Team news

We are delighted to

announce a new member

of the Commercial Team.

Jennifer Newstead has

joined the Commercial

Team after the successful

completion of her pupillage.

She had a glittering

academic career at the

University of Nottingham

where she garnered a First

Class degree and an MA in

Nineteenth Century Culture

and Society. She now

intends to specialise in

commercial, insolvency and

property matters. She is

already attracting

admiration for her thorough

and confident advice.

Jennifer will be a valuable

addition at the junior end

of the Commercial Team.

Commercial News

Spring 2005

Welcome to the Guildhall ChambersCommercial Team Newsletter. This newsletterhas a new look in that it will feature both aregular Commercial Law Update as well asNeil Levy’s Banking Law Update.

In this issue the Commercial Update focuses

upon the changes wrought to insurance law

and practice as a result of general insurance

products coming within the regulatory domain

of the ever-expanding Financial Services Authority. Insurance

intermediaries, like mortgage intermediaries now require authorisation

by the FSA (or need to ally themselves with a principal authorised firm

as an appointed representative), if they are to continue in business.

Furthermore, the new Insurance Conduct of Business (ICOB) regime

introduces significant changes in substantive insurance law, including

important new rules on claims handling and a restriction on the

availability of non-disclosure where the insured is a retail customer.

Stefan Ramel considers the impact of the crucial decision of the House of

Lords on legal professional privilege in the Three Rivers litigation. This

formed part of the interlocutory skirmishing in this misfeasance claim

against the Bank of England in the fall out of the collapse of BCCI. The

trial itself now looks set to be the longest case in English legal history.

Few practitioners are satisfied with the incomplete restatement of

principle that emerged from the House of Lords.

Hugh Sims considers an important decision of the House of Lords on

contract damages considering the issues of remoteness and loss of a

chance. The case also proves that there is serious money in dog biscuits.

Ralph Wynne-Griffiths considers the impact of the Unfair Terms in

Consumer Contracts Regulations on adjudicators and their right to their

fees in construction disputes. We also consider the impact of a significant

recent Court of Appeal case on private law restitutionary claims for the

recovery of overpaid tax.

If you have any observations or queries arising from this newsletter,

please do not hesitate to contact me or either of the clerks for the

Commercial Team – Justin Emmett and Heather Mings.

Gerard McMeel

www.guildhallchambers.co.uk

2

Negligence - investment advice

A bank retained to make recommendations

to the claimant on its investment portfolio

was not liable in negligence for failing to

advise that the portfolio was too risky in

circumstances where the claimant was an

expert investor which took responsibility for

accepting or rejecting any advice given. Nor was it the bank’s duty to

stop the claimant from taking risk or trading beyond the agreed

investment objectives, providing it was satisfied that the claimant

knew what it was doing. Valse Holdings SA v Merrill Lynch

International Bank Ltd [2004] EWHC 2471 (Comm) (3.11.04).

Negligence - freezing orders

A bank which received notice of a freezing order relating to a

customer’s assets but later allowed money to be paid away by the

customer, could be liable for damages in negligence to the claimant

which had obtained the freezing order if the claimant had been

unable to enforce judgments subsequently obtained against the

customer. Even if the bank might not be thought to have assumed

any responsibility when given notice of the freezing order,

assumption of responsibility is not always a necessary ingredient for

there to be a duty of care Commissioners of C&E v Barclays Bank plc

[2004] EWCA Civ 1555 (22.11.04).

Mortgages - duties when selling

Even if a mortgagee or receiver which has decided to sell owes a duty

not to reject an obviously favourable proposal by the debtor to buy

parts of the mortgaged property, this duty could not require a

mortgagee to agree to an arrangement which would have involved

releasing part of its security without receiving payment of a

substantial part of the secured indebtedness. In any event, the

proposal was nothing more than an outline proposal, not an offer

capable of acceptance. Lloyds TSB Bank plc v Cassidy [2004] EWCA

Civ 1767 (1.12.04).

A bank sold mortgaged property on terms that further sums would

be paid if the purchaser obtained residential planning permission.

After taking advice from a valuer, the bank agreed to vary the

original payment terms. The advice was negligent. The bank lost a

2:1 chance of receiving a much higher sum when residential

planning permission was granted so the bank was entitled to recover

from the valuer two thirds of the sum it would have received but for

the variation. The bank owed a duty to a surety to take reasonable

steps to preserve and enforce the original terms and was liable to the

surety for the negligence of its agent. The surety was therefore

entitled to credit for an equivalent sum. Francis v Barclays Bank plc

[2004] EWHC 2787 (Ch) (7.12.04).

Joint accounts - ownership of funds

A finding that a joint bank account of an unmarried couple, on

which either could draw, had been established for their ‘joint

benefit’ did not necessarily mean that each had a beneficial interest

in the funds in the account. The finding was equally consistent with

one of the parties having no beneficial interest in the money until

she actually exercised her right to draw upon it. Until then the

money belonged to the other party and, as between the two of them,

he was entitled to terminate the other party’s right at any time.

Stoeckert v Geddes [2004] UKPC 54 (14.12.04).

Administration orders - abuse of process

Since there was no contractual restriction or estoppel preventing a

creditor from making demand for repayment of on-demand

facilities, the creditor had standing to petition for an administration

order to be made in relation to the debtor company. The fact that

the creditor’s aim was to secure a sale to a new company of the

debtor company’s shareholding in a subsidiary, did not make the

petition an abuse of process. The administrators would be bound to

take all necessary steps to ensure that any potential bidders for the

shares were aware that they were on the market and to encourage

them to make the highest bid they could. Re British American Racing

(Holdings) Ltd [2004] EWHC 2947 (Ch) (16.12.04).

Mortgages - sale to an associate

Where a mortgagee sold a repossessed property to an associated

company after 3 months of taking possession, the burden was on it

to satisfy the court that a proper sale price had been obtained. In the

absence of such evidence, the mortgagee was entitled to claim from

the mortgagor only the difference between the outstanding

mortgage at the date of sale and the price which would have been

obtained if it had performed its duty, making allowance for

additional interest which would probably have accrued over a

longer marketing period, and the costs of sale which had been

avoided by selling to the associate. Mortgage Express v Mardner

[2004] EWCA Civ 1859 (17.12.04).

Guarantees - mitigation

Where there is an on-demand guarantee which can be called upon

at any time, there is no duty to mitigate loss by awaiting the

outcome of a receivership before calling upon the guarantee.

