Appealing a Refusal to Set Aside a Statutory Demand - when Bankrupt?

Author: Simon Hill
In: Article Published: Saturday 02 July 2022


The Narrow Question

This, rather narrow question, came up for consideration in Addison v London European Securities Ltd [2022] EWHC 1077 (Ch) ('Addison'), before Jonathan Hilliard QC (sitting as a deputy judge of the High Court). The question, to put in a slightly longer form, was: where a debtor/demandee unsuccessfully applies for an order setting aside a statutory demand served upon him (the 'Refusal'), and he is subsequently made bankrupt on a bankruptcy petition founded upon the statutory demand, does the debtor/demandee (now bankrupt) have standing (formerly known as 'locus standi') to issue/pursue an appeal against that Refusal? Both counsel in Addison agreed that there was no case that had directly decided this question before (paragraph 80).

To jump straight to the answer to this narrow question, the conclusion in Addison was: 'yes', the debtor/bankrupt does have standing to issue/pursue that appeal (paragraph 113); or, to put it another way, he holds the right to appeal. After an interesting, wider survey of the law in this area, including detailed consideration of: (1) Sands v Layne [2017] 1 WLR 1782 ('Sands'); and (2) Heath v Tang [1993] 1 WLR 1421 ('Heath'), and the provision of a summary of the wider, general legal position on rights to appeal within/outwith the bankrupt estate (all dealt with below), the deputy judge held, at paragraph 113:

'In my judgment, [the bankrupt] does have standing to bring the appeal, for the following reasons:

(1) The making of a statutory demand is an important part of the process towards making a person bankrupt and therefore changing his status in the manner set out in Sands. Therefore, similarly, the question of whether a statutory demand can be set aside is intimately tied up with the question of whether a person should be made bankrupt and his status. It is part of that process, not something independent of it, like whether a judgment debt is owed.

(2) The right to appeal against the Court's refusal to set aside a statutory demand is not something that can enure for the benefit of the estate by its nature. It cannot be turned to account for the estate's benefit.

(3) Similarly, the case is very far away from the situations considered in Heath where the claims against the bankrupt were enforceable only against the estate vested in the trustee.

(4) Rather a statutory demand creates via statute an evidential presumption that the recipient appears to be unable to pay his debts.

(5) Setting aside a statutory demand may lead to annulment of the bankruptcy order under section 282(1)(a) of the 1986 Act on the basis that the bankruptcy order ought not have been made. ...annulment is not inevitable, for example if there are other creditors. However, as in Sands, being able to appeal against dismissal of the statutory demand allows the bankrupt to seek to challenge the change in his status brought about by the bankruptcy order.

(6) As in Sands, by the nature of the right of action to set aside a statutory demand, a trustee in bankruptcy would have little interest in pursuing an appeal against a refusal to set aside such a demand, because it would not be in the interests of the bankrupt estate to expend funds doing so.

(7) Therefore, were it to vest in the trustee in bankruptcy, such a right of appeal would become illusory in practice or close to it if - as here - a bankruptcy order was then granted off the back of the statutory demand. The appeal would become a dead letter, or close to it, from the moment of bankruptcy. Unlike in Heath, the ability of the bankrupt to apply to the Court under 303(1) of the 1986 Act to have the trustee given directions therefore offers little protection.

The Wider Survey

Beyond providing the answer to the above narrow question, there is significant additional value in the Addison judgment. That value lies in the deputy High Court Judge's wide survey of the wider legal position/case law - from paragraphs 80 to 111.

The deputy High Court Judge split his analysis into sections:

(1) The treatment of rights of appeal on bankruptcy;

(2) The bankrupt as claimant; and

(3) The bankrupt as defendant.

In paragraphs 80 to 110, after reciting the submissions from the parties, the deputy High Court Judge said:

'The treatment of rights of appeal on bankruptcy

80. To deal with these submissions, it is necessary to examine more broadly the circumstances in which a person has a sufficient interest to continue to litigate a matter he was involved in prior to his bankruptcy. Having evaluated what the test is for when a person can do so, one can then apply it to the present situation. Both Counsel agreed that there was no case that directly decides the specific point before me.

