Framed By The Frogs

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So this morning I found myself sitting on the Tube once again, this time in the rush hour surrounded by fellow commuters, with a repeat performance of the previous day’s encounter highly unlikely.  For one thing, the carriage was packed, leaving no room for self-defence demonstrations, and in any case, I reckoned that Mr Rastaman probably didn’t keep office hours.


A shame really, it would have brightened up the journey.  So many people heading for another dull day at the office or the shop counter.  At least the Rastaman didn’t have that to worry about.  The daily grind has probably killed more people than machete wielding assassins from Jamaica , though I’d take my chances with the former rather than the latter any day.  Hats off to you, Mr Rastaman.  I would have required a change of underwear rather than a change of bandages.


And so, having pondered on the implications of what had happened to Mr Rastaman, and his alternative fate if he had not been prepared to literally fight for his life, my mental idling has turned to a ‘meaning of life’ sort of question that I posed to myself.


I consider that I have been very lucky.  Up against Renault, a giant multi-national corporation, and its fancy lawyers, barrister Andrew Bruce of Serle Court Chambers and solicitor Paul Kite of IBB Law.  Yet in the fight of my life I have won, or at least I have won on a ‘first-past-the-post’ basis, though if there is a Stewards’ Enquiry I might see the whole thing overturned and someone else heading into the Winner’s Enclosure.  I don’t know why I’m thinking of it as a horse-racing analogy, but I guess it works.


But I wonder what I would do at today’s Judgement Hearing if I was in the position of Renault employees Toby Johnstone, Carolyn Sample or Steve Wilson?  Facing up to a High Court Judge who has pretty much decimated their evidence and perhaps even induced terminal career blight for each of them will be excruciating. OK, my outlook isn’t exactly rosy, but at least no one has put my evidence through the wringer in the way that theirs has been, with the consequent implications for their personal integrity.


But the more I think about it, the more I conclude that all they have been doing is what I had been doing when I sold the cars.  Just earning a living, making my way in the world.  And so, with that in mind, what should I say to His Lordship when I am called to speak on the subject of costs, as I will have to, appearing in person at the Hearing?


Despite the sardine can scenario on the Tube this morning, with a bit of juggling I can probably reach down to my briefcase and fish out the notebook that I used for my scribblings at the Trial.


Let’s see what I can come up with as my piece on the affair.  I started to write. 


‘Your Lordship,


This case was founded on greed and mischief.  The Claimant could have walked away from this entire matter 18 months ago, banked the profits it undoubtedly made selling each car and moved on.  Instead it tried to recoup its stake and make an example of me.  It chose to pursue a vindictive and unnecessary Claim to protect the careers of the people involved.


Doubtless right now the Claimant will be looking at the ramifications of the Judgement for the people involved.  I would ask them to do so sympathetically.  They were just people doing a job.  Earning a living and paying their way.


Two individuals have already had their careers blighted by this matter at the Claimants and 3 others have had their judgement placed under the microscope in this case.


I’ve lost my house, my business and my professional reputation.  But I still wouldn’t want any one of the Claimant’s employees to go through what I have.


As far as my costs go, I have incurred a few train tickets and bus fares and that’s it.  The rest of the costs have been incurred by my company and Counsel for FleetPro will deal with them.  So for my own part I do not seek any costs from the Claimant.  Let that be an end to the matter.


Thank you, Your Lordship.’


That should be enough, I think, to convey that I believe we should draw a line under the proceedings and move on.  No need to forgive, just to forget.  I wonder what Toby Johnstone, Carolyn Sample and Steve Wilson will make of that, not to mention Renault's in-house lawyer and Company Secretary Simon Tippet?  Ah well, the Underground train is pulling into Temple station, my stop for the High Court.  Time to head for the Court and the morning’s main event.


The Judgement Hearing will be held in an entirely different Courtroom to the Trial, on completely the other side of the Royal Courts of Justice.  After clearing security I’ve headed off in the direction of the Courtroom, but somehow I’ve walked round in a complete circle, following what I thought were the signs for Court 62, but which have mysteriously led me back to exactly where I had started.  But now I can see Nick Taylor, my solicitor, and as two heads are better than one, hopefully we can find our way to the Courtroom.

