THE EASTERN CARIBBEAN SUPREME COURT
SAINT KITTS AND NEVIS
THE HIGH COURT OF JUSTICE
CLAIM NO. SKBHCV2012/0212
SOCIAL SECURITY BOARD
CLICO INTERNATIONAL INSURANCE LIMITED
(Under Judicial Management)
Mr. Anthony Astaphan SC and with him Mr. Sylvester Anthony and Ms. Angelina Gracey Sookoo
for the Applicant/Intended Claimant
Mr. Glenford Hamilton for the Respondent/Intended Defendant
2012: June 29
2012: December 12
 THOMAS J (Ag): On 5
June 2012 the Social Security Board, a statutory corporation
, by way of
an application sought leave to commence action against the respondent for specific performance
by and/or damages.
 In the grounds upon which the applicant relies a written contract for the sale of certain lands situate
at Douglas Estate, comprising 40.19 acres is pleaded, which was entered into between the
applicant and the respondent. The agreement aforesaid is dated 2
July 2010 which is prior to the
date on which the respondent was brought under judicial management.
Established by the Social Security Act, Cap. 22.10, Revised Laws of Saint Christopher and Nevis 2
 The circumstances that developed after the agreement are outlined in the grounds as well as the
applicant’s intention to seek the specific performance of the said written contract, and/or in the
 Further reliance is placed on the following paragraphs:
“4. By virtue of section 62(4) of the Insurance Act No. 8 of 2009 all actions and other
processes against a registered insurance company placed under judicial management by
order of the Court are stayed and shall not be proceeded with without the prior leave of the
5. The Respondent was placed under Judicial Management by Order of this Honourable
Court dated the 29
April 2011 whereby Omax Gardener, Accountant and Partner of
Pannel Kerr Foster (PKF), St. Kitts and Nevis was appointed Judicial Manager of the
6. Also by virtue of the said Order of the Court the Judicial Manager is authorized to
terminate, complete or perfect any contracts or transactions relating to the business of the
Affidavit in Support
 In an affidavit in support of the said application, Sephlin Lawrence, a director of the applicant,
deposes as to the circumstances leading the agreement
July 2010 between the applicant
(Social Security Board) and the respondent (CLICO International Life Insurance); the efforts at
closing the said transaction with the applicant being at all material times ready and willing to fulfill
all its obligations under the said agreement.
 At paragraph 10 of the said affidavit the following is deposed:
“10. As a consequence of the failure and refusal of the respondent to complete the said
Agreement the Applicant has given instructions to commence an action to seek an order
for the specific performance of the said written contract and/or in the alternative, damages
for breach of contract”.
 The affidavit makes reference to section 62(4) of the Insurance Act, No. 8 of 2009 and his advice
thereon, which he verily believes to be true, that all actions and other processes against a
registered insurance company placed under judicial management by order of the court are stayed
and shall not be proceeded with without prior leave of the court.
According to Sephlin Lawrence the Agreement between the Social Security Board and Clico International Life Insurance
Limited for the sale and purchase of certain lands situate at Douglas Estate of which Clico International Life Insurance Limited is
the registered proprietor. 3
 Finally, it is further deposed by the affiant that he is advised and verily believes to be true that
leave of this Honourable Court is required before this action can be commenced.
Affidavit in Opposition
 The affidavit in opposition is that of Omax Gardner, Judicial Manager for CLICO International Life
 The deponent refers to the Agreement of 2
July 2012 between CLICO and the Social Security
Board and contends that if the Agreement is enforced it would be detrimental to the interest of the
policy holders. He deposes further that he has made application to the court as part of his report
that the agreement be cancelled either unconditionally or subject to such consideration as the court
may deem necessary.
 At paragraphs 6 and 7 of his said affidavit the affiant outlines the manner in which he has
conducted the management of CLICO being with “the greatest economy compatible with efficiency”
in the interest of the policy holders and creditors with the insurance company.
 At paragraph 8 of his said affidavit, Omax Gardner says that the Social Security Board was one of
several ordinary creditors of CLICO with a balance of approximately EC$6.6 million. This sum is
broken down further in terms of contracts of investment and the financial implications for CLICO.
 The affidavit ends in this way:
“14. It is my view that to dispose of the most valuable asset of CLICO which is valued at
EC$18.5 million for EC$11.5 million and especially in a situation that would yield only
EC$4.9 million to the fund would be highly detrimental to the interest of the policy holders
and the other creditors.
