KMG International NV v Chen & Anor

This is the judgment on the application of the defendants dated 15 April 2020 to strike out the report (or parts thereof) of Professor Veder dated 31 March 2020 (the “Veder report”) and the claimant’s application dated 20 April 2020 (the “Amendment Application”) for permission to amend the Re-Amended Particulars of Claim and (in effect) for permission to adduce the Dutch law evidence pertaining to those amendments.

In support of the claimant’s application the claimant filed the Sixteenth Witness Statement of Mr Nicholas Ractliff, partner in PCB Litigation LLP, acting for the claimant, dated 20 April 2020.

By reason of the current circumstances of Covid 19, the hearing of the applications was held remotely by video link but both parties were represented by leading counsel and I had the benefit of both written and oral submissions.

The outline facts in this claim are set out in the judgment of this court dated 9 May 2018 [2018] EWHC 1078 (Comm) (the “Forum judgment”) in relation to the

In brief the proceedings relate to the alleged unlawful dissipation of assets, namely the transfer of shares in Novero GmbH and Novero Dabendorf (together “Novero”) which was owned by a Dutch company, Novero Investments BV (“NIBV”) out of the DP Group, a group of companies ultimately owned by DP Holding SA (“DP Holding”) and formerly owned by Dinu Patriciu. The transfer is alleged to have happened in 2015 or in the alternative September 2014. The claimant, KMG

The claimant brings a claim in tort under Dutch law, in particular Article 6:162 of the Dutch Civil Code. The first defendant, Melanie Anne Chen (“MC”) is alleged to have been a quasi or de facto director of NIBV. The second defendant (“CML”) is a company incorporated in the BVI. CML was also originally alleged to have been a

The defendants deny liability. The defendants allege that Novero was transferred out of the DP Group in return, amongst other things, for the cancellation of €7 million of loans made by MC’s father.

The claimant advances an alternative case in unlawful means conspiracy under English law which is currently stayed.

It is material on these applications to note the following in the chronology of these proceedings.

On 18 and 19 April 2018 (the “April hearing”) I heard the defendants’ application to stay the proceedings on the basis that England was not the most appropriate forum

As is clear from the Forum judgment, the issue of Dutch law and the extent of the dispute between the experts was a significant factor for the court to consider in determining the Forum Application. At paragraphs [26] – [31] of the judgment the court summarised the legal principles including this citation from Lord Mance in VTB Capital plc v Nutritek International Corpn and others [2013] UKSC 5 at [46]

The court at the April hearing had before it reports from three experts of which the relevant ones were the reports of Mr van Maanen (instructed by the defendants) and Professor Veder (instructed by the claimant). The experts were agreed that liability to creditors under Article 6:162 is only imposed on a director where his actions justify “serious reproach”. However there was a significant difference in the basis of liability in this case.

Mr van Maanen doubted whether KMG could show that the defendants were quasi directors of NIBV as a matter of fact but concluded that this could amount to a breach of the duty of proper social conduct where exceptional circumstances apply. In his report (cited at [46] of the judgment) he stated that:

The court identified three issues of Dutch law (at [47]-[49] of the judgment):

whether the defendants as a matter of fact were quasi directors;

whether as a matter of Dutch law, the defendants had breached the standard of liability;

whether there was sufficient proximity between the defendants and KMG as creditor of the ultimate parent company.

In relation to the second issue the court said at [48]:

In relation to the third issue the court said at [49]:

Having identified the issues of Dutch law, the court concluded:

The court then considered the approach of the other expert, Professor Veder, who was of the view that any liability on MC under Article 6:162 would be as an ordinary person and not a director. However the court noted (at [54]) that:

It is clear therefore from the judgment that the consideration of the relevance and significance of the Dutch law issues was based on an analysis of the differences between the experts and a conclusion that on the case advanced by the claimant of an intentional act by the defendants, this would not require the court to determine controversial issues of Dutch law. This was set out in the judgment:

The court then considered the other factors which were relevant to determining whether the English courts were the appropriate forum: the location of the parties, the location of the witnesses, the location of documents, the English law claim, confidentiality issues in The Netherlands, other proceedings in The Netherlands. In its conclusion (at [89] to [97]) the court considered these other factors and then dealt with the issue of Dutch law as follows (at [95]):

The court then concluded as follows:

The claimant thus successfully resisted the defendants’ application for a stay. Permission was also granted for the particulars of claim to be amended.