As so, as we wait for the Clerk of the Court to let us in to Court 62 I wonder what the Renault team are going through.  Each one of them knows that the Hearing will be my vindication and not theirs, completely the opposite of what they had expected, I’m sure, and not the outcome upon which they had been prepared to squander their integrity.


And then, as we file into the Courtroom, there is something seriously wrong.  Our team is there in full strength, my superb barrister Laura John, backed up by stalwart solicitor Nick Taylor and his assistant Karina Leckman.  But Renault's barrister Andrew Bruce of Serle Court Chambers has walked in with only solicitor Paul Kite from IB Law; there’s no Toby Johnstone, no Carolyn Sample, no Steve Wilson.  Not even a show by Simon Tippet, who presumably masterminded the legal proceedings from within Renault.  There's actually no one from Renault at all. 

But now it’s dawned on me.  Presumably they thought that by not turning up they would avoid any further direct personal criticism from His Lordship and perform a final act of defiance by denying me the opportunity to gloat, when gloating is in fact the last thing on my mind.


Grrrrrrrr.   What pathetic, miserable, contemptible cowardice.  Just exactly what kind of mealy-mouthed, weasel-worded message do they think they are sending to me by not attending?  Those thoughts I had about them on the Tube?  The words that I had written?  The plea to Renault?  Sod it all and sod them.


Where’s that bloody notebook?  Time to edit my speech.  I’m going to delete my plea to Renault to spare the miserable hides of Toby Johnstone, Carolyn Sample and Steve Wilson.  Instead, I’m just going to savour the Hearing and listen to His Lordship deliver the Judgement, though on that front things are starting innocently enough - each side has acknowledged the Judgement and now barrister Andrew Bruce is up as it’s his turn to launch Renault’s application for an Appeal against the decision.


Whoa!  Andrew Bruce has clearly never heard of 'The Spade Rule'.  Remember The Spade Rule?  When you are in a hole, stop digging!  Well, despite being on the losing side, and therefore somewhat beholding to His Lordship for the next stage of events, Mr Bruce is going like a human JCB, calling into question His Lordship’s ability to interpret the facts of the case, to understand the law on damages flowing from fraudulent misrepresentation and to keep himself up with the emerging application of an ‘account of profits’ as a form of remedy in the field of damages.


Bloody hell, Mr Bruce, you couldn’t be less diplomatic in pleading your case if you had impugned the honour of His Lordship’s mother.  Not only that, but Andrew Bruce appears to be the only one in the Courtroom who looks surprised now that His Lordship has just denied his client leave to appeal.


But undeterred, Andrew Bruce is trying again.  His client will go direct to the Court of Appeal since His Lordship won’t grant an appeal. And by the way, can he please have some extra time to do it as he wants to obtain a transcript of Carolyn Sample’s testimony on the witness stand?  Apparently it’s something to do with her ‘state of mind’.  For a brief moment he seems to be suggesting that Carolyn Sample, one of Renault's key witnesses, is a nutcase.  Wait a minute.  Ah, I see, he reckons that, rather than having turned a blind eye to what was going on, Carolyn was actually negligent in not doing her job properly.


Bloody Hell!  No wonder Carolyn Sample hasn’t turned up.  Would you want to sit in a Courtroom and listen to your employer’s lawyer plead that you were negligent in your job as an excuse for an appeal in a failed one million pound law suit?


His Lordship wants to know if I have any objections to extending the time limit for Renault to appeal direct to the Court of Appeal.  Normally it would be 21 days, but Mr Bruce has asked for another 14 days to allow for the time to have Carolyn Sample’s testimony transcribed so it can be scrutinised in detail for evidence of her ‘state of mind’.  Boy, Renault must be thinking of doing a real hatchet job on Carolyn if it wants all that detail and extra time.


Well, under Court rules we will have to be provided with a copy of the transcript and the Appeal document in which Renault will trash Carolyn’s Sample's personal reputation and presumably deliver her up as an extremely negligent employee.  So I’m more than happy for Renault to take as long as it needs.


I have to say though, that if Renault is going to allege negligence on the part of Carolyn then it will have to be prepared to do a really nasty hatchet job.  Leaving aside the quirks of the BALPA Affair, Carolyn has always struck me as a very competent ‘belt and braces’ type who wouldn’t make mistakes through negligence, even if she had deliberately turned a blind eye to the BALPA shenanigans.


