AGCO Ltd. & Anor v Kellaway

This is an appeal pursuant to section 151(4) of the Pension Schemes Act 1993 against a decision of a Deputy Pensions Ombudsman, Mr Gordon, the decision being dated 20^th March 2007. In this judgment I will refer to the Deputy Pensions Ombudsman as “the Ombudsman”.

Until 31^st December 1998, Mr Kellaway was employed by Agco Limited (“Agco”). Mr Kellaway was a member of the Massey Ferguson staff pension scheme. Mr Kellaway asserted before the Ombudsman that, in the events which had happened, in particular the events which led to the termination of his employment with Agco, he had become entitled to receive a pension in accordance with rule 14(c)(iii) of the relevant pension scheme. This was not accepted by Agco.

There was some earlier confusion as to whether the relevant pension scheme was the staff pension scheme or the works pension scheme. Everyone proceeded before the Ombudsman on the basis that the relevant scheme was the works pension scheme, whereas the true position is that the relevant scheme is the staff pension scheme. The material terms of the two schemes are the same, so nothing turns on this difference. However, in this judgment I will refer to the correct scheme, which, as I have said, is the staff pension scheme.

The Ombudsman determined the issue as to Mr Kellaway’s entitlement under rule 14(c)(iii) in favour of Mr Kellaway. Agco and the trustee of the staff pension scheme now appeal to the court, the appeal under section 151(4) of the Pension Schemes Act 1993 is on a point of law only. Mr Nugee QC and Mr Leiper appeared on behalf of the appellant; Mr Kellaway did not appear and was not represented.

Rule 14(c)(iii) applies to a member of the scheme who “retires from service at the request of the employers”. “Service” is defined by the rules of the scheme in an obvious way to mean “employment with the employers”. Mr Kellaway contends that on the facts of this case, he retired from his employment with Agco at the request of Agco. The Ombudsman agreed with this contention. The appellants contend that, on the facts of this case, Mr Kellaway did not retire from his employment with Agco at the request of Agco. On this appeal the issue of law is as to the true construction of rule 14(c)(iii) and the application of that construction to the facts of the case as found by the Ombudsman.

If the matter were free from authority, it would be appropriate to set out the relevant rule, rule 14, in its entirety and indeed to refer to a number of the other rules. However, it is not necessary to do that in this case as the task has already been done by the Court of Appeal in a decision given in July 2003 which concerned these very rules and the similar or identical rules of the Works Pension Scheme. Indeed, for the purposes of interpreting rule 14(c)(iii), in my judgment the appropriate course is to go straight to the decision of the Court of Appeal and consider the reasoning in that decision.

The decision of the Court of Appeal in question is reported in [2004] ICR 15 as Agco Limited v Massey Ferguson Works Pension Trust Limited, Bradbury and Charter. The proceedings which led to the decision of the Court of Appeal arose out of a decision by Agco to close a tractor manufacturing plant in Coventry. The closure resulted in the redundancy of a large number of employees. Most of the redundant employees were made compulsorily redundant; a small number were the subject of a voluntary redundancy. The question for the Court of Appeal was whether employees who had been made redundant by the employer had “retired from service at the request of the employer”, within rule 13(c)(iii) of the rules of the Works Pension Scheme or the similar rule 14(c)(iii) of the rules of the Staff Pension Scheme.

On that issue, the employees contended that all of the redundant employees, whether on a compulsory or a voluntary basis, came within the relevant rule. The judge at first instance accepted that contention. On appeal, Agco contended that none of the redundant employees, whether on a compulsory or a voluntary basis, came within the relevant rule. The Court of Appeal agreed with Agco in relation to the position of a compulsory redundancy. However, the Court of Appeal held that the decision was different for a voluntary redundancy. In such a case it would normally be possible to say that an employee who had applied for voluntary redundancy had “retired from service at the request of the employers”.

The leading judgment of the Court of Appeal was given by Rix LJ with whom Aldous LJ agreed. Sedley LJ dissented. He would have dismissed the appeal. The judgment of Rix LJ is very detailed. It has been analysed with care by Mr Nugee in the course of his submissions. I will refer to one or two features of the judgment and then quote the passages where the distinction between compulsory redundancy and voluntary redundancy appears to be described. As will be seen, it is that distinction which is at the heart of the present dispute between Agco and Mr Kellaway.

