 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Aston Martin Lagonda Ltd v Ferguson and Ors [2024] JCA 071 (22 April 2024) URL: http://www.bailii.org/je/cases/UR/2024/2024_071.html Cite as: [2024] JCA 071, [2024] JCA 71 |
||
[New search] [Help]
Companies - Appeal from decision of the Royal Court [2023] JRC 250
|
Before : |
Lord Anderson of Ipswich KBE KC, President Jeremy Storey KC The Bailiff of Guernsey |
|
Between |
Aston Martin Lagonda Limited |
Appellant |
|
And |
(1) Tara Ferguson |
|
|
And |
(2) Alia Haskuri |
|
|
|
(3) Bespoke Limited |
Respondents |
Advocate J. D. Kelleher for the Appellant
Advocate J. D. Garrood for the First and Second Respondents
Advocate J. W. Angus for the Third Respondent
judgment
storey JA:
1. This is the judgment of the Court.
2. By an Act of Court dated 14 December 2023 the Royal Court (Commissioner Alan Binnington sitting with Jurats Averty and Entwistle) made an order to wind up a Jersey company, AMWS Limited ("the Company") on the ground that it was just and equitable to do so. The order had been sought by the Company's two professional directors, Tara Ferguson and Alia Haskouri ("the directors"), pursuant to Article 155 of the Companies (Jersey) Law 1991 ("the law"). The directors' Representation of 21 April 2023 had been supported by Bespoke Limited ("Bespoke") but opposed by Aston Martin Lagonda Limited ("AML"), the two shareholders in the Company.
3. The winding up was made following a two day trial on 8 and 9 November 2023 and was granted on three alternative grounds:
(i) Deadlock between Bespoke and AML; or
(ii) Loss of substratum; or
(iii) Breakdown of trust and confidence.
The evidence was given by way of affidavit from, inter alia, Ms Ferguson, Abdullah Zidan (a Bespoke appointed director of AMW Limited ("AMW")) and Michael Marecki (vice president, general counsel and company secretary of AML). None of the advocates had applied to cross-examine. The Royal Court's detailed reasoning was set out in its judgment of 14 December 2023.
4. AML appeals the winding up order.
5. The background to this dispute was set out at paragraph 2 of the judgment:
6. The Company had been incorporated on 13 March 2010. Its shareholders were AML (40%) and Bespoke (60%). In April 2011 the Company acquired the issued share capital of AMW. In 2014, following the acquisition by private equity fund Investindustrial of a 37.5% stake in the Aston Martin Group, and at Investindustrial's request, Al Roumi/Bespoke transferred 10% of its stake in the Company to AML for nominal consideration of £100. As equal co-owners of the Company, AML and Bespoke each appointed three directors to the board of AMW. There was no formal joint venture or shareholders' agreement between AML and Bespoke. The Company's sole income is dividends from AMW.
7. In about February 2021 a dispute arose in the following circumstances. Bespoke alleged that AML had improperly effected unilateral adjustments and/or reallocations of revenue and/or profits within AMW and that substantial unauthorised cash transfers had been made from AMW to AML, at the direction of AML, which were said to have materially affected AMW's cash flow and financial position. Bespoke's complaints in relation to the operation of AMW were categorised as misappropriation, breach of duty and a failure in management on the part of AML. In January 2022 Bespoke referred the dispute to the Company as AMW's sole shareholder. An expert (Mr Polkowitz of Teneo Financial Advisory Limited, formerly PwC Advisory) was appointed by the directors of the Company in August 2022 to review AMW's accounts and to investigate the dispute. However, Mr Polkowitz was unable to issue a final draft without sight of material which AML had refused to provide (on the ground the information was confidential and proprietary to AML). As the judgment of the Royal Court recorded at [35]-[37]:
8. At the time of the trial AMW's accounts for 2020, 2021 and 2022 had not been signed or filed because the three Bespoke appointed directors felt unable to approve them. Companies House had notified AMW that if no progress was made by the end of December 2023 to deliver the outstanding accounts proceedings would be commenced to dissolve AMW and remove it from the Companies House Register.
