The decision Sutherland, committee of the Estate of Fountain v Dorland and Rendell 2012 BCSC 615, which disinherited.com blogged about yesterday, also contained an additional issue relating to section 20 of the Patient’s Property Act, which says as follows:
20. Every gift made by a person who is or becomes a patient is deemed to be fraudulent and void as against the committee if:
A. The gift is not made for full and valuable consideration actually paid or sufficiently secured to the person, or
B. The donee, grantee, transferee or person to whom the property was alienated or conveyed had notice of the time of the gift, grant, alienation, conveyance or transfer of the mental condition of the person.
In Taylor v. Jenkins (1986), 1 B.C.L.R. (2d) 207, Macdonell J. held that the phrase “shall be deemed to be fraudulent and void” raises a rebuttable presumption of incompetence.
The onus is on the party seeking to uphold the transaction to rebut the presumption (Lasky (Public Trustee of) v. Prowal (1994), 7 E.T.R. (2d) 70 (B.C.S.C.) at para. 39).
In the Lasky case an elderly, frail, and blind man transferred title to his house into joint tenancy with the defendant, his niece and her son, and also gave them each $20,000 a few days prior.
No consideration was paid for the house.
When a friend learned of the transfer and questioned him about it, he denied having done such a thing.
The Public Guardian as committee of the plaintiffs estate, brought an action to set aside the transfer of the home and the payment of the cheques.
The action was allowed.
The court held that the defence bore the onus of rebutting the presumption in section 20 Patient’s Property Act, that the gift is deemed to be fraudulent and void.
The court found that the facts of the case supported the inference of undue influence having been exerted by the defendants in obtaining the two cheques and the transfer of the house.
No legal independent advice had been provided to the plaintiff with regard to those transactions.
The conduct of the defendants in obtaining the benefits for themselves by exercising undue influence over the plaintiff when he was in an immensely comprised state was reprehensible, and the plaintiff was therefore entitled to special costs.
Special costs normally means full indemnity to the plaintiff of all the plaintiff’s legal fees and disbursements.
The court followed the decision of the BC Court of Appeal in Everywoman’s Health Center Society 1988 v Bridges (1991) 54 BCLR (2d) 294 (CA)
The Ontario case of Richi v Kakaoutis 2011 Carswell 14616 is an example of what procedure was followed in Ontario when a litigant became mentally ill, requiring a litigation guardian to be appointed to represent his interests because he was incapable.
I suspect it would apply as good law in British Columbia.
The defendant had exhibited signs of paranoid during a trial in 2008 involving alleged negligence of another driver.
The public Guardian and Trustee for Ontario obtained an order declaring the plaintiff disabled and appointed itself to continue the court action on the plaintiff’s behalf.
The defendant sought to represent himself and other relatives in another court action relating to a real estate transaction.
The plaintiffs in the real estate action brought an application for an order declaring the defendant disabled and to appoint the Public Guardian and Trustee as litigation Guardians for all defendants, or for an order requiring the defendant to undergo medical testing.
The court ordered that the defendant attend a medical examination chosen by the court from a list of three, failing which the plaintiff could move to strike the statement of defence.
The defendants mental condition was very much in question, and the finding any prior decision was relevant and informative to the court on whether a mental assessment should be ordered.
The issue of the defendants mental state was raised by the adverse party in the litigation, and was relevant to the issue of whether the litigation Guardian should be appointed for all defendants.
The court found that there was good reason to believe there was substance to the alleged disability, including the admission by the defendant that he was subject to extreme mood swings.
The results of the mental assent examination were necessary to assist counsel and the court on the issue of whether a litigation Guardian should be appointed for all defendants.
McBeth-Kearns v Marples 2012 BCSC 714 is an estate litigation case that like so many, can often end up sitting on the lawyer’s desk or filing cabinet for years.
Charles Dickens wrote about the inordinate delay in estate litigation back in his day in his lengthy novel Bleak House involving a 50 year estate lawsuit.
I recall that the first time I made an application on behalf of the defendant to have the plaintiffs claim dismissed for want of prosecution, that file that had been left undisturbed for four years, yet as a result of my application to dismiss, suddenly flourished into a 9 day trial, all of which my client ultimately blamed me
Sometimes there is merit in the adage “let sleeping dogs lie”.
In the McBeth-Kearns case the plaintiff had commenced a court action in 2005 claiming an interest in certain land.
Seven years later she consented to the removal of a certificate of pending litigation that she had filed, in order to permit the sale of the land, with the proceeds to be held in an interest-bearing lawyers account.
