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CRT being sued in the High Court for misuse of Section 8 rule


Horace42

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22 minutes ago, Chewbacka said:

Nigel - A bit more for you to think on.

Copied from your post #316    It is pertinent to note that in the parallel proceedings due to be heard later this year, Shoosmiths filed a skeleton argument wherein they state: “On 27 January 2015, the Trust removed the Boat from the Property pursuant to its statutory powers and arranged storage of the Boat pending payment of the sums owing to the Trust by the Appellant, which included the cost of removal and storage of the boat.”

But this is not wrong in that they are entitled to claim under s8 the costs associated with the removal and storage of the boat.  Whilst 'included' to you or me means lots of other stuff as well, they will no doubt in light of this judgement now state that in this case it is of course only limited to those cost s8 specifically allows them to claim and certainly does not include licence arrears.  Under pressure they will possibly admit to an unfortunate mistake in also claiming other amounts of money which under s8 they were not entitled to claim........

There is no denial on CaRT's part that they demanded licence arrears additionally to the removal and storage costs, nor that that was wrong - both are admitted. The denial is that this constituted any actionable offence, by reason [amongst others] of there having been no provable loss sustained.

Leigh's position is that the admissions are all post his bringing the case, published policy since 2008 is that they used s.8 in the way they acknowledge now is wrong, and that was only removed once the conflict with admissions in this case were pointed out, and that he is simply asking for a declaration to the effect that this was wrong, together with such compensation as the court sees fit. Even if the Court sees fit not to award compensation, what prevents the court from agreeing that the declaration he sought was right, and granting him that?

From Leigh's perspective, his case was less about the relatively small sums involved, and far more about achieving formal court declarations as to what CaRT may and may not do. To dismiss an admitted claim and refuse the declaration sought, seems perverse even if no damages are found.

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11 minutes ago, Wanderer Vagabond said:

I think that this is an area that does give some confusion. In Mr Garner's response to your cross-examination he is effectively being questioned on the actions of  a third party, the author of the e-mail from Shoosmith's. From my limited Court experience, if the subject under consideration is uncontested then they are usually relaxed about someone doing this (although it is frowned upon). If however the matter is contested then it is the author of the relevant e-mail that needs to be cross-examined. Mr Garner may well have been accurately portraying CRT's position (your guess is as good as mine) but is being asked to answer for the contents of an e-mail from Shoosmiths not associated directly to him which may or may not have accurately represented CRT's position. Whilst Mr Garner, as a representative of CRT can be held responsible for CRT's actions, he isn't however a representative of Shoosmiths, who should answer for their own actions.

He was not being questioned as to their actions; he was being challenged as to his claims over the content of an email. The email was one he had been shown by Shoosmiths so that he could bear witness as to its content [and was included in his attached exhibits]. It was that witness under challenge – Shoosmiths hadn’t done anything wrong per se in NOT saying what Garner claimed they did. The real point here is WHY did he put words into their mouth that he knew they had not included in the email? What Shoosmiths did or did not think we cannot know [but I seriously doubt that they had any confusion over the matter at all]. They OUGHT to have said what Garner claimed for them, but they did not – and if they had, then CaRT would have had no option but to agree to returning the boat upon payment of £6,630 only.

If he had not been challenged on the point, then it would have accepted that they had understood aright, and hence any 'inadvertent' confusion could potentially excuse ensuing 'mistaken' demands. The raw fact is, of course, that using possession of boats seized under s.8 to enforce collection of licence arrears has always been published policy, at least since 2008. Only following admissions in Leigh's case, and somebody challenging the contrary statements on their website, was the offending wording removed.

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4 hours ago, Chewbacka said:

I doubt it matters as we are talking about the meaning of MNC within the Act.  The Act is written by law makers and not by CRT/BW.  But as already discussed MNC is not a defined term and so can mean different things in different acts and it is finally up to the courts to decide what is meant by MNC in any specific context in any specific act.

