Framed By The Frogs

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I have spent the week so far watching my company's superb barrister Laura John leading Renault’s witnesses to their doom.  Both gentle persuasion and a sledgehammer have been applied with equal skill and ruthlessness to Renault’s witnesses in order to quite successfully elicit contradictory statements and inexplicable discrepancies.


So, having been privileged to watch a series of free lessons from Renault employees Carolyn Sample, Steve Wilson and Toby Johnstone in how not to give evidence in Court (and the lessons were quite clear), I have made for myself some simple rules of engagement for my impending cross-examination by Renault's barrister (and Deputy District Court Judge) Andrew Bruce of Serle Court Chambers.


Rule One:  Tell the truth.

Rule Two:  Keep it short.

Rule Three:  Point to the evidence to back me up.

Rule Four:  Tell the truth.


Why tell the truth twice?  Well, to make bloody sure in case people haven’t heard me the first time.


But what else could I learn from the other witnesses?  At the end of each day’s testimony, on the Tube journey home from the High Court, I have closed my eyes and slowly gone over in my mind each witness’s performance, analysed what was said and how it was said, made a study of how I thought the evidence was presented by each witness and drawn conclusions about both them and their performances.


First there was Renault's Steve Wilson and his blasé approach, a kind of reverse bravado, seeming not to care but, to me, clearly desperately concerned to say the right thing in front of his masters and keep them happy, even at the expense of his own integrity in Court.


Then Carolyn Sample, cool as a cucumber under fire on the witness stand but, when it came to a face-to-face confrontation with me over what was in her witness statement, lacking in the natural killer instinct to do what was necessary to finish me off, even though it was to her credit that she finally told the truth.


And Toby Johnstone, with his ducking and diving, dodging and weaving around anything that he thought would damage his self-interests, only to be suckered into shaming himself as he wriggled and writhed to avoid telling the truth on the witness stand.


Nick Gauntlett, commercially a minnow pretending to be a whale and with no real reason to be at the Trial other than perhaps preserving his own access to discounts from Renault.


Keith Hayles, apparently too concerned about references from Renault for his next job application to recognise the damage his testimony was doing to both his credibility on the witness stand and his future employment prospects once word inevitably got out about his time in Court.


And so with the benefit of having watched each of these performers I have resolved to do the opposite of my predecessors on the witness stand.  I will give a direct answer to all questions, no matter how awkward, and I will do so factually and truthfully, irrespective of whether it benefits me or not.  I won’t deny the undeniable and I’ll show humility where it is due.  I will not try to be more than I am, but neither will I be anything less than that.


There.  So that’s me sorted then.


But what about my opponent, Renault's barrister Andrew Bruce?


I had pondered on what to do about my inquisitor ever since we first met outside the Chambers of Master Foster at the High Court some nine months before.  Smart, articulate, extremely well versed in legal matters and posh.  A graduate in Law from Jesus College , Oxford .  Winner of the ‘Inns of Court Studentship’ (basically a top notch scholarship for the Bar).


Now, I’m a graduate of a Northern co-ed sixth form and the school of life (no degree, no scholarship).  Undisputedly I’m a shire-horse to Andrew Bruce’s racing thoroughbred.  So how the Hell am I going to cut Andrew Bruce down to a manageable size so that the story I need to be told is heard by the Court?  Laura John was amazing and turned Renault’s witnesses into ours.  The last thing I want is for Andrew Bruce to perform the same trick with me so that I end up being a messenger to the Court for the bastardised Renault version of what went on in the BALPA Affair.


The more I think about it the less it seems to me that there is a solution.  The psychological techniques taught by so called ‘lifestyle coaches’ to help modern day Davids overcome their Goliaths, such as picturing your opponent on the potty etc, just don’t seem to do it.  Andrew Bruce is probably too posh to poop anyway.


So this morning I sat on the Underground train heading for Court, staring into the space between two heads on the passenger seats opposite me, an exercise in Tube etiquette much practised by Underground travellers seeking to preserve the sanctity of other peoples’ ‘space’.