At paragraph 4 of his judgment, Rix LJ described the circumstances of that case and the type of voluntary redundancy involved in that case. It might be said that the circumstances of the voluntary redundancies in that case were somewhat special. However it is clear, in my judgment, that Rix LJ, when discussing voluntary redundancy, was considering the subject in general terms and he did not confine himself to the arguably special circumstances of that case. After all, what was being argued and what was the subject of the court’s declaration, required the court to deal with the matter generally on the true construction of the rules in question and not to confine itself to the particular circumstances of individual employees.

At paragraphs 5 and 6, Rix LJ described the general legal background as to the subject of redundancy in employment law. He noted that all redundancy involved a dismissal of an employee. At paragraph 9, Rix LJ pointed out there can still be a “voluntary redundancy” where the employee volunteers for redundancy, even though he does so against the background of a threat that the employee might be made compulsorily redundant if he does not so volunteer. At paragraph 25 Rix LJ stated that the nature of voluntary and compulsory redundancies were quite different, albeit both ended in dismissal. He recognised that there was a tension in the concept of voluntary dismissal, expressed in the very words used to describe it. Later in his judgment, Rix LJ discussed what was involved in a “retirement”. He stated that a dismissal could not generally be regarded as retirement within the relevant rules.

Paragraph 58 of Rix LJ’s judgment deals principally with the subject of compulsory redundancy. It had been argued that a compulsory redundancy came within the relevant rule. Having previously discussed the concept of retirement, Rix LJ said this:

“The burden is therefore on the phrase “at the request of the Employers”. In my judgment, it is requiring too much of this phrase to suppose that it is intended to include cases where the employer not merely requests but successfully enforces retirement. The natural meaning of “request” suggests that the employee can choose whether or not to comply with the request. Such choice is of course entirely compatible with at any rate some element of pressure or coercion. There is hardly any choice in life that is entirely free from pressures of one kind or other. It cannot be the mere existence of some element of pressure or coercion which prevents a request from being a request and turns it into something even more than a demand – for even demands can be turned down. This after all is the truth behind the grim joke about making someone “an offer he could not refuse”. One can refuse an offer, even though some are harder to refuse than others. But an execution is not an offer. Similarly, one can refuse a request, although some are harder to refuse than others. But, subject to the peculiar case of a dismissal following an agreement to accept voluntary redundancy, one cannot refuse, indeed one is given no real opportunity to refuse, an out and out dismissal.”

In that passage, Rix LJ refers to the employer “enforcing” the termination of the employment. The process of a unilateral execution of a termination of an employment does not involve an offer to the employee which he is free to accept or to decline. At the end of paragraph 58 of his judgment, the Lord Justice added:

“The case of voluntary redundancy, however, to which I will revert below, is peculiar for the very reason that in its nature it is a matter of choice, even if in its formal execution it takes the form of a dismissal.”

At paragraph 65, Rix LJ explained the purpose behind rule 14(c)(iii) in these terms:

“It seems to me to be reasonably plain that para (iii) is intended to enable the employer to offer early retirement on preferential terms to employees over 50. I emphasise the word “offer”, for the terms are only available when retirement is “at the request” of the employer. The preferential terms are available as the quid pro quo for the employee’s agreement to retire.”

At the end of paragraph 65 of his judgment, Rix LJ said:

“I distinguish voluntary redundancy because, although that is formally completed by means of a dismissal, it occurs as a result of prior consent to such a dismissal.”

Despite their length, I ought to read all of paragraphs 67, 68 and 69 of the judgment of Rix LJ.

“67.

What then of the two cases which seem to lie uneasily across the distinctions between resignation and dismissal, namely voluntary redundancy and constructive dismissal? It is possible to view voluntary dismissal, a form of oxymoron, as falling either in the camp of dismissal, the formal equivalent of compulsory redundancy, or in the camp of a retirement “at the request of the Employer”. Where does it better fit?

68.

