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Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 10
On Item 2, the rear wing, he says, “Let’s hope this only takes one month”, indicating that he wants
this process to speed up. On Item 5, he comments in terms about the weight distribution and what
this draws attention to. “It is very important to test the [blank], since in the race, they have
something different from the rest.” You can read this for yourselves.”
De la Rosa comes back, saying: “all of the information from Ferrari is very reliable. It comes from
Nigel Stepney, their former chief mechanic. I don’t know what post he holds now. He is the same
person who told us in Australia that Kimi was stopping in Lap 18. He is very friendly with Mike
Coughlan, our chief designer, and he told him that.” He refers to something being ready for testing
on Tuesday, then says, “I agree 100%, we must test the [blank] very soon.”
You are being told that this was being passed only between the drivers and that none of this
information was shared with any of the engineers. Alonso is saying that “we must test this!”. Yet
you are asking to believe that because de la Rosa subsequently had a conversation with someone
from Bridgestone who said that this does not always work, that the entire idea was dropped. Does
this sound credible? We say it does not.
Going back to the e-mail and the information about Kimi stopping in Lap 18, there is a lame
attempt to suggest that this is not reliable, because he actually stopped in Lap 19. As you will all
know, the difference between Laps 18 and 19 may arise simply because you have enough petrol to
eke into the next lap. The key point is that Coughlan was being fed information about Ferrari’s
race plans, which he passed on to the drivers. Did the drivers keep that information to themselves?
Do you really think they would? Use your common sense. Use your knowledge of the sport. We
say you should draw some obvious conclusions.
Let me take you forward in the bundle, to page 62. This very interesting sequence of e-mails starts
with de la Rosa pressing Coughlan for details of the Ferrari braking system: “Can you explain me
as much you can Ferrari’s braking system? What are they doing?” Coughlan initially says, “it
may be difficult for you to understand”. Yet De la Rosa presses him for the information, saying,
“Fernando wants to know”. Eventually, Coughlan gives him a very detailed description of our
braking system. He must have and can only have gotten that from Stepney. You are being told by
de la Rosa that, because he did not understand it, he did not share that information with anyone.
Again, use your common sense: does his sound very credible? Here is Coughlan, disseminating
information. Bear in mind that Coughlan had said, in his affidavits, that apart from the whistleblowing,
he had no other contact with Stepney and that he had not shared this information with
anyone from McLaren. You now see a very different picture emerging.
Why does this picture emerge? Because the drivers blew the whistle, making for a very interesting
story in itself. When Alonso raised the existence of documentation on 5th August with Mr Dennis,
obviously in the context of some dispute, he mentioned the matter to your President, but did he try
to get to the bottom of it? Did he say, “If you have documents, I must have them, because I am
under duty to the FIA to take them back to the World Motor Sport Council.” No, he did not. We
received this information only because the FIA wrote to the drivers, telling them that they were
under duty to disclose. It was not been volunteered by McLaren. That tells you a great deal about
the internal investigations carried out by McLaren and their enthusiasm to volunteer information.
We therefore say: look at the facts; don’t listen to the assertions. The facts are that this is
information that FIA secured from the drivers. It did not result from an internal investigation by
McLaren.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 11
How does this fit in with the rest of the facts? According to Coughlan, we know that he spoke to
Stepney on four occasions about the brake balance and was given a drawing, which he showed to
Taylor. Mr Taylor seeks to suggest that this was nothing to him. An engineer of Mr Taylor’s
experience would instantly have known that he was being shown provided a significant
improvement in functionality. We have included evidence from Professor Genter explaining this to
you in some detail. In McLaren’s submission (the lengthy document), more is told about what was
happening in the McLaren camp. I ask that you turn to page 6 of their submissions, at Paragraph
15. It starts on page 5; I will pick up the story on page 6. “McLaren’s novel system” – purportedly
their own – is described in the following terms: “From mid-February 2007, based on an idea of Mr
Lowe, McLaren developed a novel and completely different system for achieving variation of the
relative braking mode on the front and rear axels. They say that McLaren’s system was tested on
22 and 29 March, and introduced at the Spanish Grand Prix on 13 May. It was inspected and
approved by Mr Whiting”, who is then quoted. “In the first Grand Prix, McLaren observed that
Ferrari was using lever, which it believed was likely to be part of a quick-shift system.”
