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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Guilbert & Ors v Allianz Insurance Plc [2009] ScotCS CSOH_10 (27 January 2009)
URL: http://www.bailii.org/scot/cases/ScotCS/2009/CSOH_10.html
Cite as: 2009 SLT 264, 2009 Rep LR 28, [2009] ScotCS CSOH_10, [2009] CSOH 10, 2009 GWD 8-138
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OUTER HOUSE, COURT OF SESSION [2009] CSOH 10 |
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PD1313/07 |
OPINION OF LORD KINCLAVEN in causa JEAN FRANCOIS GUILBERT and OTHERS Pursuers; against ALLIANZ INSURANCE PLC Defenders: ________________ |
Pursuers: Hofford, Q.C.; Bonar Mackenzie, W.S.
Defenders: J.G. Thomson, Advocate; Simpson & Marwick, W.S.
Introduction
[3] Liability
was admitted and the case came before me for proof on quantum of damages.
[4] Mr
Hofford appeared for the pursuers.
[5] Mr
Thomson appeared for the defenders.
[9] The
only witness to give evidence was the first pursuer - Jean Francois Guilbert.
[15] I shall illustrate my decision in spreadsheet format below.
[17] Meantime I shall reserve the question of expenses.
[18] I would outline my decision more fully as follows.
The Background and Pleadings
[19] The Record is No. 14 of Process.
[24] Liability was admitted for the purpose of the present action (Answers
4 and 11).
"The first pursuer has suffered the loss of his wife, the deceased. He had a close and loving relationship with the deceased. He has lost the love, society and affection of the deceased. He has suffered and continues to suffer grief and sorrow at the deceased's death and the circumstances in which it occurred. He has suffered a loss of financial support. The deceased contributed significantly to the household budget. She earned more than the first pursuer. She was due to retire in early 2005 but for the accident. The first pursuer has suffered a loss of the deceased's pension rights. Vouching in respect of the first pursuer's earnings and the deceased earnings and pension rights will be produced. The first pursuer has suffered the loss of those personal services which the deceased would have rendered to him had she lived. The first pursuer has the following heads of claim: (1) damages as a widower under section 1(4) of the Damages (Scotland) Act 1976 (as amended) for the loss of the deceased (2) loss of financial support as widower and loss of personal services under section 1(3) of the Damages (Scotland) Act 1976 (as amended) and (3) funeral expenses. Quoad ultra the defenders averments in answer are denied."
[27] Answer 6 for the Defenders is in the following terms:
"Sections 1(4)
and 1(3) of the Damages (
The evidence of the first pursuer - Jean Francois Guilbert
1. Before the accident the deceased earned a lot more than the first pursuer.
2. The first pursuer's net earnings in 2003 were €21,974.53.
3. The deceased's earnings in 2003 were €65,467.92.
4. Prior to the accident they led a simple life with no large personal expenses. They lived within their income which went on the first pursuer, his wife and their youngest daughter Sylvane. He thought that before the accident about 20% of their income went on supporting Sylvane.
5. In the first year after his wife died the first pursuer had to be cautious. He had to decrease some expenditure. He was not receiving his own retirement income and in 2005 he sold a flat which he was renting.
6. But for the accident, his wife would have retired in 2005.
7. Sylvane finished her studies in December 2006.
8. The first pursuer retired in 2007 aged 60.
9. His income was higher when he retired.
10. His net income from his pension was €52,141.
[34] There was no re-examination.
Joint Minute of Admissions
[35] The Joint Minute of Admissions is No. 24 of Process.
[36] For the purposes of the present action, the parties were agreed
as follows:
"1. That all heads of claim in the current action, with the exception of:
(a) past loss of support;
(b) interest on past loss of support; and
(c) future loss of support,
have a combined total value of £80,000 inclusive of interest to 17.6.08 and that thereafter interest will be applied at 8% per annum.
2. That for the purposes of assessing past loss of support, that following matters are agreed:
(a) that from the date of death (7.7.04) to 17.6.08
(i) the combined income of the deceased, Marie Paul Odile Guilbert, and the first pursuer would have been 362,798 Euros net of tax;
(ii) the first pursuer's income was 102,685 Euros net of tax;
(b) that from the date of death (7.7.04) to 17.6.08, the first pursuer's loss of support is to be calculated by reference to the combined income (362,798 Euros net of tax) less a percentage deduction to reflect the cost of the deceased's personal needs and maintenance;
(c) that the size of the said percentage deduction is a matter for the court to decide;
(d) that the resultant figure is then subject to the deduction of the first pursuer's net income (102,685 Euros) resulting in a net figure constituting past loss of support;
(e) that interest on the resultant figure is to be applied at 4% per annum from 7.7.04 to 17.6.08 and thereafter at 8% per annum.
