THE BANK OF EAST ASIA LTD v. CHOW WING YEN ANNIE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

-----------------

-----------------

JUDGMENT

-----------------

1. By an Order dated 31st July 1996, pursuant to the Plaintiff's application by Originating Summons dated 2nd May 1996, Master Cannon ordered that the Plaintiff do recover against the Defendant the sum of HK$106,430,892.97 secured by a Mortgage dated 22nd May 1995, with daily interest of HK$28,837.08 from the 4th of May 1996 to date, and thereafter at judgment rate until payment. There were also various consequential orders in relation to the property in question, in particular that the Defendant do within 28 days after service of the Order deliver up vacant possession of Apartment No. I on the 7th floor of Block IJ of Grenville House, Nos. 1-3A Magazine Gap Road.

2. On the 3rd of December 1996 the Defendant issued a summons wherein she sought to set aside the Order made by Master Cannon on the ground that the Defendant has a good defence to the proceedings herein, and further sought an interim stay of execution on the Writ of Possession and Fieri Facias which had been issued.

3. The summons to set aside the judgment was dismissed with costs by Master Cannon by Order dated the 11th day of December 1996, and as a consequence the Defendant issued a Notice of Appeal dated the 16th day of December 1996, wherein she sought leave to appeal out of time against the Order of Master Cannon. This is the judgment consequent upon the hearing of that appeal.

4. The Defendant's case, in outline at least, is relatively simple. She is the daughter of an hitherto successful businessman father, Mr. Chow Sing Kam, whose business affairs had begun to run into financial difficulties. His company, Farmington Hills Company Limited, which appears to have been his main corporate vehicle, had run into hard times, and it appears that the Plaintiff Bank, amongst others, had been pressing for increased security to underpin the revision of an existing credit facility granted to Farmington Hills. Accordingly, in or about April or May 1995, her father asked the Defendant to mortgage her property, an apartment on the 7th floor of Grenville House, to the Plaintiff Bank in order that her father could obtain a loan in the sum of HK$16,000,000.00 to be used by his company. The Defendant says that her father assured her that this loan would be repaid by him, and that he would be responsible for the repayment of the principal and the interest payment thereon. In the circumstances, the Defendant discussed this matter with her husband. She informs the Court that she had never had the occasion to mortgage any property to any bank or finance house before. In any event, after discussion both the Defendant and her husband say that they felt under a family obligation to do as her father had requested. They accepted his assurances as to repayment of the loan, and told her father that they would be willing to mortgage their property to the Plaintiff.

5. Accordingly, her father asked her to contact a Mr. Rahman, the Financial Controller of her father's group of companies, in order to liaise with him with regard to the details of such mortgage. She handed over the title deeds of her property to Mr. Rahman at his request, and thereafter Mr. Rahman arranged for her, together with her husband, to attend the offices of Messrs. Johnson, Stokes & Master in order to sign the mortgage document. It is at this stage, and at this stage only, that the major dispute of fact arises.

6. The Defendant describes to the Court what occurred at the offices of Messrs. Johnson, Stokes & Master. She says that a lady came out to greet the Defendant and her husband, that this lady informed the Defendant that she was not the solicitor in charge, who was a Mr. Heung, but that he was not available to attend the meeting. The Defendant's evidence is that the lady further explained to her husband that he had to sign a waiver of his right to claim any interest he had in the property to be mortgaged, and that the lady also informed the Defendant that she was mortgaging the Grenville House property to the Plaintiff for Farmington Hills Co. Ltd. The Defendant said that it was only at that stage that she realised that the money was to be used by Farmington Hills, which she knew was a company belonging to her father.

7. What happened next is crucial. The Defendant says that since her father had asked her to mortgage the property for the sum of HK$16,000,000.00, she quickly looked over the document to reconfirm that this was indeed the amount of the liability thereunder. She says that she could not see any reference to this figure of HK$16,000,00 in the document, and so she specifically asked the attending lady what the figure was. The Defendant's evidence then continues in the following terms:-

"After looking through the papers in her file, her reply was HK$16,000,000.00. She then said to me that if I was agreeable to that, then sign at two spaces indicated by her in the mortgage document. The lady never mentioned to me that I would incur any further liability by my signing the mortgage document apart from the sum of HK$16,000,000.00. In fact, the contents of the mortgage document was never explained to me. After signing the mortgage document, we left the office of Messrs. Johnson, Stokes & Master. The whole meeting lasted for about 5 to 10 minutes. Up till the moment I instructed Messrs. Y. H. Lee & James To, I thought that Messrs. Johnson, Stokes & Master was the solicitors acting on behalf of Farmington Hills and therefore was acting on my behalf. I was certainly never told to seek independent legal advice at that time. The reason why I had not asked the lady any further questions relating to the terms of repayment, the length of the repayment and the contents of the mortgage document was because I thought Messrs. Johnson, Stokes & Master was acting for my father or his companies."