Immediately after the Grand Prix, Mr Lowe instructed a team of vehicle dynamics specialists to
study footage – in effect, ordering a spying exercise to see hat Ferrari has. He says that, “Coughlan
was not involved this study. The team confirmed that this appeared to be part of a quick-shift
system.” Then, it is said that, “since some engineering resource had become free, Lowe asked
Coughlan to release an engineer to him to produce 2007 version. Coughlan released Chris Lewis
to this task. Lewis quickly designed such a system.” They add that the evidence of Lowe and
Lewis shows that this was designed entirely independently, based on McLaren’s 2001-2002 design.
If you turn to the statement of Mr Lewis, which we received yesterday, it says that: “In early April
2007” – the dates are important, bearing in mind the e-mails we have just seen – “Mike [Coughlan]
asked me to begin work to design a quick-shift brake balance adjustment system, not a particularly
difficult task, as McLaren had used a quick-shift system before, in 2001 and 2002. My work
mainly involved taking the knowledge that we already had about quick-shift systems and optimising
it for use on the 2007 McLaren car”. He exhibits a document that we have not seen. He then
confirms what Mr Lowe has said to you in a document we have not seen is correct. In particular,
he states that, “For the purposes of the quick-shift project, I reported to Mike directly, without the
involvement of my team leader, while Mike supervised the project. His involvement was no more
than the general supervision and direction he gives to all drawing projects. For example, Mike
outlined the idea that I import that 2001-2002 design into the 2007 car. I looked at that previous
design and brought it into a CAD scheme, with changes necessary for it to fit the 2007 car. Mike
and I and Pat Frye reviewer this scheme and agreed the final details. I completed the detailed
design and component drawings, which Mike approved for manufacturing.”
Here is someone reporting directly to Mike Coughlan, working on a brake-balance system. At the
same time, you have hard evidence that Coughlan is pestering Stepney for details of the Ferrari
system and exchanging that information with at least De la Rosa at exactly that time. Yet you are
being asked to accept that he did not contribute any ideas that he might have obtained from Ferrari
to the development of the McLaren system. The McLaren system may be different; of course it is,
for it was designed by different people.
We submit that the idea that Coughlan did not use any of the information he had obtained
illegitimately from Ferrari to contribute to the development of that design is so fanciful that you
should not accept it. More to the point, the people who will come along and testify the “he did not
give us any confidential information” probably don’t know. If Coughlan simply says, “have you
tried this?” or “have you thought about that?”, they are not to know that he has that idea because it
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 12
has been purloined by Stepney from Ferrari. They see it as Coughlan contributing to the discussion.
And we suggest that the fact that he is sitting on the information and pressing Stepney for details is
the clearest indication of use, or perhaps only attempted use of Ferrari’s documentation and
information. It is certainly enough for you to conclude, gentlemen, that something has to be done.
Of further interest is Mr Taylor, with whom Mr Coughlan also seeks to discuss this on the first
working day following his trip to Barcelona. He goes to him with the drawing, asking what he
thinks about it. This is part of that bigger picture that we suggest you consider. We say that there
is something odd about the fact that, in Australia, the Ferrari cars were so much better than the
McLaren cars. Yet, as you all know, McLaren has caught up. Gentlemen, if you wish to ask about
technical details, we have witnesses present. Mr Braun, in particular, will be able to deal with any
technical inquiries you may have.
Might I also remind you of something that Mr Neale said in a relatively recent press interview? It
touches upon the issue of use, what can be relied upon, etc. In the 11-12 August issue of the
Financial Times Magazine, Mr Neale stated, referring to the McLaren car: “There isn’t much on
the car that stays the same; maybe the seatbelts don’t change. From the moment the car is formed
in January to the last race in October, we make an engineering change on average every twenty
minutes. We started behind Ferrari, but what determines how the season progresses is how quickly
you can change the car.”