3. That for the purpose of assessing future loss of support, the following matters are agreed:
(a) that the combined income of the deceased and the first pursuer is 118,609 Euros per annum net of tax;
(b) that the first pursuer's deductible income is 52,141 Euros per annum net of tax
(c) that the first pursuer's loss of support is to be calculated by reference to the combined income (118,609 Euros net of tax) less a percentage deduction to reflect the cost of the deceased's personal needs and maintenance;
(d) that the size of the said percentage deduction is a matter for the court to decide;
(e) that the resultant figure is then subject to the deduction of the first pursuer's net income (52,141 Euros) resulting in a net figure constituting the multiplicand for determining future loss of support.
(f) that the applicable multiplier is 16.
(h) that the future loss of support is determined by 16 x the multiplicand arrived at in paragraph 3(e) hereof."
€ 1 Euro = £ 0.7945
Pounds (
The Damages (
[39] Section 1(3) of the Damages (
"(3) The damages which the responsible person shall be liable to pay to a relative of a deceased under this section shall (subject to the provisions of this Act) be such as will compensate the relative for any loss of support suffered by him since the date of the deceased's death or likely to be suffered by him as a result of the act or omission in question, together with any reasonable expense incurred by him in connection with the deceased's funeral."
Authorities and References
[40] Counsel also referred me to the following authorities and
references:
1. Porter v Dickie 1983 SLT 234, Lord Ross at page 235-236;
2. Harris v Empress Motors Ltd (CA) [1984] 1 WLR 212, O'Connor L.J. at pages 216H-217D;
3. Brown
v
4. Wotherspoon v Strathclyde Regional Council 1992 SLT 1090, Lord Abernethy at page 1091F-H and 1091L;
5. Sargent v The Rt Hon Donald Dewar MP 2001 SCLR 190, Lord Clarke at page 191B and 195C;
6. Smith's Executrix v J. Smart (Contractors) plc 2002 SLT 779, First Division, Lord President (Cullen) at page 780F-H;
7. Audrey Weir v Robertson Group (Construction) Limited [2006] CSOH 107, Lord Glennie at paragraphs [19] and [20]; and
8. Kemp and Kemp on The Quantum of Damages in relation to "Dependency Claims; Calculating the Loss: The Multiplicand" (paragraph 29-033 to 29-048) at paragraphs 29-035 to 29-038, and paragraph 29-040.
The Submissions for the First Pursuer
[42] Mr Hofford took as his starting point the views of Lord Glennie
in Audrey Weir v Robertson Group (Construction) Limited [2006] CSOH 107. In that case a figure of 30% was used as a
deduction. That was an agreed compromise
between 25% and 33.33%.
[43] In particular, in relation to loss of support Lord Glennie said:
[20] I am told that there is no hard and fast rule reflected in the
Scottish authorities as to the appropriate percentage to apply. However, the English cases have shown the
development of a standard practice, which might almost be described as a rule,
to be applied in the absence of factors justifying a departure from it. In terms of this rule, the appropriate
percentage is about 75% where there are dependent children of the family,
and 66.67% where there are no children.
The justification for this that where there are children the net
earnings of the deceased are divided between four equal recipients, namely the
deceased himself, the spouse, the children and the household in general,
whereas, where there are no children, there are only three equal participants
in the net earnings. An exposition of
this conventional rule is to be found in the case of Robertson v Le Strange [1985] 1 A11.E.R. 950 at
955. It is not necessary for me to refer
to other passages in the authorities and textbooks in support of this approach,
since Mr Smith, for the pursuer, suggested that to reflect the fact that there
would be dependent children in the family for a number of years but thereafter
they would leave the home, I should find a figure between these two extremes
and take 70% as the appropriate percentage.
Mr Laing for the first defenders was content with this."
[44] In support of his submission Mr Hofford also referred me to the
following cases.
"The normal approach to the position where both spouses are earning is to add the incomes together and deduct say 25 per cent as being for maintenance of the deceased. The net figure so arrived at less the earnings of the surviving spouse forms the loss of dependency."
