Framed By The Frogs

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It didn’t take long for the Revenge of the Whinger.  The Civil Procedure Rules, basically the terms of engagement which govern how the opposing parties should conduct themselves in a civil court case, have some quirky features.  As a novice I wasn’t exactly up on all the processes and procedures or the nuances of interpretation that legal eagles have from going about their daily business.


So I arrived for the case management conference in front of Master Foster of the Queen’s Bench Division of the High Court with some trepidation.  I hadn’t got a clue what I was supposed to do, but fortunately protocol demanded that Andrew Bruce, the barrister acting for Renault, was required to take the lead, as it was his client making the Claim.


The meeting was basically to agree upon a timetable for settling the Claim, including dealing with the minutiae of things such as deadlines for document disclosure, witness statements, and most importantly, the Trial ‘window’.


Because it isn’t always possible to forecast the length of a Trial, the Court system allocates cases to fortnightly ‘windows’ during which they will be expected to start.  Precisely when the Trial will start within the allocated window will depend upon things such as how long the Trial is expected to last, the number of other cases allocated to the window and whether any Trials from the previous window have overrun. 


So we went through the protocols and, based upon the extent of the evidence, the number of witnesses expected on each side and the backlog of cases in the Queen’s Bench Division of the High Court where the case would be heard, we came up with a Trial window nine months away.


Nine bloody months.  Sarah Walker at Bird & Bird had warned me that it could take up to a year for the case to come to Trial, but I had thought that she was exaggerating.  I wanted the case over and done with quickly.  The Claim had put me into limbo from a business perspective, and with no income but all of the household expenses of a home for five in West London I was living out of my share of the remaining equity from the sale of our house, which wouldn’t last forever.  And with the Trial set for nine months hence it wouldn’t get any better soon.


After the Hearing I had a short conversation with Andrew Bruce and then, resigned to a long campaign, I trudged home and waited for Renault to make its first move since the departure of my lawyers and the drubbing Renault got over the web site hacking debacle.  And it didn’t take long for them to get started.


Either side in a legal case can ask the other side to divulge additional information related to whatever the other party has set out in the Claim or Defence documents.  The request is in a form which looks very similar to a Court Order and that’s because, if you don’t comply with the request, the other Party can go to Court and ask for an Order for you to provide the requested information.


Two days after the case management meeting with Master Foster an e-mail arrived from solicitor Paul Kite at IBB Law with a formal request for further information on the key events outlined in the Defence papers.  In the Defence document I had referred to the telephone conversation that took place with Renault's Toby Johnstone when he first suggested that the BALPA account should be used to sell cars to people who weren’t BALPA members.


Showing that Toby Johnstone had initiated the proposal was a fundamental part of my Defence and if it didn’t stand up to scrutiny then my credibility before the Court would wear thin quite quickly.


In a similar vein, I had been to a Christmas Lunch in 2005 with Toby, his boss Pam Hillman and the rest of the corporate sales team from Renault Croydon.  It was held at a swanky West End hotel in London .  After the lunch I sat with Toby and one of his colleagues, Keith Hayles, and we had openly discussed what was really happening with the BALPA account.  All of this went into the Defence papers because it showed just how widespread was the knowledge at Renault Croydon about what was happening and it demonstrated that I hadn’t sought to hide anything from them.


But rather than wait until the Trial, solicitor Paul Kite of IBB Law was wasting no time at all in setting out what Renault's case strategy would be.  Because it was my word against Toby’s and Keith’s on these matters, they wanted to test every angle of my version of events for a weakness that would undermine that fundamental issue of who started off the BALPA Affair and who knew about it.  So Paul Kite asked for the precise words spoken in that telephone conversation with Toby and at the lunch table with Keith.  The precise words that I would therefore be relying upon at the Trial in representing my case.  Not just a summary, but the ‘precise words’.


Now I’m tempted to say how crass a move that was so far in advance of the Trial.  In fact, there, I’ve gone and done it anyway.  So I’ll say it again.  It was a crass move on the part of IBB Law to make such a strategic request so far in advance of the Trial.


If the matter had been left until the Trial and Renault’s barrister Andrew Bruce had then said to me as one of his opening cross-examination questions ‘Well Mr Thoms, that must have been quite a momentous conversation when Toby Johnstone said that you could use the BALPA account to sell cars to anyone.’ I would have had to agree with him.