In that case how is Leigh responsible for not abiding by a law that the correct meaning of was unknown until the judgement ?

How did CaRT know the MNC meant the whole river, surely they were guessing what the meaning was as well ?

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17 minutes ago, Muddy Ditch Rich said:

In that case how is Leigh responsible for not abiding by a law that the correct meaning of was unknown until the judgement ?

How did CaRT know the MNC meant the whole river, surely they were guessing what the meaning was as well ?

CRT will tell you what the law allows them to do and you ignore it at your peril.

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1 hour ago, Chewbacka said:

CRT will tell you what the law allows them to do and you ignore it at your peril.

That would allow them to make up the law as they want.

Which is what we have now, ridiculous interpretations of the law like licences are issued in accordance with the 1962 transport act a decade before licences were created.

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12 hours ago, Muddy Ditch Rich said:

In that case how is Leigh responsible for not abiding by a law that the correct meaning of was unknown until the judgement ?

How did CaRT know the MNC meant the whole river, surely they were guessing what the meaning was as well ?

That is surely not uncommon in legal disputes. Many legal provisions are ambiguous until a court makes an attempt to apply the general to the particular and case law builds up. Inevitably this means that people who thought that their actions were permitted (or at least not forbidden) end up having a judgement made against them. Sometimes even Government is on the 'losing' side.

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10 hours ago, Muddy Ditch Rich said:

That would allow them to make up the law as they want.

Which is what we have now, ridiculous interpretations of the law like licences are issued in accordance with the 1962 transport act a decade before licences were created.

No it does not as they are always open to a judicial review or other action (as in this case). What may well be true is that they, as anyone, especially those with clout, can seek to make an interpretation to their advantage and then to use their better leverage to achieve compliance. None of this 'makes law' though. Only parliament, aided by the courts in the area of interpretation, can do that. Parliament sometimes (often?) makes laws that are less than clear - sometimes deliberately as they want decisions to be formed over time by courts - always in the context of a specific case - t=rather than the generality that parliament has to deal with.

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  • 2 weeks later...

I spent a day last Friday searching through the Parliamentary Archives for a copy of the annotated map of the Winsford Bottom Flash, referred to in the BW undertaking to the RYA, indicating the confines of the main navigable channel of the Weaver that would be subject to the 1971 registration demands once the southernmost section of the Weaver was added to the Scheduled river waterways. It would be the perfect answer to Mrs Justice Asplin’s belief that they would never have countenanced such a situation.

Sadly, this must be in the portion of the relevant box that remains “closed” to public viewing, because I found no trace even of the undertakings – though these are downloadable from the KANDA and NABO websites.

Still, I found an extraordinary item from the open boxes while sorting through Friday’s photos. Back in 1990, when the new London Waterways manager Mark Bensted was setting out to make a name for himself, some 30 boats were issued s.8 Notices, and in response to protest from the newly formed Brentford Boaters Association, Bensted responded by saying that the existing licences would be “revoked to coincide with the expiry date of the Section 8 notice.”

So the boats were licensed, and would be licensed right up to the date they were to be seized by BW for being left or moored on the waterways without the lawful authority of the boat licence!

They have come a long way from the extremes of that outrageous procedure [at least they now revoke the licence first], but the rationale of the actions remains the same. No wonder the Select Committee looked askance at BW’s protestations that s.8 was only used as a last resort, and never for the purpose of enforcing mooring restrictions. As BW had been using it so recently for mass evictions of even licensed boats, their abuse of the power was all too evident even back then.

What was even worse, of course, was that Bensted was ordering the Patrol Officer to issue those s.8's on boats below the Gauging Locks, when the Patrol Officer's own notes on the Patrol Record sheets of the time, acknowledges that no licences were required!

One wonders whether Mrs Justice Asplin have approved of this even so, considering as she does that s.8 is the most acceptable means of ensuring the safety and good management of the waterways.

