“41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“When I get my money [presumably a reference to the Foskett Panel Fixed Sum Award] I’m getting out”
“Our client wishes step away [sic] from the business; in order to do that, there will need to be an agreement for the purchase of his Shares in the various Companies and an agreement will need to be reached in relation to the various properties of which he is a joint owner. At this early stage we are writing to you to establish whether in principle this is a process in which you are content to participate and to allow you to consider with the other stakeholders in the business what proposals if any you may wish to make in relation to the acquisition of Richard’s shares.”
“I need to have an urgent conversation about Richard and Julie abusing company funds so I need to remove him as a director as soon as possible. Maybe you could have a think about it and come back to me.”
“As you will appreciate, Richard’s announcement that he wished to leave the family business was wholly unexpected and came as a shock which has been destabilising at a time of considerable stress and struggle for the family, as well as difficult trading conditions for businesses across the group. Richard gave his notice to cease to be a director on 11th April and followed up by his directly (or through Julie and him speaking to Ian) requesting those resignation letters and papers. These documents were duly sent by [the accountants] on 17th April, but they have not received completed forms. Your client’s statement and actions have been clear and unequivocal that he neither wishes to be part of the family businesses nor be subject to his duties and obligations of directorship or employment and has thus absented himself since that time … You mention the purchase of shares, but … the levels of debt, terms and conditions of borrowing and difficult trading will not only impact valuation but available funding. Like many farming businesses cash flow is not optimal and large capital sums/liquidity is challenging for the businesses … Furthermore, there appear to be no shareholder agreements or other arrangements with terms to govern any of these companies or properties and as this is your clients [sic] unilateral voluntary decision, no mechanism for us to deal with the shares unless all parties reach agreement.”
“3.1. As detailed at paragraph 3.18 below, in addition to his primary valuation, Mr Shelton has been instructed to consider the value of SMS Farming at18 October 2023 by applying one or both of the following assumptions: (a) That the value of stock was the value as shown on the balance sheet at30 May 2023 ; and (b) That the directors’ loans were not repayable. 3.2. The Experts’ valuations of SMS Farming at18 October 2023 are summarised in the table below 3.3 the Experts agree that SMS Farming had no value at18 October 2023 , on the bases that: (a) The value of stock was as valued by Mr Cannon; and (b) The directors’ loans were repayable by the company. 3.4 As summarised in the table at paragraph 3.2 above, Mr Shelton considers that SMS Farming had a value if the stock value at 18 October was similar to that shown in the previous balance sheet, at30 May 2023 , and/or the directors’ loans were not repayable, i.e. if either of the assumptions listed at paragraph 3.1 were applicable. 3.5 The£971,258 difference between the net liabilities determined by Mr Shelton and Mr Pearson assuming neither assumption applies is primarily attributable to Mr Pearson’s provision for latent tax on the sale of the land and buildings and the latent selling costs in relation to the land and buildings together totalling£981,657 and considered further at paragraph 3.19 below). In all other respects, the Experts’ valuations on a going concern basis are not materially different.”
“4.1 The Experts’ valuations of S Morgan & Sons at18 October 2023 are summarised in the table below. 4.2 The experts agree that neither S Morgan & Sons at the company level, nor either of its subsidiaries, Mutchmeats and Field Farm Fresh, had any value at18 October 2023 . Accordingly, they agree that S Morgan & Sons had no value at that date.”
