|
OUTER HOUSE, COURT OF SESSION
[2008] CSOH 12
|
|
A396/05
|
OPINION OF LORD MALCOLM
in the cause
TAWNE OVERSEAS
HOLDINGS LIMITED
Pursuers;
against
THE FIRM OF NEWMILN
FARMS and OTHERS
Defenders:
________________
|
Pursuers: Henderson;
Thorntons
Defenders; D Thomson;
Brodies WS
25 January 2008
[1] The
pursuers own the farm of Newmiln, Perthshire and the relative shooting
rights. In 1998, the first defenders
leased the farm and the shootings (the farm lease). The pursuers also own the adjacent Newmiln
House. Since 1998 the second defender,
James McFarlane, and the third defender, Elaine McFarlane, have
leased that property (the house lease).
The current dispute between the parties has spawned four actions,
namely:
(1) an action in which the pursuers seek
declarator that the house lease has been irritated because of lateness in the
payment of rent, and for removal of the defenders from the subjects;
(2) an action for payment of outstanding
rental in respect of the house lease;
(3) an action seeking declarator of
irritancy and removing in respect of the farm lease; and
(4) a payment action in respect of the farm
lease.
[2] I
heard a short proof in respect of all four actions. Mr Henderson for the pursuers led
two witnesses, Mr Paul Baudet of the pursuers, and their law agent,
Mr Bruce Renfrew. Cross-examination
was minimal, and in the event the evidence added little to a comprehensive
joint minute of admissions and the agreed documentation.
[3] The
relevant background can be summarised as follows. The pursuers purchased the farm and the house
from the second and third defenders on a sale and leaseback
arrangement. Both sides had the benefit
of legal advisers, who prepared the necessary documentation. From an early stage the pursuers experienced
difficulties in obtaining timeous rental payments. There was correspondence about the problem,
for example, 6/18 of process. The
defenders' businesses were not prospering and they sought a reduction of the
rent. The house had been run as a hotel,
but by this stage it was a private house.
The pursuers entered into discussions on the matter. They had to be mindful of the need to service
the loan which financed the purchases, and they wished to avoid delays in
payments. Mr Baudet explained that,
after balancing various considerations, the pursuers decided to try to achieve
an arrangement which would ensure that rent was coming in on a regular
basis. In due course missive letters
dated 1 and 2 July 2002 (6/3 and 6/4 of process)
varied certain terms of both leases.
Amongst other things the parties agreed to a substantial reduction in
the rent payable under the leases to £20,000 per annum for the house lease, and
£65,000 per annum for the farm lease, payable quarterly in advance and
operative from 28 November 2000. (The
previous aggregate rental was £115,000 per annum). Clause 7 of 6/3 was in the following
terms:
"In the event that the
McFarlanes fail hereinafter to make any payment of rent under the house lease
or the agricultural lease within one month of the due date of payment,
then Tawne shall, without prejudice to any other remedy available to them, be
entitled to immediately claim (but only for the period up to 27 November
2008) the amount which they would have been entitled to collect by way of rent
in terms of the house lease and the agricultural lease, had the aggregate
rental of both leases remained at £115,000 per annum."
Clause 10 provided that the leases would be
formally amended in terms of the missives.
[4] Unfortunately
problems continued, with payments not being made on the scheduled dates. Again there were discussions between the
parties on the subject. By letter from
the pursuers' agents to the defenders' agents, dated 8 August 2003 (6/5) the parties agreed further variations to the
leases and to an earlier associated back letter (7/14). Amongst other things, the rent under the farm
lease was reduced to £50,000, again operative from 28 November
2000. Thereafter the defenders failed to make
timeous payment of the quarterly aggregate rent of £17,5000 payable at both
28 February and 28 May 2004. The pursuers' agents issued
four separate notices dated 26 July 2004 to the second and third
defenders, all relating to the house lease, by recorded delivery and first
class post. They were in identical terms
(7/1-7/4 of process.) Nos 7/5-7/8
are notices of said date in similar terms regarding the farm lease, which were
issued to all three defenders. In
summary, payment of the outstanding rent was required within fourteen days
of the date of the notices, failing which the agents were instructed to
initiate court proceedings for declarator of irritancy and ejection. At that time £10,000 rental was outstanding
on the house lease and £25,000 in relation to the farm lease, making a total of
£35,000.
