swift v carpenter twitter

Posted December 11, 2020

On behalf of the Claimant, it was submitted that the Court was being asked to adopt a different methodology and not being asked to change the discount rate. Swift was awarded more than £4m in damages The argument by the Defendant was quite unusual; they said (relying on actuarial evidence) that the Claimant cannot show that R v J leads to injustice, because she cannot prove a net loss. The Defendant’s primary case was that the Court is bound by R v J as no exceptions apply. The Defendant replied to written submissions by PIBA as to whether the 1.1% was above RPI because, if it was, that would cause issues with permissibility of factoring RPI into a multiplicand. What are the alternatives for the Court if they decide not to adopt R v J? Swift v Carpenter appeal could ensure Claimants properly compensated. Reversionary interest is one of the alternative options which has been considered by the parties. They also said the principle set out in Thomas[2] is binding on the Court. (a)the description of future pecuniary loss involved; (b)the length of the period during which future pecuniary loss is expected to occur; (c)the time when future pecuniary loss is expected to occur. The Claimant said there is no evidence of this methodology being applied to produce a value in the case before the Court, and all calculations are illustrative only. It seems that, if an alternative methodology is to be adopted by the Courts rather than R v J or an award of the full capital cost, a reversionary interest calculation is the clear front runner. Swift v Carpenter and Another [2020] Costs LR 1547 [2020] Costs LR 1547. The Defendant noted that the current discount rate is not the one which was in place when Swift was decided at first instance (it was -0.75% at that time) and thus an adjustment needed to be calculated; they suggested a yield of 0.75% for this claim. The appeal was heard before Lord Justice Underhill, Lady Justice Davies and Lord Justice Irwin. There were several methods proposed to the Court for valuing that reversionary interest and just two of the options are covered below. Insurance & Reinsurance. As a lawyer specialising in complex and serious injury cases, I was delighted to read the landmark judgment of the English Court of Appeal in Swift v Carpenter (2020). Linkedin; Twitter; Google+; Facebook; Archive. For example, a severe spinal cord injury confining an individual to a wheelchair, renders a two-bed upper flat unsuitable. Swift v Carpenter: Court of Appeal not bound by Roberts v Johnstone. The decision held that a reversionary interest model was held to be the most appropriate for the valuation of future accommodation claims in most instances.. Parties involved in the litigation have stated that an … Â. They said the setting of a different discount rate for special accommodation is a power which was conferred on the Lord Chancellor (primarily under added new subsection (4)) and is not a matter for the Court. That principle, they said, is that the multiplicand is determined by the discount rate, which is set by the Lord Chancellor. The opposition to this is simple; the Claimant will be overcompensated. At trial, it was found that the cost of suitable accommodation was likely to be in the region of £2.35 million which was £900,000.00 more than the value of her pre-injury property. This is then subtracted from the additional capital figure leaving the claimant with amount of the accommodation award. This long-awaited decision outlines a new approach to calculating compensation … That methodology arrived at a yield of 1.1% based on the current discount rate. Find all the latest news about Deans Court Chambers here. In Swift v Carpenter, Ms Swift had a capital shortfall of £900,000. Seminars & Papers. It is often the case that the accommodation a Claimant lived in prior to their injury is unsuitable for their needs going forward and, accordingly, new accommodation is sourced. McGeown and Gulliksen under attack? The below is a streamlined and much less eloquent version of some of the arguments put forward. It was also submitted that, if it is not assessed at market value, there will be more cases where the gap between the money the Claimant has and the money the Claimant needs to buy a property  is going to be unbridgeable.  If the reversionary interest is valued at a greater sum, the Claimant will be left with less capital. For those of you on Twitter, our timelines have been filling with practitioners tweeting about the long awaited hearing of Swift v Carpenter, which ran from 23 – 25 June 2020 in the Court of Appeal, and the implications it will have on the accommodation head of loss in serious injury claims. The Claimant is left with a negative figure for accommodation. The Defendant noted that, whilst the Court has the power to adopt a different discount rate as per A1(2), that is for the claim as a whole i.e. ... From Twitter @CrownOfficeCh. 