Barclays Bank plc v Aviss, QBD (20.12.04).

Title to sue - whether debt assigned

A creditor was not entitled to summary judgment against a surety

when there was doubt whether the creditor had lost its title to sue

by assigning its rights to a third party. Even if the assignment might

have been in breach of a contractual restriction on assignment, that

would not necessarily cause the assignment to be ineffective and

void. The extent to which the court was entitled to use extrinsic

evidence to identify the correct name of the surety was also doubtful

and summary determination was not appropriate. Dumford Trading

AG v OAO Atlantrybflot [2005] EWCA Civ 24 (26.1.05).

Breach of confidentiality - damages

If loss of repeat business is a reasonably foreseeable consequence of

breach of confidentiality by a bank, damages should be awarded for so

long as, on the facts, the chance of losing repeat business was not too

speculative to justify an award. Jackson v Royal Bank of Scotland [2005]

UKHL 3 (27.1.05) considered in detail on page 8 by Hugh Sims.

Banking law update

3

Agreement to grant charge - constructive trust

An agreement that “you may place a charge in the sum of £100,000

… over the property shown above” did not purport to create an

immediate charge but was an agreement to create a charge. As such

it was unenforceable because it was not signed by both parties. But

since the claimant had been encouraged by the defendant to believe

that the advance would be secured on the property, the agreement

could be relied upon as giving rise to a charge over the property by

way of proprietary estoppel and/or constructive trust. Kinane v

Mackie-Conteh [2005] EWCA Civ 45 (1.2.05).

Payment by mistake - tax

If the Revenue demands and a taxpayer pays too much tax, the

taxpayer’s claim to recover the over-paid amount is not an ordinary

common law claim to recover money paid by mistake. If the

demand was lawful, the over-paid amount is recoverable under tax

legislation. If the demand was unlawful, the over-paid amount is

recoverable under the restitutionary principle established in

Woolwich v IRC (1992) which is not founded on mistake, so time

normally starts running for Limitation Act purposes when the

payment is made, not when the taxpayer discovers the mistake. IRC

v Deutsche Morgan Grenfell [2005] EWCA Civ 78 (4.2.05), considered

in detail on page 11 by Gerard McMeel.

CCA - unenforceability

A pawnbroker made a series of credit agreements, taking articles in

pawn as security. Each agreement repaid and re-financed an earlier

agreement. A number of the agreements were unenforceable for

failure to comply with the Consumer Credit Act 1974, and by s 106

the pawnbroker became obliged to repay to the debtor sums paid

“on realisation of the security”. This was held to include the sums

treated as paid by the debtor to realise the pawn on each separate re-

financing, even if giving credit for those sums might leave the debtor

with “a clear profit”. Wilson v Howard [2005] EWCA Civ 147 (4.2.05).

Invalid receivership - interference with contracts

Receivers who were invalidly appointed over a company’s assets

might be liable in trespass or conversion, but they could not be

liable for wrongful interference with the company’s contracts

because any interference by them in the company’s contracts had

not been with the intention of hindering performance of the

contracts. OBG Ltd v Allan [2005] EWCA Civ 106 (9.2.05).

Insolvency petitions - limitation period

Although a winding-up or bankruptcy petition is a proceeding in a

court of law, it is not part of the process of execution, nor is it an

action on a judgment to which a six year limitation period applies

(s 24 Limitation Act 1980). A judgment creditor can therefore

present such a petition and prove in the bankruptcy or liquidation

more than 6 years from the date of the judgment and the decision

to the contrary in Re a Debtor (1997) was wrong. Ridgeway Motors

(Isleworth) Ltd v Alts Ltd [2005] EWCA Civ 92 (10.2.05).

Disclosure - Data Protection Act

The relevant time for determining whether information is data

within the DPA 1998 is the time of the request for disclosure. If at

that time the information is contained in documents in unstructured

bundles, the fact that it could readily be turned into digital form does

not make it personal data within the DPA. In any event, documents

concerning loans to a company did not constitute personal data of

the company’s former director, even if he was mentioned in them.

Smith v Lloyds TSB Bank Plc [2005] EWHC 246 (Ch) (23.2.05).

Administrative receiver - invalidappointment

Board members had standing to challenge as invalid the

appointment of administrative receivers over an LLP’s assets. The

appointor could not bring itself within the exception to the

prohibition on post-Enterprise Act 2002 administrative

receiverships. The LLP was not a ‘financed-project’ company within

s 72E since it was not expected to borrow at least £50m and the

power to appoint a receiver did not amount to ‘step-in-rights’.

Feetum v Levy [2005] EWHC 349 (Ch) (5.1.05).

Informal loan - repayment

Loans made informally by parent to child with no term for repayment

other than ‘when you can afford it’ were impliedly repayable on

demand. Daniels v Lewis [2005] EWHC 473 (QD) (23.3.05).

Neil Levy

Some key dates

16.12.04 Consumer Credit Bill introduced into the House of

Commons: www.dti.gov.uk

21.12.04 OFT announces it is to appeal the High Court ruling

in OFT v Lloyds TSB Bank plc & others [2004]

EWHC 2600 (Comm): www.oft.gov.uk

24.2.05 Law Commission final report on Unfair Terms in

Contracts published: www.lawcom.gov.uk

25.2.05 DTI Consultation paper on a proposed European

Consumer Credit Directive published: www.dti.gov.uk

1.3.05 New Banking Codes come into force: www.bba.org.uk

3.3.05 Third reading of Consumer Credit Bill: www.dti.gov.uk

1.4.05 Insolvency (Amendment) Rules 2005 (SI 2005/527)

came into force: www.insolvency.gov.uk

1.4.05 DTI announces that The Consumers Association has

been designated as an enforcement body under s

213 Enterprise Act 2002: www.dti.gov.uk.

12.4.05 Second reading of Consumer Credit Bill in the

House of Lords: www.dti.gov.uk.

26.4.05 Provisional listing date for hearing of In Re

Spectrum Plus Ltd in the House of Lords.

4

Commercial law updateInsurance Conduct of Business rules

In this article we consider the major changes to

insurance law and regulation effected by ICOB:

the Insurance Conduct of Business regime.

Until 2005 general insurance, whilst subject to

licensing requirements and prudential

regulation, remained largely unregulated in

terms of how its products could be promoted

and sold. It remained largely a matter of the

common law of contract, together with the

rules of agency, overlaid with some doctrines peculiar to insurance.