The further photo collection exhibited by the BBA, however, highlighted the fact that s.8 boats were towed to and attached to the weir immediately above the Thames Locks, where they sunk on the first high tide - not to mention the work boats etc left lying around obstructing those locks. Hardly a demonstration of using s.8 for the greater safety of other boaters.

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On 30/07/2017 at 08:57, Mike Todd said:

No it does not as they are always open to a judicial review or other action (as in this case). 

Interestingly, while reading through the Petition of the Brentford Boaters Association against the BW Bill of 1990, I came across the claim that a Judicial Review was even then in progress over BW's use of s.8.

I have never heard of this before, and do not even know whether it ran the course or was anything more than a threat. It would be interesting to find that it did proceed to judgment, and if so what was decided. I suspect that BW would have been given the OK if it did go ahead. Certainly a group of boaters on the fully tidal section were forced off their moorings by Bensted using s.8 a few years before he tried that on me, and the County Court judge thought BW were entirely within their rights.

Bensted's post 1990 actions cannot, however, be taken to suggest a successful outcome from a decided Judicial Review; they happily continued s.8 actions below the Thames Locks even post my Appeal Court judgment, so an adverse JR result would have made no difference to them.

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  • 4 weeks later...

Update: - Leigh has belatedly filed his Appellant's Notice, delayed because of late delivery of the sealed Order. It remains to be seen whether he will be granted permission; nowadays no oral representation is necessarily granted if this is refused on paper - which is a potentially disastrous new rule, because [as Mummery LJ commented in his Judgment in my case] appeals can be won following oral representation, even where they did not look 'promising' on paper.

https://www.scribd.com/document/358094619/Ravenscroft-v-CaRT-Appeal-Skeleton-main-case-pdf

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Reads well, and pretty persuasive. However, like Wotever, I also thought the argument prior to the hearing was far more credible than the response.

Couple of minor typos, I think: Paras 50 and 53: should these be 1971, not 1071 and 1871 respectively? 

I didn't manage to find the wording of S30 of the 1990 Bill, but probably didn't look hard enough!

Good luck with the Appeal!!! :cheers:

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Bother! You are correct, thought I had corrected those but obviously hadn't.

Section 30 of the 1995 Act adds a final stretch of river to Schedule 1 of the 1971 Act -

"River Weaver to be river waterway

Section 4 (Extent of Part II) of the Act of 1971 shall have effect as if there were included in Schedule 1 to that Act the following additional paragraph:—

“The river Weaver from Winsford Bridge to Shrew Bridge in the County of Cheshire.”.

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7 hours ago, Iain_S said:

Reads well, and pretty persuasive. However, like Wotever, I also thought the argument prior to the hearing was far more credible than the response.

Couple of minor typos, I think: Paras 50 and 53: should these be 1971, not 1071 and 1871 respectively? 

I didn't manage to find the wording of S30 of the 1990 Bill, but probably didn't look hard enough!

Good luck with the Appeal!!! :cheers:

Pity is, that the judge at this level thought otherwise, and though I had expected Leigh would lose at this stage, never imagined so comprehensive a dismissal of all claims - especially that concerning CaRT's use of possession to extort the disputed fees. 

I received a transcript of the handing down of judgment today. Sparse, and contemptuously dismissive of everything argued. The gender assignments are those of the transcribers, approved by the judge. As much attention was evidently paid to this as there was to the case argued -

 MR JUSTICE ASPLIN DBE:

1              I dismiss the claims brought by the claimant, Mr. Ravenscroft in relation to first, a breach of his human rights under the Human Rights Act, 1998 and, in particular, under Art.1 of the first protocol and, secondly, his claims in relation to breaches of the Statute of Marlborough for wrongful or excessive distress in respect of arrears of license fees and thirdly, for breaches of the Tribunals, Courts and Enforcement Act, 2007 and the Tort Interference with Goods Act, 1997 for the reasons set out in my judgment.