8. The Defendant's affirmation further states:-

9. On the evidence it is clear that the Mortgage she signed at the offices of Messrs. Johnson, Stokes & Master was dated the 22nd of May 1995, and recited the Defendant's name as Mortgagor, Farmington Hills Company Limited as Borrower and the Bank of East Asia, the Plaintiff herein, as the Lender. It was an "all moneys" mortgage. The Recital to the Mortgage followed the pattern typical of such documents, recording, inter alia, that the Borrower through the Mortgagor had applied to the Lender to grant to the Borrower general banking facilities as may be agreed between them from time to time, that the Mortgagor and the Borrower had entered into the covenants and obligations contained in the document, and that the Mortgagor had charged the Property "as security for the due payment of all moneys payable or which may at any time hereafter or from time to time become payable by the Borrower to the Lender or which may be or become payable to the Lender by the Mortgagor or the Borrower under any of the covenants contained in this charge". Again, the covenant for repayment was in standard form and provided, inter alia, that the Mortgagor would, on demand by notice in writing to the Mortgagor, pay to the Lender all sums of money which at the date of such demand may be outstanding.

10. After the execution of this Mortgage, the Defendant says that she and her family continued to live in the apartment until she received the demand letter dated 21st March 1996 from the Plaintiff. She immediately passed this letter to her father for handling as she could see that this was a matter relating to Farmington Hills. She says that it did not occur to her at the time that she would be liable for the full amount of the facility granted to that company by the Plaintiff.

11. From the Defendant's point of view, however, matters thereafter went from bad to worse. Upon receipt of the Plaintiff's Originating Summons she again handed this to her father, who again assured her that he would handle the matter and told her not to worry. He said he would put matters in the hands of his lawyers. At the same time, she was told that negotiations between her father and the Plaintiff were continuing, and the Defendant was under the belief that a property on the Peak owned by her mother and another property owned by another family company would be sold, thereby permitting her to retain her Grenville House apartment, her father being responsible for maintaining a schedule of payments to the bank.

12. The Defendant learned subsequently in late 1996 that her father had in fact instructed Messrs. Baker & McKenzie to act on his behalf in respect of the three Originating Summonses served by the Plaintiff in respect of the Defendant's property and the two other properties, all three of these properties being the subject of the facility letter dated 12th May 1995 wherein the Plaintiff granted Farmington Hills banking facilities in the total sum of HK$105 million.

13. The Defendant did not appoint her own solicitors until 7th November 1996; they immediately wrote to Messrs. Baker & McKenzie to obtain the files in relation to her case. A Mr. Flemming of Messrs. Baker & McKenzie responded to the request by indicating that he did not have her on record as a client, although subsequently it became clear that Messrs. Baker & McKenzie had been advising the Defendant's father upon, amongst other matters, the three Originating Summonses. And, more importantly, that although Messrs. Baker & McKenzie had actually filed an Acknowledgement of Service on the Defendant's behalf indicating an intention to defend the present proceedings, when in fact Master Cannon made the Order dated 31st July 1996 for possession of the Defendant's Grenville House apartment and for recovery of indebtedness in the sum of HK$106,430,892.97 plus interest, Messrs. Baker & McKenzie had not only not attended the hearing, but had actually written to the Court ostensibly on the Defendant's behalf indicating that their instructions were that the Defendant did not oppose the relief sought in the proceedings, a letter that the Defendant says she knew nothing about, and that the content thereof was false. In the circumstances, therefore, it is hardly surprising that Master Cannon was persuaded to make the Order the Defendant seeks now to set aside.