Permission to adduce evidence of Dutch law at the trial of this matter was given at a case management conference on 19 December 2018 by order of Lionel Persey QC, sitting as a Deputy High Court Judge (the “CMC Order”). Permission was given for a single expert report to be served by each party. The scope of the expert evidence was agreed between the parties and the CMC Order reflected that agreement. Permission for expert evidence on liability under Dutch law was set out in Appendix 2 to the CMC Order as follows:

What are the requirements for such liability against a defendant who was a formally appointed or de facto director of the indirect Dutch subsidiary?

What are the requirements for such liability against a party that is not a formally appointed or de facto director of the indirect Dutch subsidiary?

What is the test for whether someone is a de facto director?

Does the principle of “derivative loss” affect the scope of liability for either of the above claims, and if so, how does it apply?” [emphasis added]

The timetable for the expert evidence in the CMC Order which provided for the Veder report to be served by 7 February 2020 was subsequently varied by a consent order dated 18 March 2020 pursuant to which the time for service of the Veder report was extended to 31 March 2020. That order also provided for the meeting of the experts to take place by 7 May 2020, for the joint memorandum to be served by 21 May 2020 and any supplemental report by 29 May 2020.

The trial of this matter is due to start on 6 July 2020.

Certain of the proposed amendments, the subject of this application, have now been agreed between the parties. The amendments which are in dispute are contained in paragraphs 1, 24, 32A and 32B.1 of the draft Re-Re-amended Particulars of Claim

The relevant part of paragraph 1 setting out the claimant’s case on the unlawful dissipation and with the proposed amendment underlined, reads:

Paragraph 24 is proposed to be amended as follows (with the proposed amendment underlined):

In paragraph 31 of the RAPOC the claimant sets out the Dutch law provisions for a claim in tort under Article 6:612. Paragraph 31 sets out the basis of a claim against a director where a “severe reproach” can be made. Paragraph 31A sets out the basis of a claim against a person who is not a director (or a de facto director) but who commits a wrongful act. Paragraph 31B asserts liability against a person who is a de facto director on the basis of either paragraph 31 or 31A. Paragraph 32 then sets out the factual basis for the claim. The claimant seeks to amend paragraph 32A to read (with the proposed amendment underlined):

MC and CML as de facto and formal directors of NIBV, alternatively MC as a former director and senior employee of DPH at the time of the 2014 Transaction and until 30 September 2015, knew that the Novero Dissipation (including, in MC’s case, the 2014 Transaction if NIBV was transferred out of the DP Group in September 2014) would prevent DPH from satisfying at least part of its debt due to KMG pursuant to the Award, or, in the case of the 2014 Transaction, likely to be due;

KMG infers from the way the Novero Dissipation was structured (as pleaded in paragraphs 16 and 16A above) and the timing of the Novero Dissipation (as pleaded in paragraphs 23 and 23A above) that MC and AP intended (and CML intended them) to profit personally from the Novero Dissipation to the detriment of DPH and thus KMG and to frustrate KMG’s

There was no lawful justification for the transfer of Novero from NIBV to Oscul (or, in the case of the 2014 Transaction, for the transfer of NIBV to the Oscul Settlement), or the subsequent transfers of Novero prior to its acquisition by Laird.”

Paragraph 32B is proposed to be amended to read (with the proposed amendment underlined):

Again the proposed amendments refer to a transfer out being made with “knowledge” as an alternative to intention and to MC’s involvement being either an intention to prejudice KMG “and/or” with knowledge that KMG would be prejudiced.

In oral submissions at the hearing of these applications counsel for the claimant accepted that the proposed draft order for expert evidence was wider than the proposed pleaded case and proposed that the pleading be further amended to encompass not only knowledge that KMG “would” be prejudiced but also that it “might” be prejudiced.