“32. … it is unnecessary to reach a final conclusion on the precise extent to which an implied contractual term may differ from the principles applicable to judicial review of administrative action. Given that the question may arise in so many different contractual contexts, it may well be that no precise answer can be given. The particular context of this case is an employment contract, which, as Lord Hodge explains, is of a different character from an ordinary commercial contract. Any decision-making function entrusted to the employer has to be exercised in accordance with the implied obligation of trust and confidence. This must be borne in mind in considering how the contractual decision-maker should approach the question of whether a person has committed suicide. [ … ] 36. … In my view, a decision that an employee has committed suicide is not a rational or reasonable decision, in the terms discussed above, unless the employer has had it clearly in mind that suicide is such an improbability that cogent evidence is required to form the positive opinion that it has taken place. [ … ] 42. Although I would not have phrased the correct approach exactly as Teare J phrased it, in my view he was right to conclude (para 95) that the investigation team's report and conclusion could not be regarded as sufficiently cogent evidence to justify Mr Sullivan, and hence BP, in forming the positive opinion that he had committed suicide. No-one suggests that his decision was ‘arbitrary, capricious or perverse’, but in my view it was unreasonable in the Wednesbury sense, having been formed without taking relevant matters into account.”
“53. Like Lady Hale, with whom Lord Neuberger agrees on this matter (para 103), I think that it is difficult to treat as rational the product of a process of reasoning if that process is flawed by the taking into consideration of an irrelevant matter or the failure to consider a relevant matter. While the courts have not as yet spoken with one voice, I agree that, in reviewing at least some contractual discretionary decisions, the court should address both limbs of Lord Greene's test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 , 233-234. 54. In my view it is clearly appropriate to do so in contracts of employment which have specialties that do not normally exist in commercial contracts … While the duty [of mutual trust and confidence] as an inherent feature of the relationship of employer and employee does not survive the ending of the relationship, such as by dismissal or the expiry of a contractual period of employment, the death in service compensation was part of his contractual benefits, to which his nominated beneficiary was entitled unless BP were satisfied that the death was the result of his wilful act. For the employer to behave otherwise than in accordance with that duty would be to betray the trust of the deceased employee. [ … ] 60. Given the improbability of suicide in this case, I agree with Lady Hale (para 36 above) there had to be cogent evidence to overcome that improbability. Not only do I not see that evidence but also I do not detect any consideration of both the possibility of Mr Braganza having acted carelessly while at the railings and that there would in all probability be no evidence of such behaviour. On those bases the appeal succeeds.”
“102. There was some discussion as to the standard which the court should expect of the decision-maker or opinion-former in such circumstances … 103. Like Lady Hale, I consider that there is considerable force in the notion that this approach is, and at any rate should be, the same as the approach which domestic courts adopt to a decision of the executive … I do not think that there is any inconsistency of approach between Lady Hale and Lord Hodge or myself in this connection. 104. However, a third point I should mention does concern a point of difference between us. It is best expressed by reference to Lord Hodge's statement that ‘contracts of employment … have specialties that do not normally exist in commercial contracts, which he discusses in para 54-57. It appears to me questionable whether the special implied mutual duty of trust and confidence survived the death of Mr Braganza, but I accept that there is a powerful case for contending that it did, at least for present purposes. However, I do not think it necessary to decide the point, because I fail to see how it assists Mrs Braganza's case. Once it is accepted that BP had to carry out the investigation with ‘honesty, good faith, and genuineness’ and had to avoid arbitrariness, capriciousness, perversity and irrationality’, I do not see what trust and confidence add … 105. A fourth point is also worth mentioning. A court considering a decision such as that reached in this case by the team or by Mr Sullivan should bear in mind the fact that it is performing a reviewing function, and, as I have already mentioned, not an originating fact-finding function. The court's approach should therefore be similar to that of an appellate court reviewing a trial judge's decision … ”
“(1) A member of a company may apply to the court by petition for an order under this Part on the ground— (a) that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial. [ … ] (2) The provisions of this Part apply to a person who is not a member of a company but to whom shares in the company have been transferred or transmitted by operation of law as they apply to a member of a company. (3) In this section, and so far as applicable for the purposes of this section in the other provisions of this Part, ‘company’ means— (a) a company within the meaning of this Act, or [ … ]” (a) that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.
