LIES, DAMN LIES AND CAR HIRE QUOTES: COMPUTER RECORDS, AND INTERNAL DOCUMENTS PREFERRED TO WITNESS EVIDENCE

May 24, 2017 · by · in Civil evidence, Civil Procedure, Committal proceedings, Disclosure, Witness statements

The judgment in Accident Exchange Limited -v- Broom [2017] EWHC 1096 (Admin) shows a deliberate, and concerted, effort to undermine the civil justice process. It also shows the importance of obtaining computer records, and internal documentation when preparing a trial. Here the computer evidence contradicted (and effectively destroyed) the witness evidence of the defendants.  This was in a context where there was a higher burden of proof (the criminal standard).

THE CASE

The claimant car hire company had noted a pattern of lower figures being presented when a company known as Autofocus Limited (“AF”) was giving evidence on behalf of defendants.  After considerable effort was spent in obtaining disclosure the nature of the AF’s activities became clear.  The judge noted.

 

    1. “ This led to four further test cases coming before the Court of Appeal in December 2012 (Dickinson v Tesco plc). In giving judgment on 4 February 2013 Aikens LJ said at para 17:
“An analysis of the AF business records on the Mirror Disk demonstrates (and this is not in dispute) that: (1) historic base hire rate data was fabricated by ‘rates surveyors’ of AF; (2) these fabrications affected the IRIS [Instant Rates Information Service] database as well as the SCRIP [Small Claims Rate Information Pack] and DRS [Detailed Rates Survey] reports produced by AF; (3) witness evidence by AF was routinely altered by other employees.”

 

Accident exchange brought proceedings for contempt of court.  The claimant went to great efforts to obtain the original documentation and computer record from AF.

After considering the evidence the judge found all of the defendants, who had provided evidence of car hire rates, in contempt.

 

AN EXAMPLE OF WITNESS EVIDENCE BEING CONTRADICTED BY COMPUTER RECORDS

The judge looked at one example of a case where the witness evidence was contradicted by computer records.
  1. In the case of Archer v Skanska the First Defendant produced a witness statement, signed with a statement of truth, dated 28 April 2009. He said (at paras 6 & 7) that he had conducted a spot hire survey on that day and that, of the seven companies he telephoned, four (Guy Salmon (Leeds), Sixt (Manchester), Prestige (Hemel Hempstead), and Avis (Sheffield)) were able to provide an appropriate car for the date and time required.
  2. As for the call he allegedly made to the Manchester branch of Sixt he stated in NJGB5.2 that he spoke to “Stefan” and that a Mercedes SLK350 Auto convertible was available at a rate lower than AE’s credit hire rate. A statement dated 3 September 2009 was obtained from Tonia Drysdale, who had been rental manager at the Manchester branch Sixt for three years. She stated that no-one by the name of “Stefan” had worked at the Manchester branch during that time, that the rates allegedly quoted were incorrect and the vehicle was not available as alleged.
  3. As for the call he stated he made to “Tim” at Avis, Sheffield, he stated in NJGB5.4 that a Mercedes SLK 350 Auto Convertible was available at a rate lower than AE’s credit hire rate. A statement dated 3 September 2009 was obtained from Stuart Davies who had been the manager at the Sheffield branch of Avis Rent-a-Car since 1 January 2009. He stated that no-one by the name of “Tim” had worked at the Sheffield branch during his time as manager, and that the Sheffield branch did not stock any convertible vehicles and no Mercedes SLK350. He said that the telephone number allegedly called had nothing to do with Avis Rent-a-Car.
  4. Subsequently an analysis of the itemised telephone records obtained from the Mirror Disk established that no telephone calls were made on 28 April 2009 to any of the seven numbers the First Defendant allegedly called on that date from any of the designated numbers AF provided to him.
  5. In reply to evidence in rebuttal, the First Defendant provided a witness statement, signed with a statement of truth, dated 8 August 2009. He stated that the four companies telephoned by him confirmed both price and availability. He said that he personally had conducted the telephone survey. In fact it is clear from an e-mail dated 12 August 2009 from Helen Whysall that she drafted the statement of 8 August 2009 in the First Defendant’s name.
  6. At the hearing of the Archer v Skanska case on 24 August 2009 the First Defendant presented the witness statement dated 8 August 2009 as his own when he knew it had not been written by him. The trial judge (Mr Recorder Cameron) accepted that “Mr George-Broom gave careful and precise evidence about the researches which he carried out on behalf of the Defendant”. The judge accordingly reduced the amount awarded in respect of hire from £32,963.61 to £11,358.20. Subsequently an appeal was allowed by the Court of Appeal and a re-trial was ordered. At the re-hearing the rates evidence of the First Defendant was abandoned and permission was given by His Honour Judge Moore to AE to commit the First Defendant to prison. AE decided the appropriate forum for a committal to be the Divisional Court.”