The legal principles that the court should apply on an application to amend the pleadings were largely common ground between the parties.

It was submitted for the claimant that this was not a “very late amendment” as the term has become understood, meaning an application made when the trial date has been fixed and where permitting the amendment would cause the trial date to be lost and that lateness is a relative concept: Vilca v Xstrata Limited [2017] EWHC 2096(QB) Stuart-Smith J at [26]:

Counsel for the claimant also submitted that a failure to advance a good reason for the lateness was only one factor to take into account: Vilca at [29]:

Counsel for the defendants referred to the recent summary of the law by the Court of Appeal in Nesbit Law Group LLP v Acasta European Insurance Company Limited [2018] EWCA Civ 268 at [41]:

I note however that the summary in Nesbit was merely a summary in relation to an issue which did not fall for determination and the facts before the court were that an amendment was sought after trial. It is therefore helpful to set out in full the principles identified by Carr J in Quah Su-Ling at [38] and referred to by the Court of Appeal in Nesbit:

whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;

where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;

a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;

lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;

gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;

it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;

a much stricter view is taken nowadays of non-

The claimant adopted a divergent approach to its Amendment Application. In the Sixteenth Witness Statement of Mr Ractliff the claimant asserted that the existing pleaded case:

This approach was pursued in the written skeleton filed by counsel for the claimant in advance of the hearing of the Amendment Application. It was submitted for the claimant that:

The existing pleading in paragraph 31.1.2 for severe reproach refers to taking into account all the circumstances including knowledge of directors and in paragraph 31A that the “wrongful act” is with the intention to prejudice another or to enrich himself to the detriment of another;

There are factual references in the pleadings to an intention to benefit themselves;

The claimant “has never advanced a case that was solely and exclusively dependent on the Ds’ intention being to harm KMG specifically” (para 19 of skeleton);

“Nothing was said in oral argument [for the April hearing] or in the [Forum] judgment that should […] prevent KMG from being able to refer to the entirety of its pleaded case (whether factual or Dutch law)” (para 31 of skeleton).

It was further submitted for the claimant in its written submissions that:

the proposed amendments have a prospect of success and are not fanciful-that they are supported by the Veder report;

the timing of the Amendment Application was dictated by the need to consider the letter from the defendants’ solicitors of 8 April 2020 and the ensuing correspondence;

allowing the amendment does not put the parties on unequal footing or interfere with trial preparation; the defendants will get the costs of amending their defence; there is time for Mr van Maanen to address the matter in an amended report; no additional factual evidence is required as the relevant issues have already been addressed in witness evidence.

However in oral submissions at the hearing of the Amendment Application a very different approach was adopted by counsel for the claimant:

It was accepted by counsel that “formal statements” had been made in earlier proceedings that the case was dealing with an intention to harm and in particular it was accepted that the “focus” at the April hearing was intention and that this was the “primary case”. It was therefore “accepted” that if KMG is to be permitted to run the alternative case, it must plead its case “clearly” and it was necessary for KMG to address the merits of the application to amend.

It was submitted that it was only when further disclosure was received from the defendants in January/February 2020 in relation to the loans made by MC’s father and the negotiations with Laird, that the importance of “knowledge” became apparent;

In relation to the Forum Application, it was submitted that there was only an injustice to the defendants if the court could conclude that “if presented with a fuller case” it would have made a difference to the outcome of the Forum Application and that would be impermissible speculation;

in the absence of any injustice, there was no “special rule” that a party could not obtain permission to amend its pleadings by reason of the fact that it might impact on the forum challenge.

It was submitted for the defendants (who were given no notice of the change of the basis for the Amendment Application to be adopted by counsel for the claimant in oral submissions) that:

inconsistent with the claim presented to the court for the purpose of winning the argument on forum; and

to allow such an amendment would visit a gross injustice on the defendants;

The arguments on Dutch law are precisely the kind of difficult and unresolved issues of foreign law which the English court is reluctant to decide;

There is no explanation for the late application and not sufficient time for these issues to be resolved within the timetable for trial.