81. There is a substantial body of case-law on when claims of the bankrupt vest in his trustee in bankruptcy and when they do not. A bankrupt may often wish to continue to litigate for his own benefit a claim that he had at the point of the bankruptcy order if he views it as of value to him. I shall therefore start with claims by the bankrupt, before going on to deal with situations where the bankrupt is a defendant and when a claim or application can continue against a defendant who is made bankrupt and therefore continue to be defended by the bankrupt. This reflects the division drawn between Hoffmann LJ in Heath v Tang [1993] 1 WLR 1421, which I shall come onto in a moment.

82. While this is a convenient way of dealing with the case-law, I do not consider that Hoffmann LJ was seeking in Heath to suggest the distinction between cases where the bankrupt was a claimant and where the bankrupt was a defendant was a rigid one or an exhaustive classification of all cases. On the contrary, for example he expressly referred to a bankrupt bringing a cross-claim with respect to a claim against him as being a case that straddled both categories. Some cases concerning whether the bankrupt can continue litigation or a certain aspect of litigation cannot neatly be fitted into the category of bankrupt as claimant or bankrupt as defendant. However, pigeonholing such situations into bankrupt as claimant or defendant is unnecessary because the essential question is in my judgment the same in both situations, namely whether the litigation or aspect of it can be regarded as something personal to the bankrupt.

The bankrupt as claimant

83. On the making of a bankruptcy order, the official receiver becomes trustee of the bankrupt's estate, unless the court appoints another person: section 291A(1) of the 1986 Act.

84. A bankrupt's estate vests in his trustee in bankruptcy immediately on his appointment, or in the case of the official receiver, on his becoming trustee: section 306(1). The function of the bankruptcy trustee is to get in, realise and distribute the bankrupt's estate: section 305(2).

85. Subject to what follows later in section 283, a bankrupt's estate comprises

"(a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and (b) any property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling within the preceding paragraph": section 283(1).

86. Property is intended to be a broad concept for these purposes, it being in the public interest that trustees of a bankrupt are able to get in, realise and distribute the bankrupt's estate in accordance with the statutory scheme amongst the bankrupt's creditors: Avonwick Holdings Limited v Sayers [2016] EWCA Civ 1138 at [40]-[41]. It includes

"money, goods, things in action, land and every description of property wherever situated and also obligations and every description of property whether present or future or vested or contingent, arising out of, or incidental to property" (section 436(1)), and property includes, with certain exceptions, powers over property (section 283(4)).

87. Given that a bankrupt's property includes things in action, it is capable of including causes of action, and rights of appeal against the rejection by a Court of such causes of action. There can be no distinction in this regard between the claim and the appeal: the appeal is a continuation of the claim once it had failed at first instance.

88. However, as Hoffmann LJ explained in Heath, that does not mean that all of the bankrupt's causes of action vest in the trustee, because

"there are certain causes of action personal to the bankrupt which do not vest in his trustee. These include cases in which the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property. See Beckham v. Dale (1849) 2 H.L.Cas.579, 604, per Erle J. and Wilson v. United Counties Bank Ltd. [1920] A.C. 102." (1423A-B; underlining added)

89. Hoffmann LJ does not purport to define exhaustively what causes of action will be personal to the bankrupt for these purposes. Rather he states that they will include cases in which damages are to be estimated by immediate reference to the pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property ("body, mind and character cases").

90. Just over a decade after Heath v Tang, Lord Walker explained in his judgment in Mulkerrins v PricewaterhouseCoopers (a firm) [2003] UKHL 41 that

"the wide language used in successive statutes to describe the bankrupt's estate was from an early stage interpreted by the court as excluding rights of action which are classified as personal to the bankrupt, rather than relating to his property."([22])

91. He then went on at [25] to set out the then most recent authority, the Court of Appeal decision in Grady v HM Prison Service [2003] EWCA Civ 527, explaining that

"[t]he Court of Appeal (in a judgment of the court delivered by Sedley LJ) observed (at para 14) that there is no bright line between personal rights of action and those which form part of a bankrupt's estate, but (para 24) that all the reasoning in the authorities tends to place on the non-vesting side of the line a claim which is primarily directed at the restoration of a contractual relationship in which the claimant's skill and labour are the essential commodity."