“(1) If the court is satisfied that a petition under this Part is well founded, it may make such order as it thinks fit for giving relief in respect of the matters complained of. (2) Without prejudice to the generality of subsection (1), the court's order may— (a) regulate the conduct of the company's affairs in the future; (b) require the company— (i) to refrain from doing or continuing an act complained of, or (ii) to do an act that the petitioner has complained it has omitted to do; (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; (d) require the company not to make any, or any specified, alterations in its articles without the leave of the court; (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company's capital accordingly.” (a) regulate the conduct of the company's affairs in the future; (b) require the company— (i) to refrain from doing or continuing an act complained of, or (ii) to do an act that the petitioner has complained it has omitted to do; (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; (d) require the company not to make any, or any specified, alterations in its articles without the leave of the court; (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company's capital accordingly.”
“In section 459 [of theCompanies Act 1989 , the predecessor of section 994 of the 2006 Act] Parliament has chosen fairness as the criterion by which the court must decide whether it has jurisdiction to grant relief. It is clear from the legislative history … that it chose this concept to free the court from technical considerations of legal right and to confer a wide power to do what appeared just and equitable. But this does not mean that the court can do whatever the individual judge happens to think fair. The concept of fairness must be applied judicially and the content which it is given by the courts must be based upon rational principles. [ … ] Although fairness is a notion which can be applied to all kinds of activities, its content will depend upon the context in which it is being used … So the context and background are very important. In the case of section 459, the background has the following two features. First, a company is an association of persons for an economic purpose, usually entered into with legal advice and some degree of formality. The terms of the association are contained in the articles of association and sometimes in collateral agreements between the shareholders. Thus the manner in which the affairs of the company may be conducted is closely regulated by rules to which the shareholders have agreed. Secondly, company law has developed seamlessly from the law of partnership, which was treated by equity, like the Roman societas, as a contract of good faith. One of the traditional roles of equity, as a separate jurisdiction, was to restrain the exercise of strict legal rights in certain relationships in which it considered that this would be contrary to good faith. These principles have, with appropriate modification, been carried over into company law. [ … ] … Thus unfairness may consist in a breach of the rules or in using the rules in a manner which equity would regard as contrary to good faith.”
“In In re Saul D Harrison & Sons Pic.[1995] 1 BCLC 14 , 19, I used the term ‘legitimate expectation,’ borrowed from public law, as a label for the ‘correlative right’ to which a relationship between company members may give rise in a case when, on equitable principles, it would be regarded as unfair for a majority to exercise a power conferred upon them by the articles to the prejudice of another member. I gave as an example the standard case in which shareholders have entered into association upon the understanding that each of them who has ventured his capital will also participate in the management of the company. In such a case it will usually be considered unjust, inequitable or unfair for a majority to use their voting power to exclude a member from participation in the management without giving him the opportunity to remove his capital upon reasonable terms. The aggrieved member could be said to have had a ‘legitimate expectation’ that he would be able to participate in the management or withdraw from the company. It was probably a mistake to use this term, as it usually is when one introduces a new label to describe a concept which is already sufficiently defined in other terms. In saying that it was ‘correlative’ to the equitable restraint, I meant that it could exist only when equitable principles of the kind I have been describing would make it unfair for a party to exercise rights under the articles. It is a consequence, not a cause, of the equitable restraint. The concept of a legitimate expectation should not be allowed to lead a life of its own, capable of giving rise to equitable restraints in circumstances to which the traditional equitable principles have no application.”
“In a case of expulsion, where the equitable restraint on the exercise of the power is based upon the terms upon which the petitioner became or continued as a member of the company, the prejudice will be suffered in the capacity of a member. It is the terms, agreement, or understanding on which he became associated as a member which generates the restraint on the power of expulsion. But the judge was considering only the prejudice suffered through not getting a half-share in the profits or the additional shares. It is somewhat unreal to deal with the capacity in which prejudice was suffered in these respects when there was no entitlement in law or equity in the first place. But assuming there had been a contractual obligation, I would not exclude the possibility that prejudice suffered from the breach of that obligation could be suffered in the capacity of shareholder … As cases like R & H Electrical Ltd. v Haden Bill Electrical Ltd[1995] 2 BCLC 280 show, the requirement that prejudice must be suffered as a member should not be too narrowly or technically construed. But the point does not arise because no promise was made.”