In my judgment, this question has to be answered by looking at the substance and realities of the situation, rather than at the form. It is therefore made the more difficult by reason of the fact that the realities of voluntary redundancy may differ (see under paras 6/11 above). At one extreme, an employer may make it plain that he will make no compulsory redundancies, but will rely on natural depletion of the payroll and voluntary redundancies alone. At the other extreme, an employer may demand compulsory redundancies of all or so large a proportion of his payroll that his offer to accept voluntary redundancies instead may effectively give his employees no real option. In general, however, and on the evidence in this case, I have no reason to think that the voluntary redundancies of which I have read are not fairly and properly called by that name. Indeed, seeing that every case of statutory redundancy is in form a dismissal, the very language of voluntary redundancy, which I have described as an oxymoron, emphasises that in its essence it is a consensual process.

69.

I would therefore conclude that, save for the possibility of exceptional cases where the use of the expression is in truth a misuse of language, the case of voluntary redundancy fits better in the latter camp of a retirement at the request of the employer. Despite the theoretical existence of an element of pressure or coercion from the possibility that compulsory redundancies may have to take place in the absence of sufficient volunteers, and despite the fact that in the end a volunteer has to be accepted by the employer as a candidate for dismissal, it seems to me that the reality of the situation of voluntary redundancy is that it is a consensual dismissal. It is perfectly well described as a retirement at the request of the employer. I would so find. I would therefore agree with the employees’ submission that the line between consensual termination and voluntary redundancy (at any rate as found in this case) is sufficiently narrow to make it odd that the form of dismissal should triumph over the substance of consent. Voluntary redundancy is a standard form of retirement.”

From those paragraphs one can see that a voluntary redundancy is “a consensual process”. It can remain a consensual process even though there is pressure on the employee to apply for it. In exceptional cases the expression “voluntary redundancy” is a misuse of language. Rix LJ does not, of course, define these exceptional cases, but in my judgment a clear pointer to what they are is provided in paragraph 68 of his judgment where he refers to “the other extreme” when the employee has “no real option”.

Finally for present purposes I note paragraph 71 of the judgment of Rix LJ where he discusses whether there is an anomaly in distinguishing between compulsory and voluntary redundancy and he held there is no such anomaly.

The facts of the present case are contained in certain communications between the parties dating from 1998 and/or are set out in the Ombudsman’s determination. The story begins with a letter of 19^th October 1998. This was addressed to “All UK Agco employees”. I will read the first four paragraphs of that letter:

“We refer to Mr Ratcliffe’s letter of 6^th October 1998 in which he informed you that the need to adjust our cost structures to meet reduced demand levels in 1999 would result in some job eliminations.

The purpose of this letter is to give you further information on the impact on employment in the UK and to explain the process and procedures.

We envisage that there will be a need for approximately 300 redundancies from hourly paid employees and 100 redundancies from staff employees. The company wishes to achieve the necessary head count reductions by voluntary means wherever possible.

Detailed proposals are being finalised and will then form part of the consultation process.” [Quote unchecked]

On 29^th October 1998, Agco wrote to all UK product development staff employees. This letter dealt with a possible redundancy of one member of staff. The Ombudsman appeared to have thought that this letter was directly relevant to the position of Mr Kellaway. However, as I understand it, this letter did not really apply to Mr Kellaway. First of all, Mr Kellaway was not on the product development side of the company. Secondly, Mr Kellaway told the Ombudsman and the Ombudsman appears to have accepted (see paragraph 60 of his decision) that the possibility of Mr Kellaway being made redundant came out of the blue, later on 14^th December 1998.

However, this letter of 19^th October 1998 appears to have been provided to the Ombudsman by Mr Kellaway and it seems that Mr Kellaway was aware of it, and in particular was aware of the attachment to the letter of 19^th October 1998 which summarised the terms available under what was called “voluntary redundancy arrangements”.

The letter of 29^th October 1998 stated:

“Within the product development function, one UK staff job may become redundant. The company wishes to achieve the necessary head count reductions by voluntary means and attached to this letter is a copy of the terms available for voluntary redundancy and early retirement. Commencing 2^nd November 1998, employees who wish to consider these terms may request their personal details from the Human Resources Department, TG. In order to help people with their decision, we will be arranging for financial counselling, job seeking advice and benefit agency services to be available from 9^th November 1998.

These terms will be available to those employees who volunteer by 30^th November 1998. The company, however, reserves the right to turn down applications where business operations may be adversely affected. If sufficient volunteers are not forthcoming to achieve the above reductions, then a selection process will be implemented to effect compulsory redundancies.” [Quote unchecked]

The terms attached to the letter of 29^th October 1998 referred to payment in lieu of notice, statutory redundancy payment and voluntary early leaving bonus. It also referred to the topic of pension scheme benefits. The description of pension benefits for persons under the age of 60 did not refer to any entitlement under rule 14(c)(iii). At the time of that letter and at the time of Mr Kellaway leaving his employment, he was under the age of 60, being around 55 years of age.

