Questions as to the existence of mistake or absence of consensus ad idem in an agreement for payment of dilapidations by tenants of business premises to their landlords — Appeal from decision of judge (Michael Davies J) on a preliminary issue in an action brought by tenants — Judge had decided, in favour of landlords, that in entering into the agreement in regard to dilapidations the landlords’ representative was proceeding on the basis that the tenants were going to move out forthwith, but that the tenants were not contracting on any such basis — Hence judge held that there had been no ‘meeting of minds’ and consequently no binding agreement — Analysis by Robert Goff LJ of different circumstances in which it might be said that there was no consensus ad idem, an expression which ’embraces different situations’ — In the present case the judge’s conclusion, that the landlords contracted on the basis that it was an implied term or condition of the agreement concerning dilapidations that the tenants were to move out shortly, was held by the Court of Appeal to be contrary to the weight of the evidence — Tenants were intending to move out in due course but they had kept their options open as to the date of their departure — At one stage they had offered to negotiate for compensation for the surrender of their tenancy before they were bound by law to quit, but no surrender was agreed — Judge wrong in concluding that the agreement in regard to dilapidations was not binding — Appeal allowed
This was an
appeal by Southern Counties Agricultural Trading Society Ltd (SCATS) against a
decision of Michael Davies J on a preliminary issue raised in an action brought
by them as plaintiffs against their landlords, Green & Carter Ltd, the
present respondents, in respect of goods sold and delivered.
The
preliminary issue concerned the terms of an agreement by which the appellants
had agreed to pay certain moneys in respect of dilapidations to premises
occupied by them as tenants of the respondents at Kings Worthy, Hampshire.
Norman Rudd
(instructed by Ellis & Fairbairn, agents for Shenton Pitt, Walsh &
Moss, of Winchester) appeared on behalf of the appellants; Roger Toulson
(instructed by Warner & Richardson, of Winchester) represented the
respondents.
Giving the
first judgment at the invitation of Oliver LJ, ROBERT GOFF LJ said: There is
before the court an appeal by SCATS against a decision by Michael Davies J on a
preliminary issue. The matter arises as follows. The appellants were the
tenants of certain premises at Kings Worthy, the respondents being the
landlords. The premises, which consisted mainly of two large and fairly basic
warehouse-type buildings, were held under three leases for terms of about 20
years, each of which was due to expire under the terms of the leases at about
the end of 1977. To be exact, the two principal leases were due to expire on
December 31 1977 and the third, which related only to a paint shop, on January
20 1978.
On February 7
1977 the surveyors who acted on behalf of the respondents, Maurice Beale &
Partners, served notices to quit on the appellants and inquired whether they
intended to apply for new leases. In fact each of the three notices to quit was
invalid having regard to the provisions of the Landlord and Tenant Act 1954,
but no objection was taken to the notices at that time. The appellants at first
indicated an intention to retain the premises and were offered a new lease at a
rent suggested by the respondents’ surveyors to be the current open market
rent, viz £20,500 per annum — a substantial increase of about £18,000 per annum
over the total rents payable under the old leases. However, on August 22 1977 a
Mr Deacon, the appellants’ property manager, informed Messrs Beales that the
appellants were not seeking new leases.
On November 16
1977, following an indication by the appellants that they did not intend to
vacate the premises before the expiry of the old leases, a Mr J H Sawyer of
Messrs Beales wrote to Mr Deacon enclosing an unpriced schedule of
dilapidations and suggesting a meeting to discuss the matter of dilapidations.
Next on
December 9 1977 the respondents’ solicitors, presumably having advised their
clients of the invalidity of the notices to quit served the previous February,
served on the plaintiffs two notices under the Landlord and Tenant Act 1954
terminating the two principal tenancies, expressed to expire on June 15 1978.
From this Mr Deacon realised, if he had not done so before, that his company,
the appellants, were entitled in law to remain in possession of the premises
until June 15 1978. In point of fact the appellants had, during 1977, been in
the course of transferring the activities which they had been carrying on at
the premises at Kings Worthy to new premises at Micheldever and Winnall, and by
the end of 1977 this transfer had reached a very advanced stage.