15. The Social Security as a creditor ought to stand in the same position as other creditors,
which is behind the policy holders”.
1. Whether the application made by the applicant can only be made under section 5(1)(b) of
the Act 4
2. Whether on the interpretation of section 62(4) of the Act leave of the court is required to
commence an action for specific performance and/or damages against CLICO.
3. Whether the court should grant Social Security Board leave to institute proceedings for specific
performance with respect to the agreement of 2
 The issues that arise for determination point substantially to statutory interpretation which in turn is
subset of the statutory scheme.
 The long title to the Insurance Act, 2009 says that it is an act to make provision for regulation the
carrying on of insurance business and regulating the operation of Pension Fund Plan and for
related matters. The Act seeks to be comprehensive in its application and there are five
circumstances or situations in which it applies. Included are: (a) all local insurance companies and
(b) all other insurance companies whether or not incorporated in Saint Christopher and Nevis,
which carry on any class of insurance business in Saint Christopher and Nevis.
 In particular sections 61 to 77 of the Act deal with judicial management and winding up and the
court and the Registrar of Insurance are given specific duties and powers which must be seen in
the context of the legislative scheme.
ISSUE NO. 1
Whether the application made by the applicant can only be made under section 5
(1)(b) of the
 Section 65 of the Act bears the rubric: “Decision of the Court on Report of Judicial Manager” and
subsection (1) thereto reads thus:
“(1) The court shall on the hearing of an application under section 64(2) –
(a) After hearing the Registrar, the Judicial Manager, and any other person who in the
opinion of the Court ought properly to be heard; and
The Court considers that the reference in section 55(1)(b) at paragraph 5 of the heading “Arguments and Submissions” to be
typographical as section 55 deals with “Power to request information”. And section 65(1)(b) appears to the Court to be the
reference intended. 5
(b) After considering the report of the Judicial Manager;
make an order giving effect to the action which it considers in the circumstances to be
most advantageous to the general interest of the policyholder of the registered company”.
 In turn section 64(2) of the Act provides that: “The Judicial Manager shall, as soon as he or she
has filed the report; furnish a copy of it to the Registrar and make a written application to the court
for an order to give effect to the court of action stated in the report”.
 Also relevant is section 62(4) of the Act. It provides that: “Where an application is made under this
section for an order in respect of a registered insurance company all actions and the executions of
all writs, summonses and other processes against the insurance company shall by virtue of this
section be stayed and shall not be proceeded with, without the prior leave of the court unless the
court directs otherwise”.
 It is submitted by learned counsel for the respondent that “[T]he only way this applicant can be
before the court at this time is pursuant to the provisions of section 65(1)(b), and for the reason it is
further submitted that the matter ought to be dismissed as being misconceived”.
 The court interprets “at this time” to be a reference to the circumstance, as here, where an
insurance company is under judicial management.
 Section 65(1)(b) is linked to section 64(2) which contemplates an application being made by the
Judicial Manager after he has filed “the report”. And section 65(1)(b) simply empowers the court to
make an order based on certain criteria as prescribed. The submission therefore begs the
question whether a section 64(2) application is the only one that can be made at this time.
 The applicant has not made any submission on the issue but, as noted before, an application has
been made, in effect, under section 62(4) of the Act. This section is to be considered further in
light of court actions taken in other jurisdictions under similar legislation.
 The court has already referred to sections 61 to 77 of the Act and the clear legislative purpose and
in light of the respondent’s submissions on the issue the court considers that it would be repugnant 6
to the scheme of the legislation of the judicial manager is to be the only person who is legally
empowered to make an application having regard especially to the concluding words of section
65(1) being ‘most advantageous to the general interest of the policyholders of the registered
 A further point is that under section 62, which deals with application for judicial management,
contemplates application being made by the Registrar, a registered insurance company and other
persons making application in this context.
 The submission on behalf of the respondent speaks of the application before the court being
misconceived, but the court takes the view that this submission goes to merits. But outside of that,
the conclusion of the court is that other applications may be made outside of section 65(1)(b) of the
ISSUE NO. 2
Whether on the interpretation of section 62(4) of the Act leave of the court is required to commence
an action for specific performance and/or damages against CLICO
 The following submissions were tendered on behalf of the applicant:
“36. Social Security submits that notwithstanding no express reference in section 62(4) on
whether leave was required for new actions, writs etc, the said subsection has to be
interpreted purposively to include new actions, writs etc, in order to avoid absurdity,
repugnancy or injustice which Parliament could not have intended.