"In
the present case I consider that 25 per cent would be an appropriate deduction for the deceased's
maintenance."
"I therefore consider
that following the approach of the Court in Brown
v Ferguson ... as was applied in Wotherspoon v Strathclyde Regional Council ... I should add a figure of 11 x
£7,400 to the figure of £330,000 as representing the joint income of the
parties available for the family, making a total of £411,400. In my judgment from that should be deducted 30
per cent in respect of the deceased's own maintenance, leaving £287,980. From that figure falls to be deducted the
figure for the first pursuer's income, viz £81,400 leaving £206,580 as the sum
which would have been available for family support."
'The normal approach to the position where both spouses are earning is to add the incomes together and deduct say 25 per cent as being for maintenance of the deceased. The net figure so arrived at less the earnings of the surviving spouse forms the loss of dependency'.
Cf Wotherspoon v Strathclyde Regional Council and Sargent v Dewar. It follows, that in the absence of averments directed to supporting a different basis, the averments of the pursuers in such an action would be understood as inviting the court to take the normal approach which we have described.
The Submissions for the Defenders
[56] There was no rigid rule that called for a 25% deduction in this
case as the pursuer suggested.
[57] It was for the pursuer to establish his case on facts admitted
or proved.
[59] It was now for the court to make a reasonable assessment based
on the evidence.
[62] That was the effect of the authorities listed above. So it was argued.
[65] After retirement, the first pursuer was less dependent on the deceased.
"(a) I first consider the position up to May 1981 when the pursuer became redundant. The evidence is that the pursuer and the deceased pooled their resources. At the date of death the pursuer's net wage was £46 per week. In my opinion, it would be reasonable to regard one-half of that total as required for the support of the deceased and the other half for the support of the pursuer, and following upon the death of the deceased the pursuer would suffer no loss since he still had his own earnings of £58 per week which was more than half of the joint earnings. In the circumstances I feel that the pursuer has not established any loss of support during this period. Counsel for the pursuer urged me to make some award for this period although he admitted that any loss must be slight; in my opinion, however, the pursuer is not entitled to any damages in respect of loss of support for this period.
(b) I next consider the period from May 1981 to May 1982. ... Again, I regard it as reasonable to assume that half of the joint earnings would have been available for the support of the pursuer and the remaining half for the support of the deceased. ...
(c) I next consider the period after May 1982. ... "
[69] I will consider Kemp and Kemp in greater detail below.
Observation of the Authorities
[70] At this stage, it might be helpful to make a few observations on
the authorities listed above.
Kemp and Kemp on The Quantum of Damages
1. "Providing that the deceased's
dependants can give reasonable accurate evidence, the best way in many cases to
establish the annual value of the dependency is to build it up item by
item ..."
(paragraph 29-035).
2. "At this stage it is often helpful to
apply a cross-check to the dependants' estimates by ascertaining the deceased's
net annual income at the date of his (or her) death to see whether it could in
fact cover the total estimated dependency and still allow enough for the
deceased's keep and his personal expenditure."
(paragraph 29-035).
3. "Where it is difficult to obtain reliable evidence as to payments made by the deceased to or for the benefit of his dependants, an alternative, although less accurate, approach may be adopted. Start with the deceased's net income at the date of his death: estimate how much of this he spent on himself: then, if his pattern of life justifies the assumption, take the remainder of his net income as being spent for the benefit of his dependants." (paragraph 29-035).
4. "It is now common practice to apply a conventional rule of thumb that the dependency is 66 per cent for a spouse and 75 per cent where there are also children. This was described by O'Connor L.J. in ... Harris v Empress Motors Ltd. ..." (paragraph 29-036).
5. "This rule of thumb will only be
applied in a normal case with no unusual features." (paragraph 29-037).
6. " ... It is clear that the value of the dependency
cannot be taken at such an arbitrary figure and must always depend on
facts. See Shiels v Cruikshank
[1953] 1 W.L.R 536, HL, Mallett v McMonagle [1970] A.C. 167 per Lord Diplock at 176 D-G,
7. "Whilst the rule of thumb approach has
the great merit of simplicity in an area in which in many cases a detailed
analysis will be disproportionate to the sums at stake, it is suggested that
there should be at least some reflection as to whether to provide direct
evidence instead especially by claimants."
(paragraph 29-038).