On December 22
1977 there took place the meeting which had been proposed by Mr Sawyer when he served
the schedule of dilapidations. At the meeting the respondents were represented
by Mr Beale and Mr Sawyer and the appellants by Mr Deacon. The primary topic of
conversation at the meeting was the subject of dilapidations, but there was
evidence that there was some mention at the meeting of the date when possession
would be given, though this evidence was not entirely consistent. I quote the
summary of this evidence given by the learned judge:
[Mr Sawyer]
says that as far as he can recall he asked when possession would be given; and
he says, and this is the defendants’ case throughout, ‘No firm date was given,
because it depended on completion of the move to Micheldever.’ ‘And’, says Mr Sawyer, ‘there was no suggestion
that they would stay there after the move to Micheldever had been completed’.
Mr Beale said in his evidence that he got the impression that the determining
factor would be when the new buildings were ready at Micheldever. Mr Deacon
says that if the defendants’ surveyors got that impression then they must have
misled themselves, and that he did nothing to give that impression.
At all events,
on the day after the meeting Mr Deacon wrote to Mr Sawyer a letter in which he
confirmed the points made at the meeting; and the letter was concerned entirely
with the subject of dilapidations.
On December 29
1977 Mr Deacon served on the respondents a formal notice stating that the
appellants were not willing to give up possession of the premises on June 15
1978 as set out in the notices served on them. On the same day, he wrote
another letter to the respondents giving formal notice that the appellants
wished to terminate their tenancy of the paint shop on June 30 1978.
On January 5
1978 a further meeting took place between Mr Sawyer and Mr Deacon on the subject
of dilapidations. After the meeting a document called an occurrence sheet was
prepared by Mr Sawyer, setting out his account of what passed at the meeting.
The greater part of that document relates to discussions about the schedule of
dilapidations; but the document also contains two passages, one at the
beginning and one at the end, concerned with the appellants’ plans as regards
giving up the premises. These passages are of some importance, and I shall
therefore quote them in full. The first passage reads:
Before
entering into general discussion regarding the repairs, I asked Mr Deacon to
clarify the situation as regards his notice to Mr Green stating that SCATS
intended to apply for a new lease to commence at the expiry of the notice to
quit. Although Mr Deacon did not say so in so many words, he implied that this
had purely been done to safeguard their position in view of the fact that the
notice to quit had now been served. I again tackled him about this at the end
of the meeting and it would appear that they will make no decision as regards
leaving the premises or terminating the lease until such time as the whole
matter of the repairs has been settled.
The later
passage is as follows:
I got the
general impression from Mr Deacon that SCATS were likely to move out of the
premises in the not too distant future but he wanted to sort the matter of the
dilapidations out before any further decision was made in this respect. He
promised that a decision would be made within the next 14 days by when it is hoped
that the matter of the repairs will be sorted out and agreed.
A third
meeting was held on January 27 1978 to finalise matters concerning
dilapidations. Again, the parties were represented by Mr Sawyer and Mr Deacon
respectively. At this meeting, they reached agreement on the various points
arising under the schedule, subject in each case to the approval of their
principals. The nature of the agreement was of the kind one would expect in the
circumstances. It was agreed that certain items should be excluded, for various
reasons: the remaining items were priced, and a total sum of £3,856 was
reached. However, having regard in particular to an electrical system which had
been installed by the appellants in the premises, the figure to be paid in
respect of dilapidations was scaled down to £3,500. This provisional agreement
as between Mr Sawyer and Mr Deacon was reported by Mr Sawyer to Mr Green of the
respondents on the telephone, and the latter expressed his approval. On January
31 1978 Mr Sawyer reported to Mr Green on the matter in writing. His letter
included the following passage:
I understand
that you are prepared to agree this figure and I have duly informed Mr Deacon.
Hopefully therefore I shall now be able to finalise matters with SCATS and we
should know shortly as and when they will be vacating the premises.
There followed
an exchange of letters between Mr Sawyer and Mr Deacon. On February 1 1978 Mr
Sawyer wrote to Mr Deacon as follows:
Further to my
telephone conversation with you on Monday and subsequent to our meeting on
January 27 1978 I should like to confirm that Mr Green has agreed to accept
£3,500 as payment due in respect of dilapidations and wants of repair to the
premises at the above site and held under the terms of leases dated July 8
1960, July 1 1957 and March 10 1960. I look forward to hearing from you shortly
as to whether this sum is also acceptable to your Society.