2              I also decline to make a declaration in the form sought as to the proper construction of the phrase, “main navigable channel” in section 4 of the British Waterways Act, 1971 for the reasons which are also set out in the judgment which I have handed down. 

3              That judgment, however, has not been available for typographic corrections for today and if there are any typographical corrections they should be submitted to my clerk by email by 4.00 p.m. tomorrow.  Those amendments will then be made and a finalised version will then be made available. 

4              I have to consider whether to give permission to appeal in relation to this matter and there are three heads.  The construction of the provision in s.4 of the British Waterways Act, 1971 secondly, the matters raised under the Human Rights Act and thirdly, the matters in relation to distress, for the most part, under the Statute of Marlborough.

5              In relation to the distress issues under the Statute of Marlborough and in relation to the breach of the Human Rights Act in relation to proportionality, it seems to me that there is no real prospect of success of an appeal and there is no other compelling reason why those matters should be heard on appeal.

6              In relation to construction, construction as Mr. Stoner pointed out is generally considered to be something which is possibly arguable, one way or the other and so often permission to appeal is granted.

7              It seems to me in this case that as I have found the way in which it is suggested that the provision should be construed, is one which would make a nonsense of the remainder of the legislation that, in fact, the test for permission to appeal is not met. Therefore, I decline to give permission to appeal in relation to each of the heads of this claim and it will be necessary for Mrs. Ravenscroft to seek permission to appeal from the Court of Appeal if he wishes to proceed further.

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10 hours ago, NigelMoore said:

(snip)

 MR JUSTICE ASPLIN DBE:

(snip)

6              In relation to construction, construction as Mr. Stoner pointed out is generally considered to be something which is possibly arguable, one way or the other and so often permission to appeal is granted.

7              It seems to me in this case that as I have found the way in which it is suggested that the provision should be construed, is one which would make a nonsense of the remainder of the legislation that, in fact, the test for permission to appeal is not met. Therefore, I decline to give permission to appeal in relation to each of the heads of this claim and it will be necessary for Mrs. Ravenscroft to seek permission to appeal from the Court of Appeal if he wishes to proceed further.

I suspect I'd get banned if I said what I really think of this!:(:sick::unsure:

Obviously, nothing other than the 1971 Act has been considered as "the remainder of the legislation". 

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Paragraph 7 is really the be-all and end-all of her reasoning respecting construing the term ‘main navigable channel’. As I have noted elsewhere, if her ‘reasoning’ was correct, then every piece of legislation including the numerous byelaws of various authorities around the country – relating to ‘main navigable channels’ - not to mention international legislation respecting national river boundaries and seaward limits, would likewise be “a nonsense” and according to her unworkable. It is simply untrue.

As a readily available example of ‘strict offences’ relating to defined but unmarked areas of water within a larger area, none is clearer than the new Loch Lomond byelaws of only 10 years ago –

http://www.boatingbusiness.com/news101/industry-news/loch_lomond_sets_speed_zones

 

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  • 1 month later...

Latest update is that Leigh has lodged his Supplementary Bundle with the Court of Appeal by the extended deadline. He now has to consider putting in an application for permission to use material that was not before the judge.

As to the Costs Appeal, he has added material to that Bundle as requested by the Court and Shoosmiths, while as of yesterday Shoosmiths added yet more documents for the Bundle [mostly Garner's evidence of several years ago]. The hearing date for this is still down for November first. He has been unable, since February this year, to get any response to his applications for pro bono assistance for the hearing. It is very odd.

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Just to reassure members that this site is being constantly monitored by CaRT and Shoosmiths – Shoosmiths recently quoted post #333 at me. I have not yet figured out how an investigation 3 months after trial could be used to prove that due diligence could have discovered relevant material prior to trial, but I am working on it.

As an aside, Leigh wrote to them some weeks ago asking what it would take for him to drop his appeals, and was told that Shoosmiths would get back to him upon getting instructions from CaRT, but so far as I am aware, nothing has been heard since, and the costs appeal is still on for November first.