As my iPod randomly delivered music to help distract me from the dilemma of what I fully expected to be my impending verbal annihilation at the hands of Andrew Bruce on the witness stand, a sound popped into my ears that I recognised from the movies.  It was from the Clint Eastwood ‘Man With No Name’ series of ‘spaghetti’ westerns.  The sound of an old fashioned watch chime jingling as a countdown to a gunfight.  When the music stopped, the gunplay would begin.


How cruel.  Even an inanimate bloody iPod was mocking me, playing the countdown to a duel.


But hold on just a minute.  What a fun diversion that would be!  This was me versus Andrew Bruce.  One on one, a head to head.  Mano á Mano.  Oh Yes!  As I visualised a ‘Gunfight at the OK Coral’ scenario I did seriously begin to wonder if I should stop taking the painkillers, because my medication was clearly having some very strange effects.


But why not?  If this is to be my duel to the death, my ‘Gunfight at the OK Coral’, then why not treat it as such and have some bloody fun as well?


Bugger it.  I’m going to go in with both guns blazing.  And as for Mr Oxford University educated, Bar Scholarship winning, Deputy District Court Judge Andrew Bruce, well something will give me an edge over him.  I just need a little more patience, something that anyone who knows me will say I have in bucket loads.


And that is bad news for Andrew Bruce as, according to the Trial schedule, he only has about 24 hours in which to do his client’s dirty work, which means he will have to draw quick and shoot fast, whereas I don’t.  Riding shotgun up on the witness stand, no matter in which direction I fire I stand a pretty good chance of hitting something or someone with anything I say in my testimony.  But I really must stop with the painkillers.


So, time is on my side in the witness stand and I just need a plan which maximises that advantage.  And now, as I approach the stand, the jingling countdown is playing in my head and Andrew Bruce really hasn’t a clue what is about to kick off.  But there again, neither have I.  Oh dear.


Onto the stand, take the oath and settle down into the chair.  Well, this is new.  Having sat on the benches all week it is quite something to be on the witness stand.  The position is very commanding, second only to that of His Lordship, with a view around the Courtroom and across all the benches.  Previously I couldn’t see what the rest of the assembled population were doing, now I have a panoramic view across the entire Court.


Laura John will start the cross-examination.  There are a few questions about me to set the scene, finishing with my professional background.  Time to start the mind games.  So I explain my career history backwards, commencing with my current business in car dealing and finishing at the beginning with the news that I am a former fraud investigator for the Inland Revenue.


And because I now have a view right across the Court I can see that Andrew Bruce has just made a face which appears to politely say ‘Why wasn’t that in my Brief?’.


Solicitor Paul Kite from Renault’s lawyers, IBB Law, has made a face that looks far less politely like ‘Oh shit.  How did we miss that?’.


Simon Tippet, the in-house lawyer from Renault who has been sitting at the back of the Courtroom throughout the entire proceedings, has put his hand to his forehead and made a face that probably says ‘How am I going to explain that one to the Board of Directors?  And how are they going to explain it to Renault Head Quarters in Paris ?’.


And I’m making a face which I hope says to Renault ‘So if I was going to defraud you bastards of any money then we wouldn’t be sitting here now debating it, because you would never have found out.’, which I hope His Lordship can see as well as the Renault team.  Laura John can certainly see it, and she’s just smirking.  Naughty!


And so it’s time for Andrew Bruce to begin his crusade to put me back in the box that Renault has labelled ‘fraudster’ and see to it that his client gets what it calls justice.


Andrew Bruce shuffles his papers and rises to his feet as the jingling music begins in my head once again.  But this time no one is waiting for the music to stop for the first shots to be fired, because Andrew Bruce clearly hasn’t been watching Laura John.  There’s no easy introductory questioning or seemingly innocent line of enquiry before a trap.  It’s straight into gunplay and I am right in the firing line.  Andrew Bruce is out to show the Court that I am a liar and a cheat.  I’m out to show that his client speaks with a forked tongue, telling one thing to the Court whilst practising the complete opposite in the outside world.  And may the best man win.