On the
following day, February 2 1978, Mr Deacon replied:
I thank you
for your letter of February 1 and write to confirm the Society’s acceptance of
the valuation of £3,500 as being the amount due in full and final settlement of
its responsibilities under the terms of the leases dated July 8 1960, July 1
1957 and March 10 1960 in respect of dilapidations and want of repair to the
premises referred to in the leases.
So, on the
face of it, there appeared to be an agreement between the parties on the
subject of dilapidations. Then, six days later, Mr Deacon wrote to Messrs
Beales proposing that the appellants should give possession of the premises on
February 13 1978 but raising for the first time the question of compensation
for giving up possession some four months before they were bound to do so,
having regard to the very substantial increase in the rental value. The letter
was in the following terms:
I am writing
to advise you that the Society would not be interested in taking a further
lease of these premises when the notices terminate later this year.
Further, because of the resolution of matters in other of our Winchester
properties we no longer have the possible need of the temporary accommodation
at Kingsworthy and are therefore able to offer immediate vacant possession of
the premises to the landlord. If we do give early possession we will be
relinquishing the benefit of a substantial profit rental which, we calculate
from your letter of March 10 1977 to Messrs Shenton, Pitt, Walsh & Moss, to
be in excess of some £6,000. If your client wishes to recover possession of the
premises at an early date then the Society offers, without prejudice to the
protection provided by the Landlord and Tenant legislation, to quit and the
consideration will be the value of dilapidations recently agreed at £3,500
together with reimbursement of the appropriate portion of rent already paid by
the Society under the existing leases. If your client is agreeable to this
offer we can give possession, with the appropriate exchange of letters, by
Monday February 13 1978.
This letter
came as a considerable surprise to Mr Sawyer, who had assumed that possession
would be given up by the appellants shortly after the meeting of January 27 1978
without any compensation being paid for an early surrender of the tenancies.
His reaction was set out in a letter dated February 17 1978, which ran as
follows:
As you are
aware, we were somewhat surprised to receive your letter of February 8 1978,
for you had clearly led us to believe that if we were willing to accept a cash
payment in settlement of the dilapidations you would vacate the premises
forthwith. We think you will agree that dilapidations are not normally agreed
unless a tenancy is being terminated. If you are not vacating the premises then
it follows that a cash payment is not acceptable since the figures quoted were
based on an estimate dated December 6 1977 and the condition of the property at
that time. In accordance with the terms of clause 2(iv) of your leases dated
July 1 1957, March 10 1960 and July 8 1960, we enclose schedules of
dilapidations which you will note are those items which we have agreed as being
your responsibility. If you do not commence the work enumerated in those schedules
within the course of the next 21 days and proceed diligently with the execution
of the necessary works of repair, then our clients will enter upon the
premises, execute such repairs and recover the cost thereof from SCATS. We
should like to point out that the cost will not necessarily be as low as £3,500
for that was the figure which our clients were prepared to accept in settlement
of the dilapidations claim provided that possession of the premises was given
forthwith.
Mr Deacon’s
reaction was, however, that the agreement on dilapidations was binding on the
parties and took place in the light of the notices to quit served by the
respondents’ solicitors on December 9 1977, under which the appellants were
entitled to remain in possession of the premises until June 1978. As a result
of this difference of opinion, the parties arrived at a state of impasse. No
surrender of the leases was negotiated. The appellants remained in possession
of the premises until June 1978, although they were in fact no longer used by
them. Rent appears to have been paid at the rate payable under the old leases.
There was an exchange of correspondence between the parties’ solicitors but
this came to nothing. On June 16 1978, on the expiry of the period specified in
the respondents’ notices, the appellants’ solicitors tendered to the
respondents’ solicitors the sum of £3,500 in respect of dilapidations; but this
tender was rejected.
So the lines
of battle were drawn. The appellants commenced proceedings against the
respondents claiming a sum of £5,391.35 in respect of goods sold and delivered.
