Framed By The Frogs

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The success at the Hearing lifted my spirits from out of the doldrums created by my lack of headway on getting evidence out of Renault.  And to boost morale even higher, a totally unexpected piece of good news arrived, although it in a rather curious way.


I had a call from my accountant, who was in the middle of preparing the annual accounts for my company.  He was rather concerned about some items which he couldn’t resolve and needed to meet with me urgently so that the accounts could be finalised and filed at Companies House.


I was a bit perplexed about the call, as the company accounts were usually simple and straightforward; any queries were normally resolved quite easily by e-mail and certainly didn’t take much explanation at all.  So a meeting was out of the ordinary.


When I got together with my accountant there was quite a shock waiting.  A substantial hole had appeared in the company’s books.  A large gap between the money paid out of the company compared to the amounts covered by suppliers’ invoices.  So, my accountant asked, could I explain it to him please?  And since he had caught me on the hop, I couldn’t, which was not good.  Black hole, books not right, this smacked more of the Dopplegänger affair than the way I ran my own business.  What on earth could have happened?


So we sat and totted it all up and then looked at where the money had gone from the business.  Fortunately for me the company paid for everything by bank transfer, company credit card or cheque, which meant that there was an audit trail to be followed.  It was just that it led to a dead end for a large sum of money.  And then it struck me. 


Just as I had plonked a huge pile of mail to one side and only later discovered the article about the fate of Nick Thame and Martin Hillman at Renault, so I had put boxes of company materials into storage when I had been forced to sell our house.  I was probably too fed up to be bothered about the contents of the boxes at the time, but I had a hunch that the answer had to be in there.


And, sure enough, it was.  After driving over to the storage depot and spending the rest of the day sifting through boxes, I unearthed just what I had been looking for.  A bundle of company papers hastily shoved into a box at the last minute when the removal men were beckoning to close up the van.  At first sight the papers I unearthed looked just like any other paid-up suppliers’ invoices, but in fact they were more.  Much, much more.


Because the papers had been shoved to one side and not filed into the bookkeeping system that my accountants maintained, my company had never bothered to reclaim the VAT paid on the suppliers’ invoices.  It was a stupid mistake, but one for which I would be eternally grateful, as we weren’t talking about getting the VAT back on just a few packets of biros here.


With the VAT recoverable on those invoices and the money left from the sale of my house I could just about scrape together the funds to put up a proper legal Defence team for the Trial.  Yippee!


But as always with my Renault dilemma, there was a problem.  Not an itsy-bitsy one or a minor inconvenience, but a ‘Why do my gift horses always arrive with a pile of manure?’ type of problem.  You see, whilst there would be enough money for a legal team, we were talking about only enough money for one legal team.  And there were two Defendants in the case, my company and me.  So, one of us was not going to get a lawyer.


Now I know what you are thinking, and the same thought initially struck me.  Bugger the company, get the lawyers on my case ASAP.  If Renault succeeded with the Claim against the company the most that they could do was put it into liquidation.  And since the cupboard would be bare by the time the Liquidators got there, it wouldn’t exactly yield much for all Renault’s hard work.  But tough, I could always start up another company.


However, if Renault succeeded with the Claim against me personally then I was well and truly stuffed.  Bankruptcy and all the attendant financial mayhem associated with it would be inevitable.  So it seemed like a no-brainer.  Defend me and let the company fend for itself.


But then I thought about it a little bit more, and a bit more, and then a little bit more again.  And the more I thought about it, the more it made sense for me to do what probably no sane and rational person would do in the circumstances, and what Renault probably wouldn’t be expecting in any circumstances.  Defend the company, not me.


I must be mad.  I must be stark, staring, certifiably bonkers.


But the more I thought about it, the more it made sense to me.  Defend the company and stop the Claim in its tracks before it even got to me.  If I could persuade the Court that the claim failed against the company then it automatically failed against me as well.  And if I couldn’t prevent the Claim from succeeding against the company then Renault and its lawyers would still have to prove a secondary case against me, as all the transactions were undertaken in the company’s name, not mine, which I figured, rightly or wrongly, gave me a better chance of success.


And there was a further twist, as if there weren’t enough already.  Renault and its legal team had been quite canny with formulating the Claim.  They asked for damages equalling all the money that had been paid in discounts by Renault to its dealership, Renault Croydon, but if this wasn’t due then, alternatively, they asked for damages equal to any profits that my company had made on the deals when selling the cars on to the brokers.