9. The Royal Court concluded, correctly in our view, at [65] of its judgment that:
10. At [38]-[41] of the judgment under appeal the relevant legal principles were set out:
11. The legal meaning of (1) "deadlock", (2) "loss of substratum" and (3) "breakdown of trust and confidence" were set out at (1) [49]-[55], (2) [46]-[48] and (3) [56]-[58] of the judgment under appeal. There is no challenge as to the Royal Court's conclusion of law as to (2) but errors of law are raised in relation to (1) and (3) - see paragraph 14 below.
12. The issues before the Royal Court were summarised at [43]-[45] of the judgment:
13. The decision is recorded at [66]-[71] of the judgment:
(1) Deadlock: although the board of the Company was not deadlocked, there was an 'impasse' because the directors:
(2) Loss of substratum: there is a loss of substratum because the above
The directors of the Company
(3) Breakdown of trust and confidence:
In summary:
(4) Availability of alternative remedies:
A winding up order would not deprive the investors of their investment because the Company does not trade. Following any winding up the "investment represented by the shares held by the Company in AMW will simply pass to Bespoke and AML." On the other hand, if a winding up order is refused, there is the real "likelihood of the dispute leading to a diminution in the value of the investment in AMW": [70].
14. Five grounds are raised in AML's Notice of Appeal dated 8 January 2024:
(1) Deadlock: the Royal Court found, correctly, that there was no deadlock in relation to the management of the Company. However, it misdirected itself as to the correct test by considering the position of AMW, a subsidiary company. In any event, even at AMW level, the board was capable of taking routine decisions;
(2) Loss of substratum: the Royal Court was wrong to conclude that the main purpose of the Company was to function as a 'buffer' to assist in the resolution of disputes between its members because there was no evidence to support such a finding;
(3) Loss of trust and confidence: there had been no pleading of a quasi-partnership relationship nor was any evidence of such adduced. In any event, the Court erred in law by finding the necessary existence of a quasi-partnership when there were no "considerations of a personal character arising between one individual and another" - here there were two corporate shareholders and no personal relationships between the protagonists;
(4) Availability of alternative remedies: the Court failed to take into account Bespoke's claims in England (a double derivative action) or in Jersey (unfairly prejudicial conduct under Article 141 of the Law); and
(5) Change in circumstances: since the Royal Court's judgment the directors of AMW had signed and filed the accounts for 2020, 2021 and 2022. This justifies the Court of Appeal in re-exercising the Court's discretion (and refusing a winding up order).
15. Bespoke served a Respondent's Notice dated 19 January 2024 in relation to Ground 5. Should the Court of Appeal be minded to re-exercise the discretion vested in the Court, a winding up order of the Company should still be made. The signing of the three sets of accounts for AMW on 28 December 2023 did nothing to resolve the dispute between Bespoke and AML because the previous failure to sign was symptomatic not causative of such dispute. So any change in circumstances is not material. The dispute remains ongoing, the directors of the Company remain deadlocked and the Company cannot function as a 'buffer'.
16. This Court, identically constituted, in HRCKY Limited v Hard Rock Limited and Hard Rock Café International (STP) Inc [2024] JCA 069 restated the test for overturning findings on appeal:
17. Advocate Garrood for the Respondent directors asserted that the Court of Appeal could not entertain AML's appeal because leave to appeal had not been obtained from the Royal Court. The winding up was said to be an interlocutory order because the Royal Court had declined to make any of the consequential orders sought by the directors (e.g. the appointment of a liquidator, because of a disagreement between the parties as to the identity of an appropriate appointee). The winding up order could, for instance, have been deferred. Advocate Angus for the Respondent Bespoke did not support the argument other than to submit that, if leave is required, it should be refused because there was no real prospect of success, a submission supported by Advocate Garrood. Advocate Kelleher maintained that no leave was required (although in correspondence from his firm on 19 January 2024 AML agreed to apply to the Royal Court for leave if Advocate Garrood persisted in his contention, in response to which the directors simply reserved their position as to whether to take the point in due course).
18. Article 13(1) of the Court of Appeal (Jersey) Law 1961 (Limitation on appeals) provides that:
An application for leave should be made to a single judge of the Court of Appeal: Article 13(2).