8. "Something further should be said about
the so-called "rule of thumb". Where there
are no dependent children the dependency (whether upon a sole income as in Harris v Empress Motors, or a joint income as in Coward v Comex) is said
to be two‑thirds. This is because
it is presumed that one-third of the family income was spent on each spouse
exclusively, and the remaining one-third on joint expenditure (rent/mortgage,
fuel etc). Where there are children, the
rule of thumb is that the dependency (of widow and children taken together)
rises to 75 per cent. Now the rule of
thumb decrees that one quarter is spent on each spouse, one quarter on the children,
and one quarter on joint expenses. These
percentages may need adjustment depending on the number of children; and it is important to emphasise that these
presumptions may be displaced by hard evidence as to how the family purse was
actually spent." (paragraph 29-039).
9. "Prospective changes to the dependency. The court will probably also have to estimate how the financial relationship, between the deceased and the dependant would have continued in the future. In general terms, that is simply part of assessing what benefit the dependant had a reasonable expectation of receiving." (Kemp and Kemp paragraph 29-045).
Discussion
The Appropriate Percentages
Past Loss of Support
[95] In relation to past loss of support, in my view, 25% is too
low.
Future Loss of Support
[98] 25% is also too low in relation to future loss of support.
[99] Any support to the children is likely to be modest and
diminishing.
[102] In my opinion, in this case, the appropriate percentage deduction
in relation to future loss is 35%.
[103] It might be helpful if I illustrate my views in the form of a
schedule of damages.
Schedule of Damages
[104] The effect of my decision can be illustrated as follows:
|
Time Periods and Interest |
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Date of accident and death |
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Date of assessment |
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Period from accident to assessment |
3.95 |
years |
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|||
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If allow Interest at |
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4.00 |
% |
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Total interest to date of assessment |
15.79 |
% |
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|||
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Interest from |
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8 |
% |
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Past Loss of Support |
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From |
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to |
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|
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|
First Pursuer's net income |
|
102,685.00 |
|
Euros |
||
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(an
average of |
26,009.73 |
per
annum) |
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||
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Deceased's net income |
|
260,113.00 |
|
Euros |
||
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|
(an
average of |
65,885.67 |
per
annum) |
|
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||
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_________ |
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Combined net income |
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|
362,798.00 |
|
Euros |
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(an
average of |
91,895.40 |
per
annum) |
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||
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Deduct
for personal maintenance of deceased |
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|||
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30.00 |
% |
|
108,839.40 |
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Euros |
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_________ |
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Sub-Total |
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253,958.60 |
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Euros |
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Deduct
First Pursuer's net income |
|
102,685.00 |
|
Euros |
||
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_________ |
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(A)
Past loss of support |
|
151,273.60 |
|
Euros |
||
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(B)
Add interest to |
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15.79 |
% |
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23,888.80 |
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Euros |
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_________ |
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Past Loss of Support inclusive of
interest (A) + (B) |
175,162.40 |
Euros |
||||
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Future Loss of Support |
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From |
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First Pursuer's net income |
|
52,141.00 |
|
Euros |
||
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|
|
|
|
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Deceased's net income |
|
66,468.00 |
|
Euros |
||
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|
_________ |
|
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Combined net income |
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|
118,609.00 |
|
Euros |
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|
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Deduct
for personal maintenance of deceased |
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|||
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|
35.00 |
% |
|
41,513.15 |
|
Euros |
|
|
|
|
|
|
_________ |
|
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Sub-Total |
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77,095.85 |
|
Euros |
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|
Deduct
First Pursuer's net income |
|
52,141.00 |
|
Euros |
||
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_________ |
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Multiplicand for loss of support |
|
24,954.85 |
|
Euros |
||
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|
Agreed Multiplier |
|
x |
16.00 |
|
years |
|
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|
_________ |
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|
(C)
Future Loss of Support |
|
|
399,277.60 |
Euros |
||
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_________ |
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Total Loss of Support (A) + (B) + (C ) |
€ |
574,440.00 |
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Convert Euros
to Pounds Sterling |
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||
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using agreed conversion rate |
x |
|
0.7945 |
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||
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_________ |
|
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|
Total Loss of Support |
|
|
456,392.58 |
Pounds |
||
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Other Heads of Claim |
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||
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Add
other agreed Heads of Claim |
|
|
80,000.00 |
Pounds |
||
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|
_________ |
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Total Award for First Pursuer |
|
£ |
536,392.58 |
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_________ |
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with interest thereon at |
8 |
% |
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||
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from |
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until payment |
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[106] Meantime I shall reserve the question of expenses.