It was kind of an insurance policy for Renault’s claim, a second bite at the cherry for Renault in case it succeeded in proving fraud but couldn’t persuade the Judge to award them all their money back for any reason.  An ‘account of profits’ is what they called it.  I called it something else entirely which is not fit to print.  But there was a major snag in it for Renault if they won and were only awarded an account of profits.


As it was my company that was making the profits, not me, such an account of profits could only be enforced against the company and could not be pursued against me personally.  Which meant that, technically, my company could actually lose the case, but I might be able to put up a sufficient defence that only an account of profits was awarded against the company.  In effect I would still have won because I personally would never have to pay any damages as I hadn’t made the profits, the company had.


It was a hairy technical point, but as I had spent most of my professional life in taxation arguing hairy technical points one way or another, it seemed to give me a better overall chance of winning if the VAT refund money went to fund the company’s defence rather than my own.


So, madness or not, that’s what I resolved to do. 


Blimey.  Who would have thought that?  Now I just had to find my company a legal team to spend the VAT refund on.


No insult to Sara Walker and the team at Bird & Bird, but I knew that I couldn’t afford to pay City lawyer’s rates again, so I trawled the Internet for lawyers claiming to be experts in defending fraud cases.  There was no shortage, but they all seemed to be City firms, no doubt their experience built on the back of defending Fat Cats from claims over the millions of pounds of hanky-panky that goes on in the financial markets.


I really needed a firm outside London , where the VAT rebate and my other limited resources wouldn’t be wiped out in the first month’s fees.  So I searched again and came up with a few names, but they were all criminal lawyers and I was defending a civil case.


And then I thought ‘Why not?’  So I picked one of the criminal defence specialists at random and phoned just to see if they could help.  They were in Brighton , which seemed just about far enough away to be sensible in terms of fees, but not too far away for us to get together for the inevitable round of briefings and case review meetings that would be required.  And I then got another of the lucky breaks that seemed to have started coming my way.


Although the firm I called didn’t deal with civil cases, one of the partners that I spoke to knew the Head of Commercial Litigation, Nick Taylor, in another firm of Brighton solicitors, Healys, and gave me his details.  I called Nick and, after introductions and an explanation of my dilemma, we arranged to meet to talk about what could be done.


It didn’t take long for Nick to put my version of reality into a proper perspective.  Since my company had no defence to the argument that it actually had bought cars through the BALPA account and sold them to people who weren’t BALPA members, and Renault’s people were hardly likely to confess all on the witness stand over the misleading allegations made about me, the likelihood of winning outright was remote.  My God, that was déjà vu.  I did wonder for a moment if Nick was in any way related to Sarah Walker at Bird & Bird.


But Nick reckoned that with the evidence I had unearthed recently there were points around the case which were winnable and which could be used to mitigate the impact if Renault did succeed with the Claim, perhaps even eliminating the real risk, which was to me personally.


So Nick set about reviewing all the papers that I had accumulated over the past year or so and then we met up again.  After I had gone through the entire story with him once more so that Nick could, I guess, test the reliability of my memory compared to what the documents had told him, he suggested that we go back to Laura John, the barrister who had drafted the company’s initial Defence document, to prepare for the Trial.


Nick had already checked on Laura’s availability (that’s what I call ‘anticipation’) and the only fly in the ointment was that the trial was, by then, just two months away and Laura was on holiday, which wouldn’t give us much time from when she returned until the start of the Trial window.  But at least her initial familiarity with the case would give her a head start over anyone else we might appoint to represent the company.


So all the case papers were bundled up and sent off for Laura to get back up to speed with what had been going on since she had signed off the original Defence document some nine months or more previously.


But we hadn’t banked on the jinx that always seemed to put a cloud around every silver lining I encountered.  As we moved into September and then September made stately progress towards October we still hadn’t heard back from Laura.  And then we found out why.


Due to a misunderstanding in Chambers (the fancy name for barristers’ offices), Laura was already involved in another case, didn’t know that the Trial was by now only four weeks away and wouldn’t be free until the following week, leaving us just three weeks to prepare for Court.  Not good.  Not good at all.  No one’s fault, but just not good.


So with something more than resembling extreme haste, in fact to say the least a mild degree of panic, we got together with Laura to bring her up to speed on the case and prepare for the Trial.  Despite her previous involvement in the case, a lot had happened in the nine months since Laura had prepared the original Defence for my company.