19. For an order to be final the relevant application must be determinative of the action, whichever way it is decided: Planning and Environment Committee v Lesquande Limited [2003] JLR 15, Birt DB, as he then was, at [8]. This has been approved by this court in Acorn Finance Limited v Powell [2016] JCA 063 at [27]-[29]. These decisions followed the pre-CPR law of England and Wales in O59 r1A(3). Paragraph 5(d) of that Rule specified a winding up order as a 'final' one, but at paragraph 6(ee) "an order made in the course of... a liquidation and any other order ancillary to or consequential on a winding up order" is 'interlocutory'.
20. Although the proceedings have not yet been concluded, the Royal Court was asked to decide whether or not the Company should be wound up. This was a question determinative of the "final relief" sought by paragraph 13(iv) of the Representation, whichever way it was decided. In our judgment the Act of Court under appeal was therefore 'final' and no leave is required. If we are wrong about this, we remind ourselves that a failure to apply for leave to appeal is not necessarily fatal: Acorn Finance at [31]. In view of the legal issues that are raised in the Notice of Appeal and the significance of the judgment to the parties, we would have granted leave to appeal in order to allow argument to be heard..
21. The question whether deadlock exists is a question predominantly of fact in each case (see [41] of the judgment under appeal quoted at paragraph 10 above and Ebrahimi v Westbourne Galleries Limited [1973] AC 360, HL, per Lord Wilberforce at 379A/B-380B). There is no precise definition of the word for the purpose of winding up on the just and equitable ground (see [49] of the judgment under appeal). Advocate Kelleher was critical of the test being equated to an 'impasse' (which he submitted was a lesser test) but support for this approach can be found in In Re Deep Sea Trawlers Limited (1984) 2 NZCLC 99, 137 at 148 per Jeffries J, approved by the Royal Court in Bisson v Barker [2008] JRC 193 at [16], citing Applications to Wind Up Companies (2nd ed), French, at 7.10.2 (now 8.282 of 4th ed): see [49] of the judgment under appeal. In our judgment, the Royal Court did not use the word 'impasse' to mean anything different to Lord Briggs' "functional deadlock" of a "paralysing kind" between members in Chu at [14] and [17].
22. We now turn to the second error of law raised by Advocate Kelleher - that the Royal Court considered deadlock at the AMW level when it ought to have considered only the position at the Company level. We think this is a misreading of the judgment. The Royal Court fully understood Advocate Kelleher's distinction (see [51]-[53]) but it considered at [50] separate examples of shareholder deadlock from Singapore, England, New Zealand and Canada before considering the factual situation before it. As Lord Briggs (giving the majority Opinion of the Board) accepted in Chu at [23] "the breadth of the parties' falling-out over... business matters [other than the company] may be very relevant to the court's assessment of the question whether an apparent deadlock within the subject company has become irremediable".
23. The finding of fact that the directors of the Company and of AMW are perfectly capable of making routine decisions is not the complete answer to the question of deadlock as Advocate Kelleher has argued. The Royal Court found that the directors of the Company were deadlocked due to a breakdown in the relationship between the Company's shareholders: [66] and [67a]. It is clear that the directors had become unable to pursue their investigation into (let alone resolve) the serious dispute between AML and Bespoke, the Company's shareholders (and between the two blocks of AMW directors who represented those shareholders), which first arose in early 2021. The consequence, as the Royal Court found, was the twin risks of the Company's sole asset being significantly diminished and of AMW being struck off the Register of Companies for not filing accounts.
24. Advocate Kelleher sought to argue that the Company was no more than a holding company well able to perform its regulatory, administrative and accounting functions, so the directors had fully discharged their limited duties by seeking answers to their queries concerning the dispute. We think this is far too narrow a view. The Company was required to hold, protect and preserve its only valuable investment and there was nothing more the Company could do concerning the dispute because of a deadlock or impasse between its shareholders. The Royal Court was entitled to conclude that the Company had a function going beyond a purely formal or administrative one: [62] and [70] (and see Ground 2 below). We also note that French has expressed the view at 8.208 (4th ed) that a court may feel less compunction about ordering a winding up of a holding company with no trading activities.
25. Advocate Kelleher's suggestion of the appointment of a seventh AMW director would not solve anything because the new director would have to inform himself or herself about a dispute (where fraud had been alleged) before deciding how to vote: [67b] of the judgment.
26. We accordingly reject this ground of appeal. This disposes of the appeal, subject to grounds 4 and 5. In case we are wrong on ground 1 we move next to grounds 2 and 3.