Oh - and respecting the 'closed' element of the 1990 Bill papers in the Parliamentary archives, I lodged an FoI request for disclosure, and received a partial response [that dealt only with certain bits dealing with any application to Scotland]; the rest, it has been decided, must remain confidential. Slightly bizarre.

Apropos #333, somewhat to my surprise CaRT came good with disclosure following a direct request from me that they do so voluntarily, rather than have Leigh apply for compulsory disclosure [albeit with reasons why Leigh could never hope to have the court agree to its use], and I will post that up at some point.

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Forwarded to me by Leigh just now, an email from the Court of Appeal respecting next week's hearing [if CaRT prove unwilling to settle beforehand] -

"Dear Sirs,

The Lords Justice give permission for Mr Moore to act as Mr Ravenscroft’s McKenzie Friend at the hearing of the appeal. The Lords Justice will consider the separate question of whether the McKenzie Friend can have a right of audience, as opposed to merely assisting as a McKenzie Friend, at the outset of the hearing
.”

Bit extraordinary, as a right of audience was not actually asked for; the Lords Justice are being extra considerate to Leigh in this case. Whether that bodes good or ill is impossible to say.

I still wish he had managed to get a pro-bono professional for this, because it is way out my field, but we will do the best we can. The question at stake is whether Leigh and his MF at the time only took out the Injunction because they were under the impression that CaRT would dispose of the boat after 6 weeks; whether CaRT left giving assurances as to that until the last minute, and whether they had - as admitted - used possession of the boat to lever the alleged arrears of fees from him. We can establish that fairly convincingly, so the Lords Justice then have to decide if that suffices to overturn the standard presumption that a discontinuer should pay the Defendant's costs.

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  • 2 weeks later...
1 hour ago, Arthur Marshall said:

Anyone know what happened?  The hearing was 1 November, I think.

You are correct, it was.

This was about the original costs awards against Leigh arising from the fact that he discontinued the Injunction proceedings his previous litigation friend had advised they should take out, to prevent CaRT disposing of his boat after 6 weeks, which is what she gathered from discussions they could do, if Leigh did not cough up what they said he owed.

The appeal was allowed, but dismissed. There were 2 problems – first was that the injunction application had made no mention of the ‘6 week then dispose of it’ idea, and so even though that was exactly what CaRT were publishing as the Enforcement Manager’s opinion even 9 months after the seizure of Leigh’s boat, it could not be proved that they had specifically told that to Ms Thomas.

As to the improper use of the boat’s possession to lever payment of the alleged arrears additionally to the removal and storage costs, that was more interesting. I had the chance to take them through the emails demanding this, plus the website history proclaiming their ability to do this [until the wording was removed following a boater quizzing them over it, following publication of CaRT’s Defence admitting this to be wrong].

I may be wrong, but I had the distinct impression that the judges were slightly incredulous that Judge Asplin had been taken to this material and still found against Leigh on the issue, yet because that was her finding, and it was in separate proceedings, they could not see any way to contradict it.

I have been scratching my head over whether I could have been more on the ball when responding to that, and could have made the distinction that she was not finding that they were entitled to do that, but rather avoided the essential issue altogether, and considered only whether they were entitled to take the boat in the first place, for reasons other than non-payment of the ‘licence’ fees. Mind you, I think I managed to comment something along those lines.

So though I tend to think they would have found in his favour otherwise, the existing Asplin J judgment precluded that. She has since been ‘promoted’ by the way, and was in the courtroom next door to us, sitting now as a Lady Justice of Appeal.

It became even more interesting when considering costs of that hearing. I had no knowledge let alone expertise on how to argue over costs liabilities, but one of the judges pointed out a stand we could take given that CaRT had prepared no costs schedule. Eventually, they decided they could not dismiss CaRT’s costs, but these would have to be agreed, and if not, then they would have to be subject to detailed court assessment at CaRT’s cost. That could cost as much or more than the costs themselves I suspect, so it remains to be seen whether they decide to prove amenable to reason.