“202. It follows that for a petition to be well-founded the petitioner must establish that: (i) The acts or omissions of which he complains consist of the management of the affairs of the company; (ii) That the conduct of those affairs has caused prejudice to his interests as a member of the company and (iii) The prejudice is unfair.” (i) The acts or omissions of which he complains consist of the management of the affairs of the company; (ii) That the conduct of those affairs has caused prejudice to his interests as a member of the company and (iii) The prejudice is unfair.”
“84. Mr Chivers also submitted that the judge wrongly took into account the matters to which he referred in paragraph 291(iii) and (iv) of his judgment. He submitted that only the effect on shareholders of Neath and the shareholdings in that company are relevant when the Court makes an order under section 996. I reject this submission. If upheld, it would mean that the interests of creditors of the company could not be taken into account. Their interests are clearly relevant, and may be decisive in deciding what order should be made under the section. I do not see why the court should close its eyes to the interests of others, and the effect of any order made under section 996 on them, although of course the weight to be given to their interests will depend on the circumstances … 85. It was suggested that on a petition under section 994 the court cannot award relief that the petitioner does not seek. In the present case, the correctness or otherwise of that proposition is academic, since ultimately, when it was apparent from the judge's judgment that Mr Hawkes would not be able to buy out Mr Cuddy, he agreed to the order proposed by the judge being made on his petition. On any basis, therefore, the judge had power to make the order he did. But I would not want it to be assumed that that proposition represents the law. The terms of section 996 are clear: once the court is satisfied that a petition is well founded, ‘it may make such order as it thinks fit’, not ‘such order as is sought by the petitioner’ … ”
“626. The purpose of the jurisdiction is to provide remedies in respect of the way in which the affairs of the company are conducted. It was perceived prior to the enactment ofsection 75 of the Companies Act 1980 that there was insufficient protection to shareholders in that respect. The section is not directed to the activities of shareholders amongst themselves, unless those activities translate into acts or omissions of the company or the conduct of its affairs. Relations between shareholders inter se are adequately governed by the law of contract and tort, including where appropriate the ability to enforce personal rights conferred by a company’s articles of association … I would only add that the refusal by a company to convene a general meeting would be an act of the company, although whether it was either unfair or prejudicial would of course depend on the circumstances. [ … ] 628. The Court will not adopt a technical or legalistic approach to what constitutes the affairs of the company but will look at the business realities … 629. … It no doubt goes without saying that the affairs of the company will also encompass matters which must go to the company in general meeting, rather than the board, for consideration. 630. Prejudice will certainly encompass damage to the financial position of a member. The prejudice may be damage to the value of his shares but may also extend to other financial damage which in the circumstances of the case is bound up with his position as a member. So, for example, removal from participation in the management of a company and the resulting loss of income or profits from the company in the form of remuneration will constitute prejudice in those cases where the members have rights recognised in equity if not at law, to participate in that way. Similarly, damage to the financial position of a member in relation to a debt due to him from the company can in the appropriate circumstances amount to prejudice. The prejudice must be to the petitioner in his capacity as a member but this is not to be strictly confined to damage to the value of his shareholding. Moreover, prejudice need not be financial in character. A disregard of the rights of a member as such, without any financial consequences, may amount to prejudice falling within the section.”