[5] On or
about 5 August 2004 the defenders tendered three cheques to the
pursuers' agents in the amounts of £12,000, £10,000 and £13,000. The £13,000 cheque was post-dated to
17 August. By letter of 6 August 2004 the pursuers' agents returned the cheques to the
defenders. The reason given was that
"post-dated cheques cannot be accepted in payment of rent which is now due, nor
can we allocate an underpayment against the sums due." On the same day the pursuers' agents issued
invoices in respect of the quarterly aggregate rent of £17,500 payable on 28 August 2004. Thereafter
the defenders sent the three cheques directly to the pursuers. On a compliments slip Mr McFarlane
explained the post-dated cheque by reference to a cattle sale which would take
place on 16 August. He suggested
that Mr Baudet should "stick the post-dated cheque behind the clock until
then". Mr Baudet gave evidence that
he consulted with the pursuers' agents as to what he should do with the
cheques. In the result the cheques for
£12,000 and £10,000 were cashed and cleared from the defenders' account on or
around 17 August. This was done
without any qualifying statement by the pursuers. The pursuers attributed the £22,000 on the
basis of £15,714.29 to the farm lease, with the balance to the house
lease. The post-dated cheque was not
presented for payment.
[6] Mr Renfrew
spoke to further rent demands dated 11 October
2004
(7/9 and 7/10). These made reference to
and invoked the terms of clause 7 of 6/3 on the basis that delays in
payment meant that the original higher rental levels were payable. £75,000 was demanded in respect of the house
lease, and £93,750 in respect of the farm lease. The pursuers then refused to accept a cheque
for the next quarter's revised aggregate rental of £17,500. By letter of 25 October the pursuers'
agents returned the cheque. The
instructions were not to accept it, in that it did not clear the claimed full
arrears to 27 August 2004, namely £181,750. This sum was calculated by reference to the
said clause 7. It also included the
£13,000 previously tendered in the post-dated cheque. In the letter the agents said that the
defenders "have already incurred an irritancy by their failure to pay the May
rent timeously." On the same day the
pursuers' agents served notices on the defenders in respect of both leases
(7/19 and 7/20) warning that the agents were instructed to initiate court
proceedings for declarator of ejection and irritancy failing payment of
£78,714.29 rental for the house and £103,035.71 for the farm, within
fourteen days of the date of the notices.
On 29 November the defenders tendered another cheque for £17,500
which again was not accepted. By notices
dated 30 November 2004 (7/11 and 7/12) the
pursuers' agents informed the defenders that the pursuers were treating the
leases as irritated and that court proceedings were being raised. On or around 16 December an arrestment
on the dependence attached the sum of £47,500 or thereby. In July 2006, £13,000 was released to
the pursuers in respect of the sum previously tendered by way of post-dated
cheque. The pursuers have attributed
this on the basis of £9,285.71 to the farm lease, and the balance to the house
lease.
[7] Against
that background the legal issues discussed in the hearing on the evidence were
as follows:
1. Were the irritancy notices in respect
of the house lease in proper form having regard to the terms of section 4 of
the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, ("the 1985
Act"), and if not, does that matter? If
this issue goes against the pursuers, Mr Henderson accepted that the house
lease removing action must fail. This
issue arises only in respect of the house lease, in that the 1985 Act does not
apply to agricultural leases.
2. In invoking clause 7 of 6/3 in
respect of both leases, were the pursuers seeking to enforce a penalty
clause? Mr Henderson accepted that
if this argument was resolved against the pursuers, the defenders would fall to
be assoilzied in respect of both payment actions.
3. Do the defenders have any valid ground
for resisting removal from the leased subjects?
(This issue arises only in respect of the farm lease if the first item
is resolved against the pursuers.) According
to Mr Henderson both leases were terminated on 30 November
2004
as a result of the notices 7/11 and 7/12 of process.
Section 4 of
the 1985 Act
[8] So far as relevant,
section 4 provides as follows:
"(1) A landlord shall not,
for the purpose of treating a lease as terminated or terminating it, be
entitled to rely-
(a) on a provision in the lease which
purports to terminate it, or to enable him to terminate it, in the event of a
failure of the tenant to pay rent ... on or before the due date.... unless
sub-section (2) ... below applies.