In Grady, Sedley LJ treated at [11] Hoffmann LJ in Heath as having explained that among the causes of action personal to the bankrupt which do not vest in the trustee were body, mind and character cases.

92. In Mulkerrins itself, the appellant alleged that her former professional advisers, PricewaterhouseCoopers, had negligently failed to protect her from bankruptcy. While not deciding the point ([18]), Lord Millett expressed scepticism about whether the claim vested in the trustee in bankruptcy, stating that "it would be very surprising if a claim of this character could be made available to the creditors. They would be claiming damages for the making of the very bankruptcy order under which their claim arose."([17]).

93. [Counsel for the Bankrupt] relied on the Court of Appeal decision in Avonwick Holdings Limited v Sayers [2016] EWCA Civ 1138 as an example of rights relating to litigation not being property. In that case, it was held that privilege was not property of a bankrupt which automatically vests in the trustee in bankruptcy. The core reasoning is at [63]:

"Following the Morgan Grenfell case and the Simms case, the bankrupt can only be deprived of privilege if IA 1986 expressly so provides or it is a necessary implication of the express language of its provisions. The only provisions relied upon by the Trustees in the present case on this aspect are the definition of "property" in section 436(1) and the treatment of a "power over or in respect of property" in section 382(4), in conjunction with the general provisions in sections 283 and 306 for the automatic vesting in the trustee of the bankrupt's property comprised in his estate. All those provisions are in general terms. They do not expressly treat privilege as property of the bankrupt which automatically transfers from the bankrupt to the trustee. Nor is that a necessary implication of the provisions."

94. I accept that Avonwick is an example of rights relating to litigation not constituting property. Moreover, in a general sense, privilege is something personal to the bankrupt and therefore the case is in that respect a demonstration of rights personal to the bankrupt not vesting in the trustee in bankruptcy. However, as the first sentence of the extract above makes clear, the starting point in that case turned on a point based on the specific characteristics of privilege, which is that the bankrupt could only be deprived of privilege by express provision in a statute or necessary implication. Therefore, the judgment does not, and did not need to, seek to provide a general touchstone for determining which rights relating to litigation do vest in the trustee in bankruptcy.

95. Reliance was placed by [counsel for the demander/creditor] on Agba v Luton Borough Council [2020] EWHC 1160 (Admin). In Agba, Choudhury J held that a bankrupt could not commence proceedings to challenge to a liability order made against her in respect of unpaid council tax. He rejected the argument that the cause of action on the facts before him was personal to the bankrupt, because the liability as to Council tax is clearly connected to the property. Indeed, absent the appellant's interest in the property there would be no such liability. It is difficult to see how this could reasonably be construed as a right or a cause of action personal to the bankrupt. ([27]). He went on to state, in the sentence relied on by [counsel for the demander/creditor]:

"Even if it could be regarded as something personal to the appellant, it is clear from the authorities referred to above that the nature of the action needs to be one that relates solely to his body, mind and character (my emphasis), and that any damages seeking to recover compensation must be for damage to his body, mind and character as opposed to other causes of action which might be considered in respect of a right to property."

96. This sentence is technically obiter, as the Judge had held that the cause of action was not personal to the bankrupt. In my judgment, for the reasons above, Heath and Grady in particular do not bear out the proposition that causes of action personal to the bankrupt are limited to those relating solely to his body, mind and character.

97. Drawing the above cases together:

(1) Most claims that a bankrupt had at the time of bankruptcy vest in his trustee in bankruptcy, because they are "things in action" and therefore form part of the bankrupt's estate;

(2) There are circumstances in which a claim may be found to be personal to the bankrupt such that it does not vest in the trustee in bankruptcy or Official Receiver;

(3) There is no simple bright line test for determining what falls on one side of the line and the other: e.g. Mulkerrins at [25];

(4) One important category of cases that fall on the personal side of the line are cases in which "the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights of property": Heath, but that does not exhaust the field of personal claims.

