Wednesday, January 26, 2011

Lotus vs Lotus: Full transcript of the proceedings at London High Court, Chancery division

Lord Denning, Not Justice Smith

There is nothing like reading the full transcript of a proceedings in order to get an accurate feel of what transpired in court.

Here we have the full transcript of the interactions between the counsel for Group Lotus, 1-Malaysia Racing Team and Justice Peter Smith.

It gives us an indication which side is better prepared for a full trial and a strong sense of how Justice Smith conducts his court with a no-nonsense approach.

Full transcript after the jump

      1     IN THE HIGH COURT OF JUSTICE          Claim No. HC 10 C03151

      3                                           Royal Courts of Justice,

      4                                           Monday, 24th January 2011

      5                                    Before:

      6                            MR. JUSTICE PETER SMITH

      7                                 --------------

      8         B E T W E E N:

      9                                GROUP LOTUS PLC

     12                        (1) 1MALAYSIA RACING TEAM SDN BHD
                                (2) TEAM LOTUS VENTURES LIMITED
     13                             (3) TUNE GROUP SDN BHD
                                 (4) ANTHONY FRANCIS FERNANDES
     14                    (5) 1MALAYSIA RACING TEAM (UK) LIMITED
                  Computer-aided transcript by: Marten Walsh Cherer Limited,
     17          1st Floor, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
                   Telephone: 020 7067 2900  email:
            MR. MICHAEL SILVERLEAF QC and MR. BRIAN KENNELLY (instructed by
     20         SNR Denton UK LLP) appeared for the Claimant.

     21     MR. GUY MORPUSS QC and MS. PATRICIA EDWARDS (instructed by
                MacFarlanes LLP) appeared for the 1st Defendant.
                                    PROCEEDINGS -- DAY ONE


     2      MR. SILVERLEAF:  May it please you, my Lord.  In this matter I

     3          appear with my learned friend Mr. Kennelly for the claimant

     4          and my learned friends Mr. Morpuss and Ms. Edwards appear for

     5          the defendants.

     6      MR. JUSTICE PETER SMITH:  Do you appear for all the defendants

     7          today or are you just doing one?

     8      MR. MORPUSS:  Only 1MRT and that is the only defendant to this

     9          application, although MacFarlanes and I and my learned junior

    10          do represent the other defendants as well.

    11      MR. JUSTICE PETER SMITH:  Yes.

    12      MR. SILVERLEAF:  My Lord, this application today before the court

    13          is for summary judgment on a single isolated issue arising

    14          under the trade mark licence granted by Group Lotus to

    15          1Malaysia Racing (whom I will call "1MRT" for short, if I may)

    16          in 2009 to race in Formula One under the name LOTUS RACING.

    17                Your Lordship has had a rather voluminous set of

    18          papers ----

    19      MR. JUSTICE PETER SMITH:  But no reading list.

    20      MR. SILVERLEAF:  I am very sorry, my Lord.  Have you had the

    21          opportunity to read at least the skeleton arguments?

    22      MR. JUSTICE PETER SMITH:  I have read the skeleton arguments, I

    23          have read the pleadings and I have glanced at the witness

    24          statements and I have read most of the historical agreements

    25          and the 2009 ----



     2      MR. SILVERLEAF:  I am very grateful, my Lord.  That should speed

     3          things up enormously.

     4      MR. JUSTICE PETER SMITH:  I think things could be sped up

     5          enormously another way.  When are you proposing to have the

     6          trial of the rest of the action?

     7      MR. SILVERLEAF:  We have, I think, been given a trial window of

     8          early next year.

     9      MR. JUSTICE PETER SMITH:  How long do you estimate the trial?

    10      MR. SILVERLEAF:  I think it is 10 days, my Lord.  There are two

    11          problems.  One is, obviously the 2011 racing season is about

    12          to start.

    13      MR. JUSTICE PETER SMITH:  It starts in Bahrain, 17th March?

    14      MR. SILVERLEAF:  The middle of March, yes.  The other is that I

    15          think the parties are agreed we need to ask the court to

    16          expedite the full trial in any event so that it takes place

    17          before the 2012 season.

    18      MR. JUSTICE PETER SMITH:  No.  I think we should expedite it so

    19          that it starts before the 2011 season.  I think we should have

    20          a speedy trial of the whole action before, certainly, the end

    21          of March.  I think we should set a timetable to hear the whole

    22          action then.  There are no resource issues in this case, given

    23          the schedules of costs that have been provided to me.  Let us

    24          get it all sorted in one go.

    25      MR. SILVERLEAF:  My Lord, obviously I will have to take



     2          instructions on that.  I suspect my learned friend will as

     3          well.

     4      MR. JUSTICE PETER SMITH:  We have had the pleadings.  There has

     5          not been a reply and defence to the counterclaim yet, has

     6          there?