On 17^th November 1998, Mr Kellaway sent a memorandum to “All UK based Asia Pacific staff employees”. At this stage, Mr Kellaway was acting for the employer, Agco, dealing with the possible redundancy of other employees and not in relation to his own possible redundancy. The last page of his letter or memorandum reads:

“It is hoped that the need for compulsory redundancies can be minimised by means of the voluntary redundancy and early retirement programme recently announced by the company. Please raise any queries you have with me over the coming days.” [Quote unchecked]

I can now go to the events of 14^th December 1998. In paragraph 6 of his decision, the Ombudsman accepted the evidence given by Mr Kellaway in these terms:

“During my tele con with John Bradley in Melbourne very early am UK time on 14^th December 1998, he informed me that I no longer had a job in East Africa for the Pacific Division, to contact Human Resources in Coventry, advised me to look after number one and wished me all the best for the future! I reported to Messrs Cowells and Holden early that same morning, who were absolutely shocked and speechless, clearly giving the impression it was the first time they had heard of my situation. It came as no surprise that later that day I received the letter dated 14^th December 1998 from John Bradley via Human Resources.” [Quote unchecked]

On 14^th December 1998 Mr Bradley wrote to all UK Asia Pacific staff employees. That description included Mr Kellaway. I ought to read the entirety of that reasonably short letter:

“During the consultation period since my letter dated 29^th October 1998, we have continued to examine the trading forecasts for 1999.” [Quote unchecked]

I interpose there to say that that reference to a letter of 29^th October 1998 appears to have been to a letter different from that I have already read, as the letter I have already read bearing that date was written not by Mr Bradley but by another. It may be that the letter which was before the Ombudsman dated 29^th October 1998 was in essentially the same terms as the letter referred to by Mr Bradley in his subsequent letter of 14^th December 1998. I continue with that letter:

“Unfortunately, there is no real indication of any major improvement in the short to medium term. It has therefore been decided that we need to continue the process of amalgamating positions in order to meet the cost reduction targets. Therefore, we will be making two UK based positions of director sales East Asia Pacific and general service manager Asia Pacific redundant. In place of these two positions, it is proposed that a new position of general sales and service manager will be created to leave both sales and service teams.

The above proposals will be discussed with Mark Norton, the employee representative for this area. You may wish to talk to your representative so that he can also put forward your views and suggestions you may have at meetings with the company.

It is hoped that the need for compulsory redundancies can be minimised by means of the voluntary redundancy and early retirement programme recently announced by the company. Please raise any queries you have with me over the coming days.” [Quote unchecked]

I should add that Mr Kellaway was the director of sales East Asia Pacific, whose position is referred to in that letter.

The next relevant event was described in paragraph 8 of the Ombudsman’s decision in these terms:

“According to Mr Kellaway, he then had a telephone conversation with Mr Holden, Agco’s Human Resources manager, in the course of which the latter agreed to accept an application for voluntary redundancy on Monday, 4^th January 1999, provided that the application was dated on or before 31^st December 1998.” [Quote unchecked]

As the Ombudsman noted, this conversation on 14^th December 1998 is the subject of an exchange of memoranda between Mr Kellaway and Mr Holden. The first memorandum is from Mr Kellaway dated 14^th December 1998. He wrote:

“This is to confirm our tele con on Monday, 14^th December 1998 in which you agreed that you would accept my application for a voluntary redundancy on Monday, 14^th January 1999, provided the application was dated on or before 31^st December 1998.” [Quote unchecked]

Mr Holden’s reply was on 15^th December 1998. It is addressed to “Jim”, which appears to be the name by which Mr Kellaway was known. The memorandum stated:

“As I stated yesterday, if this is what you decide, then I will honour the commitment.” [Quote unchecked]

It is clear from the terms of those memoranda that by 15^th December 1998 Mr Kellaway had not yet applied for voluntary redundancy. However, he seems to have secured a commitment that his employer would make available to him the terms which were appropriate for a voluntary redundancy if he applied for those terms by 31^st December 1998.