14. Consequent upon that judgment there occurred a number of further factual landmarks: a Notice to Quit in August 1996, followed by the appearance of the Bailiff with a Writ of Possession and Fi Fa on 30th October 1996, and thereafter the scheduling of an oral hearing as to the Defendant's financial assets on 19th December 1996, which hearing currently stands adjourned. Throughout these matters her father was apparently continuing to assure the Defendant that she had no need to worry, and that he was negotiating a repayment schedule with the Plaintiff, although it is clear that the Defendant latterly came to realise that her property might well have to be sold, albeit she was told that the three properties the subject of the three Originating Summonses could be sold at the highest possible price in the open market.

15. The end result of this rather unfortunate catalogue of affairs is that the Defendant says that she signed the Mortgage on the basis of representations made both by her father and Messrs. Johnson Stokes & Master that her property might indeed be liable up to the sum of HK$16 million, but no further, and in these circumstances she asks this Court to set aside the existing judgment. Her own case, I think ineluctably, points to accepting liability in the sum of HK$16 million, but as I understand the position the Plaintiff is adamant in wishing to hold on to its existing judgment in the full amount in excess of HK$100 million.

16. Mr. Raymond Faulkner, who appeared on behalf of the Defendant, asserted that, in the language of Lord Wright in Evans v. Bartlam [1937] AC 473, the Defendant plainly "has merits to which the Court should pay heed", and that the particular circumstances were ripe for the exercise by the Court of its undoubted discretion to set aside the judgment entered against his client in this case. He argued the case solely upon the usual guidelines established with regard to the setting aside of regular judgments; accordingly, no argument was developed along the principles in Barclays Bank plc v. O'Brien [1994] 1 AC 180, albeit Mr. Faulkner sought specifically to reserve the point. But, as I say, for the purposes of this application, his argument was purely merits based.

17. At bottom, his client's unequivocal case was that the Defendant plainly and obviously did not agree, and had not agreed, to enter into, in effect, a HK$105 million mortgage securing the facilities advanced to a company in which she had no financial interest. Such a course, he argued, made absolutely no sense, and the entire matrix of facts indicated that his client had not countenanced financial exposure in excess of HK$16 million. What was being sought was an increase in the existing banking facilities granted to her father and/or his company, and as a consequence another property had been required to stand as additional security. Ergo, the Defendant's Grenville House apartment in terms of a further HK$16 million advance, the very figure which was, undoubtedly, on the face of the Messrs. Johnson Stokes & Master papers and subsequently-issued invoice, albeit the Mortgage was an all-moneys instrument. Although Messrs. Johnson Stokes & Master purported to contradict the Defendant's account of what had transpired at the time of signing the instrument, nevertheless, said Mr. Faulkner, the defence, if believed, demonstrated conviction and had good prospects of success, the Defendant's remedy being rescission on the basis of the misrepresentation on the part of Messrs. Johnson Stokes & Master. Accordingly, he submitted that the judgment should be set aside.

18. In considering Mr. Faulkner's submissions, I remind myself of the relevant principles to be applied with regard to the setting aside of a regular default Judgment: see in particular the commentary in the White Book at M/N 13/9/14; also the leading Hong Kong authority of Premier Fashion Wears Limited and Another v. Lee Hing Chung and Another [1994] 1 HKLR 377 (CA) in which the Court of Appeal laid down the relevant principles. As Bokhary J.A. succinctly observed in the course of his Judgment:

"No defence is any good if it will not work in law even if based on fact. Likewise, no defence, whatever its effect in law if believed, is any good if it does not enjoy any real prospect of being believed. (Emphasis added)"

19. Does the Defendant in this case have "merits to which the Court should pay heed", merits which are sufficient to meet the required benchmark? Does the Defendant's case carry some degree of conviction, and is it one which enjoys a real prospect of being believed?

20. Mr. Adrian Huggins Q. C., who appeared for the Plaintiff, responded with an emphatic No. He submitted, firmly but fairly, that in all the circumstances of this case the Defendant not only had no real prospect of being believed, but, to the contrary, the case as put forward was one of extreme unlikelihood. Descriptive compression rarely does justice to careful argument, but if nevertheless I may summarise, Mr. Huggins Q. C. makes, I think, two fundamental points: first, that the Defendant's evidence as to what occurred at the offices of Messrs. Johnson Stokes & Master is not only hotly disputed on affidavit, but her contentions before this Court are contradicted by the specific terms of the instrument itself; she well knew, said Mr. Huggins Q. C., just what she was 'in for', and any assertion to the contrary is and was absurd. And second, the patent delay and inaction on the part of the Defendant between the entry of the Judgment against her and the issuance of the summons to set aside provided a clear pointer to the bona fides of this application and was an example of opportunism at its worst: negotiations with the Plaintiff Bank having failed, this was, he inferred, a final and insincere throw of the dice.

