- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - .... Members Of The Judiciary Take Very Unkindly To Being Misled ....
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -
Time flies, the saying goes. ‘Tempus
fugit’ in Latin. But not when you’re
facing a one million pound Court action it doesn’t. Everything
you do drags. All your research takes
ages no matter what short cuts you try to employ. Getting
responses out of the other party becomes a cat and mouse game of accusation and denial.
Advantage always lies with the party in denial, as they know what you want in order
to progress your case, they know they have what you want and, knowing that, they don’t
give it up easily and will play every trick in the book to try and prevent you getting
it. And that’s exactly how solicitor Paul
Kite of IBB Law played it. Denial.
IBB Law denied that documents I wanted existed, or denied that the documents were
relevant to the case and, either way, when I asked for them Paul
Kite would say I couldn’t have them. Never
mind Tempus Bloody Fugit, I felt like I could have become fluent in Latin in the time
it took to get things out of IBB Law. And usually
a rejection was framed in either sarcasm or a tone which indicated that Paul
Kite knew what he was doing and that I didn’t. So
much for civility in the Civil Procedure Rules.
But there are only so many times that you can ask for the same thing and get knocked
back by a denial and then you have to take action. In
this case it meant going to Court to get an Order for the papers to be released.
Remember the request I had made for information on just how much Renault Salesman Toby
Johnstone had earned in commission on the cars sold through the BALPA account? Well,
that was in January 2007, but by June I still hadn’t received the information, so
Renault's barrister Andrew Bruce of Serle Court Chambers
and I found ourselves back at the High Court again in front of Master Foster, who
had heard the initial case management conference.
There had already been a preliminary hearing about my information request in April
and Master Foster had made a preliminary ruling in favour of Renault. No
doubt buoyed by this, IBB Law had been blocking requests for other documents ever
since then, presumably in the expectation that I wouldn’t get the Court’s permission
for those documents either.
I had lost on the initial application because I hadn’t properly formed my request
in a way that demonstrated how the documents related to the case. No
doubt IBB Law expected that my lack of legal knowledge would prevent me getting my
hands on any more documents as well.
But Master Foster had also ruled that there should be a further Hearing on some additional
items that I had requested and this is how the second leg of the fixture commenced,
with barrister Andrew Bruce ahead 1-0 from the first
leg, playing on his home territory, backed by his knowledge of legal precedents and
carrying the White Book, the Bible of Court procedure, which I guess he had in any
case probably committed to memory by now, just in the way that I had once with the
learned tomes on tax law.
But whilst I did not know the legal basis for what I was requesting, I knew that in
terms of getting justice I had to have some of the material available to me to show
to the Court, because I wouldn’t be able to rely in Court on my ‘hearsay’ claims about
what was going on. I needed real proof.
So, in front of Master Foster, one by one barrister Andrew
Bruce and I went through a long list of material that I considered essential to
my Defence and one by one Andrew Bruce did what Renault were paying him to do as he
demolished my arguments with superior technical knowledge, just as I had probably
done years before with poor bloody taxpayers, though the boot was definitely on the
other foot now as, with each item, I
listened again and again to Andrew Bruce explaining
why I should be denied access to items on my list of documents. Somehow
I found myself sympathising with my old adversaries as a taxman. And
yet I still desperately needed some of the material on my list, plus something else.
You see, throughout the proceedings so far, Renault had hidden behind its lawyers
and, apart from the appearance of Simon Tippett, their lawyer Company Secretary, at
the first meeting at Renault’s HQ, nothing had been heard from Renault senior management
throughout the case.
It was as if they were deliberately trying to keep me away from the top people at
Renault, presumably in case I started asking embarrassing questions of them. I
hadn’t even been told who would be giving evidence for Renault at the Trial other
than Carolyn Sample, Steve
Wilson and Toby Johnstone, but I had already
guessed that none of the organ grinders would turn up, just the monkeys.
Anyway, in my frustration, no, exasperation on that day at being ground down point
by point by Andrew Bruce I stopped trying to win the
technical arguments and just started to concede points to get the whole thing over
with the minimum of damage to my position.
But then, out of the blue, Andrew Bruce committed a
silly faux pas which not only put him on the back foot, but it completely turned around
We had been arguing about a request by me for
the actual date upon which Renault had finally concluded that a fraud had taken place. It
was important to me, as it would set a date from which Renault should have ceased
all commercial dealings with me. In particular,
Renault should then have suspended immediately any outstanding deliveries of cars
to my customers, as Renault would by then have known that these customers were not
BALPA members and therefore couldn’t have been eligible for discounts under the BALPA
In fact, Renault delivered nearly 50 cars after
the tumultuous meetings in April at their HQ and only stopped the last five cars from
being delivered in the following June as a token gesture. I
guess they thought it was something that they could hold up in Court as proof that
Renault had taken some form of action against me to stop cars going out.
Now in response to my question about the date
that Renault had concluded fraud, Andrew Bruce said
to the Master that Renault’s conclusion had come about through an audit that the company
had performed on some of the end-customers who had actually bought the cars. In
this audit the customers had disclosed the names of some of the brokers to whom I
had sold the cars.