     7      MR. SILVERLEAF:  The pleadings are closed.  I believe there is

     8          still outstanding a request for further information from us to

     9          the defendants which has not been answered.  Apart from that,

    10          I suspect the pleadings are terminated.

    11      MR. JUSTICE PETER SMITH:  I think both ought to take instructions.

    12          I am sure we can get this trial on.  I have already made

    13          inquiries of the Listing Officer and we can get a 10 day trial

    14          on this term.  It is a shame you did not apply for this back

    15          in front of Briggs J in November, but the parties can do it,

    16          so far as I can see.  There are no resource issues -- just for

    17          lots of people.  That is it.

    18      MR. SILVERLEAF:  My Lord, in that case ----

    19      MR. JUSTICE PETER SMITH:  I will rise if you like and you can

    20          both ----

    21      MR. SILVERLEAF:  I do not think I can take instructions without

    22          your Lordship rising.

    23      MR. JUSTICE PETER SMITH:  No.  It is best I do not hear what you

    24          say -- good or bad.

    25      MR. SILVERLEAF:  Indeed, my Lord.  Can we have 10 minutes?



     2      MR. JUSTICE PETER SMITH:  Have as long as you like.

     3                              (A short adjournment)

     4      MR. SILVERLEAF:  My Lord, thank you very much for the opportunity

     5          to take instructions.  Our position is that it is a tough call

     6          to do a trial that quickly but we think we can do it and if

     7          your Lordship wishes to direct a speedy trial we would be

     8          delighted.  Obviously, we would like to dispose of this

     9          dispute before the season begins and, frankly, if we can

    10          dispose of it early in the season that is almost as good.  I

    11          have to tell your Lordship that the only reason we did not ask

    12          for a speedy trial at the outset is that we did not think the

    13          other side would agree.  I wait to hear what my learned friend

    14          says.

    15      MR. MORPUSS:  My Lord, much as we would like to see this resolved,

    16          with the best will in the world we do not see that it is going

    17          to be capable of being resolved by March or even the end of

    18          March as a trial.

    19      MR. JUSTICE PETER SMITH:  Why not?

    20      MR. MORPUSS:  It is all very well, my Lord, to just throw

    21          resources at a case, and your Lordship is right that there are

    22          plenty of solicitors and there are plenty of funds on both

    23          sides.  But we have all seen cases where solicitors simply

    24          throw trainees and resources at cases.  Unless those are well

    25          managed and well directed what one ends up with is people



     2          simply running round like headless chickens and it does not

     3          get one anywhere.

     4      MR. JUSTICE PETER SMITH:  That is a matter of getting resources

     5          sorted out.

     6      MR. MORPUSS:  It is, my Lord, but simply saying there are endless

     7          resources is not the answer.  The question is what we can

     8          actually achieve in six to eight weeks.  The concern ----

     9      MR. JUSTICE PETER SMITH:  You ought to look at my decision in Re

    10          Crowson Fabrics where I directed a trial on the Friday to

    11          start on the following Wednesday.

    12      MR. MORPUSS:  Yes, but of course ----

    13      MR. JUSTICE PETER SMITH:  And it did.  That was a lot shorter than

    14          this, obviously, but I see no reason why this cannot be put in

    15          in six weeks.

    16      MR. MORPUSS:  That is what I was going to say to your Lordship.

    17          Of course, it depends very much on the case.  There are a

    18          couple of concerns that we have.  One is that this application

    19          was made on 20th October last year.  If we had been approached

    20          then for an expedited trial it could have been approached with

    21          a view to seeing whether we could get it on in February or

    22          March before the season started -- an expedited trial properly

    23          arranged and managed.

    24                It is the claimant who chose to make this application

    25          for summary judgment which we submit, if we get to it, is a



     2          hopeless application and the only way of resolving this is a

     3          trial.  Because of their application everyone has been focused

     4          for the last few months on that.  As far as the other four

     5          defendants go that I act for, we have not been focusing at all

     6          on the rest of the case beyond pleading out the issues in the

     7          pleadings.  It has all been focused on dealing with this and

     8          we have not been off exploring the evidence that we need to

     9          produce.

    10                My learned friends have turned up with Mr. Monk, the

    11          Group Lotus employee from 1978.  He criticises my side for not

    12          having an equivalent.  We have approached some other witnesses

    13          may be able to call but we are at a very early stage in those

    14          inquiries.  We can get on with those but trying to do it in a

    15          matter of weeks is going to be pretty difficult, my Lord.

    16      MR. JUSTICE PETER SMITH:  The history is very interesting but the

    17          history involves examining the chains of devolution of the

    18          various marks through various companies and through various

    19          agreements, does it not?  That is the primary issue as to

    20          whether or not the defendants have an independent right to use

    21          TEAM LOTUS, is it not?

    22      MR. MORPUSS:  There are two limbs to it, my Lord.  Your Lordship

    23          has rightly identified one of them, which is whether the chain

    24          of agreements passes through Mr. Hunt to my clients.  But

    25          there is another limb to it which is the one that my learned



     2          friend takes in his skeleton on this application, which is

     3          whether the goodwill in TEAM LOTUS and Group Lotus is

     4          divisible or indivisible.  That is a central question on the

     5          historic relationship between the two companies.  No one has

     6          bottomed that out yet.  Your Lordship has looked at the 1985

     7          agreement and one of the things that appears in the 1985

     8          agreement is a reference to a 1986 agreement.  There is some

     9          suggestion in the papers that things changed after 1968, in

    10          the same agreement, that after 1968 there was a clear

    11          separation of the companies.