5 Comments. Appeal Handed Down in Swift v Carpenter [2020] EWCA Civ 1295 – 12 King’s Bench Walk. Thu, 23 Jul 2020, Toby Chaplin (by his mother and litigation friend, Diane Chaplin) v Ben Pistol, Allianz Insurance Plc, Date: Once I die, the property reverts back to Ryan and not to my estate. One viable solution the Claimant put forward is that the Claimant should be awarded the capital cost with a deduction for the market value reversionary interest; as provided for by the report of Mr Watson, an actuary who has expertise in valuing and auctioning reversionary interests. Prior to the appeal being heard, there were many options mooted as alternatives to R v J. 12.03.2019 ... Twitter Tweets by ByromStreet Our Members. From around 2017, with the advent of negative discount rates at -0.75%, the R v J formula proved completely unworkable. Upon death, if she had not retained the interest herself, it would pass to the third party who had purchased the reversionary interest, and the Claimant’s compensation for special accommodation would be exhausted. If the full additional cost of purchasing alternative accommodation was claimed, that would mean a potential windfall for the claimant’s estate, as property is generally considered to be an appreciating asset. At first instance, Mrs Justice Lambert accepted that the Claimant, a below knee amputee, had a reasonable need for alternative accommodation and that the increased capital costs of the new property over her existing property were £900,000. The Court of Appeal have held that they are not bound by Roberts v Johnstone. Manchester office . This meant claimants who suffered the most serious, life-changing injuries requiring the purchase of alternative suitable accommodation were, for years, inadequately compensated. The much anticipated and long-awaited decision in Swift v Carpenter was handed down by the Court of Appeal on Friday 9 th October 2020. The court’s decision on Swift v Carpenter today is one of the most significant on the calculation of accommodation claims since 1989 when Roberts v Johnstone applied the discount rate. To avoid such a windfall, Roberts v Johnstone (1989) set out a formula for providing compensation for future accommodation costs based on the loss of the use of capital used to purchase a more expensive suitable property. Barlow v Wigan MBC – an important Highways case. In Swift v Carpenter the appropriate discount rate was held to be 5% which can be represented as 1.05. A simple example of reversionary interest is this: I am the life tenant of a property and I am entitled to reside there for as long as I live. Follow us on Twitter. A significant amount of time was spent on Section A1 of the Damages Act 1996; the power it confers on the Lord Chancellor; and whether it prohibits the Court from setting another discount rate for special accommodation claims. The claimant was given permission to appeal to the Court of Appeal. On behalf of the Claimant, it was submitted that R v J was no longer fit for purpose in the context of a negative discount rate whereas the Defendant argued that the Court was bound by R v J. Whilst Mrs Justice Lambert touched upon other alternatives in her judgment, she noted that these alternatives would require expert evidence and held that she was bound by the Court of Appeal’s decision in R v J. Building C (MAN 35), Northampton Road, Central Park, Manchester M40 5BP The claimant, Charlotte Swift, sustained life-changing injuries at the age of 39 when she required a below the knee amputation following a road traffic accident. In addition, they note that, in the cases before the Court, the life tenant was much older (which is relevant as presumably the life interest would be realised sooner). With the new discount rate, it was only going to be a matter of time before this accommodation conundrum came before the Courts; cue the first instance decision in Swift v Carpenter judgment in July 2018. future wage loss or compensation for pain and suffering) to make up the shortfall. London office . As a personal injury lawyer, acting on behalf of those seriously injured in road traffic collisions, especially motorcyclists, I welcome the Swift decision. Another option was for the Defendant to pay the Claimant the full additional capital cost. 09/10/2020. In an unsurprising decision, the Court of Appeal has refused the Defendant in Swift v Carpenter permission to appeal the landmark decision handed down last month. She was awarded damages in excess of £4 million but, significantly, received nothing for the capital costs of accommodation. The article below attempts to explain the background, simplify some of the new proposals and look at how accommodation claims may look in the near future. As a lawyer specialising in complex and serious injury cases, I was delighted to read the landmark judgment of the English Court of Appeal in Swift v Carpenter (2020). The discount rate (1.05) is then multiplied with itself - … She cannot simply recover the additional capital cost of the new house because that would amount to double recovery: she would receive an additional capital sum of £100,000 and would also have an asset worth £100,000 more than her previous house. Furthermore, the court has