The defendant brought on an application in April of 2012 to have the plaintiffs claim dismissed for want of prosecution, given that she had taken no steps in the court action for more than three years.
The court found that the delay had been inordinate and inexcusable, but did not dismiss the claim on the basis that justice would not require such a dismissal without a trial on the merits.
In support of that decision Justice Joyce found that there would be no substantial prejudice to the defendants in having a trial, and finding that the plaintiff did have an arguable claim, that at best could succeed for no more than half of the funds.
Accordingly the judge ordered half of the funds held in trust to be released to the defendant, and ordered that the plaintiff set the matter down for trial.
Justice Joyce, as he usually does, gave an extensive review of the law, in this case relating to an application to dismiss the plaintiffs claim for want of prosecution.
That excerpt of law is as follows:
DISMISSAL FOR WANT OF PROSECUTION The Legal Test
[29] The starting point for a discussion of the law that applies on an application to dismiss an action for want of prosecution is Irving v. Irving (1982), 38 B.C.L.R. 318 (C.A.) [Irving], where Seaton J.A. referred to the judgments of the English Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 (C.A.). At para. 8, he referred to the following statement of Salmon L.J.:
In order for such an application to succeed, the defendant must show:
that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognize when it occurs.
that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.
that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial.
If the defendant establishes the three factors to which I have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike a balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault.
In the end, the court must decide whether or not on balance justice demands that the action should be dismissed.
[30] Further at para. 8, Seaton J.A. also referred to the following statement of Diplock L.J.:
It is thus inherent in an adversary system which relies exclusively upon the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiffs action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will not be possible.
It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
[31] In Busse v. Chertkow, 1999 BCCA 313 [Busse], Goldie J.A. considered the question of who bears the onus with regard to the issue of prejudice if the defendant demonstrates inordinate, inexcusable delay. At para. 18, he said:
18 In my view, it is open to this Court to adopt the principle that once a defendant has established the delay complained of has been inordinate and is inexcusable a rebuttable presumption of prejudice arises. To continue imposing the evidentiary burden of proving prejudice after establishing inordinate and inexcusable delay is contrary to the object expressed in sub-rule (5) of Rule 1 of the Rules of Court.
[32] In Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 [Tundra Helicopters], Esson J.A., at paras. 35-36, made this comment with regard to the “rebuttable presumption of prejudice” referred to in Busse:
35 I also regard it as error in principle to dispose of the issue of prejudice by asking
whether the plaintiffs had rebutted* the presumption of prejudice that arises in the
circumstances’ and by going on to answer that question in the negative. The
“presumption of prejudice” is not a presumption of law. It can be termed a presumption
of fact but only in the sense, as it is put in Sopinka and Lederman “The Law of Evidence in Civil Cases”, 1974 at p. 378:
The term “presumption of fact” is used in many instances in which it is desired merely to shift the secondary burden to a particular party. When used in this sense, it means that the facts are such that a certain inference should, but need not, be logically drawn.
36 It is in that sense that the word “presumption” is employed in Busse v. Robinson Morelli Chertkow, supra. In considering whether the presumption of prejudice has any
application in a particular case, the question properly to be asked, as stated by Goldie
J.A. in para. 27 of Busse, is:
… has the plaintiff established on a balance of probabilities that the defendant has not suffered prejudice or that other circumstances would make it unjust to terminate the action?
In considering that question it may be misleading to approach it by asking whether the plaintiff offered evidence on the point. In most cases, it will only be the defendant who is in a position to offer evidence as to the existence of specific prejudice – as two of the defendants attempted to do in this case. The plaintiff often will be able only to point to the overall circumstances, including the absence of any evidence from the defendant of specific prejudice, as establishing on the balance of probabilities that serious prejudice has not been suffered.
Construction Ltd., 2009 BCCA 535 at paras. 27-28, after reviewing Tundra Helicopters, Irving and Busse, Low J.A. summarized the test as follows:
27 These cases suggest to me that a chambers judge charged with the hearing of
an application for dismissal of an action for want of prosecution is bound to consider the
following:
the length of the delay and whether it was inordinate;
any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;
whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and
whether, on balance, justice requires dismissal of the action.
28 I consider the fourth question to encompass the other three and to be the most
important and decisive question.
Re Burgess, 2004 BCSC 62,in estate circles known as the “Hell’s Angels case”, is good illustration of the practical considerations often applied by the court in presumption of death applications.
