Court Decision.

 

Disclaimer.

As many readers will be aware, early last summer British Gas Trading Limited (BG) engaged an Advocate of some renown to argue, before Lady Poole in Scotland’s second highest court, The Court of Session, that I should be prevented from continuing to produce this Blog and that the five published Episodes, should be taken down. The presiding judge, Lady Poole was hardly impressed (cf. Daily Mail 17/6/20). She did, however, agree to the removal of the first two Episodes having adjudged – by a “narrow margin” - that they incorporated “a threat” to publish “defamatory” claims in later Episodes. What concerned Lady Poole was the possibility of unsubstantiated claims likely to suggest BG had resorted to “criminality” in order to cover-up violations of The Law and Industry Regulations. Such claims, according to Her Ladyship, could not be published without probative evidence. As a law-abiding Scot who reveres this country’s Legal System above all other Institutions, it would not occur to me to test Lady Poole’s adjudication. If only someone could provide me with “probative evidence” that BG had violated The Law. Grazie Deo, the most unlikely “someone” did!  Consequently, there are no “unsubstantiated” allegations in this Episode. None. What there is, are facts which makes the revelations in this Episode “completely” and not just “substantially” true; as per the requirements of the new Defamation and Malicious Publications (Scotland) Act 2021.

Episode 9.

"The cancer of criminality".

 

Before we consider BG’s actions regarding its attempts to deceive, it is worth looking at the following extracts from Criminal Law in England & Wales and in Scotland:

 

Section 2 of the 2006 Fraud Act (England & Wales) includes the following:

[If a party makes a] false representation dishonestly
knowing that the representation was or might be untrue or misleading
with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss [s/he will have violated The Act].

 

                                           Criminal Law (Consolidation) (Scotland) Act 1995.

44. False statements and declarations.

(1) Any person who—

 (a) being lawfully sworn, wilfully makes a statement which is material for that purpose and is required or authorised by law to make a statement on oath for any purpose; and (b) which he knows to be false or does not believe to be true, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding five years or to a fine or to both such fine and imprisonment.

 

 

 

On Monday November 21 2016, Ombudsman Services: Energy (OS) informed BG that it was to investigate a claim that it had withheld tariffs from its customers in the town of Stornoway. BG responded by lodging a Formal Appeal against OS’s decision to open such an Investigation. It worked. Five days later OS terminated its Investigation on the basis that it had: “…reviewed the available information (in BG’s Formal Appeal) and agree that we will not be able to consider [the] complaint.” Clearly the “available information”, upon which OS based its decision to terminate an Investigation must have been dispositive of the fact that its decision to launch an Investigation was wrong. Were it otherwise, it would reveal BG had falsely informed OS which would have been in violation of criminal law (cf. the 2006 Fraud Act).

 

The “available information” included: a) "[A] document which British Gas forwarded to the Claimant prior to 25th November 2016 advising Ombudsman Services: Energy could not help with his complaint” 

and b) “Numerous documents which British Gas informed the Ombudsman Services: Energy on 25th November 2016 that it had sent to the claimant., regarding the [BG] policy regarding the "propane gas supply in Stornoway"”

 

The above cited “available information”, which is abstracted from Court Orders issued to BG on September 18 last year, reveals BG clearly violated both criminal law (cf. the 2006 Fraud Act) and industry regulations (Energy Company Obligation Scheme), because a) BG has a statutory obligation to advise all of its customers of the fact that OS may be able to help if they have a complaint, not that “it cannot” and b) BG, in accordance with the 1995 Gas Act is prohibited from having a discrete policy in its “Piped Propane Estate” businesses, of which Stornoway is one. BG, therefore, in its Formal Appeal of November 25 2016 proffered demonstrably false information to OS for the specific purpose of stopping an ongoing Investigation. That was the start of its criminal dishonesty. It was to get worse. Much, much worse. Let’s look: On June 5 last year, I formally requested BG’s counsel provide me with the first of the above cited documents. Later that day “on instruction”, he advised me “My client cannot locate the document”. In addition, he advised me his client had forwarded a copy of the “specified document” to OS. He also cautioned me that it would be pointless to lodge a Recovery of Documents Application with The Court in an effort to obtain the document. Having considered his pro bono advice most carefully for a number of milliseconds, I lodged a Recovery of Documents Application with The Court.

 At a Hearing called to consider that application (Sept 17 20200), BG’s counsel argued that Court Orders requiring his client submit that and other documents should not be granted on the basis that “…it could not locate the documents” besides which it had “forwarded copies to OS through the (e-communications channel) the Peppermint Portal.” “Not being able to find documents” it had relied on in a Formal Appeal which was sent to OS with the stated purpose of stopping a legitimate investigation was not, in the Sheriff’s estimation, “reason enough to have The Court rule in BG’s favour”. Consequently, he issued Court Orders compelling BG to submit the “specified documents”. BG had ten days from receipt of these Orders (Sep 18 last year) to hand-over the “specified documents” to The Court. It didn’t. In response, a Hearing was called for Dec 12^th 2020 at which BG would be required submit the documents “specified” in the Court Orders. Or not! At that Hearing, BG once again informed The Court that it “could not locate the documents” but it could assure The Court, it had “sent copies to OS via the Peppermint Portal.” A further Hearing was scheduled for Feb 1^st this year.