“86. The judge found at paragraph 35 of his judgment that the Intercompany Loans are treated in the companies' accounts as amounts repayable within 12 months. Michael accepts that the Intercompany Loans are loans as a matter of law, and that no fixed date was agreed for their repayment. … 87. However, Michael's position is that there was a non-contractual understanding between the parties that the loans would remain outstanding ‘indefinitely’, that the benefit of the loans was received by him in his capacity as a shareholder in the lending companies and that the understanding was part of the basis on which he agreed to remain a member and to continue working for them. The threat to call the loans in, unaccompanied by an appropriate offer to buy him out, was prejudicial to him. … 88. The amended petition refers to an understanding between Michael, Ivy and Alldey that the loans would remain outstanding ‘indefinitely’. It goes on to say that the ‘only’ circumstance in which they would be repaid would be if all three agreed in pursuit of the business strategy. In other words the loans would remain outstanding unless and until the parties agreed otherwise. The one exception to this is that it was accepted in argument that the arrangement would not survive an insolvency, because it would not bind creditors. This exception is not reflected in the petition. 89. It is of course quite possible to enter into informal arrangements or understandings which fall short of a legal agreement, including an understanding that in certain circumstances one entity will not insist on enforcing its legal rights against another. … 90. However, even if Michael was correct that there was an understanding that the loans would be left outstanding, it does not follow that it is realistically arguable that that understanding was that the only circumstance in which the loans would be repaid would be if all the parties (in context, all the shareholders of Kingsford and Sales) agreed. Such an arrangement would be unworkable. … [ … ] 92. In my view by far the most plausible understanding would be one that accords with the terms of any debt without an agreed date for repayment, namely that either party can bring the arrangement to an end at any time. In other words, the arrangement lasts for so long as the parties are in agreement that it should. If this was not correct then in my view the only realistic alternative would be that any understanding that the debt would not be required to be repaid immediately was one that existed in the then prevailing circumstances, and would be understood not to survive any material change of circumstances. [ … ]”
“117. However, at pp.1104-1105 [of O’Neill v Phillips] Lord Hoffmann also made it clear that a breakdown in relations, including where there has been a loss of trust and confidence, is not sufficient to found an unfair prejudice petition where (as on the facts of that case) there has been no exclusion from management. There was no right to exit ‘at will’ where trust and confidence has broken down. Lord Hoffmann also doubted whether a dissolution would even be granted under partnership law if there was no exclusion from management and the business could be continued.”
“Had the position been considered and discussed between the majority shareholders and Mr Pitt in February 1994, I think the solution likely to have emerged, and a fair solution, would have been that Mr Pitt should cease to be chairman and a director of Haden Bill, that his shares should be bought by the majority shareholders without a discount for its being a minority holding, and that R & H's loans to Haden Bill should be repaid as soon as reasonably possible (either by refinancing or out of retained profits, but in any event substantially sooner than if the minimum instalments fixed by the deed of5 April 1993 had continued). I will make an order under s 461 on those general lines, but I will refrain from any further definition until the parties have had the opportunity to consider this judgment and see whether they can agree on the details, or alternatively formulate what detailed points on the form of the order are in dispute. But the valuation should (as both sides have already invited me to direct) be made as at1 February 1994 (or some other convenient date close to 1 February), taking account of the terms for the repayment of R & H's loans ultimately agreed or directed (and any consequent strain on Haden Bill's cash flow), but otherwise without the benefit of hindsight (especially as to Haden Bill's litigation costs incurred from March 1994).”
“40. … Although judicial reasoning based on modern theories of unjust enrichment is in some respects relatively novel, there are centuries’ worth of relevant authorities, whose value should not be underestimated. The wisdom of our predecessors is a valuable resource, and the doctrine of precedent continues to apply. The courts should not be reinventing the wheel. 41. … Lord Steyn’s four questions [in Banque Financière de la Cité] are no more than broad headings for ease of exposition. They are intended to ensure a structured approach to the analysis of unjust enrichment, by identifying the essential elements in broad terms. If they are not separately considered and answered, there is a risk that courts will resort to an unstructured approach driven by perceptions of fairness, with consequent uncertainty and unpredictability. At the same time, the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements … 42. The structured approach provided by the four questions does not, therefore, dispense with the necessity for a careful legal analysis of individual cases. In carrying out that analysis, it is important to have at the forefront of one’s mind the purpose of the law of unjust enrichment. … it is designed to correct normatively defective transfers of value, usually by restoring the parties to their pre-transfer positions.”