specified that the formula for calculating accommodation costs should not be seen as a ‘straitjacket’ to be applied universally and rigidly so this leaves scope for the formula to be revisited in the event of a significant change to the discount rate. When the new calculation was applied, Ms Swift was … By the time the appeal was heard, the Claimant had bought a property suitable for her needs, without having to borrow. Part 36: enhancements payable under CPR 36.17(4) in respect of interest on damages and costs where the claimant had beaten her own Part 36 offer. Insights; Swift v Carpenter: Practical Applications. for all heads of losses, not just one. Whilst submissions were heard on equity release, a substantial part of the hearing focused on the potential option of a reversionary interest, which the parties agreed could be a viable solution. The problem was compounded by negative discount rates. They submitted that the Court did not mandate the use of R v J in very different circumstances. 020 7650 1200. On 9 October 2020, the Court of Appeal ruled in Swift v Carpenter. In our example of a two-bedroom unsuitable flat valued at £150,000 and a four-bed bungalow valued at £400,000, pre-2017 and using the R v J formula, the claim for future accommodation costs for a 30-year-old male claimant would be £185,000.  The Court queried whether there could be a mechanism to allow the same; whilst it seems theoretically possible on the basis that a subsidiary company could be set up to buy the reversionary interest, it would be difficult and the Defendant said the practical way to handle this matter is to deduct a sum rather than forcing reluctant parties to invest. Chambers News. On behalf of the Claimant, it was submitted that R v J should no longer apply as the parameters within which it was meant to operate no longer exist, that being there is a negative discount rate. Compensation should be fair and reasonable but prior to Swift v Carpenter, it was anything but. Swift v Carpenter: Accommodation costs dispute reaches Court of Appeal. The recent High Court decision in Swift -v-Carpenter (2018) is the latest (and only the second) case to reach the judiciary on this point since the discount rate change. Share: Linkedin Twitter Facebook Google+. The bad news is that the hearing was adjourned (for the parties to file further evidence). Tuesday, 23 June, marked the beginning of three-day hearing on the case of Swift v Carpenter (2018), with expert witness evidence heard by Lord Justice Underhill, Lord Justice Irwin and Lady Justice Only users who have a paid subscription or are part of a corporate subscription are able to … The proposal is effectively that the Defendant will give the Claimant the additional capital required to purchase the new accommodation minus the value of the reversionary interest. Swift sets out to redress the problem (in times of negative discount rates) for a seriously injured person needing larger accommodation. They said the property should be treated as an asset which is capable of investment in a mix of equities and gilts and on the assumption it provides an income over life. Using the same formula with a negative discount rate of -0.75%, R v J produces an award of -£1,340,000! Swift v Carpenter concerning accommodation claims. They said that as the Claimant has now purchased her new property without borrowing, and will only need to borrow much later in life, she will be a saver for a long period (and thus achieve a gain) and only borrow for a shorter period. These included periodical payments to fund an interest only mortgage for life, and a loan. The Court is not prohibited from doing that by the Damages Act; common law is doing what it has always done: reacting to events and circumstances as they change. She explains the judgment and provides a worked example. It is likely Swift will be followed in the Scottish Courts heralding a more equitable solution to a problem that has vexed personal injury lawyers for years. In the Swift case, the additional capital required was £900,000 x 0.1089 = £98,087. Priory House, 25 St. John’s Lane, London EC1M 4LB 020 7650 1200. Mon, 08 Jun 2020, © 2020 No5 Chambers | All Rights Reserved |, Swift v Carpenter – Breaking accommodation claims down, Admissibility of bespoke life expectancy evidence in Catastrophic Injury Cases. Date: The recent landmark decision in Swift v Carpenter (2020) demonstrates a fundamental change in the way that accommodation claims in personal injury cases are quantified, in a manner that is likely to have a significant impact on the value of those claims. A sense of fairness has been restored, and the decision will be welcomed by claimants and their representatives alike. Darryl Allen QC of Farrar’s Building […] Accommodation Claims: Swift v Carpenter; Accommodation Claims: Swift v Carpenter. The Defendant said that would not work in practice as it would be akin to a shared ownership scheme, which it has been agreed is unworkable, primarily for regulatory reasons on part of the Defendant and a reluctance on the part of the Claimant to have an ongoing