You will be bombarded with technical information from Paddy Lowe, saying that he knows the
DNA of every change and can tell you exactly its origin. With the greatest respect, whatever the
document you are shown and we are not, I doubt that he will be able to detail with every change
made every 20 minutes. The gap in Formula 1 is so tight that, as Dr Braun says, you can win or
lose a race by a matter of one-tenth of a second. Top teams invest hundreds of millions of dollars
to gain a technical advantage. Possession of a portfolio of information by someone as experienced
as Mr Coughlan would be worth several tenths of a second. Coughlan is a designer with 15 to 20
years of experience. He is employed on a significant salary by McLaren. He is more than the
Office Manager suggested by McLaren.
Max MOSLEY
Mr Tozzi, I do not mean to be annoying, but we are nearing the 45-minute mark.
Nigel TOZZI
I have my watch here and am quite aware of that.
The content of the e-mails is wholly-inconsistent with what you were told by McLaren at the last
occasion, where they claimed to have carried out a thorough investigation. Either it was thorough
and information was suppressed until Alonso blew the whistle, or it was not thorough, in which
case you cannot place any trust in assertions such as those made on the last occasion and which are
almost certain to be repeated on this occasion. In the context of what you now know, you must
look at the other evidence. I have already mentioned the firewall, the trip to Barcelona and the
meeting with Mr Neale. In view of the time, I will not develop those submissions. In our written
submissions, we do say that the explanations offered are fantastic, simply unbelievable and should
not be accepted, particularly in the light of the further information.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 13
We have reached a position where we know that members of the McLaren design team were
involved: Mr Coughlan certainly, as well as Mr Taylor and, possibly Mr Lowe. We know that the
Management is involved. Whatever they may say, Mr Neale quite obviously turned a blind eye to
the documents shown to him by Mr Coughlan, knowing that he had extensive contact with Stepney
and had been receiving confidential information from him. We know that the drivers are involved,
Pedro De la Rosa and Alonso both knew that Coughlan was receiving information from Stepney.
Designers, management, drivers: how many people in McLaren need to be involved before it can be
concluded that there was not only one “bad apple”, and that there is systematic failure throughout
McLaren to behave in a proper way. The conclusions we invite you to draw are listed in Paragraph
30 of our skeleton argument. I will not read them out. We do submit, bearing in mind Article 151,
that it is important that the World Motor Sport Council does something now to restore the
reputation of Formula 1 and not allow the sport to become and anarchic free-for-all.
I think I have managed to stick to my 45 minutes.
Max MOSLEY
Mr Mill, it is your turn.
Ian MILL
Gentlemen, could I start with the following central propositions:
1) The McLaren 2007 car is and the 2008 car will be 100% the product of McLaren
technology, know-how, skill and endeavour.
2) No part of either car contains or will contain any element of Ferrari confidential information
.
3) No use of Ferrari confidential information has been made, is being made or will be made, in
the design or development of either McLaren car.
With regard to these central points, we offer the following general observations by way of opening:
1) Firstly, Ferrari is unable to point to any component part which it is able to establish as
having been used by McLaren on its car. It is absolutely obvious that, over and above that
what you have seen from Ferrari and hear from it today, every step imaginable has been
taken to try to establish this. We know what sorts of steps are taken. We know what is
done in the Formula 1 world, legitimately as Mr Tozzi rightly accepts: observation,
photography, listening to transmissions, watching onboard footage, etc. I and you,
certainly, have no doubt that Ferrari has pored over every piece of information that it can
find on the McLaren car between April and today’s date. Yet there is not a single allegation
on the basis of that. The reason for this is that none can be made.
2) Ferrari is unable to make any more than a wholly-generalised assertion, backed up by
nothing more than unjustified surmise and inference that use has been made.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 14
3) The FIA does not point to any part of the McLaren car, which involves the use of Ferrari
confidential information. The FIA has had, from the outset, an open invitation as stated last
time and since repeated, to visit the McLaren premises, inspect the McLaren car, look at
McLaren records (including test records), to satisfy itself whether any use has been made.
That offer is repeated and has not been taken up. If the FIA had any genuine basis for
concern in this respect it would have taken up the offer.
