Fit Up

by Faith Clifford

  However, a couple of days after disclosure, and to compound my fears further, Jeremy had a conversation with Mark one evening. It was not encouraging news. Mark had changed his stance on the case from being ‘a good case’, ‘a strong case’ to ‘arguable’. When questioning him on this change of phrasing, Jeremy told him that if he had heard that word at the advice-seeking stage then he might never have proceeded with the case. We were now eleven months down the road, however, in so deep and with so much time and money thrown at it, we felt we were now in a very vulnerable position.

  Mark had asked Jeremy not to make any rash decisions but to meet with another, more experienced barrister than himself: Heather Rogers, with whom he had already discussed the case. So now, in order to raise the stakes, we were paying a solicitor, Mark and now this Heather. Even if we were to be successful in this litigation the way the legal fees are calculated and awarded there was a strong possibility that we would only retrieve 70 per cent of what we had paid out, thus wiping out any gain of the compensation award. Jeremy had no option but to ask Mark to set up a meeting with Heather in order to prepare for a damage limitation exercise.

  The strain of this news was immense and was impacting on every aspect of our lives. I could not concentrate at work and Jeremy found it torture to be at home with hardly any distractions. Even with Sasha he could find no comfort, he just wanted to switch off his brain and be spirited to the end of the case whatever the outcome. For it just to be over would be relief enough.

  The date for the first hearing in May did not materialise, which meant we had to wait for another opening in the court dates. In the back of my mind there was still one possibility that could force a turn of events and that was Duncan Campbell’s forensic report on Gerard’s use of the computer when it was in his possession. It was decided that we would write to the Gerards directly with a copy of the part of Duncan’s report on their son. We would not involve any solicitors, it was going to be a communication between just them and us.

  We compiled a short letter to the Gerards apologising that this case seemed to have gone too far and that we also wanted this to be over. However, we had hoped not to be bringing into court the evidence that we had on their son and that they should consider the report we were enclosing. It was titled ‘Mr Gerard’s use of computer JB/1 after 18 June 2001’. This would show clearly their son’s activities on the internet and we highlighted in particular the files that were found within the program file that Gerard had created on 11 March 2002 when the PC was in his possession. These two paragraphs contained the most explicit information and vile words. Would this family, possibly considered to be upstanding within their local community, want their son’s interest in internet porn sites and possession of images of underage girls to be brought into the public domain?

  The answer to that question came swiftly after a couple of days, but not in the way that we had anticipated. The Gerards had contacted Ms Campbell with the information and she showed her full fury through multiple phone calls and a letter to our solicitor with more threats, claiming that we were ‘out of order’ for harassing her clients. Our solicitor was not best pleased with our actions either as he had not been informed of what we had done and had taken the full brunt of Ms Campbell’s outpourings. My guess is that if we had suggested this course of action they would not have recommended that we proceed with it and the only pleasure we got out of this episode was that we were informed that the ‘family were extremely hurt and upset’. ‘Good, and so they should be,’ I thought. Now they knew a little of what we had suffered. More importantly, I felt that Ms Campbell, despite vigorously defending her clients, was now fully aware of the person that Gerard was.

  We had come this far and reluctantly it was decided to proceed. Jeremy had met with Heather Rogers and, although she was much more experienced than Mark, he felt like he was going over all the old ground again, getting further advice and paying for the privilege. He had no alternative but to let everyone get on with preparations for the first hearing, which we now knew to be Thursday 29 June, some five weeks away and, coincidentally, the first anniversary of Gerard’s death.

  Jeremy was not involved in much communication with our legal representatives during this time, apart from the odd phone call, so it was with some astonishment that, two days before the hearing, he received by email a nine-page document entitled ‘Some Questions’. It came with a note explaining that this document was not a comprehensive review of all the points arising from the application (or in the case) but did raise some questions about the state of the evidence before the court on the application. This was followed by twenty headings, each with numerous bullet-pointed sub-sections – all in all there were around 100 questions that needed answers. Jeremy called me at work, distraught, to say that we were going to be up all night working on it and when I got home to look over the document I too was absolutely crestfallen. Why had these questions not been asked over the last year by our solicitor or by Mark?

  Jeremy had already made a start before I arrived home at 6 p.m. but we were always better at this exercise if I typed and he dictated the responses. With a hastily eaten takeaway in front of the PC and regular cups of coffee to keep us awake, we finally answered the last question just after 3 a.m., when we took the opportunity of a break. We had been concentrating so hard on completing this huge task that we had not noticed the house was in darkness. Sasha, who had been regularly looking in on us huddled together in the small office, was now flat out on our bed in a contented slumber.

  Finally, we pressed the ‘send’ button with our homework to Heather and then fell into bed exhausted.