ANOTHER EXAMPLE

    1. In the case of Joyner v Bramley the Second Defendant provided an expert report, signed with a statement of truth, dated 9 June 2008. In that report she stated (at paras 8 & 9) that the First Defendant had conducted a spot hire survey on 23 May 2008 and that of six companies he telephoned that day, four (Hertz (Swansea), Prestige (Hemel Hempstead), Avis Prestige (London) and Guy Salmon (Birmingham)) were able to provide an appropriate car (a Mini Cooper S1.6 or equivalent) for the date and time required. She exhibited to her report the First Defendant’s survey documents which included details of the telephone conversations he said he had and the terms quoted (see in particular appendix 5.1-5.4). The report was relied upon at trial and, as a consequence of the District Judge accepting the evidence contained in her report, the sum awarded for hire costs was about half of what was claimed.
    2. The contents of the report were false in that the First Defendant did not make the telephone calls and obtain the quotes he said he did. The Second Defendant knew that was the case when she signed the report.
    3. As for the quotes allegedly obtained, the evidence of Mr Stephen Evans in his witness statement dated 27 April 2010 shows as follows: (1) Rob at the Hertz branch in Swansea said that they only operated basic mainstream cars and did not own or operate an Audi TT 1.8 coupé on 23 May 2008 or the date of the accident, 23 November 2006, and that it did not have access to Hertz’ corporate fleet at Heathrow airport as it was an independent licensee, and that accordingly they could not have quoted a rate of hire referred to by the First Defendant; (2) Justin at Avis in Swansea confirmed that it had no prestige vehicles and would be surprised if Avis Prestige would deliver cars to Swansea from Heathrow, and Simon of Avis Prestige confirmed it would not deliver cars to Swansea. Accordingly it could not have quoted the rate of hire referred to by the First Defendant; and (3) Will at the call centre of Guy Salmon confirmed that the Bristol branch of Guy Salmon was not open in 2008, and that delivery could not have been made from the Birmingham branch of Guy Salmon as that exceeded the delivery distance at that time. Accordingly it could not have quoted the rate of hire referred to by the First Defendant.
    4. As for the telephone calls the First Defendant stated he had made, an analysis of the itemised telephone records obtained from the Mirror Disk established that on 23 May 2008:
i) a call was made from 01502-676107 to 01792-222133 (recorded by the First Defendant as a call to Days in Swansea where he claims he was referred to Hertz) at 14.59 which lasted 13 seconds. This is too short a time to obtain a referral;

ii) no call is recorded as having been made to 0870-0409-000 (recorded by the First Defendant as a call to Hertz in Swansea);

iii) no call is recorded as having been made to 0800-0185-826 (recorded by the First Defendant as a call to Brisco in Swansea where he was referred to Prestige in Hemel Hempstead, Avis Prestige in London and Guy Salmon in Birmingham);

iv) no call is recorded as having been made to 0870-4600-604 (recorded by the First Defendant as a call to Prestige in Hemel Hempstead);

v) a call was made from 01502-676107 to 020-7591-0444 (recorded by the First Defendant as a call to Avis Prestige) at 15.31 for 1 minute 18 seconds. No quote could have been obtained in that short time;

vi) no call is recorded as having been made to 0871-384-1091 (recorded by the First Defendant as a call to Guy Salmon in Birmingham).