For example, it is notorious that the law of non-disclosure is peculiar

to insurance contracts and is remarkably biased in the insurer’s favour.

What is most surprising, with twenty first century perspective, is how

the English law of insurance is almost all about the duties of the

(would-be) insured. There is little on the duties of insurers.

However as of 14 January 2005 the English law and practice on

insurance changed dramatically through the exercise of rule-making

powers conferred on the Financial Services Authority (FSA) under the

Financial Services and Markets Act 2000.

A brief flirtation with continued self-regulation in the shape of the

General Insurance Standards Council (GISC), had quickly run into a

competition law quagmire.

In consultations the FSA identified eight very broadly defined

potential problems:

• Unsuitable cover

• Poor value policies

• Consumers do not buy a product they need

• Poor claims handling

• Lack of appropriate redress

• Administration problems

• Financial failure of intermediaries

• Financial crime.

In the particular context of claims handling the Financial Ombudsman

Service (FOS) informed the FSA of the following specific problems:

• Customers having to request a claim form a number of times

before actually receiving one

• Apparently unnecessary delays in the claims handling process

• Customers not understanding why they are being offered less than

the amount claimed

• Claims not being handled fairly.

ICOB now nestles in Block 2 of the FSA Handbook, sandwiched

between COB (for investment business) and Mortgages or MCOB.

This is a brand new code governing in often tedious detail the way in

which insurers and intermediaries are permitted to go about their

business of promoting, forming and performing (or not) their

contracts of insurance. Probably the main driving force behind ICOB

is the need to implement the clumsily titled Insurance Mediation

Directive (IMD) (mediation meaning agency here).

The playersOn the professional side of the equation, an insurance intermediary is afirm carrying on insurance mediation activity. Insurance mediation isdefined by reference to the Directive as involving the activities of:

“introducing, proposing or carrying out other work preparatory to the

conclusion of contracts of insurance, or of concluding such contracts, or of

assisting in the administration and performance of such contracts, in

particular in the event of a claim.”

The Handbook further defines “insurance mediation activity” asdealing as agent, arranging deals, making arrangements with a view totransactions, assisting in the administration and performance ofcontracts, and advising in respect of contracts of insurance and rightsthereunder, together with agreeing to carry on any of the above.

Whilst the European initiatives only required the new standards to beimposed on insurance intermediaries the UK government has takenthe view that the same regime should apply to insurers acting as directproduct providers.

As with COB, exempt professional firms remain semi-detached fromthe FSA’s remit so long as their insurance intermediary activities remain“non-mainstream”.

In contrast to COB’s needlessly complicated triple hierarchy (ofmarket counterparty, intermediate customer and private customer),ICOB is content with a twofold distinction between retail customersand commercial customers. The Handbook Glossary defines for thepurposes of ICOB “retail customer” as: “an individual who is actingfor purposes which are outside his trade, business or profession.” A“commercial customer” is simply defined negatively and residually asnot being a retail customer.

“Customer” in ICOB embraces all policyholders and prospectivepolicyholders. Where there is any doubt as to status the defaultposition is that of retail customer.

The productsThe subject-matter of ICOB is “non-investment contracts” whichmeans: “a contract of insurance which is a general insurance contractor a pure protection contract”.

Examples of the latter include critical illness cover, accident andsickness cover and most private medical insurance.

ICOB has only limited application to large risks cover for commercialcustomers within the EEA.

General rules

Clear, fair and not misleading communicationAn important provision of the ICOB 2 is the requirement to communicateto a customer in a way which is clear, fair and not misleading. Itapplies to customers, whether a retail or a commercial customer.

Financial promotionThe principal rules relating to the form and content of financialpromotions by authorised persons are to be found in ICOB 3.8. Mostbasically a firm must be able to show that “it has taken reasonablesteps to ensure that a non-investment financial promotion is clear, fairand not misleading.”

5

Advising and selling standardsICOB 4 contains a highly prescriptive regime as to how insurancebusiness may be written in the future. It generally applies in likemanner to renewals. The rules apply both to intermediaries andinsurers when acting as direct product providers. A major shaping forceof the regime is articles 12 and 13 of the IMD. The general purpose isto ensure customers are adequately informed about the nature of theservice received and that where a personal recommendation is receivedit is suitable for the customer’s demands and needs. Therefore we nowhave a “suitability” or full-blown “advice” regime for general insurance,which of course raises the prospect of mis-selling.

Status disclosureICOB 4.2 generally requires an insurance intermediary or insurer todisclose its regulatory status and details of its holding in, or of itsbeing held by, other insurance companies. This information mustusually be provided prior to conclusion of the contract (althoughprovision is made for quick quotes). The information must be in adurable medium. Crucially it must disclose whether it has provided orwill provide advice or information:

• on the basis of a fair analysis of the market

• from a limited number of insurers

• from a single insurer.

That is, is it tied, multi-tied, independent or a direct provider. Furtherinformation is required including details of the FOS and the FinancialServices Compensation Scheme (FSCS). An intermediary cannot holditself out as offering a fair analysis unless it has considered a sufficientlylarge number of available policies.

“Know your customer”An intermediary has a duty to seek out information from the customerabout his circumstances and objectives relevant to identifying hisrequirements. This includes any existing insurance.

SuitabilityWhere a personal recommendation is offered to any customer underICOB 4.3 it must be suitable for that customer’s demands and needs.Suitability is curtailed by reference to the scope of duty undertaken,that is the service which the intermediary can offer as a result of itsstatus. In assessing suitability the intermediary must at least consider:

• whether the level of cover is sufficient

• cost

• the relevance of any exclusions, excesses, limitations or conditions.

A “statement of demands and needs” must ordinarily be provided ina durable medium before the conclusion of the contract setting outthose needs, and where a personal recommendation has been made“explains the reasons for personally recommending that contract”.

Charges and commissionsThe FSA has given itself a jurisdiction over excessive charges.

A rule provides that commission disclosure must be given to a

commercial customer who requests it. Guidance warns that this does not

purport to replace the general law of fiduciary obligations.

Controversially there is no such rule for the benefit of retail customers.

Product disclosureICOB 5 legislates a highly detailed regime of product disclosure. A

specific rule provides that the policy document must contain all the

contractual terms and conditions.