    12      MR. JUSTICE PETER SMITH:  Mr. Hunt is still around, presumably, is

    13          he not?

    14      MR. MORPUSS:  I believe so, my Lord, yes.

    15      MR. JUSTICE PETER SMITH:  And Mr. Hunt has been around during the

    16          whole of the period of these operations.  You will be able to

    17          speak to Mr. Hunt.  He has sold his interest in the companies,

    18          presumably for some money, and he will, no doubt, co-operate

    19          with Mr. Fernandes.  Given Mr. Hunt's stated belief that since

    20          1995 he has been trying to get TEAM LOTUS back on to the

    21          Formula One front, he would be very keen to see this happen,

    22          would he not?

    23      MR. MORPUSS:  One would have thought so, my Lord, and it is likely

    24          he can give some helpful evidence from that period onwards.

    25      MR. JUSTICE PETER SMITH:  My view with these things is that if we



     2          pick a date and we say the trial will start then and we set a

     3          timetable and we police what goes on between now and then --

     4          it is no good looking backwards and saying, "But the claimant

     5          could have made an application earlier."  That is gone now --

     6          if there are any difficulties what I do with cases like this

     7          is I police the operation of the order to ensure that it

     8          happens.

     9      MR. MORPUSS:  Of course, my Lord.

    10      MR. JUSTICE PETER SMITH:  It is very difficult for parties, in my

    11          view, to come to court and say, "We have got this big point to

    12          be decided before the commitment of the Formula One season"

    13          and then, when they are offered a chance to have the case

    14          heard, say, "Ah but we want to kick it into the long grass for

    15          another year".

    16      MR. MORPUSS:  My Lord, it is certainly not our desire to kick it

    17          into the long grass but we didn't come to court saying, "We

    18          want to have this resolved".  It is my learned friend's

    19          application for expedition which Briggs J granted.  I am not

    20          trying to be difficult, but I am simply looking at the

    21          practicalities of ----

    22      MR. SILVERLEAF:  With your consent.

    23      MR. MORPUSS:  No, without our objection.  We did not consent to

    24          it, if it matters.

    25                But, my Lord, there is also the question of disclosure.



     2          What is going to happen is that there are a lot of documents

     3          to come out of Group Lotus.  If disclosure is going to be done

     4          in a matter of a few weeks, inevitably there will be arguments

     5          about what is proportionate to do in the disclosure exercise

     6          and, given how important the history is and how important it

     7          is to dig out documents where there are not witnesses ----

     8      MR. JUSTICE PETER SMITH:  I had the same arguments in the Candy

     9          Bros. litigation last year when they told me in March they

    10          could not possibly meet a trial timetable in May.  I rejected

    11          that, I set a timetable and the trial was heard in May.  Their

    12          arguments there were the same point:  thousands of pounds of

    13          documents hidden away in various places and disclosure cannot

    14          take place.

    15                My view is that we set a timetable, the parties approach

    16          it with their best endeavours and if there are any

    17          difficulties then you come back to me on a liberty to apply

    18          provision and we will see where we are going.  I firmly

    19          believe the parties should make an attempt to have this issue

    20          resolved before the Formula One season starts this year or has

    21          gone too far.

    22      MR. MORPUSS:  My Lord, could I just pick up on that last point

    23          which is getting it resolved before the Formula One season

    24          starts.  The season, I am told, starts on 11th March in

    25          Bahrain and then it moves on to Melbourne at the end of March.



     2      MR. JUSTICE PETER SMITH:  And then there is a bit of gap.

     3      MR. MORPUSS:  On 8th April they are in Malaysia and then, on

     4          15th April, in Shanghai.  The concern we have is that from

     5          early March onwards, when the team have all gone out there,

     6          everyone is going to have disappeared and in terms of

     7          witnesses that we need from the clients or witnesses from

     8          Formula One, they are all out in the Far East for a couple of

     9          months.

    10      MR. JUSTICE PETER SMITH:  The only area where you are likely to

    11          have witnesses is over the allegations concerning the 2009

    12          agreement as to whether or not it was broken by your clients

    13          or not and whether the claimant broke it.

    14      MR. MORPUSS:  Yes, my Lord.

    15      MR. JUSTICE PETER SMITH:  Once again, we can always adapt, in the

    16          modern world, to the hearing of evidence in the modern world

    17          to the hearing of evidence by video link or an appropriate

    18          timetabling of the case.  I firmly believe that parties have a

    19          right, and, of course, have a duty to have their dispute

    20          resolved quickly and, given the importance of this case, I

    21          think it ought to be heard, if possible, sometime in March.