(2) This sub-section applies if-
(a) the landlord has, at any time after the
payment of rent ... has become due, served a notice on the tenant-
(i)
requiring the tenant to make payment of the sum which he has failed to
pay together with any interest thereon in terms of the lease within the period
specified in the notice; and
(ii)
stating that, if the tenant does not comply with the requirement
mentioned in sub-paragraph (i) above, the lease may be terminated; and
(b) the tenant has not complied with that
requirement.
(3) The period to be specified in any such notice shall be not
less than-
(a) a period of 14 days immediately
following the service of the notice;"
[9] Mr Henderson
accepted that the notices served upon the defenders did not comply with the
requirements of section 4 in that the wrong notice period was
stipulated. The fourteen days ran
from the date of the notice, not from the date of its service. However he submitted that the provisions of
section 4 are directory, not mandatory.
In the absence of any prejudice to the defenders, the failure to follow
the precise terms of section 4 is not fatal to the efficacy of the house
lease irritancy notices. He referred to London & Clydeside Estates Ltd v The City of Aberdeen Council 1980
S.C.(H.L.) 1: Ampliflaire Ltd v The
Secretary of State for Scotland 1999 S.L.T. 937: R.
v Soneji [2006]
1 A.C. 340; and Harringey Borough Council v Awaritefe 3 June 1999, T.L.R. In response, Mr Thomson for the
defenders correctly observed that in those cases the court was concerned with
the exercise of statutory powers by public authorities. Mr Henderson had presented no authority for
the proposition that the terms of an Act of Parliament regulating the private
law rights and obligations of a landlord and tenant could be disregarded with
impunity in the manner suggested on behalf of the pursuers. Mr Thomson asked, what is the basis for
reducing the requirements of section 4 to a test of prejudice? He referred me to the Scottish Law
Commission's Discussion Paper on Irritancy in Leases of Land, No. 117,
October 2001, and in particular to paragraph 3.16. When discussing the existing law, the
Commission said:
"In relation to a failure to
pay rent or to make payment of any other kind the landlord must comply with the
statutory notice procedure contained in section 4 before he is entitled to
rely on an irritancy clause in the lease."
Reliance was placed on a decision of
Sheriff Arthurson in Ethel Austin
Properties Holdings Ltd v D & A
Factors (Dundee) Ltd [2005] Scot S.C. 32, where reference was made to
a passage in the speech of Lord Jauncey of Tullychettle in Mannai Investment Co Ltd v Eagle
Star Life Assurance Co Ltd [1997] AC 749. At 762C his Lordship said:
"Notices terminating a
tenancy are technical documents because they are effective without the consent
of the receiver. It is therefore
essential that they conform to the statutory or contractual provisions under
which they are given."
In the same case Lord Goff of Chieveley said (754A):
"The simple fact is that the
tenant has failed to use the right key which alone is capable of turning the
lock."
[10] I
interject to observe that both these passages occurred in dissenting
speeches. However, in my opinion, both
the particular facts of the case (a minor slip as to a date which must have
been obvious to the other party), and the reasoning of the majority (for
example, Lord Steyn at 767E, where his Lordship says "This is not a case of a
contractual right to determine which prescribes as an indispensable condition
for its effective exercise that the notice must contain specific information")
demonstrate that they are nonetheless apposite in the present case. Further, in my view the majority decision in Mannai Investment, with its emphasis on
how the recipient would have understood the notice, has no application to the
circumstances of this case. There is no
good reason to hold that the defenders must have understood the notices in any
way other than the ordinary meaning of the words used. Lord Hoffman's reference to "constant
experience that people can convey their meaning unambiguously, although they
have used the wrong words" does not arise in the present context. There is no good reason to conclude that the
defenders must have understood the fourteen days as commencing on the date of
service of the notices. And there is no
basis for assuming that that was the intention of their authors.
[11] Reverting
to the submissions, Mr Thomson contended that as a matter of statutory
interpretation it is clear that Parliament intended strict compliance with the
terms of section 4. Reference was
made to the opening words of section 4(1).
In any event, it cannot be asserted that there is no prejudice to the
defenders. Mr Henderson had submitted
that clearly the defenders were unable to pay the full rent, and thus a valid
notice would have made no difference. However,
according to Mr Thomson, all that can properly be said is that the
defenders tendered payment under a post-dated cheque having received an invalid
notice. The assertion that a valid
notice would have made no difference to the method of payment is mere
speculation.