It was submitted for the claimant in written submissions that it “has never advanced a case that was solely and exclusively dependent on the Ds’ intention being to harm KMG specifically” [emphasis added].

Helpfully, as well as being the judge on the Forum Application, the court has not only the Forum judgment but also the relevant transcripts of the April hearing. The clearest statements as to the claimant’s factual case are to be found in the reply submissions. Counsel for the claimant said:

It was submitted for the claimant (in its skeleton for the Amendment Application) that in its submissions in reply, counsel for the claimant was merely responding to concerns raised by the defendants as to whether the pleaded case extended to negligence. Whilst that might be said in relation to the reply submissions it cannot be said of the main submissions which had already put the nature of the claimant’s case then advanced beyond doubt. Counsel for the claimant submitted:

It was also submitted in the written submissions for this hearing (claimant’s skeleton para 33) that there was:

I have already quoted above extracts from the submissions which were made before me which were clearly confined solely and exclusively to a factual basis of specific intention to harm. In my view the judgment reflects the way that the case was put in relation to the Dutch law issues and I note no objection was taken at the time to the judgment in this regard.

The factual basis of the case advanced by the claimant is apparent from various paragraphs of the judgment: see for example [48] [49] [54] (set out above) and at [55]:

It is clear in my view that the entire consideration of the Dutch law issues for the purpose of the Forum Application was on the basis that the claimant’s case was one of intention to harm and that this was not merely (as now submitted orally) its “primary” case or its “focus” but the only basis of its case. I therefore reject the claimant’s submission that it has “never advanced” a case that was solely and exclusively dependent on the defendants’ intention to harm KMG specifically. It is clear beyond any doubt that the claim which is now advanced is inconsistent with the claim as it was presented to the court for the purpose of winning the argument on forum.

The issue which then arises is whether, in the light of the Forum Application, the defendants are correct in their submission that to allow the Amendment Application would visit an injustice on the defendants.

Counsel for the claimant submitted that certain assumptions are made at the time of any application for a stay on forum grounds which may prove subsequently to be wrong such as the location of witnesses or the complexity of the foreign law issues. This cannot result in a bar on subsequent amendments to the pleaded case.

It was submitted for the claimant that the Forum judgment does not indicate that the “precise scope of KMG’s case” formed a major part of the decision and (paragraph 34 of the claimant’s skeleton) that “it would not be appropriate to speculate” that “if more emphasis had been put on the defendants’ intention to benefit/enrich themselves/their associates and/or knowledge of likely harm to KMG” the court would have made a different decision. It was further submitted for the claimant that there is no authority to suggest that this is a relevant consideration on an application to amend.

I accept that there is no general principle that a party is precluded from obtaining permission to amend by reason only that the application for an amendment to pleadings is subsequent to a successful application to resist a stay on the basis of forum non conveniens.

However in the exercise of the court’s discretion in furtherance of the overriding objective as to whether the Amendment Application should be allowed, the court has to look at all the circumstances. In my view the Forum Application is part of the circumstances of this case.

On the case which was advanced orally for permission to amend, it was stated by counsel for the claimant that the Amendment Application arose as a result of disclosure in January/February 2020 of documents in relation to the loans by MC’s father and the negotiations with Laird.

As noted above, this was not a matter which was relied upon or even referred to in the witness statement filed in support of the claimant’s application (nor was it referred to in counsel’s skeleton).

In the course of his oral submissions, when challenged as to the absence of evidence on this issue, counsel for the claimant suggested that the claimant could provide a further witness statement to support his statements to the court. It seems to me that no

Thus it is the position of the claimant in its evidence before this court that the existing pleaded case:

At paragraph 16 of his witness statement, after referring to paragraphs 16, 24 and 32 of the Particulars of Claim (set out above), Mr Ractliff said:

The claimant’s evidence is therefore that the issue of knowledge has been in issue “throughout”. Accordingly the court proceeds on the basis that the claim based on knowledge which has led to the Amendment Application is not something which has arisen after the Forum judgment but has always been contemplated.

Whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the court seeks to further the overriding objective that matters should be dealt with fairly. If (notwithstanding the fact that an application to amend has now been made), the claimant in its pleaded case (as now stated in the evidence) has “throughout put in issue” the case based on knowledge, and had thus always intended that the alternative case based on knowledge would be pursued, but chose at the Forum hearing to advance a case based on specific intention, and persuade the court (as recorded in the Forum judgment at [56] and [57]) that the issues of Dutch law were confined to the question based on specific intention and thus not overly complex or disputed, that is a matter which does constitute potential prejudice and unfairness to the defendants in that, had the full scope of the pleaded case been advanced, this might have resulted in a different outcome on the question of appropriate forum based as it was (at least in part) on the conclusion that the Dutch issues of law were not likely to give rise to difficult questions of liability under Dutch law. In my view the issue is not whether the court would have made a different decision on the Forum Application. I accept that this court at this hearing of the Amendment Application should not attempt to remake the Forum judgment on a different factual basis. However if it is the case that, had the full pleaded case been advanced, it might have led to a different outcome on the Forum Application that is a matter of potential prejudice and unfairness to the defendants which the court should now take into account in determining whether to exercise its discretion to permit that alternative case now to be advanced. The unfairness lies not in the impact on the ultimate consideration of the Dutch law issues by the English court at the trial (which is unknown and unquantifiable) but the fact that the English court might have made a different decision on forum.

The relevance of the way that the case was advanced on the Forum Application is also relevant in considering the issue of “lateness” and the potential prejudice to the defendants in having to defend the alternative case which for the past two years they had been led to believe was not being advanced.

In this context the court also takes into account the following additional matters in relation to the timing of the Amendment Application issued on 20 April 2020:

in their Defence in July 2018 the defendants said that the transfer occurred in September 2014 and that loans from MC’s father to DP were written off in consideration for the transfer to the Oscul Settlement.

In its response to the Second RFI in December 2018 in response to a request (in substance) for the claimant to set out its case on knowledge, the claimant replied “not needed”;

As recently as 20 December 2019 counsel for the claimant told the court that there was no intention to amend;

The claimant issued its letter of instruction to Professor Veder on 10 March 2020 which asked Professor Veder to consider the alternative case based on knowledge;

The claimant agreed to a consent order of 18 March 2020 referring to the expert evidence but made no mention of any application to amend.

In its skeleton the claimant relied on the letter from the solicitors for the defendants on 8 April 2020 in which the defendants objected to the content of the Veder report. In my view, even if it were the position that it was only the disclosure in January/February 2020 which prompted the claimant to seek to make the Amendment Application, the explanation (in the skeleton) that the letter in April 2020 from the defendants’ representatives was the reason for the timing of the Amendment Application does not appear to provide an adequate explanation for making the Amendment Application only on 20 April 2020 having regard to the matters referred to above from which I infer that the issue of knowledge should have been to the fore well before the correspondence in April 2020.

It was submitted for the claimant that even if the court was not satisfied that there was a good explanation for the timing of the Amendment Application, the amendment should be allowed because it could be dealt with by the parties within the existing timeframe to trial and because it would cause injustice to the claimant if the amendments were not permitted.

For the defendants it was submitted that it was not realistic to expect the defendants to instruct their expert on new issues of Dutch law, for a report to be issued and for the experts then to meet and prepare a joint memorandum.

The Amendment Application was made just over two months before the trial commences and although it does not seek to introduce a new cause of action, it does rely on an alternative basis for establishing liability under Article 6:162. It is accepted for the defendants that the current pleaded case based on an intention to cause specific harm has as a necessary ingredient the concept of knowledge. Accordingly the factual evidence already addresses the issue of knowledge. However it was submitted that expert evidence will be required from Mr van Maanen in response to the Veder report on the issue of knowledge. Then there will need to be the meeting of the experts, the production of a joint memorandum and potentially a further response.

In my view it is not realistic to expect the defendants’ expert to respond to the alternative case in the time available. The draft order provides that Mr van Maanen would have to respond by 15 May 2020 (only a week after the hearing) and that the meeting would take place by 22 May 2020 with a joint memorandum by 29 May 2020 and any supplemental report by 5 June 2020. This timetable seems to me to be wholly unrealistic and I note that although the trial starts on 6 July, the skeletons will be due approximately one week before that in order to allow for judicial prereading. Even if this precise timetable were adjusted, there is little if any leeway in what is proposed.