21. Both are strong submissions. They usefully divide, I think, into the categories of merits and collateral circumstances, the twin areas to which the Court must give scrutiny in applications of this type. I take them in turn.

22. First, as to the alleged misrepresentation by Messrs. Johnson Stokes & Master, and the content of the Mortgage itself. Mr. Huggins Q. C. points out that Messrs. Johnson Stokes & Master have denied on oath what he chooses to describe as the "wildly unlikely" suggestion (which in any event he says is implicit rather than express) to the effect that the Defendant was told by the solicitor attending her that the Mortgage was to secure a loan limited to HK$16 million. He cites in particular the affirmation of one Lee Choi Kwan, the Conveyancing Clerk, who explained the Mortgage to the Defendant in the interview room. The usual practice in explaining the contents of an all-moneys mortgage was outlined in the following manner:

"In explaining the contents of an "all moneys" mortgage to the mortgagor, I invariably advised that an "all moneys" mortgage would cover all present and future indebtedness owed to or becoming owing to the mortgagee in respect of general banking facilities made available to the borrower by the mortgagee from time to time. It has always been my practice to emphasize that an "all moneys" mortgage would secure not only the amount initially borrowed but also [the] further amount, if any, of general banking facilities as might in the future be extended to a borrower by a mortgagee."

23. The affirmation proceeds to describe how, on the afternoon of 22nd May 1995, the Defendant came to the offices of Messrs. Johnson Stokes & Master in Prince's Building. She was brought to the interview room and handed the Mortgage for her perusal. The key points of the Mortgage were explained in Cantonese and in accordance with the usual practice it was emphasised that the Mortgage was all moneys mortgage.

24. Lee Choi Kwan then continues as follows:

25. Mr. Huggins Q. C. points out also that the Mortgage itself plainly records the fact that Messrs. Johnson Stokes & Master were acting for the Plaintiff Bank and invited both the Borrower, Farmington, and the Defendant Mortgagor to seek independent legal advice on this transaction and on the charge, and that they both confirm that they did not see the need for independent legal advice. The clause in question reads as follows:

"The Mortgagor and the Borrower hereby acknowledge that Messrs. Johnson Stokes & Master have advised the Mortgagor and the Borrower that though the contents of this Charge have been interpreted and explained to the Mortgagor and the Borrower by Messrs. Johnson Stokes & Master, they are the Solicitors acting for the Lender only. Further, although Messrs. Johnson Stokes & Master have invited the Mortgagor and the Borrower to seek independent legal advice on this transaction as well as on this Charge, yet the Mortgagor and the Borrower confirm that they do not see the need for independent legal advice."

26. As an example of documentary "boilerplate" this is stern stuff indeed. However, Mr. Faulkner, in a succinct and persuasive reply, sought to contrast that the actual evidence put in by the Messrs. Johnson Stokes & Master conveyancing clerk with the precise terms of the acknowledgement clause, thereby demonstrating that what was purportedly "acknowledged" to have taken place in fact demonstrably had not on the face of the evidence filed; he noted, for example, that clearly the contents of the charge had never been interpreted to the Defendant, and that, equally clearly, the Defendant Mortgagor could not have been in any position to know if any of the matters relating to the Borrower had occurred. In these circumstances, Mr. Faulkner submitted it was extraordinary that the solicitors should have asked the Defendant to sign this clause. Moreover, there was no suggestion that this provision was translated, explained, or even drawn to the Defendant's attention, nor that it was stated to the Defendant that Messrs. Johnson Stokes & Master acted for the Lender only or, for that matter, that JSM orally invited the Defendant to seek legal advice. Further, says Mr. Faulkner, this provision is not in any event conclusive, and is arguably immaterial, since it is the Defendant's case that the document was signed as the result of the misrepresentation, and should be set aside. Moreover, it was entirely understandable that the Defendant thought that Messrs. Johnson Stokes & Master were acting for Farmington given that she had been asked to give the mortgage by her father, Farmington was one of her father's companies, Mr. Rahman had asked her to attend at Messrs. Johnson Stokes & Master, and in fact the relevant invoice was rendered to Farmington; indeed, it had not been asserted in the evidence before the Court that Messrs. Johnson Stokes & Master had stated that it was acting for the Plaintiff.