40. The literal meaning of the subsection (and as advocated by CLICO is) suggests that only
existing matters out the time the judicial manager is appointed will be stayed and required
leave to proceed. This means that new actions could therefore commence and proceed
without leave. This literal interpretation creates the absurdity that existing litigants against
CLICO need leave to proceed with their actions, but a new litigant can file an action and
have it adjudicated without leave. Such an interpretation amounts at the very least to an
injustice to existing litigants and the estate because this interpretation removes the
required protection of leave. 7
Submissions on behalf of the respondent
 The basic submission on behalf of the respondent is in these terms:
“[T]here is no basis upon which the Court can entertain this application for leave at this
time. The subsection speaks entirely to matters which were in existence at the time of the
application was made. The action before the Court was not in existence at the time was
made and so it does not meet the requirements of the subsection, as the subsection does
The matter of interpretation
 It is common ground that the fulcrum of this issue rests in section 62(4) of the Act. And in essence
the applicant is saying that for its purposes leave of the court is required while the respondent is
saying that the court has no jurisdiction having regard to the history of the matter.
 Although the section has already been set out, it is prudent to do so again. The section reads thus:
“4. Where an application is made under this section for an order in respect of a registered
insurance company, all actions and the execution of all writs, summonses and other
processes against and other processed against the registered insurance company shall,
by virtue of this section, be stayed and shall not be proceeded with, without prior leave of
the court unless the court directs otherwise”.
 The matter of interpretation arises because of the position taken by the parties on the import of the
said section 62(4) of the Act.
 Many authorities were cited to the court on the matter of interpretation. In this regard the court
considers that the dictum of Madam Justice Hariprashad-Charles in Bebo Investments Limited v
The Financial Secretary
sets the pace. These are her considerations in this regard:
“It appears that the Court would only look to the rules of statutory interpretation when it is
demonstrated that the anomalies are such that they produce absurdly or injustice which
Parliament could not have intended or destroy the remedy established by Parliament to
deal with the mischief which the Act is designed to combat. It is not enough that the words
through clear lead to a manifest injustice”.
 Also in Universal Caribbean Establishment v James Harrison5
the dictum of Byron CJ, in this
regard is similar:
Claim No. BVIHC2007/0151 8
“The dominant purpose in construing a statute is to ascertain the intention of the legislature
as expressed in the statute considering it as a whole and in its context. It is only where the
words of the statute are not clear and unambiguous that it is necessary to enlist aid for
 In its plain reading section 62(4) of the Act appears to apply solely to matters in train prior to the
advent of the judicial manager. In this way since there is no prohibition against application
subsequent to the appointment of the judicial manager and as such the matter of leave cannot
arise. Herein arises the real distinction between the parties before the court.
 The case of Registrar of Insurance v British American Insurance Ltd (Under Judicial
Management) was concerned with the said section 62(4) of the Act of Saint Christopher and Nevis.
It concerned whether intervening applicants were entitled to have default judgment against the
respondent. In the end the default judgments were permitted, but there is an important
distinguishing fact which is that the intervening applicants filed their actions prior to the insurance
company was placed under judicial management and as such was stayed and hence leave was
necessary to proceed.
 His Lordship Mr. Justice Belle noted, however, that “the policy of the Act is that at this time the
insurance company is permitted to take these steps to protect itself, policyholders and other
customers of the insurance company. The stay provides a certain kind of protection”.
 So for Justice Belle, the essence of the stay is protection of the insurance company. He did not
have to deal with an application subsequent to the judicial manager’s appointment.
 Such an issue arose in Renee Cenac v British American Insurance Limited7
. This is a case
grounded in Saint Lucia and which has legislation governing insurance companies that is similar in
its terms. In fact section 40(4) of the Insurance Act is identical terms to section 62(4).