I do not accept the submission for the claimant that it can be said that the further evidence is “modest” because Mr van Maanen has already addressed the question of knowledge. I accept that in his current report Mr van Maanen is of the view that liability will not attach in the circumstances even if specific intention is established (paragraph 2.30 of his report) and he notes (at paragraph 2.21) that

It is in my view unfair and unjust to require the defendants’ expert to produce a report to address the alternative case in the time remaining to trial. I accept that this is not a new cause of action but the legal analysis is clearly significantly complicated by the introduction of this alternative basis of liability even though it is under the same provision of the Dutch Civil Code. This is not a peripheral issue in this case but a

It was submitted that there would be injustice as the claimant would not be able to put its case on the basis of knowledge either in the English courts or in the Netherlands. It was submitted that this would result in a “windfall” to the defendants.

I have no evidence as to whether or not it would be permissible to bring a claim on this basis in the Netherlands and whether this alleged prejudice is therefore made out.

It is inevitable in my view that there may be prejudice if the claimant is not permitted to amend (and it fails to establish its case on intention) but the claimant has to show why it is in the interests of justice for permission to be given.

This is a late amendment. In furtherance of the overriding objective the court has to strike a balance between the injustice to the applicant if the amendment is refused, and injustice to the opposing party. In my view the claimant has not discharged the burden on it of showing why in the circumstances of this case justice requires that it should be able to pursue it.

The claimant in my view on the evidence before the court has not provided a good explanation for the lateness of the Amendment Application. In my view, in all the circumstances of this case, for the reasons discussed above, the potential prejudice and injustice to the defendants outweighs any prejudice to the claimant.

For all these reasons the Amendment Application is refused.

In the light of the court’s conclusion that the amendments should not be permitted, the claimant’s application to expand the scope of the expert evidence is refused.

The court has then to consider the defendants’ application to strike out the Veder report.

It is the defendants’ case that the report considers and opines on a number of matters which do not form part of the claimant’s case and for which the claimant does not have permission. In particular it is submitted that Professor Veder was instructed to consider whether a violation of Article 6:162 would be committed if a person acts “without specifically intending to harm any of the creditors of the company”. As a result it is submitted for the defendants that the Veder report considers whether a claim could succeed if a defendant “could have” or “should have” realised that his actions would prejudice a creditor. Accordingly it is submitted that the whole report should be struck out and a replacement report served.

The defendants also submit that the court gave permission for a single expert report and the approach of the claimant is to rely both upon earlier reports of Professor

The court has a duty under CPR 35.1 to restrict evidence “to that which is reasonably required to resolve the proceedings”.

CPR35.4 provides (so far as material):

the field in which expert evidence is required and the issues which the expert evidence will address; and

where practicable, the name of the proposed expert.

In this case the parties put forward a detailed appendix as to the issues which would be addressed by the experts. As set out above, on liability this was expressed as:

The way the issues were set out in Appendix 2 therefore (contrary to the claimant’s submissions) does restrict the scope of the expert evidence and for good reason, that is to restrict the evidence to that which is reasonably required to resolve the proceedings. In the light of the refusal of the Amendment Application, in my view no additional expert evidence is required in relation to the position under Dutch law. The fact that Article 6:162 is a fact sensitive enquiry does not mean that expert advice is required in relation to a basis which does not reflect the case advanced by the claimant (having regard to the court’s refusal to allow the proposed amendments).

The defendants seek an order that KMG be required to serve a replacement report or to strike out the objectionable parts. In my view it will not assist the court to have an expert report in its current form since the extent to which the conclusions are affected by the factual assumption that is dependent on knowledge rather than specific intention is in my view difficult to excise from the report and there is a risk that the court will be left with a report which is unclear on the key issues. It also cannot refer to the report of a third party for whom permission has not been granted.

A revised report must therefore be served which reflects this judgment.