27. Turning to the all important figure of $16 million, Mr. Faulkner maintained that there is no doubt that Messrs. Johnson Stokes & Master had that figure, as it appears in the relevant invoice rendered to Farmington for the professional charges rendered in connection with the Mortgage, so that some document containing that figure was plainly on the file, whilst there is no evidence that Messrs. Johnson Stokes & Master even knew of the total amount of the facility; of the three properties used as security, two had been a mortgaged already in 1994, and consequently Messrs. Johnson Stokes & Master was then dealing with one mortgage, namely that relating to the Defendant's property, apparently on a valuation for scale charge purposes of $16 million. Accordingly, although this figure must have been given to Messrs. Johnson Stokes & Master, there is no evidence that any other figure (such as $105 million) was given, and it is precisely the figure of $16 million which correlates with the origins of the Defendant's involvement. And as to the representation itself, Mr. Faulkner points out that it is significant that it is not denied that the Defendant "specifically asked what the figure was", nor is there a denial that a figure of $16 million was mentioned, Mr. Faulkner here pointing to the precise terms of Lee Choi Kwan's evidence on the point, which he submitted was most carefully worded.

28. That there are evidential disputes in this case is to state the obvious, and the foregoing summary, perhaps, provides an indication of the factual issues arising. It is equally obvious (I hope) that no tribunal should attempt to resolve such evidential conflicts on the face of the affidavits alone, assuming of course a defence possessing the requisite degree of conviction. Assessment of the facts, and the resolution of such conflicts, must be a matter for trial, and for the scrutiny and evaluation of witnesses in the witness box; as Dillon L. J. observed in the English Court of Appeal decision in Allen v. Taylor, [1992] 1 PIQR 255, at 259,

"It is quite impossible to be dogmatic about the extent to which the court must be satisfied of the validity of the suggested defence. There must be numerous cases where the issue will turn entirely on the assessment of the facts at trial: each party's case would carry conviction if it stood alone and without conducting a trial the court is not able to say which will succeed ..."

29. In my judgment this is indeed one of those cases. After fully reviewing all the material before me, I consider that in the circumstances the Defendant has attained the relevant benchmark laid down with regard to the setting aside of regular judgments. On this primary issue I do not accept the powerful arguments put forward by Mr. Huggins Q. C. for the Bank in opposition to the application, and in all the circumstances I am persuaded that the Defendant can and does bring itself within the rubric of "potentially credible affidavit evidence" carrying "some degree of conviction" (per Godfrey J. A. in Premier Fashion Wears, op.cit., at p. 383) so that there is a real prospect of it being believed and, ergo, "a real prospect of success", although I am constrained to remark that whilst I am satisfied that the Defendant has succeeded in attaining the benchmark, such success has been by but a short head, so to speak. In this connection I also note that, although the Defendant has just got home, I do not consider this to be an appropriate case for the imposition of terms; Mr. Huggins' alternative submission, in the event that I was minded to set aside the judgment, was that the Defendant should be required to pay into court the sum presently disputed. I reject that suggestion also; the Bank continues, of course, to be secured by the charge upon the property, and I am disinclined to change the status quo pending trial.

30. Against this background, therefore, I am minded to set aside the judgment on the merits and to allow the matter to proceed in normal course. Are there other circumstances which should preclude that? As Litton V.-P. observed in Premier Fashion, op. cit., in such cases as these "all relevant circumstances must be considered".

31. Mr. Huggins Q.C. is scathing about the overall sequence of events, and the delay leading to the present application to set aside the judgment entered against the Defendant. He pointed out that whatever difficulty the Defendant had had with regard to her solicitors, she nevertheless unquestioningly had personal knowledge of the proceedings taken in relation to the property in which she was residing, commencing with the letter of demand dated 21st March 1996 addressed to her personally and served on her detailing the Plaintiff's demand for $106 million, so that the first indication given to the Plaintiff that the Defendant intended to apply to challenge her liability to the Plaintiff was more than eight months after she received such demand letter, and four months after she was served with Order of Master Cannon which she now seeks to overturn.