But besting Andrew Bruce is not going to be that simple; he has gone for some easy scores and I have no choice but to let him win.  I had sent an e-mail to Toby Johnstone about the affinity schemes that my company was administering.  After the first orders started to come in Toby wanted some background before he talked to Renault about increasing the BALPA discounts and perhaps also getting discounts for some of my other affinity clients.


In the e-mail to Toby I said that I would be providing a three year after sales plan for all the cars sold under the affinity plans that I managed.  I would provide free service management, free tax disc management and free legal expenses insurance.  It was one of the benefits of the plan, a way of attracting customers who would get a support service long after the initial car purchase had been made.


Now this applied to cars sold to affinity plan members, but not to cars sold to brokers.  So Andrew Bruce has asked if the cars sold under the BALPA account had the three year after sales plan.  Nicely structured Andrew Bruce, because the cars sold though the BALPA account all went to brokers and therefore they didn’t have the after sales plan.  I have to agree with Mr Bruce.  So he is straight back at me.  Then what I had said in the e-mail was a lie, wasn’t it?


Now technically I suppose could perhaps argue with him that the three year after sales plan only applied to affinity scheme members, and as the cars hadn’t been sold to affinity scheme members, but to customers of brokers, then no, it wasn’t a lie.  But that would have been splitting hairs to such a degree that I would have been doing a Toby Johnstone.  My credibility as a witness would start to dwindle almost as soon as the words were out of my mouth.  So I will swallow my pride and agree with Andrew Bruce that it was a lie, get it over with.


And I am sooooo glad that I have.  Because what’s just happened is astonishing.


Feeling extremely pleased with himself at having extracted his first confession out of me, barrister Andrew Bruce has just done something extraordinary.  He has put his tongue into the bottom right side of his cheek and held it there, looking at His Lordship, waiting for a second to make sure he has His Lordship’s attention and then slowly, tongue still in lower right cheek, he has cocked his head at a slight angle, pursed his lips and given His Lordship a half-wink, a kind of conspiratorial look between Judges which I think Andrew Bruce intends to say ‘Well, there you are, Your Lordship, this man is a liar and I have just demonstrated it.’.


But I can hardly contain myself – I want to laugh out loud.  You see, there is a pub game doing the rounds which requires participants to demonstrate their ‘sex face’.  In other words, to try and pull the face that they make when, during sexual intercourse, the proceedings have just reached their objective, so to speak.


Now down at the pub this is quite funny and it can be guaranteed to have everyone falling about laughing, especially when alcohol has lubricated the participants to the point where it becomes competitive and folk try to make the most extraordinarily ludicrous faces.


But for one brief, terrifying, ‘Reginald Perrin’ type moment, in my mind’s eye I can see Mr Bruce looking upon Mrs Bruce, having made his point so to speak, and giving her that same conspiratorial look, as if to say ‘Well, there you are then, my dear, my mission is accomplished.’.  But this is now; not in the bedroom, nor the pub, but here, in Courtroom 66 of the Royal Courts of Justice.  As far as I’m concerned, Andrew Bruce has just made his sex face to a High Court Judge.  And that’s it.  Mr Bruce has delivered up to me the method by which I will take him on.  The perfect instrument for me in the psychological battle of wills that is to come.


I need to make sure that I have really seen what I think I have seen and that I’m not imagining things under my medication.  So I’m going to let him win another point just to be sure.  I can’t honestly concentrate on what he’s asking because I just want to agree with whatever Andrew Bruce says and watch his face to see what happens next.


Yes!  There it is again.  Andrew Bruce’s sex face!