“All trusts are either, first, express trusts, which are raised and created by act of the parties, or implied trusts, which are raised or created by act or construction of law … ”
“24-039. A Pallant v Morgan equity typically relates to specific property that is not at first owned by either of the parties, A or B. A and B form a common intention that A will take steps to acquire the property; and that, if A does so, B will obtain some interest in it. … The common intention need not be recorded in writing, but its main terms must be agreed between the parties. The equity cannot arise where the agreement is expressed to be subject to contract, or where A and B realise that their agreement is legally unenforceable because they plan to enter into a binding agreement in the future. 24-040. In reliance on A’s assurance or B’s expectation that B would acquire an interest in the land, B then does something which confers an advantage on A in acquiring the property or which is detrimental to B’s ability to acquire it on equal terms. … The effect is that it would then be unconscionable for A to keep the property for itself. But A does nothing unconscionable if he resiles from an agreement that was expressed to be subject to contract or which both parties realised was not legally binding between them. … 24-041. The effect of the equity is that A becomes bound by a constructive trust to prevent him from benefiting by his unconscionable breach of the agreement. … ”
“68. As flagged above, the Counterclaim/Part 20 Claim is a tactical contrivance, evidently designed to act as a counterweight to Richard’s claim that the loans from himself and Julie are repayable on demand and fall to be taken into account in the relief granted under s.996. 69. The claim is based upon the alleged ‘Compensation Sharing Agreement’, which itself is a contrivance. Whilst there are issues of fact which will be explored at trial, it is submitted that the Respondents’ pleaded case does not establish the existence of a legally enforceable agreement, for the reasons set out in the Amended Reply. There is no suggestion that any such agreement was expressly entered into; the requirements for an implied agreement or an agreement by conduct are not satisfied. 70. Informal discussions between the parties about what they intended to do with the compensation that they were due to receive are not sufficient to give rise to a legally enforceable agreement. 71. There is also no consideration for any such agreement. As far as can be understood … the Compensation Agreement was entered into after the claims for compensation had been initiated, and so the making of those claims cannot be the consideration, nor can the receipt of the compensation pursuant to those claims be the consideration. 72. Whilst it is accepted that Jane shared her compensation with the other Wives, it does not follow from this that she was under a legally enforceable obligation to do so. No doubt the Wives came under an obligation to reimburse Jane when they received their compensation, but they duly reimbursed her and so that has no continuing relevance. It is the act of Jane sharing the compensation which gave rise to that obligation, not Jane’s initial receipt of the compensation. 73. The decisions of Jane (not to accept the Fixed Sum Award for David, and instead to pursue a claim for greater compensation) and of Nigel and Colin (to share part of their Fixed Sum Awards with Jane, in June 2024) were matters which arose after this dispute had arisen and (it seems) after the termination of Richard’s directorship and the employment of Richard and Julie, without the involvement, let alone agreement, of Richard and Julie. They cannot give rise to some form of contractual obligation on the part of Richard and Julie. … As far as Jane’s case is understood, had she elected to accept the Fixed Sum Award for David, she would have no claim for a contribution against Richard and Julie. So, Jane’s claim derives from her (unilateral) decision not to accept the Fixed Sum Award, and not from the actions of Richard or Julie. 74. To put that another way, by contrast with the position in which Jane shared her initial compensation with the other Wives, Jane’s claim is not for reimbursement of money which she has shared with Richard and Julie. There has been no triggering event to give rise to an obligation on the part of Richard or Julie to reimburse Jane. 75. A further curiosity of the Counterclaim/Part 20 Claim is that, logically, if David’s claim for compensation is successful, Jane (as David’s representative) would come under an obligation to share that compensation with Richard and Julie. If David’s claim succeeds in a sum greater than the Fixed Sum Award, then it would seem that the amount due from Jane to Richard and Julie would be greater than the sum now claimed from them. This point has been raised in their Defence but ignored by Jane in her Reply.”