will suffer prejudice if he did not obtain one. In the case before him, no evidence of need or prejudice had been produced. At page 74, having considered some of the observations in the cases above-mentioned, Neill L.J. said this:

" As I understand the present practice, it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payments in such cases may lead to difficulties if an order for repayment is subsequently made under Ord. 29 r. 17.

    I am not satisfied, however, that there is any restriction implicit in the rules which prevents an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words "if it thinks fit" both rules 11 and 12 confer a discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be "of such amount as [the court] thinks just," with the additional limitation in the case of damages that the amount is not to exceed "a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff" after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payments other than those set out in Order 29 itself.

    I would therefore reject the argument that it is necessary for Schott Kem to produce evidence of need or prejudice."

46. I respectfully agree with Neill L.J. I am not able to accept the contrary observations made in the other cases. No decision of the Hong Kong Court of Appeal has been cited to me which requires me to follow the contrary view. The rationale behind the "need rule" in personal injury cases is self-evident. To extend it to all cases is to detract from the wide words used, namely, "the court may, if it thinks fit," make an order for interim payment. In the exercise of that discretion, the judge will take into account a number of varying factors, and in personal injury cases will have regard to the special features that are applicable to that sort of litigation.

47. Having concluded that the set-off alleged is insufficiently connected with this undisputed claim and having come to the conclusion that, in all the circumstances, it would be wrong to exercise my discretion in favour of allowing the set-off to be pleaded, I have no doubt that it is appropriate to award the plaintiffs an interim payment in the sum of $2,424,166.00. I appreciate that this is somewhat of an unreal situation because what is really required is judgment under Order 14, but that I am not permitted by the rules to do. In the light of this judgment, it may be decided that the defence of this action is a waste of time and money. If this is not the view taken then steps should be taken to set this action down and have it heard with the minimum of delay and expense. I wish to make it clear that even had I been persuaded that this was a proper case to grant the Attorney General leave to plead the set-off, I would still have concluded that such set-off did not prevent the court from making an interim payment order for the reasons which I have endeavoured to state.

48. I, therefore, make the following orders;

(1) I refuse the Attorney General leave to plead set-off.

(2) By consent, I stay the Attorney General's proposed counterclaim under section 6 of the Arbitration Ordinance Cap. 431.

(3) I make an order that the Attorney General do make an interim payment to the plaintiffs in the sum of $2,424,166.00.

49. I propose to make a costs order nisi against the Attorney General. in respect of all the summonses before me.

50. I will hear the parties at a later date on any consequential orders that may be sought.