  Chapter 24

  SECURITY OF COSTS APPLICATION – HIGH COURT

  Jeremy had been in communication with Mark, Heather and the solicitor for most of the previous day and into late evening. We were all prepared as best as we could be to fend off the plan of Ms Campbell to strike out one of our applications, if not the whole case, and to request the judge to ask us to pay £30,000 into court for security of costs. Mark and Heather appeared confident but that did not help us to get much sleep. We’d only managed to get an hour or two and when the time came to get up, both of us felt light headed and jaded. We felt beat before we had even started the day.

  If Jeremy was nervous he did a good job of hiding it. I could not see any change in him as he showered, got dressed and was eager for some breakfast. I didn’t think I could eat anything with butterflies in my stomach but I needed the sustenance for the day ahead. We both sat down in the lounge watching the morning news, him tucking into ham, eggs and toast and me perched on the edge of a seat crunching through cornflakes that tasted like wet cardboard.

  After taking the train to St Pancras, we hailed a taxi to take us to the Royal Courts of Justice. Jeremy had chosen the Queen’s Bench Division in particular, as they dealt with a wide range of contract law, personal injury and negligence cases. Also, the judges were renowned to be among some of the best in the country.

  Stepping out of the taxi on the Strand, just a little way down from the main entrance, we stared up at the large grey stone edifice built in a neo-Gothic style that was popular in the Victorian era. It was a surreal feeling being here as we had seen this building many times on the news in the background as journalists made their reports to camera. With its spires and elaborate carvings, it was a breath-taking masterpiece of architecture.

  Walking under the elaborately carved porches fitted with iron gates we entered into the main hall. After going through a security checkpoint, we made our way to the notice boards to find out which court had been allocated for the hearing.

  Court 13

  Before Mr Justice Eady

  Thursday 29 June

  At half past 10

  Unrobed

  Application Notice

  HQ05X02625 Jeremy Clifford v (1) Video Action Limited (2) Yvonne Gerard and Michelle Silverman (as representatives of the Estate of Lloyd Gerard deceased)

  We had arrived with an hou
r to spare, which was just as well as I had read that there were three miles of hallways connecting over 1,000 rooms. In this great hall there were many corridors and stairs going off from it and we studied the map to make sure our first move would be in the right direction.

  We walked briskly hand in hand across the marble mosaic floor disappearing through the pillars to a set of stairs which brought us up to a long walkway with a lot of dark stained wood. We found Court 13 and peered in through the glass of the second set of doors. The room was quite small with more dark wood panelling on the walls and floors, uncomfortable looking benches on three sides with the judge’s bench high up at the front. In another world I would have been an awestruck tourist drinking in this magnificent structure and relishing in its sense of history, but today I found it intimidating.

  There was no sign of Heather and Mark yet so we thought we would get a cup of coffee from the cafeteria, if we could find it again through a vast number of corridors. Heading off in what we hoped was the right direction, we heard whispering behind one of the pillars and as we approached Jeremy recognised one of the voices as Mark Afeeva.

  Jeremy politely interrupted him to introduce me and Mark indicated that the lady with him was Heather Rogers. We knew that she was highly respected in her field and that she had been awarded Defamation Junior of the Year in 2005. Her eyes, behind her rectangular glasses, were kind and sympathetic toward Jeremy as she shook his hand. With introductions out of the way, Heather briefly went over the case. She told us that she wasn’t sure what Finers were trying to achieve for the Gerards and Video Action at this hearing. We left Heather and Mark to mull over their papers and tactics while we went in search of a caffeine boost.

  I wondered if the Gerards would come here first and swept my eyes over the cafeteria, looking closely at the huddled figures around various tables. There, by the wall, were four people, one man and three women. I could tell immediately that the man was Gerard’s father, Joel, and he was sitting looking dazed with his hand against his forehead. He was sitting next to an older woman, whom I presumed to be Yvonne, his wife, whose eyes were red-rimmed and bloodshot. Opposite Joel sat Michelle, Gerard’s sister, and the only person who did not look related was the vitriolic Ms Campbell. She was just as I had imagined. Dressed in a no-nonsense skirt suit, she was very thin, her hair cut in a short, dark bob with hard, pinched facial features. The three of them sat silently while Ms Campbell talked to them. Although we could not hear what she was saying, she was very animated with her hands, using a forefinger to point at papers. She appeared every bit as aggressive in person as her carefully worded letters to our solicitor. I had a thought that if I had been able to identify them, would they be able to do the same to us? I am ashamed to say that I felt no sympathy or pity for them – that’s just the way I had become since October 2003. However, I did not want to stick around so we took our drinks with us back to the corridor of Court 13 and the company of Mark and Heather.

  There were other courtrooms along the corridor that we were in and by the time we returned there were a lot more people about. As the flurry of activity died down Heather leaned out to see what was coming next. ‘Oh, God!’ she exclaimed. We looked at her concerned face, then to the direction she was facing. Filling up the width of the corridor and walking in unison were the Gerards, Ms Campbell and a man by the side of her who had not been in the cafeteria. I noticed his hair first as I thought it was in a ponytail. As he neared I could see it was one length slicked back from his receding forehead all the way past the collar of his suit with a flick up at the end. He walked with one hand in his jacket pocket, exuding an air of importance and looking more like a Mafioso.