27. The Royal Court, at [46]-[47], adopted the definition of 'loss of substratum' used by Birt DB in Re Leveraged Income Fund Limited [2002] JRC 209 at [11] and by Commissioner Clyde-Smith in Euro Value Investment Co v Greater Europe Deep Value Fund II Limited [2012] JRC 146 at [73]. No criticism was made of this approach.
28. The issue on ground 2 is whether the finding of fact that the Company's original object cannot be achieved or that the business for which it was established cannot be carried on was plainly wrong or irrational (see the approach spelt out at paragraph 16 above). This required the Royal Court to examine the written evidence to ascertain that object or business.
29. The Royal Court recorded at [17] a consensus between the parties that the Company had been formed to hold the shares of AMW for the purposes of acting as a "buffer" - a term used by each of the parties - between the Aston Martin Group and the Al Roumi Group. The task of the Court was therefore to decide what this meant.
30. The Court's conclusion that this meant to assist in the resolution of disputes between its members (see [60], [67b] and [69]) - and why such purpose might well have been intended at [62] - is robustly challenged by Advocate Kelleher. He says there was simply no such evidence and that the only evidence adduced was to the contrary.
31. It is correct to note, as the Royal Court did, that there is no shareholders' agreement and no reference in the Articles or Memorandum of the Company to any dispute resolution mechanism between shareholders with equal holdings.
32. We have examined with care the evidence referred to on the table produced by Advocate Angus, together with the comments added by Advocate Kelleher. Such evidence included that of Mr Malecki of AML that the Company was established to act as an "intermediary between its shareholders, Bespoke and AML, and the Company's primary asset AMW". Mr Zidan of Bespoke had agreed with this and asserted that the Company had been set up as an "intermediate holding company". Mr Zidan also claimed that the Company had attempted to fulfil its purpose by using its best efforts to mediate the conflict between Bespoke and AML:
"the Company is no longer able to act as a buffer between its shareholders and consequently no longer performs any real purpose. The Company itself is therefore also deadlocked in respect of what is, by Mr Malecki's admission, the main purpose behind its existence".
This original purpose was also evidenced by the fact that it was Ms Ferguson who first suggested to AMW (a) the appointment of a third party appointee to resolve the deadlock - and this of course resulted in Teneo's appointment, and (b) that the Company be included as a party to the mediation to assist in facilitating the mediation on a timely basis. Subsequently, when such mediation failed, Mr Zidan of Bespoke referred the dispute to the Company for it to consider.
33. We have no hesitation in deciding that the Royal Court was entitled to conclude that the original main purpose of the Company was to assist in the resolution of any disputes between equal shareholders. Accordingly ground 2 must also fail. It follows that deadlock and loss of substratum were separate grounds for winding up the Company, each independent of the other.
34. Our conclusions on ground 3 are immaterial given we have dismissed grounds 1 and 2.
35. For equity to enable the court to subject the exercise of shareholders' legal rights to equitable considerations (which may make it unjust, or inequitable, to insist on legal rights, or to exercise them in a particular way) there must typically be "something more" than a small or private company, such as "an association formed or continued on the basis of a personal relationship, involving mutual confidence" (Ebrahimi at 379F, quoted in the judgment under appeal at [42]). Many of the cases refer to a "quasi-partnership" but Lord Wilberforce warned that such an expression may be confusing. But where there is a corporate quasi-partnership or similar the court can order a winding up even in the absence of deadlock or a loss of substratum. As Lord Briggs remarked in Chu at [25];
36. The problem of quasi-partnerships was considered by this Court in Financial Technology. Crow JA summarised the law as follows:
37. Paragraph 8.363 of French (4th ed) states:
38. The Royal Court did find that the relationship between Bespoke and AML "at its outset was based on a significant degree of trust and confidence such as one might see in a partnership between individuals": [60]. This corporate quasi-partnership was founded at [59] upon
(i) the sale by Bespoke, the majority shareholder, of a 10% shareholding in the Company to AML for £100;
(ii) the lack of any shareholders' agreement or bespoke Articles for the resolution of disputes at either the Company level or in AMW; and
(iii) the (apparently informal) agreement that at the AMW level each party would nominate three directors, which had the potential to result in an impasse if the two parties did not agree.