Well, what a turnaround for Carolyn Sample.  You get dumped in a Courtroom, you ‘firm up’ your evidence to help your employer's case (as His Lordship said) and then your employer shits on you from a great height because you lost.  And if Renault is prepared to do that to Carolyn Sample for the sake of pursuing its Claim, goodness knows what kind of carve up it is preparing for Toby Johnstone and Steve Wilson.    On that basis I can’t see Renault making the ‘Top 100 Companies to Work For’ list any time soon.


Time for a huddle with Laura, Nick and Karina.  To be honest, it’s more for show than anything else, and Renault can have the extra time, though it means that we will be on tenterhooks right up to the week before Christmas.  Based on its track record, Renault will no doubt wait until the last hour of the appointed day to deliver up its Appeal.


So having agreed on the Appeal timescale, let’s get on with costs, and on the basis that we should make hay very quickly whilst the clock on Andrew Bruce’s self-destruct mechanism is counting down time, Laura is going to be swift and to the point.  Summarised in simple terms, she’s telling His Lordship that we want costs awarding on an 'Indemnity' basis in view of Renault’s waste of Court time; it’s an abuse of the legal process bringing such a Claim.


My turn now, straight through my speech, minus the plea to Renault about mercy for its employees (let’s not waste time, words or sentiment), and in any case, in the light of what Renault is planning for Carolyn Sample, the pleas would be pointless.  Now sit down and wait for the timer on barrister Andrew Bruce to turn to zero hour.


And Mr ‘JCB’ Bruce is up once again.  And once again I can’t believe what I’m hearing.  Now common sense would tell most folk that having (a) failed in a Claim for damages because you forgot to prove that your client had lost any money in the first place, then having (b) in all likelihood severely pissed off the Judge with your grounds for Appeal, what you don’t then do is (c) blame it all on the Defendants.  No, I certainly wouldn’t.


But then I’m not Andrew Bruce.


Because instead of grovelling (which is what I would have done in the circumstances), Andrew Bruce has just said that;

(a) his client had proved its Claim of deceit (‘technically’ as His Lordship had put it, for the rather short period of time between Toby suggesting the game and the first meeting with Carolyn Sample), and even though Renault hadn’t actually suffered any loss from what had taken place, and

(b) my company had failed with some of the lines of defence it had pursued in Court (yes Mr Bruce, but wake up and smell the coffee, we bloody well won the case!).


Then he’s followed up with (c), that the late delivery of my second Witness Statement had unnecessarily contributed towards costs.  And finally, just to remind His Lordship about the rules on Indemnity costs (as if His Lordship actually needed that), Andrew Bruce has just quoted from a legal tome which spells out that, to qualify, a case has to be ‘extraordinary’, and Andrew Bruce has said that this case plainly isn’t 'extraordinary'.


In the light of the above Andrew Bruce has asked for costs only to be awarded to me on the standard basis and for a 50% reduction in any costs awarded against his client.  Renault had, according to Andrew Bruce, made its Claim in good faith.


I have to stifle a laugh, and I’m sure I’m not the only one in the Courtroom with that problem.  It’s such a ridiculous thing to say in the circumstances, as we all know that the case was brought simply to make an example of me, because Renault has always known it would never get any money back from me.


But nevertheless, what Andrew Bruce has concocted for his appeal to His Lordship on Costs has had the desired effect, though not the effect that Andrew Bruce desires.


You see, Mr Bruce might as well have leaped over the lectern, climbed up on the Clerk’s desk and bitch-slapped His Lordship across the kisser with a wet Haddock, because the effect would probably have been just the same.


His Lordship has just drawn himself up in his chair, taken a deep breath, leaned over the Bench and let loose a verbal flame thrower in Andrew Bruce’s direction that must have seared every one of his body parts not hidden below the level of the lectern.