    22          You might lose two.  It may slip into April.  But the vast

    23          bulk, subject, of course, to anybody's right to appeal (but

    24          that is a different story, that is not my concern), of the

    25          Formula One 2011 ought to take place with at least a first



     2          instance decision as to the rights between the parties.  That,

     3          of course, also assumes that the parties do not become

     4          sensible in the meantime and negotiate a settlement.  Speedy

     5          trials concentrate people's minds in that regard as well.

     6      MR. MORPUSS:  Of course they do, my Lord.  May I add one other

     7          point, then, my Lord, which is this.  An application of this

     8          sort is not going to resolve the use of TEAM LOTUS by my

     9          learned friend in the 2011 season.  It is not the purpose of

    10          this application that his team can use the name TEAM LOTUS.

    11          All the entries have been made for the Formula One

    12          championships.  They are sponsoring the Renault Team who have

    13          to use the word "Renault" in their name because that is their

    14          chassis name.  So even if there is a speedy trial it is not

    15          going to result in my learned friend being able to use the

    16          name TEAM LOTUS this season.

    17      MR. JUSTICE PETER SMITH:  Has he got an application to do that?

    18      MR. MORPUSS:  No.  That was my point, my Lord.

    19      MR. JUSTICE PETER SMITH:  No.  The whole point is stopping you

    20          using it, is it not?

    21      MR. MORPUSS:  Yes.  That is what they want to do.  It is a dog in

    22          the manger application.  They do not want to use it

    23          themselves.  They want to stop us using it.

    24      MR. JUSTICE PETER SMITH:  It is a commercial dispute between two

    25          commercial organisations as to their respective rights.  This



     2          regularly happens.  No doubt there will be the prospect of

     3          money changing hands one way or another as leading to an

     4          inducement to resolve the dispute.  If they have a right to

     5          stop you using TEAM LOTUS, they are entitled to seek to

     6          exercise it.  Equally, if you have a right to use TEAM LOTUS,

     7          you should be able to do that free from them.

     8      MR. MORPUSS:  Yes.

     9      MR. JUSTICE PETER SMITH:  I am giving both sides an opportunity to

    10          have this resolved now rather than later.

    11      MR. MORPUSS:  My Lord, as I say, we are keen to have it ----

    12      MR. JUSTICE PETER SMITH:  If you do not have that and it goes off

    13          to another year and there is no application by the claimant

    14          for interim relief, you will then have, hanging over the 2011

    15          season, the question as whether or not your clients,

    16          legitimately, are entitled to use TEAM LOTUS.  If, at the end

    17          of next year, the court determines you were not, then there

    18          are going to be all manner of arguments about the relief, is

    19          there not?

    20      MR. MORPUSS:  My Lord, as I said, we are enthusiastic about

    21          getting it resolved early.

    22      MR. JUSTICE PETER SMITH:  Good.  I am glad to hear it.

    23      MR. MORPUSS:  But we would like it to be done in an orderly way

    24          and we feel that March is too soon.  From our point of view,

    25          if we win the trial, we want to stop them, for example, using



     2          the black and gold livery of TEAM LOTUS which they use ----

     3      MR. JUSTICE PETER SMITH:  Have you claimed that in your

     4          counterclaim?

     5      MR. MORPUSS:  That is something that we need to amend, my Lord,

     6          because it has only happened after our last round of pleadings

     7          was served.  If we get into a discussion about directions,

     8          that is a direction I would ask, for leave to amend the

     9          defence and counterclaim to bring that claim.

    10                My Lord, the reality is that if you order this we will

    11          work towards it with the best will in the world but we may be

    12          coming back in a few weeks and saying it is just not possible.

    13          But, obviously, if your Lordship wants to have a trial in

    14          March we will do what we can.

    15      MR. JUSTICE PETER SMITH:  I will, of course, entertain

    16          applications, by either side if they come and tell me, "The

    17          timetable is so strict that I cannot fairly present my

    18          client's case".  I will not force a trial if it is going to an

    19          injustice in that way, but I do believe the parties ought, at

    20          least, to make a serious attempt to have a trial as early as

    21          possible in March.

    22      MR. MORPUSS:  The final point, I would say, my Lord, is we have

    23          not been able to take any instructions from the clients and

    24          the points I have been putting to your Lordship are simply the

    25          considerations that the legal team has come up with.  Our



     2          clients are out in the Far East, obviously.

     3      MR. JUSTICE PETER SMITH:  I understand that.  They are all

     4          probably safely in bed now.

     5      MR. MORPUSS:  Yes.

     6      MR. JUSTICE PETER SMITH:  I would, in any event, give you liberty

     7          to apply on 24 hours' notice back to me on any issue.  That is

     8          my standard case management direction anyway.

     9                Given that, we need a timetable for a speedy trial, do

    10          we not?