And with that image burned excruciatingly into my psyche, I am now determined that no one who is prepared to make their sex face in the High Court to a Judge is going to get the better of me.  No, no, no, no, no.  Not now.  Not ever.  Never.  So bring it on, Andrew Bruce.  Bring it on!


Mr Bruce may have backed me into a corner about that e-mail, but that’s going to be the last of his big wins.  From now on, every time barrister Andrew Bruce fires a question at me I’m just going to imagine his sex face and use the excruciating image as a means of delaying matters so I can collect my thoughts.  That will give me the chance to remind myself of the evidence on the point and disproved whatever he alleges.  So go for it Mr Bruce, because now I’m absolutely determined that you’re not going to win.


And indeed Andrew Bruce is off.  On the issue of the meetings with Carolyn Sample and Steve Wilson, Mr Thoms, didn’t you lie to them about who was really buying the cars?  Mr Bruce clearly hadn’t been paying attention to Carolyn Sample’s testimony, or was conveniently ignoring it.


So no, Mr Bruce, I certainly did not lie, because no one had actually asked me the question.  And if the question had even been asked of me then, Mr Bruce, why wasn’t such an important issue in any of the meeting notes that Carolyn Sample and Steve Wilson had prepared?  The meeting notes recounted the other issues discussed, but the question of who the customers were was never actually asked, and therefore never appeared in the notes, and that was exactly in keeping with my recollection of the meetings.


And the reason why I was never directly asked this question was because of the elephant in the room at all those meetings, the knowledge on both sides that Renault was turning a blind eye to what was going on because it so desperately needed the car sales.


And Mr Bruce is back at me.  Well, if Renault really does turn a blind eye to this sort of thing, Mr Thoms, then where are all the other brokers who do the same thing as you?  Why haven’t they turned up to give evidence to support what you are alleging?


Well, Mr Bruce, as you well know, if anyone else from the broking fraternity had gone public by coming in to Court to give evidence then they would be the proverbial turkeys voting for Christmas, as Renault would shut down their accounts straight away in retaliation for letting the cat out of the bag.


OK, so that was a terrible mixture of metaphors I know, but absolutely 100% accurate.


And now I’m tempted to retaliate and ask Andrew Bruce where all Renault’s senior management are instead of being at the Trial?  Why have they sent just a few junior bag carriers to face the music instead of coming in themselves to proclaim how much they revile the ‘abuse’ of client accounts?  Why did I have to rely upon Master Foster’s requirement for a Witness Statement from Renault just to get Simon Tippet to the proceedings as a token company officer?


But I have to remember my rules of engagement for the witness stand, especially the subject of showing humility – it might not always be one of my strong points (alright, never, in fact), but some of it wouldn’t go amiss in the present circumstances.  So instead I’ll just satisfy myself with the animal analogies and wait for Andrew Bruce’s next attempted spearhead into my testimony.


And so Mr Bruce’s questioning continues but I’m still waiting for the sharp prick, the spearhead.  And waiting.  And waiting.  And yet despite hours of questioning since Mr Bruce’s first fall at the psychological hurdle, despite the equivalent of a nearly a day on the Witness Stand, an increasingly exasperated Andrew Bruce has tried every which way to put his case and, in particular, to put words in my mouth.  And I’ve just done the same thing each time.


Pause for a moment, picture Andrew Bruce’s sex face, recall the evidence and point out the document contradicting Mr Bruce’s allegation.  Nothing more has been required.  For some reason known only to him, barrister Andrew Bruce has done my job for me.  Question after question, allegation after allegation, each has been rebuffed by making a denial, then pointing to the evidence, then affirming my denial.


I will spare you from a blow by blow account of the hours of cross-examination that I’ve gone through and just give a few more examples.  Didn’t I deliberately avoid complying with Renault’s belated requirement to supply proof of identity and eligibility for all customer buying cars through the BALPA account, asked Andrew Bruce?