 

Feb 1^st 2021: Deja vous all over again: “My client cannot locate the documents, but it did send copies to OS via the Peppermint Portal…” But this time with the qualification, “…although the Peppermint Portal, at my client’s end, is obsolete and it (BG) cannot, therefore, retrieve the documents”. All the while this claim was being continually asserted, I was in communication with OS in an attempt to recover all communications referencing my name which it had received from BG since October 2016. OS was more than accommodating: It forwarded me the 300+ documents it had received from BG, containing my name, from 2013 – none of which, mais quelle surprise, corresponded to the documents “specified” in the Court Orders. At the next Hearing then (March 1^st), BG’s new claim that it “may or may not” have sent copies of the “specified” documents to OS, clearly exhausted the Sheriff’s patience. He closed proceedings by advising me it may well be, "time to lodge a Special Recovery of Documents Application." In defiance of further pro bono advice from BG’s counsel (he really is most considerate) vis-à-vis the futility of lodging such, I did make a Special Recovery of Documents Application and a Hearing was called to consider it on April 12^th. That was to become quite a day: A day to remember, in fact.

A Special Recovery of Documents Order, if granted, is a legal tool of considerable heft: it can result in The Court appointing a Commissioner to search the premises of any litigant which has failed to comply with Court Orders - not something BG would welcome; you wouldn’t think. But how to avoid such an eventuality? Here’s how: In response to the opening question in the April 12^th Hearing (Does BG have the documents specified in the Court Orders of Sep 18 2020?) counsel for BG proffered a response which absolutely guaranteed The Court would not appoint a Commissioner. He answered thus:

 

“No Mi Lord, the documents were never written and therefore, do not exist.”

 

Yes, you did read that correctly! Counsel for BG did say that. Out loud, in a Scottish Court, he blithely revealed the “specified documents” his client had relied on to have an OS Investigation closed-down and which it had him assure The Court, over the course of three unnecessary Hearings, it “had sent to OS”, were, as a matter of recorded fact, fictitious. They had been imagined, not written, by his client! From Sep 17 2020 until Feb 1^st this year, therefore, when BG instructed its counsel to inform The Court that it had sent “documents” specified in “Court Orders” to another party, it was issuing “improper instructions” to a counsel who has a professional duty “not to mislead The Court”: On this issue specifically, The Law Society of Scotland’s Code of Conduct for Solicitors is spring-water clear: “Solicitors must never knowingly give false or misleading information to the court…” or, “…accept improper instructions, for example to assist a client in a matter which [s/he] know(s) to be criminal or fraudulent”. Given so, one might assume that BG’s “instructions” will, at some point, be measured against the Criminal Law (Consolidation) (Scotland) Act 1995.

 As to its counsel: It would be quite wrong to assume that he was aware he was misleading The Court on the numerous occasions he falsely advised it that his client “could not locate” the specified documents and that it had “sent copies of the (specified) documents, to OS.” He may not have been. Until April 12^th this year, that is. On that day he most assuredly did become aware that when BG had instructed him to advise The Court that it had “forwarded the documents specified in Court Orders to OS”, it had, clearly, instructed him “improperly”. Which is why I wrote to him the following week to advise:

 “…you too have been negatively affected by your client’s dishonesty: On four separate occasions you attended Hearings with instructions to proffer false and dishonest information to The Court: Even as you were being instructed otherwise, your client knew it had not sent the “specified document” to OS through the “Peppermint Portal”; or by any other means. One can only assume, as both a Scottish solicitor who has sworn an oath never to “mislead The Court” and as a practicing Christian, you must have been horrified to have discovered that you had been instructed by a duplicitous client to falsely advise The Court on so many occasions.”