And if Andrew Bruce had then said to me ‘So Mr Thoms, as this conversation was so momentous, your memory of it must be quite vivid, and therefore perhaps you would like to tell the Court just what exactly it was that Mr Johnstone said to you?’ well, I would have been stuck for a proper reply.


And if Andrew Bruce had then followed up with ‘So what were Mr Johnstone’s exact words?  Would you repeat them for the benefit of the Court please Mr Thoms?’ I would have been stuffed.  Because, bloody hell, can you remember the exact words used in conversations you had two years ago?  Even momentous ones like that?


‘Erm, er, er’ would have been the best I would have managed for an on-the-spot response, and that would have been the first nail in the coffin of my credibility as a witness and of my Defence.


But now I had a chance to think back about the conversation.  And I simply told the truth.  I replied to IBB Law’s enquiries by saying that didn’t have a verbatim record of what was said in the telephone conversation or at the Christmas Lunch, as I had probably had over 200 conversations with Toby Johnstone and Keith Hayles over the course of the year in which I did business with Renault Croydon.  What I didn’t say was that I could probably remember the gist of everything discussed in that conversation, which is what was recounted in the paragraphs earlier in this book.


And because of this strategic error by Paul Kite at IBB Law I was now on guard.  I knew that when the Trial came I would be tested on my precise recollection of everything.  Any slip up in my memory would be pounced on.  Any error, contradiction or lapse of memory would be prodded and poked to see what else it exposed.


And whilst I believed that there was nothing to be exposed, I also knew that the first thing you do when you want to put someone on the back foot is to give them something to deny.  Even if you know they haven’t got anything to deny.  You make up an accusation and then you sit back and watch what how they handle it.  Is the accused confident in their reply?  Is their response robust and solid?  Or do they look uncomfortable, do they wriggle (physically or verbally), are they indignant and therefore prone to losing control?  Remember that 1970s Police interview technique I used on the accountants?


What this all meant to me was that, by the time we got to the Trial, I would need to be carrying in my mind an encyclopaedia of exactly what had happened in the BALPA affair and that I would have to remain calm, whatever question was thrown at me, whilst I mentally looked up in that encyclopaedia the answer to each question asked.  Then in my reply I would have to stick to the facts that I had recalled and avoid speculation.  Don’t expand on answers until asked to and even then only answer the precise question asked.  And then, finally, under no circumstances make anything up to answer an awkward question or get out of a difficult position.


But there was nothing wrong with answering a question with a question.  And having already discomforted Steve Wilson with the computer hacking enquiry and his part in it, it was now time to go to work on the motives of Toby Johnstone and Carolyn Sample for allowing the cars to be sold under the BALPA account.


So as soon as I received the request for information from Paul Kite I sent a request of my own to IBB Law.  I asked for Renault to provide details of the bonuses earned by Toby Johnstone and Carolyn Sample or anyone else at Renault or Renault Croydon from selling the cars ordered through the BALPA account, and I also asked whether or not bonuses had been recovered from anyone in the light of the accusations made about the account.  And for good measure, I also asked which of the witnesses that Renault would rely upon at the Trial had been involved in hacking into the web site from which cars had been sold to brokers.


And that lot went down like a turd in a public swimming pool.  I answered Renault’s request for information politely and on time.  I even suggested to Paul Kite at IBB Law that we should in future correspond on first name terms, as we would no doubt be corresponding a great deal with each other for some foreseeable time yet. 


But IBB Law instead refused point blank to answer the questions and Paul Kite actually accused me of trying to intimidate Renault’s witnesses.   


Who? Me?  Intimidating witnesses?  Well, Hell yes, of course I was being intimidating, if that’s what you call seeking to clarify just which of Renault’s employees had a vested interest in me being fitted up for fraud.  And especially if my being found a fraud might undermine a Court’s opinion of my evidence against the hackers in any eventual criminal proceedings.


And so I just couldn’t let pass the refusal to provide the information.  I filed an application with the Court for an Order that Renault divulge the information and a whole lot more, then I left it on the back burner whilst I got on with my destabilisation plan.  Next stage, the Claim.

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