The respondents served a defence and counterclaim admitting liability for the
sum claimed, but pleading a set-off and counterclaim claiming the sum of
£11,078.62 in respect of dilapidations (comprising £7,200.36 in respect of cost
of reinstatement, £444.61 for surveyor’s fees and £3,433.65 in respect of lost
rent during the period of reinstatement). They also claimed £355 in respect of
arrears of rent. In the alternative they claimed £5,502.50 loss of rent on the
basis that the appellants failed to give up possession in February 1978. In
their defence to counterclaim the appellants pleaded the agreement under which
they agreed to pay £3,500 for dilapidations, and their tender of that sum; and
so admitted the counterclaim to the extent of £3,500 and no more. In their
reply to the appellants’ defence to counterclaim, the respondents advanced
pleas which I summarise as follows: (1) It was an express or implied condition
precedent, or alternatively condition, of the agreement reached between Mr
Sawyer and Mr Deacon regarding dilapidations that the appellants should
forthwith vacate the premises. (2) Mr Deacon and Mr Sawyer were not ad idem and
so no agreement was reached between the parties; alternatively, Mr Sawyer
entered into the agreement under a mistake, in particular the mistaken belief
that the appellants would vacate the premises forthwith, and so the agreement
was void, alternatively voidable, for mistake, and the appellants could not now
rely upon it.
On March 10
1980 an order was made: ‘That there be trial by way of a preliminary issue as
to the terms of an agreement made between the plaintiffs and the defendants by
virtue of which the plaintiffs agreed to pay and the defendants agreed to accept
as payment certain money in respect of dilapidations and wants of repair.’
The learned
judge approached the matter as follows. After setting out the history of the
matter he said:
I have to look
at the case on the basis that it is a well-established rule that the terms of a
contract must be sufficiently certain, although it is quite true to say that
the court must always bear in mind that businessmen, and indeed surveyors, and
professional people like that do not necessarily reduce all the terms to legal
language in the way that lawyers do, but there must be a meeting of minds. I am
satisfied here beyond any doubt, having heard the evidence, that unless Mr
Deacon is dishonest, and there is not really any suggestion of that at all, nor
that Mr Sawyer is, there never was a meeting of minds here. Mr Sawyer, I am
quite satisfied, conducted all these negotiations on the basis — in the
settlement of the dilapidations figure — that as soon as the Micheldever move
had been completed, namely within a very short period, by which I mean a matter
of weeks at the most from the final meeting on January 27 — and perhaps days —
but certainly a sufficiently short period to justify the use of the word
‘forthwith’, that possession would be given. On the other hand, Mr Deacon says,
and he may be right, that he believed that there was no such basis, and that he
was free to agree the fluctuations so to speak of when his company was going to
give up possession. The question is whether there was, first of all, a
fundamental mistake — submits Mr Gordon. It seems to me that there was a
fundamental mistake, a fundamental error between the parties, so that their
minds were not at one . . . .
Although it
is not suggested that any false or mis-representation was made, I am quite
satisfied having heard the evidence and seen the witnesses that the whole of
the discussion was carried on between the parties, and Mr Saywer, as I have
said, believed and understood, and Mr Deacon must have realised, that Mr Sawyer
was acting entirely on the basis that the plaintiffs were in fact going to move
out, and it was on that basis that the dilapidations were then agreed; and I am
quite satisfied about that.
He therefore,
on the basis of that reasoning, answered the preliminary issue by saying that
in his view there was no binding agreement as to the value of the
dilapidations. Against that decision the appellants now appeal to this court.
It is
sometimes said that there can be no binding contract where there is no consensus
ad idem or, to adopt the expression used by the learned judge in the
present case, there is no ‘meeting of minds’. But there is perhaps danger in so
sweeping a generalisation. The expression embraces different situations. First,
there is the situation where, although the parties have reached agreement on
certain terms, they have failed to do so on others; and if the court holds that
the parties have failed to reach agreement on a term or terms which are
regarded as essential, then no binding contract will be held to result from the
agreement. This is, to practitioners, the most familiar of the situations in
which it may be said that there is no consensus ad idem. Again, though
such a case must be very rare, there may be an apparent agreement but it may
contain an ambiguity as to an essential term which cannot be resolved by the
ordinary processes of construction: the case usually referred to as
exemplifying this situation is Raffles v Wichelhaus (1864) 2
H&C 906, a case briefly mentioned in the course of argument in this case.