4) McLaren has provided and, if you have not had the opportunity to read the documents,
compelling, clear and unequivocal evidence that no Ferrari confidential information has
been used. You have before you the very detailed, confidential statement by Mr Lowe,
attached to which is a signed statement from all of McLaren’s engineers, except the five
away on holiday and uncontactable. Every other McLaren engineer has come forward and
put their names on the document.
This case, therefore, is not one about McLaren using Ferrari confidential information in its car this
year or next. There simply is not a case to be made on that. Therefore, no question of any
substantial sanction against McLaren can arise.
What is this case about? Let us briefly recall what happened last time: we were summoned on short
notice to answer a wholly-ungeneralised charge of possession of Ferrari documents. We were
informed of the charge on 12 July, and did our best on the time available to answer it. A hearing
was held precisely two weeks later. I do not need to reiterate what occurred on that occasion. You
were there, recall it and have had the opportunity, if you needed it, to view the transcript to remind
you further. The allegations related to a dossier provided by Mr Stepney to Mr Coughlan in
Barcelona and also, possibly, the disclosure to the FIA of allegedly illegal elements of the Ferrari
car. We told you then what investigations we had carried out, we told you that we had spoken to
the engineers, putting forward the evidence of Mr Lowe and Mr Taylor. We spoke to the
Management, and put forth the evidence of Mr Neale and Mr Dennis. We instructed leading
computer experts to trawl through the computers of Mr Coughlan and McLaren. We gave Ferrari
access to do the same thing. Neither found any material document.
Nothing before you on 26 July suggested further avenues of inquiry or identified other parties about
whom McLaren should have come forward. In particular, nothing on that occasion was available to
us that we needed to make inquiries of our drivers: the FIA had not identified any material making
that appropriate, nor had Ferrari, and Mr Coughlan had certainly not told us anything about that.
We had his affidavit in the same way that you do. We put forth evidence on that occasion, which
was and remains true. The dossier was kept by Mr Coughlan in his home. No one had knowledge
of its existence. The disclosure that we knew about in March was legitimate whistleblowing. Since
that last hearing, we submit that nothing has merged calling into question McLaren’s evidence on
these matters.
There have, however, been two developments. First, the drivers came forward with information, as
a result of a letter form the President, showing that Mr Coughlan had given certain information to
Mr de la Rosa, which Mr Coughlan said he had obtained from Mr Stepney. This happened last
week. It is right to point out the background against which this occurred. Somehow, Ferrari wishes
to make criticism or point on it. Quite to the contrary: it shows McLaren in a completely proper and
straightforward light. Mr Dennis volunteered to Mr Mosley, at the time of the Hungarian Grand
Prix, that one of his drivers had told him that he had received Ferrari information from a McLaren
engineer. He then also told Max Mosley –
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 15
Max MOSLEY
I am sorry. First of all, I do not recall that being in Mr Dennis’ statement. Secondly, it is
completely untrue: he did not say that he received the information from an engineer. He told me
that he had information that was damaging, which he was prepared to give to the federation. He
did not say it came from an engineer.
Ian MILL
If I have mischaracterised Mr Dennis’ evidence, I apologise. I was not intending to engage in
evidential debate; I was simply seeking to summarise what I believed to be Mr Dennis’ evidence.
We will hear from him. If I am mistaken, I apologise.
Subsequently, he told Mr Mosley that Mr Alonso had retracted that allegation through his manager
(and Mr Mosley’s nod indicates that at least I got that part right). Mr Dennis did not believe the
original suggestion from Mr Alonso. However, the fact that he brought it to the attention of the
President of the FIA is the clearest indication that he believed that there was nothing further to be
disclosed. If Mr Dennis had known that Mr Alonso might be in possession of damaging
information, why would he tell the president of the FIA? That is hardly conduct consistent with
bad faith or dishonesty on the part of my client and Mr Dennis, in particular. It is consistent only
with our position throughout. It is said by Mr Tozzi that McLaren did not in fact investigate. You
can ask Mr Dennis why this was: he genuinely believed that the assertion was not true and it was
almost immediately retracted. Yes, he could have said that, despite his belief on this, he ought to
go back and check. Hindsight is a wonderful thing. Do not infer from that any bad faith on the part
of Mr Dennis. The FIA could have told Mr Dennis to go and check. It did not. Clearly, the FIA
did not think that it was appropriate or necessary for McLaren to take any further steps at that stage.