  1. I find that to obtain a quote over the telephone would take at least 3-4 minutes. AF instructed rates surveyors to say, if asked in court, that it would take 3-4 minutes to obtain a quote (see para 56 above). The evidence of Mr Evans was that it would take that time. The Fifth Defendant said it would take 5-6 minutes to obtain a quote. Mr Gilmour said that he knew the Fourth Defendant had given various answers to the question in his evidence but he thought the sensible estimate that was given by some Defendants was 3 or 4 minutes.”
YET ANOTHER EXAMPLE
    1. In the case of Thomson v Lansdowne the Second Defendant produced a witness statement, signed with a statement of truth, dated 13 November 2008. She stated (at paras 6 & 7) that on that day she conduced a spot hire survey and that of ten companies she telephoned, four (Hertz (Gatwick), National (Crawley), Avis (Crawley), and Sixt (Crawley)) were able to provide an appropriate car (a Mercedes SLK 350 automatic or equivalent) for the date and time required and set out details of the terms she alleged were quoted. The contents of the statement were false.
    2. On 1 July 2009 the Second Defendant gave evidence on oath in accordance with her statement. The District Judge accepted her evidence and awarded damages on a substantially reduced basis. AE appealed the judgment to the Court of Appeal (as one of the four test cases on 1 December 2011, see para 18 above). Permission was granted to appeal and thereafter the insurers settled the case.
    3. It is clear from the subsequent investigations made by AE, the results of which are set out in a witness statement of Mr Evans dated 11 April 2010, that the quotes stated in the Second Defendant’s statement were false:
i) The number stated for Sixt in Crawley was a number for central reservations in Chesterfield. Marie of Sixt said that it was highly unlikely that a customer would be able to hire such a vehicle at Crawley as the prestige fleet is very small and located in central London. Further the excess figure quoted by the Second Defendant was wrong in that the minimum excess for such a vehicle was £1,000 not £75. No such vehicle was available for hire at any time in the five days following Mr Evans’ enquiry.

ii) No person called Helen was employed by Avis in Crawley in 2008. Avis did not have a prestige branch in Crawley, nor at Gatwick Airport. Neither Avis at Crawley nor Avis at Gatwick Airport offered a delivery and collection service.

iii) When the number for Hertz Gatwick set out in the statement was called Brian from central reservations in the Republic of Ireland answered. He was unable to transfer the call to a specific branch. Its Prestige collection located at airport branches was reserved for account customers. Hertz had no Mercedes CLK or SLK available at any of their branches.

  1. As for the telephone calls the Second Defendant stated she had made, an analysis of the itemised telephone records obtained from the Mirror Disk established that no telephone calls were made on 13 November 2008 to any of the ten numbers she allegedly called on that date from any of the designated numbers AF provided to her and very few calls were made on any such number during November 2008.”

AN ADMISSION

  1. “The Third Defendant gave evidence. In his evidence in chief he denied that he was guilty of contempt. However during the course of his cross examination he decided to admit that he was in contempt of court. He admitted all the allegations made against him. The particulars of the allegations are summarised in the Claimant’s skeleton argument at paras 82-132. As Mr Rees observed, he did not qualify his admissions in any way. He basically accepted the way in which the Claimant put the case against him in relation to all these matters.
  2. That being so it is not, as Mr Rees agrees, necessary for me to make individual findings of fact in relation to each of the cases. Having heard the evidence, and in particular the evidence that he gave under cross examination, I was left in absolutely no doubt that the Third Defendant was fully aware of the endemic, dishonest working practices at AF in which he actively participated, knowing full well that what he was doing was dishonest (see by way of example e-mails giving feedback from him to the Seventh Defendant dated 21 May 2009 (Worthington), dated 16 June 2009 (Plum), and dated 6 August 2009 (Weaver); and from him to Helen Whysall dated 6 July 2009 (Scheliga) and 6 August 2009 (Wilson)). I did not consider him to be a credible witness. He did not tell the truth in his evidence about his conduct. However Mr Rees rightly observed that “to be fair to him he did have the decency to change his plea, albeit late in the day, when he realised what the position was”.

THE OTHER DEFENDANTS

There are detailed findings which set out the dishonesty of the other defendants.

AN INTERESTING MEMO

    1. In September 2009, following the undermining of CSR reports, AF introduced DRS reports. A document entitled “New checking of DRS” was issued, which includes the following:
“First check to establish if a CSR was issued and this DRS is to replace it.
If so, on your pad write down the companies used on the CSR, the cars surveyed and the prices.
Open the DRS on the C Summary and check that the DRS has been done on roughly the same companies. You should really get at least two of the originals and if possible all four. It is not always possible because the originals may not have a website or may not have the same cars now.
Check that the DRS is roughly the same cost as the CSR. You need to bear in mind that if the CSR has been sent to the solicitor he may have made a Part 36 offer, based on the top spot rate we obtained. He will not be happy with our DRS if it’s a big hike from the CSR.
If there is a significant difference to the original top spot rate, it will need to be resurveyed. Be careful not to put anything incriminating in writing. A phone call will be the best means of communication.”