Before Mr Kellaway did apply for a voluntary redundancy, there was a most significant event; that was the sending of the letter dated 18^th December 1998. I ought to read that letter:

“Further to my letter dated 14^th December 1998 advising that your job of Director of Sale East Asia Pacific was in a selection unit from which one job may be redundant, I am now writing to advise you that, following consultation with the staff representatives and yourself, we have concluded that there is no alternative to one of these jobs being made redundant and the selection process has been completed. Unfortunately, you have been selected for redundancy from your selection unit.

The company remains open to further suggestions and representations, but to date we have found no alternative to the proposed redundancy. If you consider there to be a suitable alternative course of action, please discuss this with me as soon as possible. If you conclude my judgment to be unfair, you have the right to appeal to Jim Seaver, and should notify me of this.

We are now looking for a suitable alternative position for you and will discuss this with you. Unless we can find a suitable alternative position in the company for you, you will be made redundant. Your redundancy and termination of employment will be effective 31^st January 1999.

Human Resources and I will assist you in whatever way we can, and if you require any further information, advice or guidance, please do not hesitate to ask.” [Quote unchecked]

The Ombudsman did not make any finding about any consultation with Mr Kellaway of the kind referred to in the second paragraph of this letter. The 18^th December 1998 was a Friday. On Monday, 21^st December 1998, Mr Kellaway completed an application form with the heading “For staff voluntary redundancy scheme 1998”. The form appears to be the same form as was sent under cover of the letter of 29^th October 1998 to which I have already referred.

The application form contained these terms:

“I hereby apply for voluntary redundancy. In accordance with the staff voluntary redundancy scheme dated 29^th October 1998, I confirm that I have received an estimate of the payments and benefits that I would receive if my application were accepted by the company. I understand that -

(a)

my application is irrevocable and may not be withdrawn; and

(b)

the company has absolute discretion to accept or decline my application;

(c)

I understand my latest termination date will be 31^st December 1998.” [Quote unchecked]

The form contained provision for an earlier date to be stated, but no earlier date was stated. The form was signed by Mr Kellaway and dated 21^st December 1998.

On 21^st December 1998, Agco wrote to Mr Kellaway. The letter stated:

“I am writing to confirm that your application has been released (?) in accordance with the terms of the current staff voluntary redundancy scheme, has been accepted. The company does not require you to work your notice period and agrees to you leaving on Thursday, 31^st December 1998. Details of your termination payments are attached and will be paid to you on your last working day. By return please let me know when this will be and what holidays will be outstanding. Your final salary payment for December will include payment for any untaken holidays.” [Quote unchecked]

In the documents before the Ombudsman were detailed calculations of the sums which became payable to Mr Kellaway pursuant to these arrangements. In summary form, the difference between the terms which would be appropriate on a compulsory redundancy without more and the terms of the voluntary redundancy scheme, were that Mr Kellaway received an additional £3,493.33 said to be a “voluntary early leaving bonus” and his employment seems to have ended on 31^st December 1998 rather than the date of 31^st January 1999 referred to in the letter of 18^th December 1998. I can add that the company letter of 21^st December 1998, when it refers to not requiring Mr Kellaway to work “your notice period” would appear to be in the context of this correspondence, a reference back to a notice period ending on 31^st January 1999 as stated in the letter of 18^th December 1998.

I should refer to one other matter. In the financial terms which were made available to Mr Kellaway, his pension was calculated in accordance with the rules of the scheme, but on the basis that Mr Kellaway was not entitled to pension in accordance with rule 14(c)(iii).

Later in December 1998, Mr Kellaway signed a document in these terms:

“I acknowledge receipt of the cheque to the value of…”

The figure is not clear, it is something of the order of £30,000:

“… and recognise that this is in full settlement of the monies due to me as a result of redundancy. [Quote unchecked]

For the avoidance of doubt I should add that it is not suggested by Agco on this appeal that this document prevents Mr Kellaway putting forward the contention which he has put forward and which has prevailed before the Ombudsman, namely that in relation to pension entitlement, he was entitled to pension in accordance with rule 14(c)(iii).

The Ombudsman considered the facts and the decision of the Court of Appeal in the earlier case. He concluded , in particular at paragraphs 43-46 of his decision, that this was a case of voluntary redundancy and that Mr Kellaway was entitled to pension in accordance with rule 14(c)(iii). The Ombudsman then went on to consider other matters which do not give rise to any live issue on this appeal and I need not state what they were.