The second development is that Ferrari has obtained – they say legally so – certain selected
documents from police files in Italy and supplied these to the FIA. These suggest, assuming that
they are accurate, contact between Coughlan and Stepney beyond that to which Mr Coughlan had
previously admitted. However, this does not mean that McLaren was aware of it. It was not. The
documents do not suggest, other than on the basis of an inference which we will rebut, further
contact between Coughlan and people in McLaren, which is material for the purposes of your
consideration. Ferrari’s response to this new information has been to make a series of wild and
unsubstantiated allegations. They are contained within the conclusion which Mr Tozzi has invited
you to read. I will invite you to do the same. I will take you through it and tell you our answers to
each point.
In response to the question as to what is in issue before you today, I will say the following: you are
being asked by Ferrari to make a series of inferences and assumptions in the absence of direct
evidence, from which you are inevitably being asked to infer that all those who come forth on
behalf of McLaren are lying and that use has been made despite the denials from McLaren
witnesses. McLaren invites you not to work on inference and assumption, when you have direct
evidence. We invite you to listen to the witnesses, read their witness statements and to do so
quietly, dispassionately and, above all, carefully, and reach your own conclusions.
What conclusion must you reach? Can you, to the standard required of you, as I will later define,
be satisfied that our evidence, which fully rebuts any inference that Ferrari might wish you to draw,
is to be disbelieved? The President, on more than one occasion, following the promulgation of the
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 16
last decision of the World Motor Sport Council, has made it clear (and correctly so) that, given the
very serious nature of these matters, you would have to be satisfied to a very high standard before
you can convict of usage. I think that, in one letter, the President, in response to the letter from the
Italian MSA, referred to the need to show unequivocal evidence. In our submission, given the very
grave allegations and the fact that several of my witnesses are facing potential criminal proceedings
in Italy, you must be satisfied to a criminal standard – meaning, beyond reasonable doubt. I ask – I
require – you to look Mr Lowe, Mr Dennis, Mr de la Rosa and Mr Hamilton in the eye and, unless
you are satisfied beyond doubt that each and every one of them is lying to you, you will let us off. I
am not asking that you dismiss the charge. That is a matter for elsewhere. However, you will not
find that use has been made. If you do nonetheless do so, without being able to make those
decisions, then you are making a very serious legal error. It is not only those who are here. 140
McLaren engineers signed the letter: will you disbelieve each of them as well? If so, we will
contact them by phone and you will be able to question them. We did not bring them here, for that
would have been absurd. Nonetheless, there is a huge body of evidence showing that you cannot
and must not draw inferences adverse to McLaren on the information available to you, because
those inferences are false.
It is right, given what I have just said, that you bear in mind that this is not the referral of your
previous decision, which must go elsewhere. It has been withdrawn. However, the referral
allowed the body to which the reference is being made – our International Court of Appeal – to
look afresh at the events on the 26 July, the evidence given and the factual conclusions reached.
That is not your function. You are functus in relation to that; you cannot review your own decision.
Rather, you can consider the effect of new evidence. When you hear Mr Tozzi say that Mr Neale’s
evidence must, of course, be disbelieved, on what basis are you to do that? You made your
findings on Mr Neale’s evidence. You had your doubts about it. Mr Mosley made that clear. Yet
you did reach your conclusions. Unless something material in the new evidence entitles you to
form a different opinion about Mr Neale, that matter rests with you. If there is a subsequent referral
or appeal, that is another matter, but is it not a matter for you. This is, in short, not an opportunity
for Ferrari to make the same points as it did last time. Quite a large part of the submissions before
you today were the same put in for the International Court of Appeal. I am not criticising them for
this. Clearly, having produced a body of work, they are entitled to use it and adapt it. However,
while their assertions may have been apposite at the time, they are not so for this body today.
Could I ask for some respectful silence, from your right?
Max MOSLEY
I think you have that.
Ian MILL
It is the identity of the person that is causing concern to my client.
What is the new evidence? Mr Tozzi has taken you through the e-mails. Perhaps I should do so as
well. You will hear the evidence from Mr Lowe and Mr De la Rosa about them. Overall, so far as
Mr De la Rosa is concerned, you will hear, quite simply, that he is friendly with Mr Coughlan.