39. No claim of a quasi-partnership was ever made by Bespoke to the Royal Court. The claim of a quasi-partnership by the directors was not pleaded. In our judgment it should have been. AML was entitled to know what case it had to meet (see, for example, the remarks of Lawton LJ in Rolled Steel Products (Holdings) Limited v British Steel Corporation [1986] Ch 246, CA, at 309 and Re a Company No 007936 of 1994 [1995] BCC 705 per Roger Kaye QC at 708C-709H). Further, it seems to us that no evidence was adduced that there were considerations of a personal character arising between the two protagonists at formation or subsequently that might justify an expectation of mutual trust and confidence. Clearly the matter of importance to the Royal Court at (i) above only arose in 2012, although its conclusion was that the personal relationship had arisen at the outset (i.e. 2010). This contrasted with the directors' written contentions below, at paragraph 31, that the initial commercial relationship transformed into a relationship based on mutual trust and confidence in 2014 when the 'partners' became 'equal' and when the use of formal agreements gave way to informal understandings. Advocate Kelleher had pointed out to the Royal Court that (1) the sale of Bespoke's 10% shareholding in 2012 was made at the request of Investindustrial, not AML, so as to increase AML's holding in the Company from 40% to 50% and (2) formal written agreements continued until 2016.
40. Advocate Kelleher is critical of the Royal Court's approach (a) as a matter of law and (b) as a matter of fact. As to (a): there was no attempt to identify any personal relationship between any of the protagonists, nor did the Court identify any common understandings on which the shareholders acquired their shares or conducted/continued their business. As to (b): there was an inconsistency between the finding of the required relationship at the outset in 2010, upon the sale of shares in 2012 and the change from formal to informal agreements post 2016 (and the directors' case at trial of a new relationship first arising in 2014). More importantly, there had simply been no evidence from any of the directors, AML or Bespoke, of a relationship of mutual trust and confidence.
41. Advocate Garrood submitted to us that a quasi-partnership was justified because here there was "something more": (i) a 50:50 company; (ii) anodyne constitutional documents; (iii) no shareholders' agreement; and (iv) no dispute resolution mechanism.
42. We do accept that the participants of a quasi-partnership can be companies, as was the case in Deep Sea Trawlers and in R&H Electrical Limited v Haden Bill Electrical Limited [1995] BCC 958, Robert Walker J. However, in our judgment the Royal Court was plainly wrong to have found at the outset (or subsequently) a quasi-partnership or the presence of "something more". First, the relevant allegation was not pleaded. Second, the relevant evidence was not adduced (see paragraph 39 above). As to the three factors relied upon at [59]: those were all neutral for the reasons put forward by Advocate Kelleher (and there could have been other sound reasons for (i) and (iii), alternatively there may have been oversight) and anyway (i) applied only from 2012.
43. Although we have not upheld the Royal Court's third ground for granting a winding up order, given our dismissal of grounds 1 and 2 this is academic.
44. The relevance of alternative remedies to an application under Article 155 of the Law is because a winding up order on a just and equitable basis should only be granted as a last resort: FT v ETFS Capital Limited and Tuckwell per MacRae DB at [50]. What is meant by this?
45. As is made clear in French (4th ed) at 8.147 a petitioner for winding up on the just and equitable ground must consider alternative remedies and an order may not be made if the petitioner is unreasonably asking for it rather than pursuing a suitable alternative remedy. In Chu Lord Briggs said this:
46. S167(3) was a reference to the BVI Insolvency Act 2003 which provided:
This mirrors s125(2) Insolvency Act 1986 of England and Wales.
47. Here the parties were not in agreement as to who bore the burden of proof on the differently worded Jersey Law. Clearly it is for the petitioner to show that it is just and equitable to wind up the company (if there were no other remedy available). We are of the view that when considering 'other resorts' it must be for the convened party, opposing the winding up, to prove that the petitioner has unreasonably failed to pursue an available alternative remedy. As Lord Briggs cautioned in Chu:
48. As is also clear from what we have stated above the unpursued alternative remedies must be those of the petitioner (not Bespoke). No alternative remedies for the directors were suggested by Advocate Kelleher. If we are wrong and it is Bespoke's alternative remedies that are relevant, those have been described by Mr Zadin as currently 'unworkable' and we can well understand how that might be the case. The view of an expert had been sought but nothing of relevance had been forthcoming. AML had not then suggested any alternative way forward. As Lord Briggs stated the relevant remedy must be "sufficiently attractive as an alternative to make it unreasonable to continue to seek winding-up". As Advocate Kelleher acknowledged in his written contentions at paragraph 63 the Company has not taken action "because [according to Ms Ferguson] it has insufficient information to properly take that course". The appointment of a liquidator would break the current impasse because the directors would be relieved of their duties to investigate the dispute and to protect and preserve the Company's assets.