[12] I am in
agreement with the submissions made by Mr Thomson on this issue. The Act sets down the way in which the
pursuers were required to go about irritating the house lease for non-payment
of rent. They have failed to comply with
those requirements. In the words of
Lord Goff, the pursuers have not used the "right key", thus the lock has
not been turned. For the reasons which I
have set out above, I consider that the reasoning of the minority in Mannai Investment is applicable in this
case. The public law cases relied upon
by Mr Henderson are not directly relevant to the issue before me, namely
the meaning to be given to statutory provisions governing the private law
rights and obligations of parties to a lease.
In my view, the clear intention of Parliament was that the terms of
section 4 were mandatory. As
mentioned above, Mr Henderson expressly stated that if he failed on this
issue, then the defenders are entitled to be assoilzied in the house lease
removing action.
Penalty clause
[13] This leaves the issues of
payment of the alleged outstanding rental under both leases, and the removing
action concerning the farm. To understand
the context of the rest of the debate, it is important to appreciate that the pursuers
rely on rental demands which invoke the negotiated provision in both leases to
the effect that, if rent falls into arrears, the higher rent agreed in the original
leases will be payable. The defenders
contend that this is an unenforceable penalty both at common law, and, in
respect of the farm lease, under section 48 of the Agricultural Holdings
(Scotland) Act 1991 ("the 1991 Act"). The defenders have always been willing to pay
the lower revised rental, and have made unsuccessful attempts to do so. For the pursuers, Mr Henderson submitted
that the levying of the original rent is not a penalty, but rather the revised
lower rent was a concession granted to the defenders because of their
difficulties in paying the original rent.
Thus, as soon as the defenders were in breach of the terms of this
"concession", the original agreement revived, and thus it is the higher sums
that are due and payable.
[14] In
principle, if a creditor grants a concession to his debtor whereby he will
accept less than is properly due in return for a guarantee that it will be paid
on time, otherwise the concession is withdrawn, this is not a penalty, and is
enforceable according to the agreed terms.
However, Mr Thomson asserted that this would be a wrong
characterisation of what happened in the present case. He submitted that the parties cast aside the
original agreements and entered into new bargains. In support of this he observed that, as shown
by 6/3, a large number of terms of the original leases were varied, including
the duration; the payment terms; the
insertion of break options; the removal
of the shootings from the agricultural lease; and the granting of occupation
rights under a back letter. Mr Thomson
submitted that the current rental provisions are related to the new agreements. They are not couched in terms of a concession
under the old agreements. Clause 7
of 6/3 is framed in terms of a penalty clause, being triggered by a breach of
the new agreements. The subsequent
variation (6/5), which included the obtaining of securities, is supportive of
the defenders' overall position. It is
accepted that the defenders' financial problems were the catalyst for what
occurred, but this does not change the proper characterisation of the
variations as the creation of new and different agreements. Mr Thomson noted that the pursuers lost
none of the negotiated benefits if the "penalty clauses" were triggered.
[15] On the
law regarding penalty clauses, Mr Thomson referred me to
Lord Dunedin's classic test in Dunlop
Pneumatic Tyre Co Ltd v New Garage
& Motor Co Ltd [1915] AC 79. Lord Dunedin said that the essence
of a penalty is a payment of money stipulated as "in terrorem" of the offending party. However, Mr Henderson did not seek to
justify the increased rental if his description of events as a negotiated
concession was wrong. The correct
characterisation of what happened is the real issue between the parties.
[16] I am in
no real doubt that the defenders' position is to be preferred. The outcome of the negotiations between the
parties can only be described as a concession to the defenders if the term is
used in a very broad or loose sense. In
fact, various terms of the original agreements were changed, some to the
benefit of the defenders, some to the benefit of the pursuers. Had the only change been a reduction of the
rent, then it would have been easier to accept the pursuers' position, though
even then, I would have expected it to be made plain that the change was being
made without prejudice to the original agreements and purely by way of a
concession to the defenders. As it is,
the original agreements were altered in various material respects. I do not see how it can properly be said that
the original rental agreements remained alive, but suspended pending timeous
payment of the reduced rent. The
operative provisions of clause 7 are couched in terms of the consequences
of late payment, and as part and parcel of the new agreements.