Anyone reading the last exchange of e-mails between Mr Coughlan and Mr de la Rosa in March
can see the banter about football and Brentford. Read the e-mails to yourselves to understand the
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 17
relationship between the two. They are clearly friends. Mr De la Rosa says that this is why some
of the contact took place and why he shared that information with Mr Alonso. Mr Alonso was new
to the team and Spanish like him. Mr Alonso was feeling isolated and, as Mr de la Rosa wanted to
make him feel part of the team, shared the information with him, in the friendly spirit intended.
You need to familiarise yourself with the contents of those e-mails and understand and hear from
me, if necessary, why they do not show any use of any Ferrari confidential information by
McLaren. To put them in their context, you need to understand some of the background, in
particular our submissions in relation to our brake-balance system.
There is a suggestion that, in some way, use has been made of Ferrari information in our brakebalance
system. Mr Tozzi showed you the non-confidential summary of our case in that. I will not
go over it again. You can hear from Mr Lowe when he testifies on it. It shows that, whollyindependently,
prior to any contact between Mr Coughlan and Mr Stepney, we were developing our
own system, one which Mr Whiting has looked at and deemed, before the Council, that it was
entirely different from the Ferrari system.
What else is there beyond that? There is the suggestion that, because Mr Lewis was supervised by
Mr Coughlan on the quick-shift system not yet on our car, that it can be inferred what Mr Coughlan
might have said or done. It is symptomatic of Ferrari’s lack of objectivity in its approach to this
case that when Mr Tozzi read Mr Lewis’ statement, he stopped at the end of paragraph 5. May I
read Paragraph 6: “At no time on the quick-shift project or at any other time did Mike give me any
Ferrari confidential information or instruct me to do something which I, in any way, suspected was
informed by Ferrari confidential information. In light of recent events, I have thought carefully
about what interaction I had with Mike on this project, to see whether the benefit of hindsight might
colour some of our interactions differently. I can honestly say it does not. What is more, given the
nature of the quick-shift project, any information he might have imparted, would have been totally
irrelevant. McLaren had all of the technology and know-how, and the design was a virtual carryover
of the 2001-2002 design. Mine was just the job of accommodating it within the 2007 car.
This required reference to the McLaren 2007 car, not Ferrari’s or that of any other team. He also
says, “I have signed the letter attached to Paddy’s statement.” Mr Lewis is here; Mr Tozzi can ask
questions; you can ask questions. But you cannot convict my client on the basis of inference and
assumption, unless you are in a position to say that Mr Lewis is a liar and you can be satisfied of
that to a criminal standard.
I will tend to him in due course, as a witness of truth – as I do Mr Lowe. Surprisingly, it is
suggested by Ferrari that Mr Lowe is not to be treated as a witness of truth. That is one of the
conclusions they invite you to draw, on the basis of a single document, and not even one shown to
you by Mr Tozzi in his opening. It is an e-mail exchange between Mr Alonso and Mr Lowe on 21
March (page 46, WMSC Dossier). Starting at the bottom of the page: “Hi Paddy, I’m sure you
have many of those, but one more. Regards, Fernando.” This refers to a photograph that Mr
Alonso had obtained of the side-view of the Ferrari car, showing part of the floor-device which the
FIA ruled illegal. In his response, Mr Lowe says, “Hi Fernando, actually I hadn’t seen a shot like
that, so thanks. I hope to get this issue clarified with Charlie [Whiting] within this week, so they
have to change it. By the way, we are now certain that the lever in their car is for brake balance.
Pedro runs our variable system in the simulator tomorrow and ready for track test on Tuesday.”
Mr Lowe says it is certain that the lever is for brake balance. Ferrari will have us believe that this
information can only have come from Mr Stepney; that is simply not so. Mr Lowe gives evidence
and exhibits a report contemporaneous with this one, showing that it was based upon entirely legal
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 18
observations of the Ferrari car, as used in the Australian Grand Prix. We have enclosed Mr
Mulholland’s report, and Mr Lowe says that it is the reason for which he wrote what he did. You
have absolutely no reason to doubt that evidence, but certainly have the possibility to examine Mr
Lowe about it. In our respectful submission, the suggestion that Mr Lowe is not to be treated as a
witness of truth, simply does not stand up to any scrutiny and we invite you to reject it outright.