    11      MR. SILVERLEAF:  It would appear so, my Lord, yes.

    12      MR. JUSTICE PETER SMITH:  If we look at March and you want 10

    13          days, a start on either the 14th or 21st March would be a good

    14          idea, I would have thought.  I think it is probably optimistic

    15          to say that we can start it for 10 days before that first

    16          Formula One in Bahrain.

    17      MR. MORPUSS:  In the interests of having the extra week, I would

    18          go for the 21st, my Lord.

    19      MR. JUSTICE PETER SMITH:  What do you say, Mr. Silverleaf, 21st

    20          start?

    21      MR. SILVERLEAF:  Would your Lordship just give me one moment.

    22          (Counsel took instructions)  Yes, my Lord.

    23      MR. JUSTICE PETER SMITH:  21st March?

    24      MR. SILVERLEAF:  21st March.

    25      MR. JUSTICE PETER SMITH:  21st March for 10 days.



     2                Do you want to attempt to agree a timetable between

     3          yourselves first?

     4      MR. MORPUSS:  I think that would be more sensible, my Lord, yes.

     5      MR. SILVERLEAF:  I am sure we can, my Lord.

     6      MR. JUSTICE PETER SMITH:  Yes, adding a clause, my standard

     7          clause, which is:  "Liberty to apply to me at ten o'clock on

     8          any day, subject to my availability, for 30 minutes on two

     9          business days' notice or less if urgent on any matter arising

    10          out of this order".  I am not suggesting the case comes before

    11          me at trial.  I suspect it will probably go before a different

    12          judge given the IP issues, but there is no reason why I should

    13          not at least drive through the case management to trial.  That

    14          is a very important provision.  My experience over the years

    15          has been that that stops people taking silly stances because

    16          they come in front of me and I shout at them.

    17      MR. MORPUSS:  I am not sure we have time to take silly stances on

    18          this timetable, my Lord, anyway.

    19      MR. JUSTICE PETER SMITH:  I believe in this timetable but it is

    20          when things disappear into correspondence.  Do not get

    21          involved in correspondence about issues.  Come and see me

    22          informally on that liberty to apply.

    23                Take as long as you need over the directions.  I will

    24          notify listing that that is the time you are aiming for.

    25                             (A short adjournment)



     2      MR. SILVERLEAF:  My Lord, we have a provisional timetable subject

     3          to your Lordship's approval.  Unless you want to, you do not

     4          need to write it down.  We will prepare one.

     5      MR. JUSTICE PETER SMITH:  Yes.  I am just listening.

     6      MR. SILVERLEAF:  The defendants should have leave to amend their

     7          counterclaim by 28th January.  We would have liberty to amend

     8          the reply and defence to counterclaim in response by

     9          4th February.  Disclosure on the 14th.  Inspection on the

    10          16th.  Witness statements on 7th March.  Trial on the 21st.

    11          If your Lordship is happy with that, the parties are.

    12      MR. JUSTICE PETER SMITH:  Is no expert evidence going to be

    13          called?

    14      MR. SILVERLEAF:  Not as far as I can see.  This is a case which

    15          turns entirely on fact.

    16      MR. JUSTICE PETER SMITH:  The only areas possible -- No, I am not

    17          going to encourage you to think of expert evidence.

    18      MR. SILVERLEAF:  I am very pleased to hear that, my Lord.  Subject

    19          to your Lordship's approval ----

    20      MR. JUSTICE PETER SMITH:  Yes.  The only add-on I would have is

    21          that skeleton arguments, reading lists, bundles, lists of

    22          authorities should be lodged by, shall we say, Wednesday the

    23          16th and make Monday the 21st a reading day for the judge.

    24          And put my liberty to apply provision in.

    25      MR. SILVERLEAF:  I am sorry, my Lord.  I was taking that as read.



     2          I do apologise.

     3      MR. JUSTICE PETER SMITH:  I have spoken to listing and Mr. Bell is

     4          very happy to have you in on that day.

     5      MR. SILVERLEAF:  Excellent.

     6      MR. JUSTICE PETER SMITH:  Costs reserved?

     7      MR. MORPUSS:  My Lord, the effect of this is that the summary

     8          judgment application is not going to be heard and was a

     9          mistake to have been brought.

    10      MR. JUSTICE PETER SMITH:  No.  You can have that argument at the

    11          end of the trial.

    12      MR. MORPUSS:  Okay, my Lord.

    13      MR. JUSTICE PETER SMITH:  If you ever reach that stage.  The only

    14          other thing is that dreadful word "mediation".  Is there any

    15          prospect of a mediated settlement in this case?  I would

    16          suspect that the only possible time for mediation is after you

    17          have had your disclosure and exchange of witness statements.

    18          My experience is mediation does not take place when everything

    19          is still inchoate.  Maybe I do not need to say to such an

    20          experienced team of lawyers that they should think about

    21          settlement before they spend 10 days in court.

    22      MR. SILVERLEAF:  We have and we are, my Lord.

    23      MR. JUSTICE PETER SMITH:  What, you are experienced and you have

    24          discussed it?

    25      MR. SILVERLEAF:  We have thought about settlement and we are



     2          thinking about it.