The bankrupt as defendant

98. Hoffmann LJ explained in Heath that the analysis where the bankrupt was a defendant was different:

"In cases where the bankrupt is defendant, there is of course usually no question of the cause of action having vested in the trustee. Unless the defence is set-off (a situation to which we shall return later) the bankrupt will not be asserting by way of defence any cause of action of his own." (1424E-F)

99. He went on to explain that:

"But in cases in which the plaintiff is claiming an interest in some property of the bankrupt, that property will have vested in the trustee. And in cases for debt or damages, the only assets out of which the claim can be satisfied will have likewise vested. It will therefore be equally true to say that the bankrupt has no interest in the proceedings. As we have seen, section 285(3) deprives the plaintiff of any remedy against the bankrupt's person or property and confines him to his right to prove.

On the other hand, there are actions seeking relief such as injunctions against the bankrupt personally which do not directly concern his estate. They can still be maintained against the bankrupt himself and he is entitled to defend them and, if the judgment is adverse, to appeal. This distinction was the basis of the decision in Dence v. Mason [1879] W.N. 177 in which a bankrupt wished to appeal against an order made before the bankruptcy granting an injunction to restrain passing off and ordering him to pay costs. His trustee declined to appeal but the court said, at p.177, that the bankrupt himself could appeal against the injunction

"which was a personal order against him, notwithstanding the bankruptcy, though he had no interest in the order as to costs, his estate being now vested in the trustee."

This implies that the bankrupt would not have been entitled to appeal against an order which was enforceable against his estate. This appears clearly from the decision of the House of Lords in Rochfort v. Battersby (1849) 2 H.L.Cas. 388" (1424F-1425A)

100. He concluded his review of the authorities as follows:

"These authorities in my judgment demonstrate that in principle a bankrupt cannot in his own name appeal from a judgment against him which is enforceable only against the estate vested in his trustee." (1425H)

101. In Heath itself, the question for the Court was whether a bankrupt could bring an appeal against a judgment on which the bankruptcy petition was founded. Hoffmann LJ considered that he could not. Given its potential importance to the present question, I set out his reasoning in full:

"Is there anything different about the judgment upon which the bankruptcy petition was founded? It is submitted that the difference is that in such a case the bankrupt does have an interest, because if he can get rid of the judgment, he may be able to have the bankruptcy order annulled on the ground that it should never have been made. Whether it is set aside or not will depend upon whether apart from the judgment the bankrupt would have been solvent or whether an order would in any event have been made on the application of supporting creditors: see In re Noble (A Bankrupt) [1965] Ch. 129. On the other hand, it may equally be said that if only the bankrupt could pursue a claim for a large sum which he claims to be owing to him, he would be able to pay all his creditors and have the bankruptcy annulled on that ground. It is clear, however, that this is not a ground upon which he may bring proceedings. Furthermore, an exception for the petitioner's judgment would give rise to anomalies in cases in which the defence was a claim of set-off, such as the applicant Mr. Heath asserts in this case. The contractual claim relied upon as a set-off would undoubtedly have vested in the trustee and therefore no longer be available to the bankrupt as a common law set-off to challenge the petitioner's claim. It would fall to be set off for the purposes of proof under section 323 of the Insolvency Act 1986 : see New Quebrada Co. Ltd. v. Carr (1869) L.R. 4 C.P. 651 , In re A Debtor; Ex parte Peak Hill Goldfield Ltd. [1909] 1 K.B. 430. This right of set-off can be asserted only by the trustee. So in my view there is nothing sufficiently special about the petitioner's judgment to take it out of the general principle.

It must be borne in mind that rule 6.25(2) of the Insolvency Rules 1986 (S.I. 1986 No.1925) says:

"If the petition is brought in respect of a judgment debt, or a sum ordered by any court to be paid, the court may stay or dismiss the petition on the ground that an appeal is pending from the judgment or order, or that execution of the judgment has been stayed."

Although this provision confers upon the court a discretion (see In re Flatau; Ex parte Scotch Whisky Distillers Ltd. (1888) 22 Q.B.D. 83 ) it has been said more than once that if the appeal appears to be bona fide, the court should adjourn the petition until it has been heard: Ex parte Yeatman; In re Yeatman (1880) 16 Ch.D. 283, In re Noble (A Bankrupt) [1965] Ch. 129. In the ordinary case, therefore, a bankrupt will not have to seek directions under section 303(1) for an appeal against the petitioner's judgment unless he failed either to lodge an appeal before the hearing of the bankruptcy petition or to satisfy the registrar or judge that the appeal was bona fide. In both classes of case it would not be unreasonable for the bankrupt to have to obtain the authority of the bankruptcy court before he could pursue an appeal.