relationship with the insurer. Whilst discount rates remained positive at 2-2.5%, the R v J formula avoided windfall, but a claimant was often forced to use funds from other heads of claim (e.g. In the first case, JR -v- Sheffield Teaching Hospitals NHS Foundation Trust (2017) the judge considered himself bound by Roberts. Intervention during the hearing was interesting in this regard; dealing with whether the previous cases were binding given that the argument put forward was to disregard the R v J methodology entirely and querying whether R v J was proposing the best approach, as opposed to the only approach. By way of a very simple working example, the R v J calculation would work as below (Assuming the Claimant’s life expectancy is unaffected by her injury and the discount rate is 2.5%): Difference in capital cost of accommodation: Price of new property (300,000) less price of original property (£200,000) = £100,000, £100,000 x discount rate (2.5%) x relevant life multiplier (29.31) =  £73,275. Date: 21 October 2020 @ 15:00 Duration: 1 hour Presenter: Darryl Allen QC The Court of Appeal recently ruled in Swift v Carpenter. Bill Braithwaite QC outlines the current issues in following Roberts v Johnstone for accommodation claims ‘The problem of Roberts v Johnstone has become important because of the gradual disparity between damages for pain and suffering and house prices – a sad reflection on the law’s approach to damages for injuries (or a broken property market? The Swift judgment. The relevant passage from the Damages Act is below: (1)In determining the return to be expected from the investment of a sum awarded as damages for future pecuniary loss in an action for personal injury the court must, subject to and in accordance with rules of court made for the purposes of this section, take into account such rate of return (if any) as may from time to time be prescribed by an order made by the Lord Chancellor. UK & Europe. Many claimants were unable to recover damages in law for future accommodation costs. Over the whole period they say the Claimant is unlikely to suffer any net loss. 14.06.2019 James Rowley QC - A Quantum Update - June 2019 . SWIFT v CARPENTER. Absent other suitable alternatives, the Claimant would be awarded the full capital cost of purchasing the new property. Latest News. The long-lived status quo – Roberts v Johnstone. However, deciding any mechanism and what the appropriate yield might be will be no mean feat and the judgment remains eagerly awaited. The Defendant said that, even if that were so, it shows Parliament envisaged this is a matter for the Lord Chancellor. The first hurdle for the Court to decide was whether R v J should still be adopted. In an unsurprising decision, the Court of Appeal has refused the Defendant in Swift v Carpenter permission to appeal the landmark decision handed down last month. The Claimant suffered serious lower limb injuries in a road traffic accident in 2013 which resulted in her left leg being amputated below the knee. Accordingly, the deduction from the initial capital cost will be lower. After nearly 50 years of uncertain damages in cases of this nature, Claimants will now receive fair and reasonable compensation […] 23/10/2020 . For ease of lingo if you watch the hearings on YouTube, in this example Ryan would be the “remainderman”. (3)An order under subsection (1) may prescribe different rates of return for different classes of case. This is the simplest proposal. The claim was set down as the capital difference between the new and existing property x discount rate x life expectancy. The remote streaming videos remain on YouTube and, if you are a member of PIBA, the skeletons are available for your perusal. It was worth the wait. If the conventional R v J calculation was adopted, the Claimant would recover a nil award for accommodation. 22 October 2020 22 October 2020. Roz Boynton is a solicitor at Road Traffic Accident Law (Scotland) LLP, Currency exchange rates updated 45 minutes ago, Road Traffic Accident Law LLP appoints associate solicitor in Aberdeen, Growth of road traffic legal firm vindicates move to set up specialist services, Staff at Road Traffic Accident Law Scotland smash active challenge, Solicitor (0-2 years PQE) – Personal Injury, CPD Packages from Law Society of Scotland, Ampersand Bitesized – A Swift Response – the bits not dealt with in the Court of Appeal decision. After nearly 50 years of uncertain damages in cases of this nature, Claimants will now receive fair and reasonable compensation to purchase special accommodation. Another option for valuing life interest was a “fair and reasonable” methodology with reference to rental yield which the Defendant submitted was not analogous or pragmatic. Roz Boynton details the key compensation points in a case in which the claimant was severely injured in a road traffic accident in 2013. ).’ … In the Swift case this is £801,913 (£900,000 less £98,087). Christopher Melton QC. share Twitter LinkedIn Email. The Defendant relied upon the “fair and reasonable” methodology put forward by their expert Mr Robinson, an actuary, which they said has as its aim balancing the interests of the life tenant and the remainderman. Let us assume that her pre-injury property was worth £200,000 but the new property she now requires costs £300,000. We have had three decades of injustice to claimants since that decision. The Court of Appeal has found that Roberts v Johnstone no longer achieves fair and reasonable compensation for an injured claimant. Ryan holds all the reversionary interest in the property. Their decision changes the law for people requiring special accommodation following an injury. However, bound by Roberts v Johnstone, the Court… It followed that no award was made in respect of the additional capital cost of purchasing the new property. Furthermore, at 3.30pm on Monday, 12 October 2020, barristers from 1 Crown Office Row, including Lizanne Gumbel QC and John Whitting QC, will be hosting a Q&A webinar where all your questions Twitter; Emergencies Citrix log-in. However, for those who have only joined the PI practitioner world in the last few years, there is an awful lot to catch up on. They say that is not merely a judicial guideline. Mrs Justice Lambert concluded that she was bound by Roberts v Johnstonewhich resulted in a nil award. This method was based upon an assumed yield for the reversionary interest of 6.6% per annum. Ampersand Bitesized – Complications of accommodation costs – understanding Swift v Carpenter Archie MacSporran – recorded on 23rd October 2020. Date: By the time of the appeal, there were a number of proposals which the parties had agreed were unworkable. Where a claimant sustains serious injury, their accommodation may no longer be suitable for their needs. Swift v Carpenter: The Court of Appeal have, today, refused the Respondent’s application for Permission to Appeal to the Supreme Court and it is now left open to them to seek permission from the Supreme Court directly. Landmark decision from court of appeal on Swift v Carpenter ‘The eagerly awaited Court of Appeal judgement in Swift v Carpenter has now been handed down. (4)An order under subsection (1) may in particular distinguish between classes of case by reference to—. The decision of the Court of Appeal in Swift v Carpenter has rewritten the rules for the calculation of future accommodation costs. The same example for our 30-year-old male allows him a claim of £233,300 for accommodation costs. Background The Claimant on the other hand proposed that the S1(4) was merely explanatory of the existing power that the Lord Chancellor already had under S1(3). They say the market for reversionary interests overall is tiny and that the sales provided to the Court are the sales of reversionary interests in trusts and not in single residential properties where the Claimant intends to live in the property (which will be the case in all special accommodation cases). The conventional formula used to calculate accommodation costs was confirmed by the case of Roberts v Johnstone[1]  [“R v J”] and has been in use ever since. The delayed appeal in the case of Swift v Carpenter was … The opening of the Swift v Carpenter [2018] EWHC 2060 (QB) appeal was live streamed from the CA this morning.Specialist personal injury barrister Hannah Godfrey explains the good news, and the bad.. The claimant sustained serious injuries leading to a below knee amputation of the left leg in a road traffic accident in 2013. Take as an example, a female Claimant who is 35 years old at the date of trial, who has sustained a serious injury which means she requires single storey accommodation. read more. Swift v Carpenter judgment Download (842 KB) Talk to us in confidence. 2020. Follow us Twitter LinkedIn Instagram Facebook Youtube. Download as pdf. The Claimant says this method allows for differing life expectancies (with the reversionary interest increasing in the example before the Court as the life expectancy reduces) and is therefore applicable in all cases. Samuel Jones – A Case law update: Swift v Carpenter Posted on Friday, October 23rd, 2020 at 12:00 pm The Court of Appeal recently handed down its long-awaited judgment in Swift v Carpenter [2020] EWCA Civ 1295 . That in itself would create an internal market and assist with bridging any gap. For three days from 25 June, the Court of Appeal heard the eagerly anticipated appeal in Swift v Carpenter. Their decision changes the law for people requiring special accommodation following an injury. This is where it gets tricky. 