CancellationICOB 6 extends to retail customers a “cooling off period” by providing

the right to cancel most general insurance and pure protection

contracts. The relevant periods are 14 days for the former and 30 days

for the latter type of policy.

Claims handlingThis is defined in the Handbook Glossary as “carrying out the contract”.Detailed rules are provided in ICOB 7 for handling retail customers’claims, and a less onerous regime for commercial customers. The aim isthat claims are both handled fairly and settled promptly. Furthermore,intermediaries are required to disclose and manage any conflicts ofinterest. A rule requires the insurer to provide all customers withreasonable guidance to help them make a claim. Critically all customersare entitled to have claims handling carried out “promptly and fairly”.Furthermore both retail and commercial customers are beneficiaries ofa rule that an insurer must not “unreasonably reject a claim”. Retailcustomers gain greater protection, as described in the next section.

Retail customers are entitled to prompt response to notification of aclaim. Guidance suggests that normally means within five businessdays. Lastly, the retail customer is entitled to be told as soon aspracticable as to whether his claim is accepted or rejected.Furthermore the insurer must explain the reasons for any (partial)rejection of a claim.

Turning to settlement, retail customers are entitled to promptpayment of a claim. Guidance suggests that normally means withinfive business days.

Non-disclosure and misrepresentationIn the course of investigating the customer’s needs there is now anexpress duty for the intermediary to explain to the customer his dutyto disclose all material circumstances, the consequences of non-disclosure and the intermediary must take account of the disclosedinformation. Guidance suggests the particular examples of existingmedical conditions in the context of private medical insurance andmodifications to vehicles in the context of motor insurance.

Most crucially, ICOB 7 on claims handling provides that insurerscannot unreasonably reject any claim. The protection for retailcustomers goes further. The FSA has implemented its proposal toincorporate the Association of British Insurers’ Statements of Practice inits claim handling rules. These were said to remove the “harshconsequences of strict interpretation of contract law” in this field.Presumably the FSA was referring to the harsh all-or-nothingconsequence of avoidance or some other defect of non-disclosure.Unfortunately they are no more precise than that. Accordingly in theretail field an insurer must not:

“except where there is evidence of fraud, refuse to meet a claim madeby a retail customer on the grounds:

a of non-disclosure of a fact material to the risk that the retailcustomer could not reasonably be expected to have disclosed;

b of misrepresentation of fact material the risk, unless themisrepresentation is negligent;

c in the case of a general insurance contract, of breach of warrantyor condition, unless the circumstances of the claim are connectedwith the breach….”

Given that these rules are actionable if broken, this is a massivelegislative reform of the English law of non-disclosure and probablydeserves more of a fanfare than it has been given.

Insurance intermediariesA rule requires intermediaries to act with due care, skill and diligencewhen acting for a customer (retail or commercial) in relation to aclaim. More critically there is a clear regulatory requirement to avoidconflicts of interest in the claims process for all customers. This is adirect intervention in the problem area where brokers who theinsured’s agent when placing cover purport to switch sides and act asagent of the underwriter in the claims process.

Gerard McMeel

Introduction

BCCI opened for business in London in

1972. By 1991, BCCI had presented a

petition for the appointment of a liquidator

in view of its massive excess of liabilities over

assets. Bingham LJ (as he then was) chaired a

subsequent inquiry into the collapse of

BCCI, including a review of the Bank of

England’s (BoE) role in BCCI’s demise.

BoE established an internal unit, the Bingham Inquiry Unit (BIU),

to handle all communications between the Bank and its lawyers

(Freshfields and counsel) on issues relating to the Bingham inquiry.

The inquiry’s report was published in October 1992. Shortly

thereafter, the liquidators of BCCI – Deloitte & Touche – and its

creditors issued a writ against BoE claiming misfeasance in a public

office. That action, the trial of which started in January 2004 before

Tomlinson J, triggered a number of disclosure applications that

raised issues of legal professional privilege.

First disclosure application

In October 2002, the claimants sought disclosure of all

communications passing between non-BIU employees of BoE and

Freshfields/counsel. When the disclosure application reached the

Court of Appeal in April 20031, it was held that the only documents

over which legal professional privilege could be claimed were

communications between the BIU and Freshfields/counsel seeking or

giving legal advice. Only those members of the BIU were to be treated

as Freshfields’ client. Documents produced or received by employees

of BoE not members of the BIU were to be treated, for the purposes

of legal professional privilege, as if they had been produced by third

parties – they were therefore not privileged. BoE’s petition to the

House of Lords for leave to appeal was refused. Disclosure has since

been made in accordance with the Court of Appeal’s decision.

Second disclosure application

In August 2003, the claimants made a further discovery application.

The application related to documents passing between the BIU and

Freshfields/counsel. The claimants argued that any document which

was created for the purpose of obtaining advice as to putting relevant

factual material before the inquiry in an orderly and attractive fashion

was not a document in relation to BoE’s legal rights and obligations

and so could not attract privilege. Tomlison J, at first instance, found

for the claimants. The Court of Appeal upheld his finding2. This second

disclosure application found its way to the House of Lords. On 29 July

2004, the Appellate Committee (Lord Scott, Lord Rodger, Baroness

Hale, Lord Carswell and Lord Brown) indicated that BoE’s appeal

would be allowed. Their Lordships gave reasons in November 20043.

Issues in the House of Lords

The Law Lords were at pains to emphasise the narrow scope of the

issue that arose for their consideration. They confined their analysis

to the question of whether or not communications between the BIU

and Freshfields/counsel “relating to the content and preparation of

the so-called overarching statement submitted on behalf of the Bank

to the Bingham Inquiry qualify for legal professional privilege”4.

In view of the Court of Appeal decision on the first disclosure

application in relation to the proper identity of a “client” and the

statement in the Court of Appeal decision on the second disclosure

application that “where, however, litigation is not anticipated it is

not easy to see why communications with a solicitor should be

privileged”5, the Law Society, the Bar Council and the Attorney-

General all sought and received permission to intervene by way of

written submissions. The Law Society was particularly keen for the

House of Lords to clarify the approach to be adopted in determining

whether a communication between an employee and his employer’s

lawyers should be treated as a communication between lawyer and

client for legal advice privilege.

Legal advice privilege

Lord Scott and Lord Carswell gave the leading speeches in the House

of Lords. Their Lordships, after reviewing the public policy reasons

for which legal advice privilege existed, were required to determine

the proper scope of “legal advice” for privilege purposes. In

particular, was it, as stated by Lord Phillips of Worth Matravers MR

in the Court of Appeal, to be defined as “advice in relation to the

law” or was it advice given by a lawyer. As will be seen, the Law

Lords appeared to favour the latter.