 In delivering her decision the learned trial judge Madam Justice Rosalyn E Wilkinson said that “the
Act is silent on the considerations for an application as that of the Claimant…”. She went on to be
“guided by the consideration set out in (1) Fashoof UK Limited t/a Michino (2) Forall Confeziori
Civil Appeal No 21/1993 (Antigua & Barbuda)
See also: Savarin v John Williams  51 WIR 75
Claim No SLUHCV2010/0180 9
SPA v (1) Martin Henry Linton, (2) Baron Jon Menswear Ltd
where the court adopted the
considerations set out in Re: Computer Systems
. In this latter case Nicholls LJ in making some
general observations regarding case where leave is sought to exercise existing proprietary rights,
including security rights against a company in administration said, in part, as follows:
“(1) It is in every case for the person who seeks leave to make out a case for him to be given
(2) The prohibition in section 11(3)(c) and (d) is intended to assist the company, under the
management of the administrator, to achieve the purpose for which the administration
order was made, if granting leave to a lessor of land or the hirer of goods (a ‘lessor’) to
exercise his proprietary rights and repossess his land or goods is unlikely to impeded the
achievement of that purpose, leave should normally be given.
(3) In other cases when a lessor seeks possession the court has to carry out a balancing
exercise, balancing the legitimate interests of the lessor and the legitimate interests of the
other creditors of the company: see per Peter Gibson J. in Royal Trust Bank v Buchler
 B.C.L.C. 130, 135. The metaphor employed here, for want of a better, is that of
scales and weights. Lord Wilberforce adverted to the limitations of this metaphor in
Science Research Council v Nassé  A.C. 1028, 1067.
(4) In carrying out the balancing exercise great importance, or weight, is normally to be given
to the proprietary interests of the lessor. Sir Nicolas Browne-Wilkinson V.-C. observed in
Bristol Airport Plc v Powdrill  Ch. 744, 767D-E that, so far as possible, the
administration procedure should not be used to prejudice those who were secured
creditors when the administration order was made in lieu of a winding up order.
(5) Thus it will normally be a sufficient ground for the grant of leave if significant loss would be
caused to the lessor by a refusal. For this purpose loss comprises any kind of financial
loss, direct or indirect, including loss by reason of delay, and may extend to loss which is
not financial. But is substantially greater loss would be caused to other by the grant of
leave, or loss which is out of all proportion to the benefit which leave would confer on the
lessor that may outweigh the loss to the lessor caused by a refusal. Our formulation was
criticized in the course of the argument, and we certainly do not claim for it the status of a
rule in those terms. At present we say that it appears to us the nearest we can get to a
formulation of what Parliament had in mind.
(6) In assessing these respective losses the court will have regard to matters such as: the
financial position of the company, its ability to pay the rental arrears and the continuing
rentals, the administrator’s proposals, the period for which the administration order has
already been in force and is expected to remain in force, the effect on the administration is
leave were given, the effect on the applicant is leave were refused, the end result sought
to be achieved by the administration, the prospects of the result being achieved, and the
history of the administration so far.
(7) In considering these matters it will often be necessary to assess how probable the
suggested consequences are. Thus is loss to the applicant is virtually certain is leave is
refused, and loss to others a remote possibility if leave is granted, that will be a powerful
factor is favour of granting leave.
 EWHC 537 at para 77
 Ch 505, 542-544 10
(8) This is not an exhaustive list. For example, the conduct of the parties may also be a
material consideration in a particular case, as it was in Bristol Airport case. There leave
was refused on the ground that the applicant had accepted benefits under the
administration, and had only sought to enforce their security at a later state: indeed, they
had only acquired their security as a result of the operations of the administrators. It
behoves a lessor to make his position clear to the administrator at the outset of the
administration and, if it should become necessary, to apply to the court promptly.
(9) The above considerations may be relevant not only to the decision whether leave should
be granted or refused, but also to a decision to impose terms if leave is granted.
(11) The above observations are directed at a case such as the present where a lessor of land
or the owner of goods is seeking to repossess his land or goods because of non-payment
of rentals. A broadly similar approach will be applicable on many applications to enforce a
security: for instance, an application by a mortgage for possession of land. On such
applications an important consideration will often be whether the applicant is fully secured.
If he is, delay in enforcement is likely to be less prejudicial than in cases where his security
(12) In some cases there will be a dispute over the existence, validity or nature of the security
which the applicant is seeking leave to enforce. It is not for the court on the leave
application to seek to adjudicate upon that issue, unless (as in the present case, on the
fixed or floating charge point) the issue raises a short point of law which is convenient to
determine without further ado. Otherwise the court needs to be satisfied only that the
applicant has a serious arguable case”.