     3      MR. JUSTICE PETER SMITH:  Right.

     4      MR. SILVERLEAF:  One always does.

     5      MR. JUSTICE PETER SMITH:  Not always.  We sometimes have lengthy

     6          cases which attract comments about tanks and things.  Very

     7          well.  If the order can be e-mailed to my associate and my

     8          clerk, I will sign it off.

     9      MR. SILVERLEAF:  Thank you very much indeed, my Lord.  We are very

    10          grateful to your Lordship for both suggesting and

    11          directing ----

    12      MR. JUSTICE PETER SMITH:  The other thing that occurred to me is

    13          this.  You are going to maintain the status quo in the sense

    14          that the defendants are going to be able to enter the existing

    15          Grand Prix that will take place before the trial as they have

    16          registered, presumably, and with all rights reserved in

    17          respect of that?

    18      MR. SILVERLEAF:  Yes, my Lord, subject, obviously, to an agreement

    19          to the contrary between the parties, whether temporary or

    20          permanent.  Also, we are both subject to the rule of Formula

    21          One management.  If Formula One management say we can or

    22          cannot do something, either of us, then we are not able to

    23          gainsay that because they are in control.

    24      MR. JUSTICE PETER SMITH:  They are not going to stop the

    25          defendants because the defendants are already registered to



     2          participate, are they not?

     3      MR. SILVERLEAF:  I think that is right, my Lord.

     4      MR. MORPUSS:  Yes, that is right, my Lord.  We are already

     5          registered.  It is too late ----

     6      MR. JUSTICE PETER SMITH:  And not calling yourself "Lotus Renault"

     7          are you, or anything like that?

     8      MR. MORPUSS:  We are not, my Lord, no.

     9      MR. JUSTICE PETER SMITH:  The claimant is not calling itself Lotus

    10          Renault?

    11      MR. MORPUSS:  It is, yes.

    12      MR. SILVERLEAF:  We are.

    13      MR. JUSTICE PETER SMITH:  You are?

    14      MR. SILVERLEAF:  Yes.

    15      MR. JUSTICE PETER SMITH:  There are going to be two Lotus ones

    16          there.

    17      MR. SILVERLEAF:  That is why we are here, my Lord.

    18      MR. JUSTICE PETER SMITH:  Both wearing the same logo?

    19      MR. MORPUSS:  Slightly different colours, my Lord.

    20      MR. JUSTICE PETER SMITH:  There will be some very valuable

    21          memorabilia available, will there not, if some of these come

    22          out in the first part of the season?

    23                I had a case like that concerning football cards.  I had

    24          stopped a rival football cards case and they left an original

    25          one because I granted an injunction stopping them selling any



     2          more.  Unreasonably, they asked for the original back.

     3      MR. SILVERLEAF:  Suddenly acquired added value.

     4      MR. JUSTICE PETER SMITH:  My former clerk's son looked interested.

     5          Very well.  Thank you very much.

     6                                   ------------





















Tuesday, January 25, 2011

Lotus vs Lotus: So what happened on Monday and who actually won?

  • Justice Peter Smith declined to give summary judgment
  • Full-blown trial to start in March 21

When Justice Peter Smith decided that a summary judgment for Lotus vs Lotus will not do and told both parties that they should suit up for an all-out legal battle starting March 21, both teams of barristers  were stunned, there is barely enough time to organise themselves for the Monday before the Australian Grand Prix.

According to The Telegraph's Formula One correspondent, Tom Cary, who was in court at the material time of the proceedings on Monday both sides were shocked but that did not seem to alter Justice Smith's decision, he gave them 20 minutes to consult their clients.

1Malaysia Racing Team's lawyers told the judge they could not get in touch with Tony Fernandez and expressed reservation that they could get prepared in eight weeks.

Smith said that both teams are not exactly resource starved and should get on with it, he added that bringing forward the trial date will probably be a good thing.

“There are no resource issues,” the judge noted. “I find a speedy trial tends to focus the minds. Let’s get it all sorted in one go.”

Well that was the scene in the courts but what was the case all about in the first place?

The case before Justice Smith was an application for a summary judgment on the Lotus trademark dispute between Group Lotus, the car manufacturer and 1-Malaysia Racing Team, Tony Fernandez's outfit which campaigned the green and yellow team Lotus Racing in the 2010 season.

Group Lotus in their effort to prevent a costly all-out legal battle had requested for a summary judgment to be delivered by the court but because the case is far too complicated for judge to make a decision based on whatever documents that were submitted, Justice Smith said that a full trial is necessary to settle this dispute once and for all.

Justice Smith's decision is not surprising, given that David Hunt had faced numerous efforts in the past to pry away the Lotus name from his hands after he bought Team Lotus from team founder, Colin Chapman's family.

Those familiar with the British legal system said that Justice Smith is a bot of a Maverick and his decision to give both sides just eight weeks is typical of him and it is now up to both sides to try and move the dates back.