49. In the circumstances the Royal Court was correct to conclude that the availability of alternative remedies was "extremely limited". We reject ground 4.
50. AML submitted that the signing and filing of the Company's accounts for 2020-2022 since the judgment of the Royal Court entitles the Court of Appeal to-exercise the Court's discretion under Article 155 of the Law and should do so by refusing any winding up order on the grounds of deadlock or loss of substratum, even where the Court of Appeal has rejected grounds 1 and 2.
51. The first issue for us to determine is whether or not to admit this new evidence. Rule 12 of the Court of Appeal (Civil) Rules 1964 provides as follows:
52. Rule 12 was considered by the Court of Appeal in Mayo Associates SA and others v Cantrade Private Bank Switzerland (CI) Limited [1998] JLR 173. The words in parenthesis in the proviso to Rule 12(1) did not require consideration because the new evidence sought to be admitted concerned matters which had occurred prior to the date of the hearing. The Court confirmed at 185 lines 16-22 that the test in England, under Ladd v Marshall [1954] 1 WLR 1489, CA, was equally applicable in Jersey when considering any "special grounds" relied upon, i.e. the evidence (i) could not have been obtained with reasonable diligence for use at the hearing; (ii) would probably have an important, although not necessarily decisive, influence on the result; and (iii) was credible.
53. We have no hesitation in following the same approach, even in relation to matters which have occurred after the date of the hearing. The words in parenthesis in the proviso were taken from the English O59 r10(2). English case law on the words confirmed that the need for finality in litigation should prevent the admission of evidence relating to matters which have occurred post-trial, unless it would be an affront to fairness not to admit it (SCP 1999 59/10/18 and R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 per Brooke LJ at [35]).
54. The Ladd v Marshall test is no longer followed slavishly in England - evidence may be admitted where the test is not fulfilled or not admitted where it is, if either is dictated by the furtherance of the overriding objective (e.g. Al Sadeq v Dechert [2024] EWCA Civ 28 per Popplewell LJ at [141]) or where the interests of justice require (e.g. R (Iran) at [33] - [34]). Although a degree of flexibility would also be welcome in this jurisdiction it must be remembered that the trial is the first and last night of the show, not the dress rehearsal.
55. Clearly there is no difficulty over limbs (i) and (iii). When addressing us on limb (ii) Advocate Kelleher argued that the new evidence falsified the basis on which discretionary relief was granted because the Royal Court was strongly influenced by the parties' inability to agree the accounts.
56. Advocates Garrood and Angus took issue on this for two reasons. First, the accounts were signed by Bespoke without prejudice to (i) any claims Bespoke might have against AML regarding AMW and (ii) Bespoke's allegation of deadlock at the level of AMW and the Company. Express reference was made to the dispute in the strategic reports within the accounts. Second, although the Royal Court undoubtedly attached importance to the lack of accounts and the risk of removal from the Register, that was by no means the only concern: [18], [22], [63], [65], [67a] and [69]. We accept the submissions of Advocates Garrood and Angus that the failure to sign the accounts was symptomatic of the dispute but not causative of it. Teneo was appointed to investigate the dispute as well as to address accounting issues. The dispute remained as far from resolution as before the signing of the accounts.
57. In our view limb (ii) of Ladd v Marshall is not satisfied and the interests of justice do not require the admission of this new material. We accept the submissions set out in the immediately preceding paragraph and so the fact of the accounts being signed and filed would not have had an important influence on the result.
58. We are therefore not willing to re-exercise the Court's discretion and so we reject ground 5.
59. The appeal is dismissed.
60. The parties may make any consequential representations within 14 days of the handing down of this judgment, to be accompanied by brief written contentions.