Yet again there may be cases where, although there is apparent agreement, there
is in fact no objective correspondence of offer and acceptance. An example of
the situation where this may occur is where one party accepts another’s offer
under a mistake as to the character of that offer, and the other party,
although aware of the mistake, seeks to hold him to the apparent bargain so
struck. Some of these situations are collected in the books under the rubric of
‘mistake’, and in all of them it can be said that there is no consensus ad
idem. But this is no more than a loose manner of describing what are, on
analysis, very different cases; and furthermore, the same expression can be
used, without verbal inaccuracy, to describe situations in which the court will
enforce the relevant transaction. Thus there may be cases where, although there
is objective agreement on all material terms, nevertheless, unknown to either
party, there is in fact no agreement on one of them. In such a case, because
the test applied by the courts to the formation of contract is not subjective
but objective, the common law will generally (ignoring for present purposes the
old doctrine of non est factum) give effect to the objective
agreement. The mere fact that one party took one view as to a term of an
agreement and the other party took a different view of that term is generally
speaking irrelevant at common law to the meaning, or indeed the effect, of the
agreement.
In the present
case, the contention of the respondents must be that there was no objective
correspondence of offer and acceptance. It
the findings of fact made by the learned judge, this was the case. He relied in
particular on the passages in his judgment where the learned judge held that
there was ‘never a meeting of minds here’, and that ‘Mr Deacon must have
realised that Mr Sawyer was acting on the basis that the plaintiffs [ie the
appellants] were in fact going to move out, and it was on that basis that the dilapidations
were then agreed’.
I have to
confess, with the utmost respect, that I feel considerable difficulty over
these passages. As to the first, for the reasons I have already given, the mere
fact that there was no ‘meeting of minds’ is not of itself enough to deprive a
transaction of legal effect. As to the second, I entertain some doubt as to
what the learned judge meant when he used the word ‘basis’. Mr Toulson
submitted that he meant that the contract was subject to the condition that the
appellants ‘were in fact going to move out’. If that was indeed his meaning,
this must be a matter of construction and therefore a question of law, which is
subject to review as such and with which I am unable, for reasons I shall give,
to agree. Furthermore, the statement that ‘Mr Deacon must have realised that Mr
Sawyer was acting on the basis that [the appellants] were in fact going to move
out’ is not easy to reconcile with the learned judge’s earlier statement that
‘Mr Deacon says, and he may be right, that he believed that there was no such
basis’. I cannot help suspecting that the learned judge was using the word
‘basis’ in the sentence on which Mr Toulson relies as meaning no more than
‘assumption’, in which event there was no finding that Mr Sawyer was mistaken
as to any proposed contractual term.
But the matter
does not stop there. Let it be accepted that Mr Sawyer did believe, at the time
of the agreement, that it was the intention of the appellants shortly to give
up possession of the premises. If so, there was no mistake on his part. On the
evidence, that was indeed their intention. In truth, the gravamen of the
respondents’ complaint was not that the appellants were not going to move out;
it was that they subsequently decided to negotiate for compensation for giving
up possession of the premises before they were bound in law to do so, having
regard to the very substantial increase in their rental value.
Still more
fundamentally, if the learned judge’s conclusion was indeed that Mr Deacon
realised that Mr Sawyer acted on the basis that it was a term of the contract
concerning dilapidations that the appellants were going to move out shortly,
such conclusion was in my judgment contrary to the weight of the evidence, in
that it failed to give proper weight to what passed at the meeting of January 5
1978. At that meeting, according to his occurrence sheet, Mr Sawyer raised with
Mr Deacon the question whether the appellants intended to apply for a new lease
to commence on the expiry of the respondents’ notice to quit, namely, on June
15 1978. From Mr Deacon’s answer, Mr Sawyer concluded that ‘it would appear
that they would make no decision as regards leaving the premises or terminating
the lease until such time as the whole matter of the repairs has been settled’.
Mr Toulson, in an attempt to blunt the impact of this passage, referred us to
various passages in the transcript of the evidence. But for my part, I could
see nothing in the evidence which detracted from Mr Deacon’s clear statement of
the position at the meeting of January 5 1978; indeed, that his position
remained unchanged after the final meeting of January 27 1978 is made clear by
the terms of Mr Sawyer’s letter to Mr Green dated January 31 1978, the material
part of which I have already quoted. It is plain that Mr Deacon expressly
preserved for his clients complete freedom of action, even to the extent of
applying for a new lease. In the light of this evidence, any conclusion that Mr
Deacon realised, or must have realised, or even ought reasonably to have
realised, that Mr Sawyer thought that it was a term of the contract that the
appellants would move out shortly must, in my judgment, be rejected as being
contrary to the weight of the evidence.