Well, things are going to get interesting now that both sides have said that they are happy with the decision, ready or not, like it or not they are going to trial and the first to ask for a postponement loses this game of 'chicken'.

Fernandez and Team Lotus CEO Riad Asmat are both active residents of twitterville and had both made it clear that they had triumphed with the decision.

I am not sure that is an accurate description of their position but the decision did deny a speedy and less costly resolution to the case.

Does that mean that Fernandez and Riad both thought that a summary judgment would have gone against their interests?

On the other hand Group Lotus must also be nervous about the prospects of the case going to full trial.

While the considerable legal expense is something they probably want to avoid, the company is probably more worried about the negative publicity that the case would attract to a brand they are desperately trying to rebuild and lift to a higher level.

Partners and Genii Capital, the present owner of Renault F1 team would also be looking closely at what may happen to their partnership with Hethel.

Renautl itself may be interested in the outcome, Group Lotus bankers and financiers are also making their assessments of the situation.

Cary also  raised an interesting question about what is happening: He wondered why David Hunt was never consulted during the proceedings for summary judgment.

When 1Malaysia were impressing upon the judge how difficult it would be to get people up to speed on the finer points of the case in the time available, Mr Justice Peter Smith asked if they were using Hunt – who was sitting just behind me in the court room – as a witness. “After all, hasn’t he fought off many other such cases since 1995?” he inquired.
The 1Malaysia barrister admitted that he had not yet consulted with Hunt but might yet do so. It begs the question: why hasn’t the man who sold the Team Lotus name to 1Malaysia, who has fought off many attempts to prise the marque from him, who must know more than almost anyone about the rights that name carries, whose arguments you would imagine to be instrumental to 1Malaysia’s case, been asked to assist? It struck me as odd.
Perhaps they think they can do a perfectly good job without him? Perhaps they think he is untrustworthy? Either way, it seems to me that they will be arguing largely the same points that he has made in numerous court cases down the years.
I guess it will all come out in due course – or maybe not, if they agree to settle out of court.

Meanwhile former Lotus Formula One driver and now TV commentator, Martin Brundle said that Fernandez should just let go of the name. He said Tony had done well for himself with the Lotus name in the first year of racing and now should just go on with a different name.

Brundle pointed out that Red Bull Racing had no historical name and still managed to be double champion.

Meanwhile ESPN-F1 said that they will refer to Lotus_Renault as Renault and Team Lotus as Lotus. Score one for Fernandex there.

So who really won on Monday? The lawyers, because the case will now go mega and their bills will balloon.

Sunday, January 16, 2011

VIDEO: Motor TV's excellent 2010 crash compilation

The two videos run a total of not much more than five minutes but it is five fast paced minutes of broken rollcage and bent metal.

Video after the jump

source via youtube

VIDEO: A lap of Laguna Seca in a shifter kart

Driving a shifter kart on the iconic Laguna Seca circuit must be one of the things that a car nut would want to do, well watching this video is going to have to do it for some of us until we can save enough money to fly over and get a feel in real life.

Keep a look out for the corkscrew, even in a small cart and through a simple camera, this mind-blowing corner looks terrifying and exhilarating at the same time, video and full story after the jump


Told by jasonzbell 25 days ago

A lap around Laguna Seca Raceway during the first car/kart open track day with on 11/1/2010. Top speed here with a bit over 100mph. More can be had in the draft.
The kart is a 2003 Birel CR32SR, with a ~32hp, 125cc Honda Stock Moto engine (CR125), 6 speed sequential transmission. If ran with SKUSA, it would fall into the S4 Masters (Age 30+) category. 405lbs minimum weight, including kart, driver and fuel. Tires used are MG-FZ. I use 110 octane fuel and Maxima Castor oil along with Motul transmission fluid.
I borrowed this camera from a friend, so I was not sure what the optimum settings should be for this application. I know it was set to 720p, 30fps and the mic gain was about 15. The camera was mounted on top of the radiator.

Saturday, January 15, 2011

VIDEO: If your Ferrari needs pimping Zanasi's got the bling

In fact even Enzo Ferrari thought so too.

He shacked up with Zanasi in 1964 and sent his rides to the Carozzeria for special paint, wheels and interior, this is THE Ferrari bling shop.

If you want to see what their spotlessly clean workshop looks like, there is a video after the jump...

Don't ask....if you have to then you should go somewhere else...

GRAPHIC VIDEO: F1 car compared to road cars and other race cars at Eau Rouge

We have all seen the usual F1-road car compariosn and how an F1 car can lap a road car that has a half lap advantage within the same lap.

Eau Rouge is one of the most spectacular and dangerous high-speed corner in the world and with the right wing combo a race car can take it with just a small loss in speed and this video really magnifies the difference between an F1 machine and a fast road sportscar.

Video after jump

VIDEO: Pagani C9 Huayra spotted near factory

Car spy Marchettino caught the C9 around the factory and gave us a good indication of the sound that the car makes under power.