For the sake of space and the egos of those involved I will cut down the contents of what His Lordship has said to only the hard core.  It came out so fast I hardly had time to scribble notes, so if some of what follows is not quite exactly what was said I will beg the pardon of anyone offended by any inaccuracies, but anyone disputing the gist of my account can always ask for the tapes of the Hearing.  So here’s a summary of how His Lordship barbequed Andrew Bruce:


Never mind the submission that this was not an extraordinary case, this was a most extraordinary one.  A formidably well resourced multi-national corporation had brought itself to bear upon a Defendant lacking in financial substance with serious allegations of fraud on the basis that it was deceived, when in fact it wasn’t deceived at all.  The Claimant understood perfectly well that the sales under the BALPA account were not what they claimed to be.  The Claimants had actually benefited from all this and had simply not made as large a profit as they might otherwise have.  In addition, it was the unsatisfactory testimony of Toby Johnstone that had occupied a substantial amount of time in the Trial and any issues on which the Defendants had failed in their arguments had taken up minutes rather than hours. The Claim was flawed and no attempt was made to seriously address at Trial whether the Claimant had actually suffered any financial loss at all.  The fact that the Claim was fundamentally flawed and that representatives of the Claimant knew exactly what was happening fairly early on made this a wholly extraordinary case that should never have been brought.  The Claimants will therefore pay all the Defendant’s costs on an Indemnity basis.


Jesus.  I put a few full stops in there, but don’t actually recall His Lordship even drawing breath.  And remember, the above points are just the highlights.


The scorched remnants of what was Andrew Bruce have just squeaked what I think is a request for permission to Appeal on costs.


‘Refused’ is all His Lordship has to say.


‘Might I ask why, Your Lordship?’ squeaks Mr Bruce.


‘Christ man’ I think to myself ‘Sit down, for God’s sake’.  Even I have started to feel pity for Andrew Bruce now.


‘No prospect of success.’ is His Lordship’s only response.  Well, not much doubt about that then.


Undeterred, Andrew Bruce is now back into the flames.  Hells Bells, if this is what St George had been like up against the blaze of the dragon’s fiery breath then I can understand why he won.  Only Andrew Bruce has lost.  Again.


Mr Bruce has argued that, if Renault paid the costs to my business then I might do a runner with the money, and when his client wins the Appeal they might not be able to get their money back (although he put it a little bit more delicately than that, but everyone knows what he meant).  So, pending the Appeal, Andrew Bruce wants his client to be able to hang on to its money.


Not a chance Mr Bruce.  His Lordship appears to me to be about say ‘Tough’ or something equally unhelpful to Renault, which perhaps I (and indeed anyone else on the receiving end of Mr Bruce’s campaign strategy) might have been tempted to do.  But now His Lordship is demonstrating why he is a High Court Judge and I am not.  He’s allowed a few minutes for us all to debate a possible compromise.


So we huddle again.  I’m happy if Renault immediately pays a substantial amount of the costs on account to my solicitors who can hold the money.  If Renault’s Appeal succeeds then the solicitors will hand back the money.


If Renault loses its Appeal, or if it fails to get the Court of Appeal to agree to hear it, or if it simply fails to submit the Appeal on time, the money and the interest on it will go straight to me and the rest of the costs will become payable as well.  This quite reasonable proposal is put to Andrew Bruce and he can’t do anything but agree, and so that’s what His Lordship orders.


My, my, my.  What a turnaround.  Having not only lost the case, now Andrew Bruce and Paul Kite will have to go back to Renault and explain to Simon Tippet how they have been denied an Appeal and why Renault will have to cough up a substantial part of my costs immediately.  And if it can’t get the Appeal off the ground then Renault will have to pay the lot.  Talk about annihilation.  I wouldn't want to be in Simon Tippet's shoes when he explains all of that to the Renault Board.  Serves them bloody right though.  You bet it does.


Oh, and of course, Renault now has just over one month to come up with a serious trashing of Carolyn Sample’s personal reputation if the company wants to pursue an Appeal based on her alleged negligent ‘state of mind’.


So whilst barrister Andrew Bruce and solicitor Paul Kite trudge off to deliver the bad news to Simon Tippet at Renault, it’s off to the boozer for our team to celebrate.  Oh joy.  Oh deep, deep joy and ecstasy.


As I limp down the steps, out of the Royal Courts of Justice and into the street, I don’t even notice the late autumn drizzle that’s begun to fall.  In fact, there’s only one thing I can think of.  Yes indeed. 

Landlord, make mine a large one please!

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