Both their Lordships relied on a statement by Taylor CJ in Balabel v Air

India6, which is worth reproducing here: “legal advice is not confined

to telling the client the law; it must include advice as to what should

prudently and sensibly be done in the relevant legal context.” Their

lordships placed particular emphasis on “the relevant legal context”.

Lord Carswell, at paragraph 114, stated that “the work of advising a

client on the most suitable approach to adopt, assembling material

for presentation of his case and taking statements which set out the

relevant material in an orderly fashion and omit the irrelevant is to

my mind the classic exercise of the lawyer’s skills.”

Lord Scott stated, at paragraph 44, that “the skills of professional

lawyers when advising a client what evidence to place before an

1 Three Rivers District Council v Governor and Company of the Bank of

England (No. 5) [2003] QB 1556.

2 Three Rivers District Council v Governor and Company of the Bank of

England (No. 6) [2004] QB 916.

3 Three Rivers District Council and others v Governor and Company of

the Bank of England (No. 6) [2004] UKHL 48, [2004] 3 WLR 1274.

4 Lord Scott, para. [2].

5 Three Rivers District Council v Governor and Company of the Bank of

England (No. 6) [2004] QB 916: Lord Phillips MR, para. [39].

6 [1988] Ch. 317, 330.

Legal professional privilegein the House of Lords

6

inquiry and how to present the client and his story to the inquiry in

the most favourable light are, in my opinion, unquestionably legal

skills being applied in a relevant legal context”.

“In relation to legal advice privilege, what matters today remains the

same as what mattered in the past: whether the lawyers are being

asked qua lawyers to provide legal advice”, is the lawyer being asked

to “put on legal spectacles when reading, considering and

commenting on drafts”, observed Lord Rodger.7

Their Lordships have identified the scope of legal advice privilege with

clarity. In the event, the documents passing between the BIU and

Freshfields/counsel for the purposes of presenting BoE’s case to the

Bingham Inquiry were privileged from disclosure. Whilst their

Lordships’ clarification of the policy reasons and scope of legal advice

privilege has been welcomed, it is also important to draw attention to

the analysis that their Lordships deliberately omitted to embark on.

When is an employee a client of hisemployer’s lawyers for privilege purposes?

Their Lordships declined to express a view on the issue of when an

employee is a client of his employer’s lawyers. Lord Scott gave the

principal reasons for declining to analyse this issue8. These included

that any views expressed by their Lordships would not be binding

and that the judgment of the Court of Appeal on the first disclosure

application would continue to be the binding precedent. Lord Scott

was careful to point out that “nothing that I have said should be

construed as either approval or disapproval of the Court of Appeal’s

ruling”9. In a slightly differently worded statement, Lord Carswell,

after agreeing with Lord Scott’s reasons for not expressing an

opinion on this point, said “I am not to be taken to have approved

of the decision in Three Rivers (No 5), and I would reserve my

position on its correctness”10.

The decision not to comment on this issue has been met with little

enthusiasm and decried as a missed opportunity in some quarters11.

The position of corporate entities, which act solely through their

officers/employees is now uncertain. Solicitors advising corporate

entities will need to exercise a good deal of care in determining the

precise identity of their clients within the corporation if they are to

avoid having to make disclosure of documents which have been

communicated by/to non-client employees of the corporation.

Conversely, it is likely that this grey area will also play into the hands

of those litigating against corporations and who could now seek

wider disclosure of documents that were thought to be privileged.

Litigation privilege

Litigation privilege protects all communications between parties,

their solicitors and third parties made for the sole or dominant

purpose of obtaining information or advice in connection with

existing or contemplated adversarial litigation12. It is apparent from

the speeches of their Lordships that litigation privilege was the focus

of some argument during the course of the appeal even though issues

as to litigation privilege did not arise for decision in the appeal.

Nevertheless, in an interesting development, Lord Scott took the

opportunity of commenting on the interplay between litigation

conducted under the Civil Procedure Rules and litigation privilege,

when he stated at paragraph 29, that “civil litigation conducted

pursuant to the current Civil in re L [1997] AC 16 warrants, in my

opinion, a new look at the justification for litigation privilege. But

that is for another day”. Those comments were mirrored by Lord

Rodger when he stated that “the ethos of the new system of civil

procedure in England and Wales, and of the more limited changes

in civil procedure in Scotland, may also have a bearing on the

question. Consideration of the issue must, however, await a case

where the matter arises for decision”.13

Conclusion

The House of Lords decision in Three Rivers District Council and others

v Governor and Company of the Bank of England (No. 6) has clarified

the policy reasons that underpin legal advice privilege as well as the

scope of that privilege. However, the decision did not resolve issues

which had by then arisen as a result of the Court of Appeal’s decision

in Three Rivers District Council and others v Governor and Company of the

Bank of England (No. 5) as to the manner in which one should

determine the identity of a law firm’s client for legal advice privilege

purposes. This deliberate omission will place some strain on

corporate clients and those advising them. Finally, their Lordships

implicitly questioned the justification of litigation privilege in the

context of the new ethos of the CPR. Some certainty has been gained

from this decision, but some certainty has also been sacrificed.

Stefan Ramel, Pupil Barrister

7 Paras [58] and [60] respectively

8 See para. [47] of Lord Scott’s speech.

9 See para. [48] of Lord Scott’s speech.

10 See para. [118] of Lord Carswell’s speech.

11 Three Rivers runs deep?, New Law Journal, 19 November 2004,

p.1709; Three Rivers: comfort or missed opportunity?, New Law

Journal, 26 November 2004, p.1750; and Privilege: how a River

runs through it, Law Soc Gazette, 2 December 2004

12 See Lord Carswell’s useful synopsis at para. [102].

13 Para [53]

7

1 As clarified in Victoria Laundry (Windsor) Ltd. v. Newman Industries

Ltd [1949] 2 K.B. 528; The Heron II (Koufos v. C. Czarnickow Ltd)

[1969] 1 A.C.350; Parsons v. Uttley Ingham & Co.Ltd [1978] Q.B.

791 and Brown v. KMR Services Ltd [1995] 4 All E.R. 598.