The C9 is rumoured to be called the Huayra. Video after the jump

AUCTION: JFK last ride on sale

1963 Pontiac Bonneville Ambulance was JFK's ambulance after fatal shooting

According to records only 69 Pontiac Bonneville ambulance were built and 15 commissioned for military use, this particular example was assigned to Bethesda Naval Hospital in Washington DC.

It was sent to collect the casket of John F Kennedy from Andrews Air Force Base and bring it to Bethesda before sending it to Capitol Hill to be laid in state. Gallery after the jump

The ambulance was later sold as surplus and was bought by current owner who restored it to immaculate original condition. It has won many awards and even lauded with a gold award at the 2010 National Convention of the Military Vehicle Preservation Association.

It is now up for sale at the Barret-Jackson Scottsdale event later this month

GALLERY 1963 Pontiac Plymouth Ambulance - JFK's last ride

Friday, January 14, 2011

An apology is not enough

He MUST resign, if a Malay from BN said anything even remotely racist they are pressured to resign, now this bastard clearly told the Indian Muslim owner of a restaurant to go back to India,


WRC: Ford unveil 2011 Fiesta in WRC colours

Mikko Horvonen and Ford Motorsport Europe chief Gerard Quinn took the wraps off the 2011 WRC contender at the Autosport event in Birmingham

Abu Dhabi continues to be the title sponsor while Castrol is the next biggest fund injector into the team.

Full Press release after the jump



BIRMINGHAM, 13 January 2011 - Ford's all-new Fiesta RS World Rally Car was revealed in its 2011-specification today when the company unveiled the colour scheme that will adorn the car in the FIA World Rally Championship.

Team driver Mikko Hirvonen and Ford of Europe motorsport chief Gerard Quinn unveiled the livery for the eye-catching Fiesta RS WRC at the Autosport International Racing Car Show in Birmingham, motorsport's traditional start-of-season showcase event.

Ford's official WRC squad for 2011 also confirmed its new name and logo - it will compete as the Ford Abu Dhabi World Rally Team.

Title partner Abu Dhabi will continue its support throughout 2011 and its distinctive branding will also feature strongly in the new-look livery. Abu Dhabi has been a team partner since 2007 and Emirati driver Khalid Al Qassimi will drive a third Fiesta RS WRC in support of team-mates Hirvonen and Jari-Matti Latvala.

The team will also be sponsored by Castrol, the world's leading lubricants brand and a partner since 2005. Branding for Castrol EDGE, its global range of best-in-class motor oils, will feature prominently in the Fiesta RS WRC's livery.

BP, Castrol's parent company, plans to promote the Castrol EDGE range of advanced synthetic oils, and demonstrate their strength to perform in the demanding surroundings of the WRC.

"The preview version of the car we unveiled in September at the 2010 Paris Motor Show was dramatic in its blue and grey livery, developed specifically for the show by Ford of Europe's design team," said Quinn.

"But now we have a fully finished car in a really eye-catching new livery plus a new team name, and excitement is building throughout the squad as we prepare for the opening round in Sweden next month.

"Ford's designers and product development engineers have worked closely and efficiently alongside the expertise of our partners at M-Sport. The aim was, of course, to produce a car capable of challenging for world championship titles, but one which also reflects the much-admired 'kinetic design' styling cues synonymous with Ford's current road vehicles," added Quinn.

Ford's WRC challenger, derived from the best-selling Fiesta road car, has been developed by Ford of Europe and British-based rally partner M-Sport. It is based on the Fiesta S2000 rally car, which won the legendary Monte Carlo Rally in January 2010 and other international and national rallies during the season.

The Fiesta RS WRC will form part of a new era in the world championship, for which a revised cost-effective formula is introduced this season. It boasts four-wheel drive transmission and a 1.6-litre turbocharged engine, based on the new Ford EcoBoost road vehicle power plant, to comply with the new regulations.

The full specification of the car will be available at the beginning of February. Testing will continue in Sweden next week ahead of the Fiesta RS WRC's championship debut in Rally Sweden, the opening round of the series, on 10 - 13 February.

VIDEO: Porsche's winter driving experience

Driving on ice can be a scary experience but if the driving is done on a frozen lake with nothing to hit then what you have is the opportunity to learn car craft in the best possible circumstances.

Low traction level means speeds are low but that does not mean it is easier to handle the car, so you end up learning so much about handling while freezing your brass off. Video after the jump

French confirm Chinese buyer behind Renault spying case

Late last Friday, French lawmaker Bernard Carayon revealed that the industrial espionage involving Renault's electric vehicle research is linked to a Chinese buyer and he said that proven, reliable and diverse' sources have confirmed this.

"There are in effect several sources that are typically thought to be serious who considers that a Chinese buyer is in fact behind the operation" who is a member of the Conservative party, like President Nicolas Sarkozy.

Renault has yet to confirm the identity of the three executives as they have to comply with local labour laws which require that their identity be veiled. However the French carmaker has confirmed that they will take legal action against the three.

Renault had indicated before that one of them is on the company's management committee, this makes the case potentially very explosive and complicated to defuse.