 There are several observations to be made regarding Lord Justice Nicholls’ dictum. These include:
the fact that specific English legislation is in issue; the requirement that the applicant should make
out the case; circumstances of; significant loss and the grant of leave; probable consequences of
the refusal of leave; the imposition terms, and the limits of the court in adjudicating on the
 Some of these observations are relevant in this context and will be examined later in relation to
Issue No. 3.
 In the end Madam Justice Rosalyn E. Wilkinson ruled in relation to section 40(4) of the Saint Lucia
analogue as follows:
“I disagree with counsel for the Defendant that section 40(4) is not applicable to the
application by the Claimant. The order made on 11
December 2009, specifically states
that the management of the Defendant continues to be vested in the judicial manager. If it
were not vested in the judicial manager pursuant to section 40 then the Claimant need not
seek leave of the court since the Act is silent as to what happens with an application such
as the Claimant’s when control is in the court”. 11
 The short point regarding Madam Justice Rosalyn E. Wilkinson’s ruling is that section 40(4)
extends to actions that were not in existence before the appointment of the judicial manager. This
Court accepts and wishes to add further reasoning to the issue is terms of the matter of
 To begin with, the comprehensive nature of the legislative scheme has been noted in terms of the
regulation of insurance companies so that in this context the question must be whether Parliament
intended actions arising after the appointment of the judicial manager to be proceed without leave
of the court. The applicant characterizes this as an injustice. This in turn raises the method by
which the intention of Parliament is determined or ascertained by the court.
 Mention has already been made of the dictum of Madam Justice Hariprashad-Charles to the effect
that the court would look at rules of statutory interpretation if there arises an absurdity or injustice.
On the other hand in Pepper v Hart
Lord Griffiths speaking on the issue in the House of Lords
“The days have long passed when the courts adopted a strict constructionist view of
interpretations which required them to adopt the literal meaning of language. The courts
now adopt a purposive approach which seeks to give effect to the true purpose of
 There can be no doubt that the true purpose of the legislation is to regulate insurance companies
and for related matters. This is stated in the long title. And in relation to section 62(4) of the said
Act the court cannot accept the anomaly or injustice advanced by the respondent that only existing
actions require leave of the court proceed. On the contrary, as submitted by the applicant the
section is part of the regulatory power given to the court to protect insurance companies against
claims that would impeded the purpose for which the administrative order for judicial management
was made. Indeed, the filing of unrestricted actions has the potential to defeat the whole purpose
of an insurance company being in administration or judicial management. It is considered that
Parliament could not have intended such a result.
 It is therefore the conclusion of the court that section 62(4) of the Act must be interpreted
purposively to mean that for actions in existence prior to the appointment of the judicial manager
leave of the court is required and such leave is also required with respect to purposed actions as to
 1 All ER 42, 50 12
say otherwise would be repugnant to the comprehensive scheme of the legislation to regulate
insurance companies of all types or categories and all persons connected therewith, at all times.
ISSUE NO. 3
Whether leave should be granted to the Social Security Board
 In his affidavit in opposition, the judicial manager deposes in part as follows:
“3. I have reviewed the agreement of 2
July 2010 between CLICO and the Social Security
Board and taken advice thereon.
4. I am of the view that this agreement if enforced, would be detrimental to the interest of the
5. I have already made application to the court as part of my report asking that this said
agreement be cancelled either unconditionally or subject to such consideration as the court
may deem necessary”.
 Further in a letter dated 6
May, 2011 from counsel for CLICO to Mr. Sylvester Anthony, counsel
for the applicant, the following is stated:
“My client instructs that it is now under judicial management and that the Judicial
have requested a maximum of a week to apprise themselves of the
transaction before giving final approval”.
 It is a condition precedent to the grant of leave that the agreement identified should exist. The
court has no doubt in this regard in the view of the judicial manager’s affidavit in opposition, the
letter from counsel for CLICO and the judicial manager’s report.
 One of the considerations advanced by Lord Justice Nicholls in Re Atlantic Computer Systems
Plc for the grant of leave is whether the applicant has made out its case.