On or about January 7, 2002, Burgess, an actor and stuntman in the movie industry, disappeared . He had membership in the local Chapter of Hell’s Angels Motorcycle Club. On the date of his disappearance, he was planning to attend the regular meeting of the Hell’s Angels local scheduled for the following day.
Four days later, an RCMP constable phoned Burgess’ wife. He told her that, based on confidential information he had received, in his opinion her husband had been killed by the Hell’s Angels. That same day, a member of the Hell’s Angels club arrived at the Burgess home and requested that his wife turn over his “colours”. Evidence was presented that it was the custom of the club to retrieve club colours when a member died, accidentally or otherwise.
The surviving wife and mother of Burgess’ two children successfully applied under the Survivorship and Presumption of Death Act for a declaration that Burgess was presumed to be dead.
The court found that on the balance of probabilities Burgess had died by misadventure.
Ms. Carmichael has outlined the law for me which is nicely summarized in the contrasting decisions of the Saskatchewan Court of Appeal in Re: Noga et al and Prudential Insurance Co. of America et al (1971), 20 D.L.R. (3d) 331 and the British Columbia Court of Appeal in Re: Martin, Martin v. Prudential Insurance Company of America et al, [1954] 1 D.L..R. 762.
In the Saskatchewan case, Mr. Noga was a widower who owned his own home and had no financial or other problems and enjoyed an amicable relationship with his daughters. The Court found a complete absence of evidence that he had any compelling motive to disappear, and the presumption to be drawn was that Mr. Noga was dead.
Re Burgess stated :
[31] In contrast, Mr. Martin had domestic as well as financial difficulties and had been drinking heavily for some 18 months. He disappeared on a night ferry crossing to Victoria. He had been seen intoxicated during the voyage. He was last seen at 3:30 a.m. and described as “very despondent”. His disappearance was reported when the ferry docked at 7:30 a.m. Prior to that time he had given his suit coat to a companion, placed his return tickets in his companion’s purse and removed his identification from his suit coat.
[32] Culliton, C.J.S. in Noga at p.334 said:
[If at the end of the day] “the scales are left in equilibrium”, as between the presumption of continuing life and the presumption of death, the applicants have not discharged the onus resting upon them. If the conflicting inferences are of equal degrees of probability, then a choice between them is one of conjecture; there must be evidence when on balance and comparing the probabilities from which it can be said that one probability is more reasonable than the other.
[33] In Noga the Court found the presumption to be drawn was that Mr. Noga was dead. In contrast in Martin the Court found the scales were left in equilibrium.
[34] The Supreme Court of Canada has widened the scope for the acceptance of hearsay evidence in the “hearsay trilogy of R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915 and R. v. B. (K.G.), [1993] 1 S.C.R. 740. The circumstances are such that I consider the police information to be reasonably trustworthy, the police officers would be disinterested, and the statements would not be made with thought of litigation in mind. The sources are possessed of a peculiar or special means of knowledge. And there is some consistency in the reported statements of both the police and the members of the motorcycle gang. The underpinnings of the admission of the comments of the police and the Hells Angels Club member are an necessity, which is plainly the case here, and reliability, which I find may reasonably be inferred.
[35] The evidence satisfies me that no person has seen Rick Burgess since January 7, 2002. The last recorded activity appears to have been at midday, that day, on his telephone. While the evidence of events after Mr. Burgess’ disappearance are by their nature hearsay, they are in the circumstances the best evidence available and can only lead to the conclusion, that the “dark side” of Mr. Burgess’ life caught up with him and the only reasonable inference is that his life has been ended by “person unknown”..
[36] I am satisfied on the balance of probabilities that Mr. Burgess died by misadventure.
It is clear that the Public Trustee can be held liable for damages arising out of its negligent management of the patients estate.
This was initially confirmed by the British Columbia Court of Appeal in Wood v. British Columbia (Public Trustee) (1986), 70 B.C.L.R. 373 ( C.A.)
In Leigh as Litigation Guardian for Beeger v Wynford Realty and the Public Guardian and Trustee of British Columbia 2012 BCSC 583, an action was brought by way of a litigation Guardian on behalf of an elderly widow, for alleged mismanagement of her affairs while she was incapable and under their management from 2002 until 2007.
The statement of claim alleged that the PGT managed the affairs of Mrs. Beeger as her trustee and in that capacity managed and sold a three storey rooming house at 568 Powell Street in Vancouver.
Wynford is said to have acted as the PGT’s agent in respect of the management of the property.