2 [2005] UKHL 3

3 [2000] EWCA Civ 203

4 In accordance with Allied Maples Group Ltd v Simmons & Simmons

[1995] 1 WLR 1602

Jackson v Royal Bank of Scotland [2005] UKHL 3 and Hadley v Baxendale

Two rules, one principleIntroduction

The remoteness rules for damages arising

from breach of contract are set out in the

well-known case of Hadley v Baxendale

(1854) 9 Exch 341, 3541. The House of Lords

revisited these rules in Jackson & Another v

Royal Bank of Scotland2 in the context of a

breach of confidence claim for the loss of

chance of profits. The House of Lords set

aside the decision of the Court of Appeal3 and restored the decision

at first instance, concluding that the Court of Appeal had

‘misunderstood the effect’ of the rules set out in Hadley v Baxendale

said to be ‘familiar to every student of contract law’! The decision

contains a helpful analysis of the rules as to remoteness. Properly

analysed, there is one underlying principle governing remoteness. In

defence of the Court of Appeal decision, it is suggested below that

there might have been an alternative ground for justifying, in part,

the approach taken by them.

The facts

Mr Jackson and his partner were trading under the name of Samson

Lancastrian (“Samson”). Samson was an importer of pet food

products from Thailand. Its principal customer in the UK was

another business partnership called “Economy Bag”. The partners in

Economy Bag were Mr Taylor and Mr Holt. They were in the

business of supplying dog chews. By 1990 they decided they would

outsource the packaging operation and obtain the dog chews in pre-

prepared packs bearing the Economy Bag name, and they were

introduced to Samson for that purpose. Economy Bag agreed to do

business with Samson by means of transferable letters of credit. One

advantage of this system, as far as Samson was concerned, was that

it enabled the mark-up it applied to purchases from its supplier in

Thailand, Pet Products Ltd (“Pet Products”), to be concealed from

Economy Bag. Business was successfully conducted between Samson

and Economy Bag from 1990 to March 1993.

Both Samson and Economy Bag banked with the Royal Bank of

Scotland (“the Bank”). In error, on the 15 March 1993, the Bank

sent a completion statement and other documents, including the Pet

Products’ invoice disclosing the mark-up applied by Samson, to

Economy Bag instead of Samson. The mark-up applied on this

contract was 19%. Mr Taylor of Economy Bag was angry at the size

of the mark-up and decided to cut Samson out of any new contracts,

instead importing the goods direct from Pet Products. Samson was

not able to survive the loss of business as a result and it ceased

trading. It issued proceedings against the Bank for the lost of chance

of profits to be gained from Economy Bag had the breach of

confidence not occurred.

The decision at first instance

The contract between Samson and the Bank was said to contain an

implied undertaking by the Bank not to disclose to Economy Bag any

of the documents relating to its purchase of goods from Pet Products.

HH Judge Kershaw QC held the Bank was in breach of confidence by

disclosing to Economy Bag the invoice by Pet Products to Samson

and that this disclosure revealed the mark-up applied, which caused

Economy Bag to cease trading with Samson. He held that there was a

significant chance that Samson’s trading relationship with Economy

Bag would have continued for another four years but in view of the

uncertainties involved he applied a percentage for the loss of chance4

and increased the percentage deduction year by year. He awarded

damages in the sum of US$124,500.

The Court of Appeal decision

In the Court of Appeal Potter LJ, with whom Nourse LJ and Ferris J

agreed, concluded that there was no sufficient basis for awarding loss

of profits for a four year period. He stated the judge should have

focused on the Bank’s limited knowledge at the date of breach and

ought to have concluded that the Bank could reasonably foresee loss of

profits only in the near future. The Court of Appeal accordingly

concluded that the damages claim should be limited to a period of one

year from the date of the breach, reducing the award to US$45,000.

The House of Lords

Lord Hope, who gave the leading opinion in the House of Lords,

stated that the Court of Appeal made two errors in the assessment of

damages. The first error in principle was the statement that the issue

was the Bank’s knowledge at the date of breach. For breach of contract

cases, as opposed to breach of tortious duties, the important date is

the date when the contract was made, not when the breach occurred.

The underlying reason for that distinction is that it is assumed that the

contract breaker had an opportunity to seek to limit or define his

liability when the contract was entered into. The risk was assumed at

the date of contract and accordingly it is knowledge at the date of

contract which applies. This error was somewhat technical in that the

date of contract and date of breach were only two months apart, but

it was nevertheless important since it demonstrated that the Court of

Appeal had started off on the wrong footing.

8

The second error was said to flow from the first. The period for loss

of profits was not to be constrained by reference to knowledge at the

date of contract since that test applied to whether or not the kind of

loss suffered was foreseeable. In the absence of any specific temporal

limitation in the contract, once it has been concluded that the kind

of loss suffered was reasonably foreseeable at the date of contract,

then the limit on the period of liability is constrained only by the

question of whether any loss sustained has become too speculative

to justify the making of an award. There was no such limitation in

the contract between the Bank and therefore the judge’s decision at

first instance should be restored.

The House of Lords also detected some errors in the judge’s analysis

of the evidence when deciding the period for the award. The

observations of the Lords suggest that they considered the first

instance decision was over generous to the claimant; its position was

a precarious one since Economy Bag knew the identity of Pet

Products and it was only a matter of time before Economy Bag

would have taken steps to examine the position with Pet Products.

However they did not consider the errors justified sending the

matter back to the judge for a further hearing, and decided justice

would be best served by re-instating his award.

Commentary

The opinions of Lord Hope and Lord Walker provide a concise

restatement of the remoteness rules. In particular, their opinions

emphasise that, properly understood, there is only one underlying

principle as to remoteness for damages flowing from breach of contract.

The Hadley v Baxendale rules as to remoteness are as follows:

“Where two parties have made a contract which one of them has broken,

the damages which the other party ought to receive in respect of such

breach of contract should be such as may fairly and reasonably be

considered either arising naturally, ie according to the usual course of

things, from such breach of contract itself, or such as may reasonably be

supposed to have been in the contemplation of both parties, at the time

they made the contract, as the probable result of the breach of it.”

The first rule is the ordinary rule; everyone is taken to know the

usual course of things arising from the breach of contract. However,

as Lord Walker stated (at para [46]), the first rule begs the question;

since it makes the damages recoverable depend on how the breach

of contract is characterised. The appropriate characterisation

depends on the terms of the contract and the business context. The

first rule, therefore, is really one incident of the second rule which

provides the general principle; namely, recoverable damages are

constrained by what the contract breaker knew or must be taken to

have known about the contract, and the background ‘matrix of fact’,

so that he would, or should, have realised that such loss was not

unlikely to result from the breach of contract, so as to make it

proper to hold that such loss was within the reasonable

contemplation of the parties.