BE CAREFUL WHAT YOU SAY TO COUNSEL

There was also internal documentation about what to say to counsel.

“Pre-hearing discussions with counsel
…
Always be careful about what you say to counsel. …”
(2) Document for Communications meeting on 28 September 2007
    1. On 27 September (and again on 1 October) 2007 Colin McLean sent a document entitled “Preparation for Court Hearings” to those attending a meeting on 28 September 2007. Those to whom it was sent included the First, Second, Fourth and Seventh Defendants. It includes the following:
“2. The best preparation for court is to ensure that the CSR has been prepared correctly in the first place and imagine that you will have to face cross-examination personally for every CSR prepared. If there are any flaws in the CSR, you are more likely to face difficult cross examination …
4. Put yourself in the position of the claimant when preparing the CSR…
6. Always check the completed CSR (particularly App2) and consider the following:
  • To comply with current case law, the relevant rate (as long as the claimant is not impecunious) is the ‘spot rate for available vehicles within the locality of the claimant‘. Clearly, there will be some licence to interpret ‘locality’ for non-standard vehicles, but a Google search should only be used as a last resort.
  • Referrals from local companies are preferable and often necessary for prestige vehicles.
  • Avoid one surveyed rate much higher or much lower than the others (it gives the Claimant’s Counsel the opportunity to point out the wide range of rates in the market and helps to justify the CHO [credit hire operator] rate charged).
  • Avoid too many calls to achieve four or five rates (anything over nine calls will be attacked to try to show the difficulty of availability).
7. Our evidence is high quality and very damaging to the Claimant’s claim (if they could challenge it by providing an alternative survey, they would do it!). The only strategy left open to CHOs is to attack our credibility by suggesting that we have not carried out the job properly in some way, such as:
  • Survey at a later time to the original is not valid because everyone knows that hire rates are volatile and vary considerably (refer to Apps 6 and 7 to show that rate movement since original hire is immaterial).
  • Autofocus could not prove that vehicles were available at original date (I had absolutely no difficulty when I called and I have never encountered any problem).
8. Some barristers will ask how long it took to complete the survey (the ulterior motive is that they say a relatively long time like two hours or more, the next point will be that the claimant could not be expected to go through such an onerous exercise). (Respond by saying that after preparation of the document to replicate the same conditions facing the claimant, it usually takes around twenty minutes to call the hire companies and record the information) (32/10285).”
MOCK TRIALS
    1. A series of documents which appear to be transcripts of mock trials where various AF directors, team leaders and rates surveyors assume the role of judge, counsel and claimant were found on the Mirror Disk in the folder of Stuart McLean who was responsible for training rates surveyors. The relevant parts of the documents are in similar form. A typical example is a mock trial in the case of Hayles (B810128) where Mr Sadler (the Seventh Defendant) is the judge and Ms Walker (the Second Defendant) is counsel for the claimant Mr Hayles. Mr Stuart McLean appears for the defendant. Mr Nathan George-Broom (the First Defendant) is called as a witness from AF. He is cross-examined by Ms Walker (ECW). The cross-examination includes the following:
“ECW It’s in your interest to obtain the lowest rates for the hire of a vehicle because that’s what insurance companies require, isn’t it?
Nathan No, if the report was for a claimant or a defendant, it would be exactly the same.
ECW How do you decide which companies to call to obtain rates?
Nathan I look at Thomsonlocal and the search criteria I use is Car Hire for the claimant’s locality. I then enter the claimant’s postcode. This shows the companies nearest to the claimant’s home. I then call these companies in strict order.
ECW You called ten companies. How long does it take to make the phone calls?
Nathan About 3 or 4 mins per phone call.
…
EWC Do you make any notes?
Nathan No. I type the rate straight onto the spreadsheet as shown on the appendices 5.1 to 5.5.”
  1. After the evidence and submissions from counsel, Mr Sadler delivered a judgment.
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