[17] I therefore
hold that the pursuers are seeking to enforce a penalty clause at common law. In respect of the farm lease, an additional
argument was presented under section 48 of the 1991 Act. That provision provides:
"Notwithstanding any
provision to the contrary in a lease of an agricultural holding, the landlord
shall not be entitled to recover any sum, by way of higher rent, liquidated
damages or otherwise, in consequence of any breach or non-fulfilment of a term
or condition of the lease, which is in excess of the damage actually suffered
by him in consequence of the breach or non-fulfilment."
In my view that provision, which broadly reflects the
common law, applies to the revised arrangements for the farm lease as set out
in clause 7 of 6/3 of process.
[18] The
result is that the sum sued for amounts to an unenforceable penalty. There was a claim for the £13,000 relating to
the post-dated cheque, but that money has been released as part of the
arrestment. In his reply,
Mr Henderson conceded that if his argument on this issue was rejected,
then the pursuers' payment actions fail.
In that event, and if he also failed on the 1985 Act argument, this leaves
only the farm lease removing action. (If
I am wrong in respect of the 1985 Act issue, what follows applies equally to
the house lease, under reference to the notices relevant to that lease.)
Farm lease
removing action
[19] Mr Henderson
submitted that if an irritancy had been incurred then the pursuers had an
absolute right to terminate the farm lease, given that the 1985 Act did not
apply to agricultural leases. The
July 2004 warning notice was neither here nor there. Simply by giving it, the pursuers could not
lose the right to irritate, which accrued in May 2004. Similarly the subsequent demand in October
for payment of a sum which turned out to be excessive, failing which the
pursuers would not irritate, is irrelevant, given that the requested sum was
not paid. By this stage of the
discussion, the irritancy is based on the post-dated cheque for £13,000, and
Mr Henderson submitted that the court should not conclude that that sum
was paid. Mr Renfrew said that a
post-dated cheque was unacceptable and sent the cheque back (7/13). That was a clear statement. In short, nothing said or done by the landlords
disturbed the right to irritate the farm lease, which Mr Henderson said occurred in
May. Payment of all of the outstanding
rent was not accepted by the pursuers (albeit part of it was). To escape the consequences of the irritancy,
the defenders would require to have paid the full £181,000 demanded by the
landlords, even if it was a penalty. The
submission was that having gained the right to irritate, the pursuers were
entitled to demand whatever sum they chose to allow the tenants to remain in
occupation.
[20] Mr Thomson
observed that the general proliferation of irritancy notices created, at best,
an uncertain and confusing picture. I
agree with that. He pointed to a number
of simple inaccuracies in them, for example 7/1 refers to clause 1 of the
lease, but that clause has nothing to do with irritancy. According to Mr Thomson there is a lack
of clarity as to how, when, and why the pursuers say the leases came to an end: and
which notices, if any, they rely upon.
In the end Mr Henderson placed reliance on the 30 November 2004 notices (7/11 and 7/12),
with the earlier documentation described as "warning shots". Mr Thomson observed that the pleadings seem
to suggest an alternative position, whereby the farm lease ended in July. However, whatever else, it is clear that the
July notices did not irritate either of the leases. Subsequent to them, payment of the sums
demanded was tendered, though the £13,000 post-dated cheque was never presented
for payment. However, it could have been
presented at any time after 17 August, the date when one of the other
cheques tendered at that time cleared.
The £13,000 was then included in subsequent demands. It was the pursuers' choice not to cash the
cheque. Of course had they done so, they
could not have sought to enforce clause 7 of 6/3, and seek much higher
rental payments. Subsequent attempts to
pay rental were refused on the basis that the higher (penal) sums were payable
- see 7/16, a letter which is at best equivocal as to when and if the lease was
irritated. The subsequent offered
quarter's rental of £17,500 plus the £13,000 tendered by the said cheque met all
the defenders' obligations to the pursuers, assuming that clause 7 was
unenforceable. Again it was the pursuers'
choice not to cash the cheque for £17,500.
In summary, the defenders stayed in occupation notwithstanding the July
notices, and the non-presentation of the £13,000 cheque. They were then met with a demand for a very
large sum based on the penalty rent arrangement. Payment of the sum properly due was
rejected. Notices issued in October
relied upon alleged non-payment of the rent due in August. No 7/20 of process is the October notice regarding the farm. In itself it did not irritate the lease. A further payment of £17,500 was tendered and
refused. In other words, the pursuers
were trying to pay everything due other than the penal rent.