The other e-mails, which I think you have seen at least in part, are dealt with by Mr Alonso and Mr
de la Rosa in their evidence. We apologise that Mr Alonso is unable to be here today; he has other
commitments and because of the relatively short notice of this hearing has been unable to change
them. Nonetheless, you have a signed statement from him. As indicated, Mr Coughlan passed the
information to Mr de la Rosa because they were friends and Mr de la Rosa passed it to Mr Alonso
to help his integration into the team. It is important to note that both have stated, in terms, that no
use was made of any of the information that they received.
That is, furthermore, corroborated by evidence. In relation to the brake balance, it will be
explained by Mr Lowe. In relation to Mr Lewis, I have read Paragraph 6 to you, and he is here to
corroborate that. In relation to other matters, the rear wing was lit upon by Mr Tozzi, with the
reference to copying it. It is absolutely clear that this was a matter of observation: the rear wing is
visible. If there is an attempt to copy, it is one being made using visible information. There is no
confidential information from Ferrari to McLaren about the rear wing. If you look at Ferrari’s own
submissions about this, in Paragraph 90, under the heading “Flexible Rear Wing”, indicate that:
“McLaren was observing Ferrari’s rear wing with the intention of reducing drag.” If that is the
conclusion you are invited to draw, so be it. I dare say that if and when we put on a rear wing
which Ferrari deems interesting, it will do the same and see how they can they improve their own
car. That is what Formula 1 is about. No suggestion of any promulgation of confidential Ferrari
information has gone into our work on the rear wing.
This leaves the evidence: on two occasions, Mr Coughlan passed on to Mr de la Rosa what he
presented as Ferrari’s pitting strategy. In relation to the Australian Grand Prix, he was not far off
the mark (one lap). On the only other occasion this happened, in Bahrain, he was completely
wrong. The point is that no one takes notice of this information. You will see all of the evidence
attesting to this. You know this yourselves, from your intimate knowledge of the sport. Everyone
gossips, but no one takes any notice of it. In particular, a team does not inform its own race
strategy based on what it might have been told about another team’s race strategy. The way in
which the race strategy is devised works upon internal thought about the circuit and the car. Mr
Lowe, in his confidential statement, which I ask you to read again if you are troubled about this, in
Paragraphs 37 to 43, clearly explains how McLaren devises its own race strategy.
The only other matters raised in the e-mails have to do with weight distribution, aerobalance and
the tyre elements. Ask Mr de la Rosa whatever you wish; he is absolutely clear that no use was
made and that no tests were carried out. If the FIA wishes to look at our test reports to verify this,
they are welcome, now as in the past. Our evidence is that no use was made. Do not work on the
basis of inferences or assumptions; test it on the evidence that you have. Examine Mr de la Rosa
and Mr Lowe. Draw your own answers from the evidence, not from assumption and inference.
Mr Taylor has arisen in the Ferrari submissions. We are puzzled by the evidence put in by Ferrari
on this matter. It seems to work on the basis of two misconceptions. The first is that we had said
that the drawing Mr Taylor said was one that looked familiar, was in reference to year 1996. I do
not remember ever saying that, and it was certainly not in our statement of facts or in our evidence.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 19
It seems to be that Ferrari has found a drawing signed by Mr Taylor in 1996 and has thus inferred
that this was the drawing to which Mr Taylor was referring. The second misconception is that we
were staying that the document was an historic document. We did not say that either. Mr Taylor
said that he did not know. He was asked whether it looked like something he had been working on
at the time. He said yes. That is still evidence, but it was not in 1996, but in 1993. I do not where
this is headed. At the moment, I am not particularly interested in asking questions of Professor
Genter or, indeed, Dr Braun It is all highly irrelevant.