I already knew about the audit, details of it
had been disclosed as evidence in the papers filed into Court with the Claim. Presumably,
after the letters Sarah Walker at Bird & Bird had sent suggesting that Renault
ask Renault Croydon what had gone on, Renault had actually marched into the dealership
and taken away the delivery details of the customers and then telephoned a sample
of them to find out how they had bought the cars.
But this audit had not taken place until September,
just before the Court proceedings were commenced, and certainly it wasn’t the source
of the information leaked to Renault about the web site from which I was selling the
cars to brokers, as Steve Wilson had challenged me
about the web site back in April, long before the Court proceedings had been started.
Now it is procedure at Court to let a party
speak and then to respond to their points when they are finished, a perfectly common
sense approach and, if nothing else, the polite thing to do. I
had simply followed Mr Bruce’s lead in this. The
Master had been meticulous in allowing each side to put forward an argument and then
the other side to respond and to continue the process until either one side conceded
the point (which basically was me on that particular day) or the Master made a ruling
one way or the other (and usually the other way from my perspective, as I was just
losing point after point).
But this particular statement by Andrew
Bruce was outrageous, it was completely untrue, and in the heat of the moment
I considered it a blatant attempt to cover up just exactly when Renault knew for certain
what was happening with the BALPA account, but still continued to let me buy cars. I
couldn’t let it go by. I just butted
‘I’m sorry’ I blurted out ‘but Mr Bruce knows
very well that the audit didn’t take place until September, just before proceedings
commenced, yet IBB Law has told me in writing that the unauthorised web site
access that took place almost six months earlier happened because the employees involved
believed they were investigating a fraud, which means that the conclusion on fraud
couldn’t possibly have first come from the audit.’
Now members of the judiciary take very unkindly
to being misled, and whether Andrew Bruce’s response was just an error or
not, I will never know, and now that the heat of battle has died away, I will forever
give him the benefit of the doubt on that point; it could simply have been an honest
But for one brief moment a look of thunder crossed
Master Foster’s face and I’m so glad I wasn’t the one that caused it. Because
from then on, in the last closing stages of that Hearing, somehow I started winning
all the arguments. And for starters,
Renault would be ordered to declare the date from which they considered my actions
fraudulent. And therefore the date from
which they shouldn’t have released any more cars to me.
And then it came to a request from me for details
of anyone who had received a bonus at Renault which might have been based upon sales
from the BALPA account. I was after anything
that might point to senior management at Renault getting bonuses for sales or profits
derived from the cars that were sold though the account.
Despite his earlier faux pas, Andrew
Bruce was now indignant; it would require an extraordinary effort on the part
of his client to track down such detail and how could the Court expect to have to
deal with the minutiae of the contracts of employment of the senior directors of Renault
as a part of the case proceedings?
‘Master’ I responded ‘I have now seen the list
of witnesses for the Claimant and absolutely no one from senior management at Renault
is going to give evidence in this case, even though some of them may have benefited
financially from the sales under the BALPA account. Instead
they are just sending junior managers and I won’t get any chance to cross examine
the top people about how they might have benefited personally. None
of the proposed witnesses will have any knowledge of that kind of detail about their
There was a moment’s pause by the Master and
then, and I will swear this until the day I die, but I can never, ever, prove it,
a twinkle appeared in his eye as he looked at me and ruled that not only should Renault
provide the information on everyone who benefited financially from the cars sales,
but that the information should be provided in the form of a witness statement by
And now it was the turn of Andrew
Bruce to make a thunder face. With
his knowledge of Court procedures and his memorised White Book, he knew straightaway
just exactly what this meant. A moment
later I was up there with him. You see,
a Witness Statement has to be signed by the person making it, and once you have signed
a Witness Statement you can be cross-examined at the Trial on what you have said.
For a corporate legal entity such as Renault,
the Witness Statement would have to be signed by one of Renault’s company officers,
such as a director. And anyone signing
that Witness Statement could be cross-examined under oath at the Trial. Which
meant that in one move I had got both the Order I needed for the financial information
about staff bonuses and access to someone
from the top brass at Renault as a witness at the Trial itself.
Now I don’t know how Andrew
Bruce explained that one to Paul Kite at IBB Law,
or how he in turn explained my other wins of the day to Renault at the post-hearing
debriefing which I expect took place, but I’m glad I wasn’t the one trying to pass
it off as something minor, a trifling inconvenience perhaps in Renault’s overall strategy
for the case, because somehow I don’t think it would have gone down like that with
Renault senior management. No, not at
Whatever really were the circumstances surrounding Andrew
Bruce’s faux pas I will never know, but I reckon Mr Bruce had just paid the price
for what he had said.
Not only that, but once we got to Trial I would
have the opportunity to cross-examine under oath a senior member of Renault management
and mine a rich vein of information about what was going through the corporate mind
of Renault when it pulled the plug on the BALPA account and set out to sue me on its
trumped up fraud charge.
As I left the Court buildings and stepped out
into the early summer sunshine I contemplated just having poked in the eye both Renault
and its legal team in one go. Now Renault
knew that the Trial would be a street fight and not, as Renault had probably expected,
a judicial version of the trouser swiping event that it had staged at Renault HQ in
front of BALPA.
And so, with all the boxes now ticked on my
battle plan, I damn near skipped all the way home. Oh