Horrified or not, he is, despite being fully aware that his client issued him “improper instructions” over the course of at least four Court Hearings, still representing BG. And we know this because he emailed me last week in that capacity - in response to an offer of giving his client a preview of this Episode - to advise me not to publish. As to why, I am not to publish, he was rather vague, but he did imply another visit to the Court of Session should I, once again, ignore his pro bono advice. One can only imagine the directions he will give the unwitting Advocate he manages to convince to Represent (The Court of Session is above his pay-grade) his client at that Hearing. So let’s do that:

(Imagined) Directions to Advocate

Mi Lady/Lord, British Gas Trading Limited demands this nasty, nasty (stamp foot repeatedly) individual, who has published a Blog Post in which he openly accuses my client of (pause and stamp) “Criminality”, be ordered to remove that Post immediately. Furthermore, we demand he be punished severely for making these (stamp foot repeatedly) completely unfounded claims in the first place. The claim that British Gas severally and over a period of years violated Criminal Law for specified purpose is (pause, forza) Outrageous! On the flimsiest of (pause) “supposed” evidence, he claims British Gas, in violation of the 2006 Fraud Act, falsely informed Ombudsman Services: Energy - for the stated purpose of terminating a legitimate Investigation – of the existence of numerous documents which were, as a matter of recorded fact, “imaginary”. He goes on to claim that British Gas, thereafter, in an effort to ensure its “unlawful misinforming” of Ombudsman Services: Energy was never revealed, treated Stornoway Sheriff Court with unalloyed contempt by instructing its counsel to inform it, over an extended period and on numerous occasions, that British Gas had sent these “imaginary documents” to Ombudsman Services: Energy through an e-communications channel.

And the “supposed” evidence for these patently outrageous claims? My friend here, outside counsel for British Gas Trading limited – a man of some (molta forza) repute – told him so! Yes indeed Mi Lady/Lord this despicable litigant is actually claiming, based on the simple fact that Mr Philip Knight of Womble Bond Dickinson (UK) LLP, stood up in Stornoway Sheriff Court on April 12^th this year and said - in response to the question: Do you have the documents specified in the Court Orders? - No, Mi Lord, the documents were never written and therefore, do not exist.” that that statement somehow proves British Gas violated “criminal law”! In this misguided litigant’s (sarcastically) “opinion”, my friend’s private asseveration in open-court, can somehow be construed as “evidence” that when this fine company intimated to Ombudsman Services: Energy and a Scottish Court that it possessed documentation which was in fact “imaginary” it was somehow being dishonest! I ask you!

I should conclude Mi Lady/Lord by warning this court that if litigants like this can get away with citing the in-court (de facto under oath) utterances of Scottish solicitors as “evidence” then it’s only a matter of time before courts will be asked to accept “video recordings” of “crimes being committed” as reliable “evidence”. I urge Your Lady/Lordship to dismiss the preposterous claim that, just because my friend here revealed British Gas’ nefarious actions in open court, these revelations can be appropriated by people like this (sigh loudly), to justify The Truth!

 

Addendum.

 

For most people cancer is not an abstract disease, it is a very real yet incomprehensible threat to them and to those they know and love. And the questions most people affected by this scourge immediately ask are: a) Can it be treated? And b) What caused it? The answers are: “It depends how long it’s been growing”, and, “A single malignant cell which started reproducing uncontrolledly.” One single malignant cell. That’s how all biological cancers - slow or fast growing – begin: with a single malignant cell. It’s also how all criminal enterprises, large or small, begin – with one malignant action which then metastasises uncontrolledly: In 1972, G Gordon Liddy, an agent in the then President Nixon’s Administration, thought it a good idea to bug the Watergate Building in Washington DC, in which the Democratic National Committee was renting space. This single malignant idea in July 1972 was to end just over two years later with the disgraced Nixon resigning the American Presidency and a large number of his co-conspirators, including Liddy, going to prison. By then the list of crimes committed in an attempt to cover-up the original offence had, like cancer cells in an unchecked tumour, multiplied exponentially. The original “crime” had, in fact, metastasised into a criminal enterprise.

On November 25 2016, British Gas Trading Limited requested Ombudsman Services: Energy terminate an Investigation into my allegation that it had withheld a specific gas tariff from Stornoway customers including myself. That request took the form of an Official Appeal which informed Ombudsman Services: Energy that it, (BG) had sent me “specified” documents which would render any such an Investigation unnecessary. Almost five years later, BG in the most astonishing admission of illegality, informed a Scottish Court that a number of the documents specified in its original Appeal to Ombudsman Services: Energy were, as a matter of fact, imaginary! That admission – given in open court in order to prevent a search of its HQ – also revealed British Gas had, on numerous occasions, “improperly instructed” its counsel to falsely inform a Scottish Court that, although it “could not locate”, what it must have known to be fictitious documents, it had most assuredly “forwarded them to Ombudsman Services: Energy”. “Watergate”, it isn’t. But if you are citizen living in Scotland whose rights, freedoms and responsibilities are both protected and governed by its Legal System – and that includes the right not to be lied to by your energy-supplier – it is far more important. Attempting to cover-up an incompetent burglary is one thing: Misinforming a Scottish Court in an attempt to cover-up a blatant violation of criminal law, is quite another: In fact, it is nothing short of an attack on our Legal System; an attack which provoked the MP for this constituency to observe, “This is now a serious matter for the courts”.  He’s right, of course, because ultimately an attack on our Legal System, is an attack on us all.