09 Oct. Share. Roz Boynton details the key compensation points in a case in which the claimant was severely injured in a road traffic accident in 2013. Read More. Associate solicitor Jonathan Bamforth shares his view on the Swift v Carpenter appeal and the need for fair compensation for clients. If we re-do this calculation on the new discount rate (-0.25%), one can see the problem which arises: £100,000 x discount rate (-0.25) x relevant life multiplier (29.31) = -£7,327.50. ... Richard Whitehall summarises Court of Appeal's judgment in the landmark case of Swift v Carpenter. The Defendant said that it was not; the fund would be balanced between GILTS and shares and the 1.1% is based on the yield of those assets. A property needs to be single storey with additional rooms for carers, storage and a therapy room. Available to view on demand (registration required) The Claimant also put forward a hybrid solution: if the Defendant is to have the benefit of the deduction based upon the valuation of the reversionary interest, then it should be on the basis that Defendant is prepared to purchase the reversionary interest. Mon, 22 Jun 2020. It is then for the Claimant to either sell or retain the reversionary interest. Download as PDF swift v carpenter (protective costs orders) : full case details / the decision This judgment concerned an application by the appellant for a protective costs order (“PCO”) in an appeal against part of a decision by Mrs Justice Lambert DBE of 2 August 2018 on the trial of a … When the judgment in Swift v Carpenter was handed down on 9 October 2020, that wait was finally over. Following R v J, the Claimant would however be able to recover the loss caused by this additional capital being tied up in the property. This resulted in inadequate levels of damages to those who suffered serious injuries, going against the laid down maxim that damages awarded should be fair and reasonable. Winston Hunter QC. Stand by your schedules and counter-schedules, dig out those old Part 36 offers and get ready to apply to increase your costs budgets; the 8th edition of the Ogden Tables (“Ogden 8”) may impact on all three. Swift v Carpenter (2018) relates to a road traffic accident in October 2013 in which Swift sustained serious leg injuries leading to a below-knee amputation. [2]Thomas v Brighton Health Authority [1999] 1 AC345, Coronavirus (COVID-19) – Please view our, **PLEASE DO NOT USE MICROSOFT INTERNET EXPLORER TO VIEW OUR WEBSITE.**. The purpose of an award of damages is to put a person back into the position they would have been but for the accident. Is it for the Court to depart from R v J? This long-awaited decision outlines a new approach to calculating compensation claims for accommodation costs. The calculation allows the injured person to claim full extra costs of accommodation less a discount to reflect ‘reversionary interest’. (2)Subsection (1) does not however prevent the court taking a different rate of return into account if any party to the proceedings shows that it is more appropriate in the case in question. The matter proceeded to appeal, and after various delays, was heard remotely from 23-25 June 2020 in the Court of Appeal, with several witnesses, consisting inter alia, of economists and actuaries. In other words, nil recovery for future accommodation costs. That would create a lower initial value for the reversionary interest than the methodology put forward by the Defendant (because if you are relying on a higher yield then you start with a lower initial value). Without delving into the same too much, the formula was based upon the difference in price between the old property and the new property, the relevant life multiplier and the discount rate. For those of you on Twitter, our timelines have been filling with practitioners tweeting about the long awaited hearing of Swift v Carpenter, which ran from 23 – 25 June 2020 in the Court of Appeal, and the implications it will have on the accommodation head of loss in serious injury claims. By John Hyde 2020-06-23T13:25:00+01:00. The position of the Claimant was quite clear in this regard; if the Court accepts that the Claimant has suffered a loss in having to purchase suitable accommodation as a result of the injury, then R v J leads to the Claimant not being compensated for a loss, which cannot be right under the purpose of tortious damages. The “capital shortfall” was the difference between the value of her current property and the value of the new property she needed to buy. 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Exceptions apply current discount rate, which is set by the parties had agreed were unworkable the current discount,... So, it was anything but the capital costs of accommodation less a discount reflect... Left leg in a case in which the Claimant is unlikely to suffer any net loss, Swift! Appeal, there were several methods proposed to the Court did not mandate the of. Before Lord Justice Underhill, Lady Justice Davies and Lord Justice Irwin evidence ) the need fair! Concluded that she was awarded more than £4m in damages Follow us on Twitter they are not by. Million but, significantly, received nothing for the calculation of future accommodation.. The “remainderman” future wage loss or compensation for pain and suffering ) to make up the shortfall YouTube and if. Is simple ; the Claimant to either sell or retain the reversionary ’. A judicial guideline had bought a property suitable for her needs, without having to borrow case which... A negative discount rate, which is set by the time of the left in! 020 7650 1200 in the Swift case this is £801,913 ( £900,000 less £98,087 ) be....

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