Meanwhile, while we were in the RCJ, Leigh lodged his application for permission to use fresh material in his main case appeal, which had not been before the judge – notably the newly produced map of the upper Weaver, with the pre-agreed main navigable channel marked out.

 

edit to add: I was given right of audience for this hearing, even though we had not applied for it.

Edited by NigelMoore
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As a matter of relevant interest, here is the BW to RYA Undertaking re: main navigable channel on the upper Weaver - edit: nope, just cannot seem to post pictures here anymore, though I did post the coloured overlat map in the 'licence chackers' thread

Also included in the ‘fresh material’ request is the interview with the enforcement manager, who claimed licence arrears would have to be paid for people to get seized boats back, and who said that such boats that were worth more than £3,000 could be sold after being held past 6 weeks.

edit 2: have managed to convert to jpegs, which works, but all out of order -

 

BW RYA Undertaking (5).jpg

BW RYA Undertaking (4).jpg

BW RYA Undertaking  (3).jpg

BW RYA Undertaking 1.jpg

BW RYA Undertaking (2).jpg

Edited by NigelMoore
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1 hour ago, RichardN said:

If I remember right there is a sign saying you are leaving CRT waters and another as you come back down from the Flash that CRT byelaws apply.

Is this not clutching at straws?

The CaRT sign you refer to is of no significance whatsoever, except insofar as it is a public disclaimer, to the effect that they cannot now be bothered exercising jurisdiction over the river below Winsford [with the necessarily attendant maintenance obligation]. Back in the day, BW felt differently, and petitioned Parliament to bring the upper reaches of the Weaver into the 1971 registration scheme, as a classified “river waterway” to be added to the list in Schedule 1 of that Act.

Hence, in the 1995 Act:

30 River Weaver to be river waterway

Section 4 (Extent of Part II) of the Act of 1971 shall have effect as if there were included in Schedule 1 to that Act the following additional paragraph:—

The river Weaver from Winsford Bridge to Shrew Bridge in the County of Cheshire.”.

The significance of this undertaking respecting part of that not inconsiderable length of river, is that it formally recognises a main navigable channel within a larger body of contiguous water where the river has widened out considerably; such that one side of the marked line on the map is recognised as beyond the registration requirement, and the other side is recognised as within it – entirely contrary to the expressed belief of Asplin J that such a situation would never have been countenanced.

Not only does this document give the lie to her belief, it further equates the term “main navigable channel” in the 1971 context, with the maintenance obligations of the same in the 1968 Act.

It is very far from a clutched straw in my view; as so clearly clarifying the view of the promoters and supporters of all the relevant Acts, there can be no stronger indication of the intent and meaning of the wording chosen.

Not that I personally believe that it ought to have been necessary, or is necessary for the obvious construction of the legislation; the wording and the usage speak for themselves, especially when the 1968 and 1971 Acts are compared, and the use in the byelaws - both of 1965 and the draft 2010 version - only cements that. Besides, contrary to the view taken by Asplin J, other navigation authorities also apply strict offences to limited areas of water within wider bodies of contiguous water, expressed in terms of imaginary lines between designated points on land, or as ‘x’ metres from the bank.

Once a judge has taken it into their head to be so contrary, however, it takes just such strong medicine as this BW document to set things straight at the appeal stage. Too much respect is ordinarily accorded the judge’s so-called ‘discretion’. This does make it likely that permission to use this will be refused of course.

I should add that even if the river above Winsford had since been formally handed over to the jurisdiction of others [which is theoretically possible, perhaps] it makes no difference whatever to the point that the basis of Asplin J’s judgment is contradicted by the facts as pertaining to the views of British Waterways when promoting their Acts and byelaws for more than 30 years. In 1995 Parliament gave BW jurisdiction over the Weaver from Winsford to the southern fringes of Nantwich, adding it to the scheduled river waterways of the 1971 Act - and that is the legislation that is having its meaning debated.

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