And to ensure that absolutely nothing was missed we had to start again from the very beginning and explain every piece of evidence to Laura so that she could begin to formulate the Trial strategy for the company’s defence.  And by then the mound of Trial papers had grown to about a foot and a half high.  Yes, that’s right, and not least with the size of the witness statements that had built up, as solicitor Paul Kite at IBB Law had been busy once again.  But then, so had I.


Now during the summer months IBB Law had presented me with no less than five original witness statements and then further statements from two of Renault’s witnesses.  The reason for this was more of my game strategy.  Or rather, Laura’s, by proxy.  You see, although she had signed off the case once the original Defence document was filed at Court and I hadn’t spoken to her since, I hadn’t forgotten Laura’s advice when she had first prepared the Defence material for my company.


In the previous Spring I had been required to prepare a witness statement covering my evidence in the case.  Initially I had decided to put into it everything I could possibly think of so that, when the case got to Trial, I would have a document to talk to on the witness stand that would be as comprehensive as possible and which would provide me with everything that I would want to present to the Court when my time came.


And then, just like in the scene from Star Wars, the words came back to me from Laura ‘Obi Wan’ John.  No, not ‘Use the force, Luke’, that would have been no bloody good to me at all, but ‘Keep some powder dry, Russell.’.


‘Keep some powder dry’ I heard Laura say.


‘Keep some powder dry, keep some powder dry.’ I said it to myself over and over.


But what the Hell did that mean for my Witness Statement?


I went around repeating the phrase to myself in a bid to get to grips with it but nothing came to me.  I tried changing the emphasis.


‘KEEP some powder dry, keep SOME powder dry, keep some powder DRY.’


I even repeated it in an increasingly demented impersonation of Sir Alec Guinness (yes, the case was beginning to get to me that much).  But just what on earth had Laura meant?  How could I keep some powder dry, but still get over what I needed to say in the Witness Statement?


And then what Laura had meant dawned on me.  My Witness Statement not only provided a complete record of everything that had happened, it also contained references to all the corroborating evidence that backed up everything that I was alleging about Renault’s employees and their part in the charade.


What if I left in the allegations, but took out the references to the corroborating material?  It would look like I was making some pretty outrageous claims in my Witness Statement without any evidence to back them up, claims that Renault and its employees would feel obliged to refute without knowing precisely what other material could then be used to ambush their denials and discredit them as witnesses.


So I sat in front of my computer, loaded up the word processor, opened up my draft Witness Statement, deleted from it the references to the corroborating material and saved the now outrageous and uncorroborated allegations in a new Witness Statement.  Then, at the agreed hour on the appointed day, I exchanged Witness Statements by e-mail with Paul Kite at IBB Law.  He got my newly pruned Witness Statement, with most of my powder still dry and hidden. 

And it worked.  Boy, did it work.


Not long after the exchange of Witness Statements I received an unexpected bundle of papers from IBB Law.  In it were second witness statements from Steve Wilson and Toby Johnstone.  Both of them denied in these new documents the fundamental allegations that I had made in my own Witness Statement.


Essentially, they used their second Witness Statements to refute, for the record, all of my claims.  But in doing so, they had explained exactly how, when we got to Trial, Renault would go about discrediting what I had alleged.  They rejected outright my allegations and explained why, but their new Witness Statements had been prepared without any knowledge that I had the evidence to back up my claims.  What they also didn't know was that some of my documentary evidence flatly contradicted the new claims that Toby and Steve had now made in order to refute what I had said.


I had thrown Paul Kite at IBB Law the spade, he had passed it on to Renault which, completely ignoring 'The Spade Rule' (remember 'The Spade Rule'?), had handed the spade in turn to Steve Wilson and then Toby Johnstone and presumably told them ‘Dig boys, dig’.


And gosh, had they dug - themselves into a hole.  Because then I sat down in front of my computer again, loaded up the word processor once more, opened up the original draft of my Witness Statement with all the corroborative material in it, made some tweaks to refresh it for the points raised by Steve and Toby in their new Witness Statements, saved the file and then turned off the computer again.


You see, I wasn’t going to send IBB Law my new Witness Statement until it would be too late for them to do anything about its contents but cry. 

Win or lose, I loved this game.  Bring it on!

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