It is alleged that in breach of the fiduciary duties owed to Mrs. Beeger, and breach of the standard of care owed to a person incapable of managing her affairs, the PGT or Wynford:
(a) did not maintain the property, resulting in a high vacancy rate and loss of income;
(b) did not attend to its cleanliness resulting in high vacancy and diminution in the value of the property;
(c) lost rent cheques;
(d) kept poor accounts;
(e) did not prevent damage to the property;
(f) did not manage the property well;
(g) borrowed money to conduct repairs that were ineffectually done.
The plaintiff alleged that losses had been suffered as a result of those errors or omissions, including a constant loss of income from 2002 to 2007; deterioration in the physical condition of the property resulting in diminishment in its value; and a sale of the property at a price lower than its market value, and, therefore, loss of income and loss of capital from which income could be earned.
The plaintiff brought an application to amend her pleadings and the court refused to allow an amendment whereby the plaintiffs sought to advance a claim for damages for the family or beneficiaries of the plaintiff, that they have suffered as a result of the mismanagement of the estate.
The court held that such a claim is incapable in law of being advanced by the plaintiff.
The court had no problem with the claim that the Public Guardian breached the standard of care by failing to act in the best interest of the plaintiff herself, but
would allow not the plaintiff to make such a claim on behalf of her family or beneficiaries.
This blog revisits the law relating to credibility.
On November 4.11 disinherited.com blogged ” The Importance of Credibility“.That is an understatement and then some.The following observations of O’Hallaran J.A. in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) 354 at pp. 356-357 are often cited when the issue of credibility is before the Court:On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness.
Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility…
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth.
The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.
In short, the real test of the trust of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. “
If your witnesses have no credibility, your case has no credibility, and the best counsel in the world will not win the case.
disinherited.com concluded another successful mediation this week.
While discussing the overall process of mediation with the mediator, we realized that 19/20 of our last mediations together have resolve successfully.
That 95% success factor in mediation is in itself astounding as it is the approximate general average of overall success in the mediation process.
To disinherited.com it is even more astounding, given the propensity for a huge amount of emotion between estate litigants fighting over a loved one’s estate.
That scenario is juxtaposed to businessman seriously trying to resolve a business dispute that usually contains little personal animosity.
Mediation works and should be encouraged in the litigation process.
Mediation as used in law is a form of alternate dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects.
Typically a third-party, usually a highly skilled mediator who is often a senior lawyer, but not necessarily, assists the parties to negotiate a settlement.
Mediation has been used for many years in a variety of domains, particularly commercial, community and diplomatic contexts, while in more recent years it has become more generally accepted in legal disputes, particularly those involving business and family matters.
It is a very interesting process to participate in, and the 90+% success factor speaks for itself.
In most situations it is far preferable to a judge making a decision in which one party generally loses and another party wins.
In a successful mediation it is a win-win situation for everyone.
If the mediation process fails and no agreeemnt is reached, there is still a trial as a last resort.
Mediation broadly refers to any instance in which a third-party helps others reach agreement.
It has a structure, a timetable, a dynamic all of its own, and it is strictly confidential.
The mediator is 100% neutral and simply facilitates rather than directs the process.
For most civil disputes in British Columbia one-party can compel the other to attend and mediation.
While it is true that one cannot compel the other to negotiate in good faith at the mediation, it is the experience of disinherited.com that the mediation time is never wasted and is nearly always fruitful.
Mediators use various techniques to open, improve, and achieve dialogue between the disputants , with the sole purpose of helping the parties reach an agreement .
The negotiators that disinherited.com use for estate litigation are very senior lawyers that are highly skilled in the mediation process and restrict their legal practice to same.
The advantages of mediation over litigation are as follows:
1. It is usually far cheaper for the litigant;
2. The process is usually much faster than waiting for examinations for discovery and trial;
3. The process is confidential, courts are public
4. Parties have far more control to negotiate an agreement that best suits everyone,as opposed to having a judge impose a settlement;
5. There is generally more compliance with the agreement because the parties have negotiated in good faith-the agreement also has the force of law;
6. Mutuality- the dynamics of mediation generally involve hearing the other parties side and assuming this to move their positions towards a more amenable position that can result in a mutual settlement;
7. The skills of the mediator are often not realized at the time but they often are the neutral arbitrator who can guide party to accept a broader variety of solutions
8. The entire structure and dynamics of mediation are designed to restrict pressure, aggression intimidation and instead to promote communication and understanding through cloning speaking and listening skills.