The main respect in which the bankrupt may be disadvantaged by not being allowed to appeal in his own name is that in that capacity he would almost certainly (subject to consideration of the merits of his appeal) qualify for legal aid. On the other hand, the trustee would not. If therefore the bankrupt is merely allowed to use the trustee's name in an appeal, legal aid will probably not be available. On the contrary, since the trustee is personally liable for costs awarded against him in proceedings brought in his name, the bankrupt will have to find the money to indemnify the trustee against such costs. Even in advance of the appeal, the trustee will probably be ordered to give security for the respondent's costs and this would have to be provided by the bankrupt. These are formidable obstacles but, as we have said, they will exist only in cases where the bankrupt has failed to persuade the court to exercise its discretion under rule 6.25(2). It does not seem to me that there will be many such cases which also qualify upon their merits for legal aid. Neither of the applicants before us has legal aid. In those circumstances, we do not think that they justify us in departing from the general principle that the bankrupt has not locus standi to appeal.

The insolvency law has of course changed a great deal since the time of Lord Eldon and In re Smith (A Bankrupt), Ex parte Braintree District Council [1990] 2 A.C. 215 is authority for taking a fresh look at the construction of the Insolvency Act 1986 in modern conditions. Nevertheless, the principle that the bankrupt is divested of an interest in his property and liability for his debts remains fundamental in the new code. The consequences for the bankrupt's right to litigate do not seem to us inconvenient or productive of injustice. The bankruptcy court acts as a screen which both prevents the bankrupt's substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims."

102. In Royal Bank of Scotland v Farley [1996] BPIR 638, another of the cases relied on by [the demander/creditor], Hoffmann LJ explained that:

"[t]he essence of [the decision in Heath] is that a bankruptcy order divests the bankrupt of any further interest in what debts he owes because it provides that he shall no longer be under any personal liability. An appeal from the judgment against him or an application to set aside the judgment against him is therefore a matter for his trustee, but does not concern the bankrupt." (640-1)

103. Therefore, his analysis ultimately turns on whether the bankrupt has an interest in relation to the claim in question. The bankrupt has been divested of any further interest in the debts that he owed and in the property that he held, so he no longer has an interest in claims relating to them.

104. Nonetheless, there are still cases where the claim or application brought against the defendant is sufficiently personal to the bankrupt defendant that he has standing to continue to litigate in respect of them, such as by appealing the order made against him. The example given by Hoffmann LJ in Heath of an appeal against an injunction granted before bankruptcy against the bankrupt personally is one. Appealing against a bankruptcy order is another. In Sands v Layne [2017] 1 WLR 1782, the Court of Appeal held that a right to appeal against a bankruptcy order did not vest in the trustee in bankruptcy. The reasoning for this is set out by Arden LJ, giving the leading judgment, at [47], as follows:

"Normally, any cause of action which may lead to the recovery of money or other assets which form part of the estate in bankruptcy will form a part of the estate held on statutory trusts following the making of the bankruptcy order (Heath v Tang [1993] 1 WLR 1421). However the right to appeal against a bankruptcy order itself is of a different order as common sense and fairness dictate that the right of appeal against the bankruptcy order should remain with the bankrupt whose status has been fundamentally changed. Moreover, if Mr Couser were right on this point, the Trustee who decided to appeal against the bankruptcy order would be challenging the very order under which he acquired title to the bankrupt's assets..."

105. Finally, I was taken by both Counsel to the decision of HHJ Pelling QC sitting as a Judge of the High Court in In the Matter of GP Aviation Group International Limited [2013] EWHC 1447 (Ch). The Judge had to decide whether a company's statutory right of appeal against a tax assessment constituted property for the purposes of s.436 of the Insolvency Act, as part of considering whether this right of appeal could be assigned to the respondents in that case. The Judge concluded, at [26] to [31], that it was not.