The second point to note from the restatement of the rules as to

remoteness of damages for breach of contract is that the date for

examination of the knowledge of the parties is the date of contract

not the date of breach. The Court of Appeal erred in this respect.

However, it is possible to justify the approach taken by them,

namely to take the date of breach as being the relevant date, on the

ground that duties of confidence are ‘sui generis’ and have an

underlying equitable basis. Arguably they have more in common

with a tortious breach of duty than breach of contract, and

accordingly date of breach is the more appropriate date to consider

when assessing the amount of damages to recover5. There does not

appear to have been any discussion of this point in the House of

Lords, it being assumed that the duty of confidence was a term to be

implied in the contract (a finding of the judge at first instance,

which was not challenged on appeal). It should be noted that

ordinarily such an argument would work in favour of the claimant,

since it is expected that the extent of the defendant’s knowledge will

have increased in the period between the date of contract and date

of breach. In some cases, therefore, care should be taken to consider

at the outset whether there will be an advantage in characterising the

claim as arising out of equity, tort or contract.

Hugh Sims

5 In Brown v KMR Services the defendant was concurrently liable in

breach of contract and the tort of negligence and the contract test

of remoteness was applied, without any apparent argument. It is

not considered this case would stand in the way of an argument

that the breaches in this case ought to have been characterised as

breaches of equitable duties of confidence and knowledge

should have been assessed at the date of breach.

9

Cavendish Place sounds like a good address

for a place in Bath. It is also the setting for a

decision made recently in the County Court

which may provide a boost for users of the

JCT Building Contract for a Home

Owner/Occupier. This contract is not only

unique for earning a crystal mark award for

the clarity of its English, so everyone can

understand what has to be done, but it also

provides a system for quick and economical dispute resolution, by

incorporating the rules of the RICS/RIBA adjudication scheme. This

procedure requires the adjudicator to issue a written decision within

21 days of the appointment for a maximum fee of £750. Even better,

if the adjudicator apportions the fee (as they often do) then each side

only has to pay its share without liability for the other’s if they default.

So what could possibly go wrong? Well one small problem is that

the RICS/RIBA adjudication rules are not printed on the contract

form. Instead you have to ask for them to be sent to you. No real

problem perhaps, but then who can bothered to read to the end of

Part I of the contract form and then ring (or write or email) the RICS

or RIBA and wait until they post a copy to you? Ms Fay, the lady who

wanted work done at Cavendish Place, certainly could not. She fell

out with her builders. They applied to the RICS who appointed Mr

David Cartwright to decide their claim for extras. Then the battle

began in earnest with cross claims for defective works among other

things. Mr Cartwright decided that the overall victor was the builder

to whom he awarded £4306 and he then split his fee equally

between the parties.

Ms Fay refused to pay the builder or to pay her share of the

adjudicator’s fee. She denied that Mr Cartwright had any right to sue

her direct (as provided by rule 13) or that she was bound by the

adjudication rules (which she had not seen before signing the

contract). She also contended that the rules were unfair and

unenforceable under the Unfair Terms in Consumer Contracts

Regulations 1999. Mr Cartwright brought the case in the county

court to recover his fee.

The Court held that Ms Fay had agreed to all of the terms of the

contract by signing it, including the terms which were referred to but

contained elsewhere, such as the adjudication rules and that these

clearly entitled Mr Cartwright to sue. No great surprise there.

The application of the 1999 Regulations to adjudications is rather

more controversial. The 1999 Regulations apply where goods or

services are provided to someone acting outside his or her normal

business and where the term has not been negotiated individually by

the parties, such as when a standard form of contract is used. The TCC

so far has referred to the 1999 Regulations in four adjudication cases.

The overall score is three-one in favour of adjudication, dealing with

the IFC and Minor Works Forms and only in one case – Piccardi v

Cuniberti in December 2002 – has a question been raised about

whether the process was unfair to the consumer. This was the case in

which Mr Piccardi, the Architect, sought to rely upon the adjudication

provisions under the RIBA Conditions of Appointment. Although His

Honour Judge Toulmin CMG QC found that no such contract had

been made, his remark that the irrecoverable costs incurred in

adjudication might hinder the consumer from enforcing his rights by

legal action suggested that adjudication clauses might be treated as

unfair and unenforceable under the Regulations. The case caused

some consternation until the balance was restored by His Honour

Judge Moseley QC in Lovell Projects v Legg & Carver, in July 2003.

In that case there was no dispute about the incorporation of the

adjudication terms in the JCT Minor Works Contract. Judge Moseley

did not consider that adjudication hindered the consumer’s right to

bring legal action if he disagreed with an adjudicator’s decision. The

costs and disadvantages of adjudication cut both ways. This did not

impose any imbalance on the parties’ rights and obligations under

the contract.

The test of unfairness under the Regulations is a subtle one. A term

will be unfair if contrary to the requirement of good faith, it causes

a significant imbalance in the parties’ rights and obligations to the

detriment of the consumer. The Court has to examine the

circumstances under which each contract was made. Fair and open

dealing by the supplier is required in order to show good faith. A

term can be unfair and unenforceable because the consumer did not

have the chance to see it properly before signing the contract. Which

brings us back to Ms Fay.

The District Judge found that requesting the customer to sign a

contract which included clear directions as to how the adjudication

rules could be obtained did not breach the requirement of good faith.

Ms Fay however accepted that she had plenty of time to read the

contract and that she could have obtained copies of the adjudication

rules from RICS or RIBA before she signed the contract. The evidence

was that there was an interval of several days, if not weeks, between Ms

Fay being sent the contract and being asked to sign it.

It is not difficult to envisage problems in another case where the

consumer may only have minutes – not days – to read the contract

before signing it. In those circumstances there would still be a risk

that the adjudication rules might be found to be unfair and

unenforceable under the Regulations. As the Court must in each case

examine the circumstances in which the contract was made, there

may be no way of ensuring that the JCT Home Owner/Occupier

Contract is proof against challenges under the 1999 Regulations. But

one simple precaution might reduce a lot of the risk: to print the

rules of the adjudication scheme on the contract form or until this is

done, make sure a copy of the rules is included with the customer’s

copy of the contract and that it is initialled or acknowledged in some

way, when the contract is signed.