It is the position of disinherited.com that generally speaking all litigants should firstly proceed through the mediation process before being allowed to proceed to a trial.
Trials are very expensive and are a burden on the taxpayer at the end of the day.
Parties should be encouraged to try and resolve their own disputes through mediation before being allowed to utilize the court system for trial.
disinherited.com does not usually report on court decisions from other jurisdictions, but the re Landry Estate case from Ontario ( 2011 CarswellOnt 8830) is one that I believe that would also be followed in British Columbia, if such a decision in fact does not already exist.
The facts are reasonably straightforward – the court application dealt with the scope of the production of documentsin the discovery stage of the litigation process.
Prior to the death of the deceased, the office of the Public Guardian and Trustee commenced investigation into his financial affairs and management of his estate.
That investigation terminated on the death of the deceased on July 5, 2010.
The daughter of the deceased sought to challenge her father’s testamentary capacity and ability to execute a new will and power of attorney, as well as the respondents management of her father’s property under the power of attorney.
The daughter brought a motion for the production of the documents in possession of the Public Guardian, and that order was granted by the court.
The court reasoned that all disclosure in question was extremely important to the litigation, and the investigation of the Public Guardian was extremely relevant to the issues raised in the litigation.
The issues that were something about which the respondent also had intimate knowledge, and something about which the daughter of the deceased had no knowledge.
Therefore it would be unfair to the daughter to have her proceed to trial without complete and unfettered disclosure.
Additionally, the documents were not available from any other source.
disinherited.com applauds such decisions that grant complete and unfettered disclosure of the financial affairs of a deceased person when legitimately challenged in court proceedings such as this case.
It is often the case in estate litigation that one party has knowledge of matters such as lack of capacity to the exclusion of others, and that any records of that knowledge should be produced in the litigation process.
In our previous blog we discussed the award of special costs made against an estate administrator who breached his duties.
In Antrobus v Antrobus 2012 BCSC 613, the Court declined an award of special costs but instead ordered costs to be increased under Tariff C of The Rules of Court, rather than at the usual Tariff B.
The Court found that the behavior of the defendants, while unusual, was not reprehensible so as to warrant the punishment of special costs.
The terms “scandalous, outrageous or reprehensible” and “deserving of reproof or rebuke” are used to describe the conduct of a party that warrants special costs: Camaso v. Egan, 2011 BCSC 954 at para. 6.
As stated in other cases, a special costs award goes beyond indemnity and enters the realm of punishment: 380876 British Columbia Ltd. v. Ron Perrick Law Corp., 2009 BCSC 1209 at para. 14, relying on Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 305 (C.A.) where evidence presented by one party was calculated to mislead the judge and jury.
Scale C costs are appropriate for matters of more than ordinary difficulty.
In Mort v. Board of School Trustees of School Board No. 63 (Saanich), 2001 BCSC 1473 at para. 6, the criteria to be considered were said to be:
(a) the length of the trial;
(b) the complexity of the issues involved;
(c) the number and complexity of pretrial applications;
(d) whether the action was hard-fought, with little or nothing conceded along the way;
(e) the number and length of the examinations for discovery;
(f) the number and complexity of experts’ reports; and
(g) the extent of the effort required in the collection and proof of facts.
The Court found that due to the complexity of the issues, the novelty of the action, and the matter was bitterly fought, made it appropriate to increase the scale of costs to Scale C
The Manitoba court decision of Nandwani v Nandwani 2011 CarswellMan 501, caught the attention of disinherited.com out here in BC.
The case had to do with an application for Court ordered DNA samples.
The deceased immigrated to Canada when his purported son was five months old.
The mother and the son did not follow the deceased to Canada.
The mother instead married the deceased’s brother who raised the son as his own.
Accordingly under a partial or full intestacy, if the son was the child of the deceased, then he would inherit before the deceased’s siblings who claimed to be his
next of kin, and thus the heirs on an intestacy.
The siblings brought a court application requesting the son and brother to provide saliva samples for DNA testing to determine whether the son was in fact a child
of the brother.
The court ordered the son and brother to provide DNA samples for paternity testing, as there was prima facie merit to using DNA testing to determine the issue.
The court found jurisdiction to order the brother, as a non-party to the court action, to provide DNA samples under the inherent jurisdiction of the court. The court
determined that no harm would flow to the brother if he were ordered to provide the samples, and he was not very far removed from the dispute.
disinherited.com fully approves of the reasoning of this decision and the preciseness of DNA testing to determ paternity, amongst otherwise very unreliable and