  We looked back at Heather quizzically as she added, ‘They’ve brought out a big gun. That’s Gavin Millar, a top QC in this field of litigation.’ She did not seem to be too perturbed about going up against him but didn’t like the fact that she would have to sit behind him in the court. (It is the etiquette of the English courts that a QC sits at the front bench, the barrister behind them and the solicitor in the row behind both.) The American approach to law was much less stuffy, with everyone, including the clients, sitting at the same level.

  If Millar’s presence was supposed to frighten us, it did the opposite. We could only assume that Ms Campbell and the Gerards were getting desperate about our case. As they got nearer Ms Campbell gathered the Gerards together like a mother hen and tucked them away behind a pillar. Then she and Millar moved toward the courtroom just as Heather and Mark approached them. Lip-reading skills would have been useful here as they conducted their conversation in whispers until Heather moved away holding a document that Ms Campbell had given her. She and Mark came over to us in order to read it and Heather summarised the lawyer gobbledygook for us.

  In a nutshell, we were informed that Finers were making this application today purely on securing costs because they did not think that we were financially strong enough to take this case to trial. They were to ask the judge to make an order for us to pay £30,000 into court. Bizarrely, however, she also told us that the Gerards wanted to settle.

  This was puzzling. On the one hand, they wanted us to pay money into court and brought in a heavy to try to make sure that this would happen, and on the other they wanted to pay us off. They were clearly rattled with the possibility that we could win, although to find that sort of cash would be extremely difficult for us at such short notice, and the fear of risking it and possibly so much more should we lose was something to consider carefully. Mark and Heather’s advice was that our case was strong but there was this one weak link and nothing was 100 per cent guaranteed in law even if you had the best evidence and legal brains. At the end of the day, you have one judge who will make a decision that could make or break you.

  The legal teams for both sides went into the courtroom in order to pass a message to the judge to let him know that we were embarking on negotiations outside before the proceedings.

  Jeremy and I walked away to a quieter spot to discuss what to do. I already knew what my decision was before I opened my mouth to tell him and that was that we settle today. This case had taken almost a year of our time, already a lot of money in fees and stress for us and our families. As we faced each other he more or less repeated my thoughts, adding that the police case was our main goal and that this one was in the way of progress. He did not want to risk tying up more money in this endless litigation.

  We re-joined Heather and Mark and told them of our decision and they took this to Ms Campbell’s waiting party who had moved much further down the corridor. We watched them talking with Ms Campbell and Millar for a few minutes until they took a steady, seemingly endless walk back towards us. Heather gave us the opening gambit offer but Jeremy said that this would not even cover the fees for today and he would definitely not settle on the terms offered. Back went Heather all the way down the corridor with our response, returning with another offer, which we again refused. Jeremy was annoyed by this point and said that if they did not improve their offer he would take his chances and pay the money they wanted into court. Heather must have really impressed this upon Ms Campbell because she eventually returned to us with a third offer, which Jeremy reluctantly accepted, with the knowledge that at least we had covered our fees and come out with some money for ourselves after all of our hard work in preparing this case over the last year. The money would also be helpful since we could put some towards the police case. I thought how much more civil it would have been to have done this negotiating months ago around a table in an office rather than incur such costs for both sides. The only parties to have really gained out of this exercise were the solicitors and we were convinced that Ms Campbell’s company had taken a lot more from her clients than we had paid our representation, especially with the appointment of a QC. The only thing she mentioned to Heather in our favour was that she thought how the police had behaved was indefensible and that that is where she thought we should pursue our claim.

  A further c
ondition of the settlement was that there would be a Tomlin Order. This meant that the settlement amount had to remain confidential and that this could never be disclosed. Jeremy was also ordered not to contact the Gerards other than through Finers Stephens Innocent. Heather had told us that our letter to the parents with its enclosures had upset the Gerards greatly although she could understand why we had tried to force their hand. She also said that ‘the mother keeps asking why her son did what he did’. We did not know whether that meant Gerard’s persecution and vindictiveness to Jeremy or that she was bothered by the findings in Duncan’s forensic report.

  We left the court relieved but not elated. It had not been an overwhelming victory but we needed to be free to get on with our pursuit of Hertfordshire Constabulary.

  Chapter 25

  HOSPITAL ADMISSION

  It was a relief to wake up in the following days with the stresses of the Gerard case now in the past. Although ahead of us there was much to do in our preparations for the police case, Jeremy missed the video retail business and the shop in particular. He needed more to do with his days rather than being constantly occupied with litigation and bitterness.

  Since a crowd of police officers had trampled through our home we did not really consider it as that any more. It no longer felt like a sanctuary and I still could not get over how everything had been rifled through. Plus, we needed to free up collateral for our fighting fund in the next battle ahead.