Mr Nugee and Mr Leiper on behalf of the appellants essentially make two alternative submissions. Their first submission is that on the true construction of the letter of 18^th December 1998, Agco dismissed Mr Kellaway by service of that letter on him and so as to take effect on 31^st January 1999. By 18^th December 1998, Mr Kellaway had not applied for voluntary redundancy. By the letter of 18^th December 1998, Mr Kellaway was dismissed by way of a compulsory redundancy. It was not possible for there to be a voluntary redundancy thereafter. All that happened after 18^th December 1998 was that Mr Kellaway received an additional £3,000 or thereabouts, in return for his employment terminating by agreement on 31^st December 1998. Agco had given a commitment to Mr Kellaway on 14^th December 1998 that Mr Kellaway would be able to benefit from those terms, but the honouring of that commitment did not convert a compulsory redundancy into a voluntary redundancy. Counsel relied on the passages in the judgment of Rix LJ which referred to “enforcing” termination or execution of the process of termination of the contract of employment.

The second submission was on the basis, contrary to the first submission, that the letter dated 18^th December 1998 did not amount in law to an effective letter of dismissal. In that event it was submitted that the lead-up to that letter and the terms of the letter itself meant that on and after 18^th December 1998 Mr Kellaway did not have any real option but to accept the termination of his employment.

For reasons that will appear, I will consider in the first instance the second submission made by the appellant. I have set out the relevant passages from the reasoning of the Court of Appeal in the earlier case. I have also set out the relevant facts and the terms of the relevant communications. On 14^th December 1998, Mr Kellaway was told orally that he no longer had a job. The letter of 14^th December 1998 told Mr Kellaway that his job and another job were going, although there would be a new post combining both of the former positions. The letter of 18^th December 1998 told Mr Kellaway that out of the two employees who held the two posts that were redundant, he had been selected for redundancy. Although there was always the possibility of Mr Kellaway being considered for some alternative position he had been finally selected for redundancy in relation to the two posts which were redundant. He had not been selected for the new combined position.

The fact that Mr Kellaway might be considered for some alternative position, did not mean that he had not been made compulsorily redundant. That is shown by the fact that in February 1999 Mr Kellaway was considered for an alternative position, even though his employment had ended on 31^st December 1998.

In my judgment, even though the parties agreed that Mr Kellaway should have the terms that were otherwise being made available to employees who applied for voluntary redundancy before they were made compulsorily redundant, the substance of the matter was that Mr Kellaway was made compulsorily redundant. This was not, as a matter of substance, a case of voluntary redundancy. It will be remembered that Rix LJ emphasised that this matter should be regarded as a matter of substance rather than by reference to its form. Further, to pick up a point made by Rix LJ, in my judgment, it would be a misuse of language to call the present case a case of voluntary redundancy.

Accordingly, I reach the conclusion that Mr Kellaway was not entitled to the benefit of rule 14(c)(iii). He did not retire from his employment at the request of his employers. I will therefore allow the appeal on that ground.

In these circumstances, I do not need to consider the first submission put forward by the appellants. I would prefer not to rule on that first submission for this reason. It is not completely clear to me that the letter of 18^th December 1998 was a notice of dismissal which unconditionally and irretrievably took effect on 31^st January 1999. There are, of course, parts of the letter of 18^th December 1998 which appear to say that the employer has unconditionally and irretrievably decided to dismiss the employee on the stated date. There are, however, other parts of the letter which might suggest to the employee that the letter is not itself notice of dismissal, but rather a statement that unless something happens, such as an alternative course of action, or an alternative position being available, then the employer will in the future dismiss the employee. A notice of dismissal must be unambiguous in order to be effective.

In case it is of assistance, I am able to say that if the letter of 18^th December were an effective notice of dismissal, then I would hold that the remainder of the reasoning in the first submission is sound.

In view of the room for doubt about the effectiveness of the letter of 18^th December 1998 as a notice of dismissal, in view of the fact that a decision on this point is not necessary and in view of the further fact that the appeal has been argued on one side only, in the end I will leave this point open.

I will allow the appeal and I will hear counsel on the form of the order which should now be made to give effect to this judgment.