Ralph Wynne-Griffiths

The adjudicator’s rights to his fees

10

11

Recovery of overpaid taxesInland Revenue Commissioners vDeutsche Morgan Grenfell Groupplc [2005] EWCA Civ 78

The factual matrix

DMG was an English subsidiary of a German parent. It was required

to pay advanced corporation tax (“ACT”) on its dividends. Pursuant

to section 247(1) of the Income and Corporation Taxes Act 1988 it

was possible to make a group income election to avoid such

payments of ACT, but only where both parent and subsidiary were

resident in the UK. In July 1995 DMG became aware that another

company was challenging this as contrary to EC law. In the meantime

DMG continued to pay ACT on its dividends to its parent. On 8

March 2001 the European Court of Justice delivered judgment in

Metallgesellschaft Ltd v IRC, Hoechst v IRC [2001] Ch 620 holding the

UK tax rules contrary to Community law and further holding that

Community law conferred a right of compensation or restitution. By

not being able to make a group income election DMG had suffered a

disadvantage. It issued proceedings claiming restitution on 13

October 2000. This was a test case to determine limitation issues. It

concerned DMG’s three payments of ACT in 1993, 1995 and 1996.

The first instance decision

At first instance ([2003] EWHC 1779 (Ch), [2003] 4 All ER 645)

Park J held DMG was not time-barred in respect of any of the three

payments. His Lordship rejected a submission of the Revenue, that

English law did not recognise a cause of action for the recovery of

overpaid taxes on the ground of mistake of law. The special “tax”

claim in Woolwich Building Society v IRC (No 2) [1993] AC 70 did not

provide the sole basis of claim. Even in a tax case a claimant was

entitled to rely on Kleinwort Benson Ltd v Lincoln City Council [1999]

2 AC 349. Accordingly it was held that DMG had made all three

payments under a mistake of law, and was entitled to rely upon the

extended limitation period under section 32(1)(c) of the Limitation

Act 1980; also applying Kleinwort Benson Ltd v Lincoln City Council.

The Commissioners appealed to the Court of Appeal.

The fall-out

In the meantime on 8 September 2003 the Inland Revenue by Press

Release 78/03 announced plans to reverse legislatively the decision

in the case, with retrospective effect to that date (8 September 2003).

Draft provisions of the Finance Bill 2004 provided that section

32(1)(c) of the 1980 Act “does not apply in relation to a mistake of

law relating to a taxation matter under the care and management” of

the IRC. This became section 320 of the Finance Act 2004.

The decision in the Court of Appeal

The judgment of the Court of Appeal of 4 February 2005 [2005]

EWCA Civ 78 (Buxton, Rix and Jonathan Parker LJJ) runs to some 298

paragraphs. The principal judgment is delivered by Jonathan Parker

LJ. It subjects Lord Goff’s speeches in Woolwich and Kleinwort Benson

to “minute, not to say microscopic, analysis” (para [93]). Jonathan

Parker LJ construed Lord Goff’s view as being that “in such cases the

mistake of law rule has no application since the taxpayer’s cause of

action is founded not on his mistake but on the unlawful nature of

the demand (in effect, the revenue’s mistake): in other words, that the

Woolwich cause of action effectively subsumes any cause of action

which might otherwise exist for mistake of law” (para [195]). That

Woolwich cause of action was “complementary to the various statutory

regimes” (para [200]) for the recovery of overpaid tax such as section

33 of the Taxes Management Act 1970, supplying a common law

restitutionary remedy where the statutory mechanisms do not apply

(as here where there was no payment under an assessment). Further

he relied on Lord Goff’s identification of “two separate and distinct

regimes” in restitution for the payment of tax and private transactions

respectively in Kleinwort Benson [1999] 2 AC 349, 381 (para [204]).

The net result of the analysis is to be found in para [208]: “on a true

analysis of Lord Goff’s speeches in Woolwich and Kleinwort Benson, a

claimant who makes a payment to the revenue under a mistake of law

is not entitled to a restitutionary remedy in respect of that payment

otherwise than under the Woolwich principle (where the demand is

unlawful) or under the relevant statutory regime (where the demand

is lawful).”

In the result the appeal was allowed by the majority in relation to

the 1993 payment (which was time –barred under the usual six year

rule), but was dismissed in relation to the payments in 1995 and

1996. Buxton LJ would have gone further and on a pleading point

would have allowed the appeal in respect of all three payments.

Commentary

Both sides have been given permission to appeal to the House of

Lords: DMG on the cause of action issue and the Revenue on a

pleading issue which divided the Court of Appeal. This may provide

the opportunity for a comprehensive review of the whole question of

when is an enrichment unjust for the purposes of the law of

restitution. In what Buxton LJ acknowledged to be “the last of his

many major contributions to the law of restitution before his

untimely death Professor Peter Birks suggested that the Woolwich

problem had been addressed after the ‘swaps’ cases, and in the light

of their jurisprudence, it would have been clear that the case fell

entirely consistently within the same rules of restitution as were

subsequently applied in those swaps cases”, quoting Peter Birks,

Unjust Enrichment (2nd edn, 2005), 134 (at para [274]). The debate

here is between the traditional English view that a claimant must

demonstrate that an enrichment is unjust on one of numerous

specific bases of claim: most books list between ten and twenty

“grounds of restitution” or “unjust factors” (eg mistake, compulsion,

failure of consideration) and the civilian rule which applies in most

other European jurisdictions, which is that recovery normally follows

where there is an “absence of legal basis”. That is, if a defendant is

enriched at the claimant’s expense, prima facie the money is

recoverable if there is no valid legal basis for the transfer (eg payment

of a contractual debt, or response to valid tax demand). Most of the

law’s attention then shifts to restitutionary defences. Birks’s final

view considered that English law had adopted the civilian approach,

especially as the result of the “swaps” cases such as Kleinwort Benson.

The appeal may allow the House of Lords to address this question,

although neither party sought to rely on this approach in the Court

of Appeal: in particular it would compromise DMG’s reliance on

section 32(1)(c) which requires recovery to arise from a mistake.

Gerard McMeel

Guildhall Chambers, 5–8 Broad Street, Bristol BS1 2HW

DX 7823 Bristol Tel. 0117 930 9000 Fax. 0117 930 3898

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