[21] Against
this background Mr Thomson submitted that any right to irritate the farm
lease had not been exercised by the time of the October notice, 7/20. The terms of that notice were inconsistent
with a desire to irritate on the basis of the alleged non-payment of rent due
in May. Rather the pursuers had decided
to rely on the alleged non-payment in August to extract a penal rent. It was the failure to pay the penal rent
which was the real cause of the November notices and the subsequent court
proceedings. Matters had by then moved
on very considerably from the position in May, and even that in July. Reference was made to a decision of the First
Division of the Inner House in HMV Fields
Properties Ltd v Bracken Self
Selection Fabrics Ltd 1991 S.L.T. 31.
Their Lordships discussion of the law proceeded on the basis that if the facts showed that matters were being
conducted by the landlord in a way which was inconsistent with the lease having
come to an end by some prior failure on the part of the tenant, then the
landlord will have waived any right to rely on an irritancy. Mr Thomson submitted that this reasoning
should be applied in the present case. The
landlords' conduct indicated that they were willing that the contracts should
remain in force. There was nothing to
indicate that the landlords were irritating on the basis of the July
notices. Rejection of a cheque is the
equivalent of rejection of cash. A
landlord cannot reject the sums lawfully due in expectation of a higher sum
which is not due, and still retain a right to irritate. Reference was made to Whitbread Group plc v Goldapple Ltd 2005 S.L.T. 281
paragraph 28 and to Wilson on Debt
at paragraphs 12.1 and 12.2.
[22] I agree
with the submissions made by Mr Thomson.
I consider that Mr Henderson's
ultimate position on the farm irritancy action was unrealistic on a number of
levels. It is clear that there came a
time when the pursuers were seeking payment of the higher or penal
rentals. Reference can be made to the
11th October notices, which made reference to a one month's delay in paying the
quarterly rent due on 28 August 2004, and insisted on the higher rental under
the original agreements backdated to 28 November 2000. The 11 October notice relating to the farm
said that "the rent payable from 28 November
2000
shall in accordance with clause 7 of our formal letter dated 1 July 2002 be the original rent specified in the said lease,
being £75,000 per annum". The notice
continued by demanding payment of the sum of £93,750. It is therefore plain that by this stage the
intention was not to end the lease, but to extract the higher rent on the basis
of the penalty clause provision. The
defenders' attempt to pay the rent properly due was rejected (see 7/16). A further irritancy notice in respect of the
farm dated 25 October 2004 was served seeking payment
of £103,035.71 within fourteen days, otherwise the lease would be treated as irritated
and court proceedings would be initiated.
In due course the notice of 30 November
2004
was served intimating that the landlords were "now treating the said lease as irritated". All of the above is at odds with an irritancy
which occurred in May (and even with one in August). The real battleground was the issue of the
demand for the original rental, and it was the dispute on this which was
responsible for the subsequent purported termination of the leases.
[23] I do
not see how the pursuers can now have it all ways, in the sense of insisting on
the higher rentals for all periods, rejecting all efforts to pay the sums
properly due, and then, when it is decided that they were wrong in seeking the
higher levels, to ignore the dispute which prevented the rent properly due from
being paid, and assert an irritancy, which otherwise would never have arisen as
a real issue. Whether one categorises
this as waiver, or as some other aspect of personal bar, matters little. It can
be analysed in a similar fashion to the discussion in HMV Fields Properties Ltd v Bracken
Self Selection Fabrics Ltd referred to above. Matters had moved on considerably by October
and November 2004, by which time the basis of the alleged irritancy was a
complaint of failure to pay the penal rent.
Having elected that they were entitled to the penal rent, I do not
consider that the pursuers can now jettison that position, and adopt another
one to justify, ex post facto, an
irritancy claim on another basis. In any
event, in my view that would amount to the kind of unfairness or oppression
recognised as a defence to an irritancy in Dorchester Studios (Glasgow) Limited v Stone 1975
SC (HL) 56.
[24] The
overall result is that I shall assoilzie the defenders in respect of all four actions,
and, insofar as not already dealt with, grant them the expenses of the actions.