It follows
that, with great respect, I find myself unable to agree with the learned
judge’s conclusion that there was no binding contract. In my view, the central
question in the case relates, as the preliminary issue indeed assumes, to the
terms of the contract as agreed between the parties.
As to this, we
start with the simple fact that the agreement between the parties as to
dilapidations was crystallised in an exchange of letters, dated respectively
February 1 1978 and February 2 1978, which I have already quoted, and which are
unqualified in their terms. There is no evidence that these terms were subject
to any express condition or condition precedent, previously agreed, that the
appellants would leave forthwith (which was the respondents’ pleaded case),
even giving that word, as the learned judge was inclined to do, an extended
meaning wide enough to embrace a few days, or even weeks, after the agreement
had been made. The respondents must therefore have resort to an implied term;
and in support of his submission that such a term should be implied, Mr Toulson
relied on the surrounding circumstances, including in particular the fact that
the appellants had, at the date of the agreement on dilapidations, to all
intents and purposes vacated the premises, and that it was most unlikely that
any surveyor would agree dilapidations in January for a vacation of premises
which might not occur until June. But in my judgment the proposed term cannot
legitimately be implied in the face of Mr Deacon’s express reservation of the
appellants’ position at the meeting of January 5 1978, to which I have already
referred. In the light of that statement, under which Mr Deacon expressly kept
all options open for his principals, it cannot, in my judgment, possibly be
said that it was a necessary implication that the schedule of dilapidations was
agreed on the condition, or condition precedent, that the appellants would
forthwith, or even shortly, vacate the premises, by which is presumably meant
without compensation for the premature giving up of possession to the
respondents. If Mr Deacon, in preserving his principals’ right, after the
dilapidations had been agreed, to apply for a new tenancy (as he plainly did),
he must also have been preserving their right to negotiate terms for a
premature termination of the existing tenancies. In my judgment, by that
express reservation of rights, Mr Deacon gave a fair warning to the respondents
of his principals’ position; and in my view it would be quite wrong to convict
him even of sharp practice or ungentlemanly conduct, let alone of having
contracted on the terms which the respondents suggest.
The agreement
on dilapidations must, however, in my judgment be subject to at least one
qualification, which may be germane to the form of order to be made in respect
of the preliminary issue. It must, in my judgment, have been implicit in the
contract that, in the event of any change in the condition of the premises
occurring between the date of the agreement and the date of termination of the
leases which materially increased the appellants’ responsibility for
dilapidations under the leases, the appellants’ responsibility therefor should
not be treated as falling within the terms of the agreement. In other words, on
its true construction the agreement was an agreement by the respondents to
waive their rights under the repairing covenants in the leases in respect of
dilapidations existing at the date of the agreement, in consideration of the
payment by the appellants of a sum of £3,500. Of course, this qualification
upon the terms of the agreement could have been relevant if there had been a
material change of circumstances in that period, whatever the lapse of time
between the date of the agreement and the date when the leases were terminated,
whether (for example) it was four and a half days, or four and a half weeks, or
(as in fact occurred) four and a half months.
For the
reasons I have given, I would hold that the agreement in respect of
dilapidations was binding on the parties and, subject only to qualifications of
the type I have just mentioned, unconditional. I would therefore allow the
appeal.
Agreeing, FOX
LJ said: Although we are differing from the judge, who gave a full judgment, my
own view of the case is exactly the same as that which Robert Goff LJ has
expressed and accordingly I do not think that I can, with value, add anything.
I would therefore allow the appeal as indicated by my Lord.
OLIVER LJ also
expressed entire agreement with the judgment delivered by Robert Goff LJ and
did not add anything.
The appeal was
allowed with costs in Court of Appeal and below. The court’s order was as
follows: Matter to be returned to His Honour Judge McLellan dealing with
Official Referees’ Business at Winchester to inquire as to whether, in addition
to £3,500, there is any further claim for damages for breach of repairing
covenants in respect of matters not included in the schedule of dilapidations
and which have arisen since the agreement was come to. The sums of £3,500 and
£355 to be set-off against plaintiffs’ judgment on the writ. Plaintiffs
undertake through counsel not to enforce their judgment until Judge McLellan’s
inquiry is concluded. Counsel to prepare draft minutes of order. Liberty to
apply.