No, I didn’t and in fact, as I directed Mr Bruce to the e-mails in the evidence bundles, it soon became plain to the Court that it was not Renault chasing me as Andrew Bruce has alleged, but actually me chasing Renault about implementing the arrangements for the ID requirements (basically because I didn’t think I had anything to fear from them, as Toby Johnstone had already hinted that he would find a way around them).


Then Andrew Bruce asked if I made up my claim about the telephone conversation with Toby Johnstone over the vehicle order form that I sent to him by mistake, the one that turned out to be a copy of an order confirmation to a broker.  Good grief Mr Bruce, why would I do that?  If I had then why hadn’t Renault provided the telephone records to disprove that it took place?


Well, Mr Bruce asked, why hadn’t I provided my own telephone records to prove that the telephone conversation happened?


What?  Even His Lordship is fed up now - he’s just asked Andrew Bruce to explain how my telephone bills would show details of an incoming call.  After a debate Mr Bruce has eventually agreed that my telephone bills wouldn’t have shown any incoming calls, but he reckons that I could have obtained a record of incoming calls from my telephone company to prove that the conversation took place.


But why should I Mr Bruce?  After all, your client only had to produce its own telephone bill to prove the conversation never took place.  Unless, of course, their telephone bill proved quite the opposite, and the call had indeed taken place, and your client was in no mood to dump evidence like that on the Court.


And so it has gone on for hour after hour.  At times the pauses between my answer and Andrew Bruce’s next question have grown longer as the questions and supplementary enquires that he has, I guess, spent hours preparing just fail to get him anywhere.  When this happens he quite obviously tries to think ‘on the hoof’ of new ways to get me to say something that supports his client’s case, but it just doesn’t happen.


Andrew Bruce asks a question.  I pause to picture his sex face, I give a brief answer and then I stop.  Mr Bruce hopes for more and, when it doesn’t come, he sways from side to side and looks at his papers or shuffles them whilst obviously thinking of what to ask next.


Now I haven’t had absolutely everything my own way, and what has transpired overall on the witness stand hasn’t really been about me being smarter than Andrew Bruce.  I’d love to think it was, but the truth is that it just isn’t so, and anyone reading a transcript of the Trial will see that.  There’s been no spectacular clash of titanic intellects, no duel of superior minds in the way you see in the movies when the arch villain is being cross-examined on the witness stand by some badgering legal eagle exercising a razor-like wit and incisive mind as he leads the witness to his doom.


No, I have just stuck with my four simple rules.  Tell the truth, keep it short, point to the evidence and tell the truth again.  And now I think that Andrew Bruce has seen the light, as he has given up the circular route he has been treading for nearly a day now.  Allegation from him, denial from me, followed by evidence and affirmation of my case, all of it leading Mr Bruce and his client nowhere.


And now that the cross-examination is over I’m elated but, strangely, also a bit disappointed.  I’d actually like to go on answering questions and pointing to the evidence and watching Andrew Bruce decimate his own client’s case, but sadly it isn’t to be.  I think that Mr Bruce has finally twigged that he has wasted a day of cross-examination giving everyone present a lesson in self-destruction.


So now, as I’m on my way down from the witness stand, I don’t know whether or not what I have done will be enough to get across to His Lordship the lying, backstabbing and legal trickery that has been used to pursue Renault’s claim, but at least I’ve had my day in Court.  I shall just cross my fingers and hope that I have used it well.


And so I’m getting some ribbing from the legal team about my animal analogies, especially the 'turkeys voting for Christmas' thing, but they seem happy enough with my time on the witness stand. Now what’s left is the summing up of facts by each side and the presenting of the legal arguments.  Then it will be over to His Lordship for Judgement.


His Lordship has explained to me that he will retire to consider his verdict, then a draft Judgement will be issued in due course and this will be circulated in advance to the barristers.  Because I am representing myself, I will be permitted to see the Judgement in advance, though I am forbidden to tell anyone what is in it.


So with all the evidence and legal tomes packed away and the Courtroom cleared I shall go home to wait for Judgement Day.  Literally.


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