32. Although these points are fairly made, nevertheless in the circumstances, I am not minded to deprive the Defendant of the chance to contest these matters in Court simply by reason of such delay, or indeed by reason of such involvement as she may have had in securing offer letters for the three properties which were mortgaged (including her Grenville House property); moreover, it seems to me not to be fatal in the particular circumstances that, out of an abundance of caution, she submitted a proof of debt in the Farmington liquidation.

33. It follows, therefore, that I do not think the Defendant can or should be said to have approbated the judgment so as to prevent her from attempting to set it aside, nor, in my view, has she done anything which would otherwise suffice to preclude the grant of the relief which she now seeks. As Mr. Faulkner submits, it is clear that her father (from whom we have not heard in this application) was primarily responsible for her predicament, that he assured her that he would handle the matter, and that such reassurances continued, notwithstanding the fact, as I have earlier indicated, that relations with the Plaintiff were clearly deteriorating. I factor into the equation, also, the Defendant's actions in the setting of a Chinese family wherein the father was undoubted patriarch, that until this incident she had apparently nothing to do with Farmington or her father's business or financial affairs, that her father had a financial relationship with the Plaintiff whereas she did not, and that her father alone knew about Farmington's financial dealings; and with regard to the offer that was made with regard to the properties, that this was a global offer made by family members and an associated company, Great Farms Investments Limited, and constituted an attempt to resolve, at one go, so to speak, the problems resulting from the father's business dealings with the Plaintiff.

34. It is apparent since Saudi Eagle [1986] 2 LLR 221, that the merits of the case have been the uppermost consideration for the Court seized with any application to set aside, and having reached the primary decision that the Defendant has demonstrated sufficient merits, I am satisfied that there are no other circumstances which would preclude the course I otherwise wish to adopt. I do not accept, in these very particular circumstances, that the actions of Messrs. Baker & McKenzie should be held against the Defendant, and accordingly I do not regard this is the type of case in which a Defendant effectively has chosen to ignore the proceedings and to permit judgment to be entered in default, only to have a change of heart and thereafter seek to set aside such judgment. This is the sort of behaviour which, it seems to me, the Court could and should properly weigh in the balance, other things being equal, although I note that in the English Court of Appeal case of Allen v. Taylor, op. cit., wherein the fairground operator in that case deliberately chose to allow judgment to be entered against him, his subsequent application to set aside such judgment (at the behest of his insurance company) was ultimately entertained successfully in light of the disclosed merits. I recognise that this may well be the high watermark of the exercise of such judicial discretion, but it does, it seems to me, demonstrate the extent to which a merits-based application has come to be the pre-eminent consideration.

35. In light of the foregoing, my decision is that the Order of Master Cannon dated 31st July 1996 is to be set aside, and I so order. It follows also that the combined Writ of Possession and the Fieri Facias must also be set aside, since such was consequential upon the default judgment.

36. Two further matters are outstanding:

37. First, as to the costs of and occasioned by the application to set aside the judgment, I make an Order nisi that, with regard to the hearing before Master Cannon, the Defendant is to pay the Plaintiff its costs in any event, such costs to be taxed if not agreed. With regard to the costs of this appeal, in my judgment the appropriate Order, which again I make by means of an Order nisi, is that all costs incurred prior to the actual hearing of this appeal are to be to the Plaintiff in any event, and that the costs of the hearing before me are to be Plaintiff's costs in the cause, to be taxed if not agreed. Naturally I will hear Counsel insofar as these Orders nisi require to be the subject of further argument.

38. Second, given that I have decided to set aside the judgment and to permit this matter to proceed to trial, it seems to me to be necessary, in the circumstances, to recognise that the case should no longer continue by way of Originating Summons procedure; given the disputes of fact which arise, and the nature of the Defendant's cause of action in terms of misrepresentation, it is now clearly appropriate that the action be properly framed in terms of pleadings. I cannot think that this is likely to be objectionable in principle, but the parties may perhaps have representations to make. Accordingly, I will hear the parties upon this matter, and upon consequential directions, if such cannot be agreed.

39. Finally, I wish to thank both Counsel for their very considerable assistance, and for the care and precision with which they formulated their arguments.