 In this regard the following is reproduced from the submissions on behalf of the applicant:
“60. There is a validly constituted legal agreement between Social Security Board and CLICO
for the purchase of Douglas Estate for the contract price of $11.5 million. Time was made
the essence of this agreement. Social Security Board was at all material times ready and
willing and able to complete the sales agreement. CLICO has at all material times delayed
and/or failed to complete the sales agreement, while continuously assuring Social Security
Board that they intended to complete the agreement.
61. On or about February 23, 2010 the Judicial Manager indicated to counsel for the Social
Security Board that he was in the process of completing the report for the court and
intended to seek the court’s permission to complete the transaction between CLICO and
Social Security Board contrary to the Judicial Manager’s assertion that enforcement of the
said agreement will be detrimental to policyholders and creditors.
62. We submit based on the facts in this case there is at the very least, an arguable case for
specific performance of the said agreement. In the case of Elise Meyer v Shoal Bay
Development Corporation at paragraph 123 the court citing Chitty stated that
‘[T]he term specific performance ‘specific performance’ refers to the remedy
available to equity to compel a person actually to perform a contractual obligation
where a person has under a contract become liable to pay a fixed sum of money,
the actual performance of that obligation can be enforced by bringing an action for
We submit that based on the action if CLICO, equity favours the granting of specific
performance of the said agreement of sale between the parties. Indeed, the Judicial
Manager has not provided the court with any probative evidence of prejudice to the
 Lord Justice Nicholls has restated
the rule that at the stage of obtaining leave, the Court is not
concerned with merits, but rather with whether a prima facie case has been made out.
 In this connection the court considers the following: the date of the agreement, being 2
paragraph 8 of the agreement which states that “Time shall be the essence of the Agreement”; a
plethora of correspondence
between the parties seeking to have the agreement completed;
paragraph 3 of Omax Gardner’s affidavit in opposition, where he deposes that he has reviewed the
agreement of 2
July 2010 between CLICO and the Social Security Board and has taken advice
thereon; paragraph 4 of the Omax Gardner’s said affidavit where he further deposes that he is “of
the view that this agreement if enforced, would be detrimental to the interest of the policyholders”
 Another matter to be considered in this context is the conduct of the parties
. This may be
classified as understanding, patience and accommodation on the part of the applicant and a failure
to honour promises and undertakings as far as the respondent is concerned.
 The court considers that the applicant has made out its case; and matters examined above are
overwhelmingly in favour of the applicant’s case especially since the judicial manager has failed to
show the nature and extent to which the completion of the agreement will be detrimental to the
In Re Atlantic Computer Systems Plc at page 544
See Affidavit of Kerissa Cozier and the correspondence exhibited as KC1 to KC11.
Per Lord Justice Nicholls in Re Atlantic Computer Systems Plc, supra 14
policyholders. Nor did he depose as to who the advice taken by him came from and the nature of
 In all the circumstances the applicant is granted leave to bring an action for the specific
performance relating to the agreement of 2
IT IS HEREBY ORDERED AND DECLARED as follows:
1. An application for leave to institute proceedings against the respondent may be made outside
of section 65(1)(d) of the Insurance Act;
2. Section 62(4) of the Act must be interpreted purposively to mean that any proposed action
after the appointment of the judicial manager must seek leave of the court, as to say otherwise
would be repugnant to the comprehensive scheme of the Act as a whole which is aimed at
regulating insurance companies of all types or categories and all those connected therewith, at
3. Having regard to all the circumstances leave is granted to the applicant to institute an action for
specific performance with respect to the agreement of 2
4. The respondent must pay the applicant $3500.00 in costs.
Errol L Thomas
High Court Judge (Ag)
The Court wishes to tender a sincere apology for the tardiness of this decision. The reason for this
inordinate delay lies on the fact that all the submission were not received until 3
December 2012 when in
fact the order of the court was all submissions were to be filed on or before 23
The practice with respect to submissions filed as that they are brought to the judge shortly after filing. But
when this did not materialize and the court became concerned, as it was considered to be a matter of quasi 15
governance, and apart from enquiries made at the High Court, one attorney at the end of a Chamber
hearing was asked about submissions from his side. Learned counsel indicated that the submissions were
filed on 23
It is hoped that this apology will be accepted by all concerned in the spirit in which it is given and in the
context of the factual matrix detailed above.