106. The Judge stated at [14] that "[t]here is an interesting debate within the authorities as to whether in personal bankruptcies the reason why the bankrupt loses standing to prosecute an appeal is because the right to appeal is a property right that has vested in the trustee or whether it is simply an incident of the fact of bankruptcy". He went on, having received detailed submission from the parties, to set out the authorities that he considered bore on the point.

107. As part of his reasoning, he concluded at [30] that Hoffmann LJ in Heath was not deciding that the right to appeal was a property right that vested in the trustee as part of the bankrupt's estate, and concluded at [31] that:

"All this leads me to conclude that a bare right to appeal is not property within the meaning of s.436 of the IA. A right of appeal available to a bankrupt is one that the bankrupt loses locus to bring or maintain once he or she is adjudicated bankrupt because the only assets out of which the underlying liability can be met have vested in the trustee and not because the right is a chose that vests in the trustee. The trustee has a statutory right (but not the obligation) to exercise any right of appeal that the bankrupt might have had as and from the moment at which the bankrupt is made the subject of a bankruptcy order. Similarly a right to appeal available to a company in liquidation can only be exercised by the office holder once appointed because he she or they then become the only agents of the company entitled to do so. Again however that is not the result of the right to appeal being treated as a property interest."

108. In GP Aviation, the situation before the Judge was one where the company had been seeking to dispute through its appeal that it owed a tax liability. I consider that it is important to read the judgment in that context, because as [counsel for the demander/creditor] pointed out, in many cases rights of appeal have been treated as property forming part of the bankrupt's estate.

109. The Judge concludes in [31], referring to what the situation would have been had the case concerned an individual rather than a company, that the reason the trustee in bankruptcy is the party that must bring such an appeal is because the assets out of which the tax liability can be met are now vested in the trustee in bankruptcy, so the bankrupt no longer has locus to bring the appeal.

110. In GP Aviation, it was necessary for the Judge to form a view on the precise reason why, and process through which, a bankrupt lost on bankruptcy the standing to exercise a bare right of appeal of the type before the Judge, and therefore whether it was property was the purposes of the 1986 Act that was capable of assignment. The Judge was not concerned with the question of the circumstances in which the trustee in bankruptcy did and did not have a right to appeal. Our case is concerned with this latter issue. Therefore, in my judgment, the case does not assist in relation to the issue before me.'

The deputy High Court Judge then set out what he drew from this case-law, on his 'bankrupt as defendant' section, in paragraph 111:

'I draw from the case-law in this section on the bankrupt as defendant the following points:

(1) A bankrupt who is a defendant will normally not have standing to bring an appeal.

(2) However, there are cases where the bankrupt can appeal an order against him.

(3) The latter group of cases is not limited to cases concerned solely with his body, mind or character.

(4) One way of characterising the latter group of cases is as those concerning something personal to the bankrupt. Sands, for example, was a case concerning the status of the bankrupt.

(5) However, as in cases where the bankrupt is claimant, there is no more specific bright-line rule than that for determining in marginal cases whether the matter should be regarded as personal to the bankrupt or not.

(6) Some of the factors relied on in the cases to determine whether the matter should be regarded as personal to the bankrupt are:

(a) whether the bankrupt's status is at issue: Sands;

(b) what common sense and fairness dictates: Sands;

(c) whether it is natural to regard the action as vesting in the trustee in bankruptcy and for the trustee rather than the bankrupt to continue the litigation: Sands;

(d) whether the judgment in the litigation is or would be enforceable against the estate of the bankrupt (as where it will result in a provable debt or a proprietary claim against assets held by the trustee in bankruptcy) or not (as in the case of an injunction to restrain the bankrupt from taking particular steps): Heath;

(e) tied to that, whether there are other routes by which the litigation can or could have been dealt with, such as (i) the bankrupt seeking to invoke section 303 of the 1986 Act or (ii) the bankrupt persuading the Court not to make a bankruptcy order in the first place and therefore the defendant continuing the substantive litigation in the ordinary way: Heath;

(f) the breadth of the concept of the bankrupt's estate, and the public interest that lies behind this: Heath.'

A important dividing line for 'bankrupt as defendant' is: 'whether the litigation or aspect of it can be regarded as something personal to the bankrupt' (paragraph 82), rather than 'relating to his property' (paragraph 90)




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