In summary, it is embarrassing to McLaren and McLaren regrets that this further information did
not emerge last time. However, we respectfully ask you to accept that this was neither a matter of
suppression, as Ferrari would indicate, nor a matter for criticism, presented as the alternative by
Ferrari. We did our best using the material that we had. Mr Dennis, in his second statement,
summarises the investigations that took place. We are sorry if you do not find them adequate, but
they were genuine and intended to be helpful. We should not be punished because we failed to ask
a particular question of a particular individual, when there was no reason that we would have heard
anything other than a negative answer.
Ultimately, what matters to you today is that none of the confidential information referred to in the
e-mails was passed to McLaren engineers, nor has it been channelled into the McLaren car or race
strategy. Mr de la Rosa has been quite clear in his evidence: this was all that he received. You
cannot infer from the stream of text messages that Mr Coughlan continued to funnel information to
Mr de la Rosa; that is not his evidence. It stopped. I don’t know what Mr Coughlan’s state of mind
was. I maintain that it could well have been with the idea of going to another team. One of the
concentrations of e-mails and text messages happens to be at the time when Mr Stepney was in
contact with Mr Frye about going to Honda. We do not have the content, so we simply do not
know: were they banter, or information? We do not know. Nor do you, and you cannot draw any
inferences from it, so as to convict my client. There is no evidence that Mr de la Rosa or Mr
Alonso passed on the information to anybody else. They have denied that they have and you can
test that evidence. You have clear evidence from the McLaren engineers that neither Mr de la
Rosa, nor M Alonso nor Mr Coughlan passed on any confidential Ferrari information to them. That
is the evidence which you have. You cannot, in my respectful submission, convict McLaren on the
basis that these are untruths, without putting a specific case to the McLaren representatives whom
you would be accusing of lying. It would be quite wrong to do without all of the relevant material
before you. How can the material be deemed comprehensive, indeed, when the FIA has not taken
up the opportunity to inspect McLaren and its records? You simply cannot.
Let us turn to the Italian police file. No conclusions adverse to McLaren can be drawn from this
information. Ferrari looks at the spikes, but there was also a spike in early May, when Mr Stepney
and Mr Coughlan were discussing a move to Honda. We do not know whether the Italian police
has sought to obtain the same information in relation to communications between Mr Stepney and
other teams. We do not know what is in these files. It is fine for Ferrari to say that we are free to
come and inspect them if we wish; that freedom can hardly be of use to us today. It is stated that
Ferrari confidential information was being passed to Mr Coughlan. That may be right in part; I
simply don’t know. You cannot infer, on that basis, that it was passed on to McLaren, not when all
of the relevant parties at McLaren tell you that it was not.
Bear in mind two other points in this context. Do you think that, had there been dissemination of
Ferrari confidential information within the engineering team or the Management that neither of the
two computer experts would have found any documentary reference thereto? That no one recorded
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 20
it is inconceivable. You will hear from Mr Hamilton this morning. What is interesting about this?
Mr Hamilton did not receive any information. Test that against the two rival arguments. Ferrari
says that if the information was passed to Alonso and de la Rosa, then it must have been passed
within the team. We suggest that you believe Mr de la Rosa and Mr Alonso. Is it probable that, if
the information was to be used by McLaren, that they did not tell one of their two drivers about it?
It is completely inconceivable. If it was being used in testing and considered as a development for
the car, the driver is told! Drivers want to know. Test Mr Hamilton. Ask him! Unless you want to
call Mr Hamilton a liar, that evidence is, on its own, sufficient to say that you cannot possibly
convict us of a serious offence.
In summary, if there had been a complete absence of any evidence from McLaren, if we had simply
sat back and “taken the 5th”, leaving others to prove the case – the course of action typically taken
by parties with potential difficulties in defending themselves – it might be possible for you to draw
certain inferences adverse to my client, based on the material before you. Yet in circumstances
where McLaren has come forward with comprehensive evidence, doing the best we can – and I
apologise if there has been inconvenience due to the late arrival despite our working 24 hours a
day so that this information can reach you – fundamentally countering any such inferences, you
must either accept that this evidence rebuts any such inferences, or conclude that McLaren’s
evidence is untrue. Being objective, you cannot do this, unless you are absolutely satisfied that
those who come here to give evidence are lying to you. And for such an extreme allegation to be
made, you must be satisfied that those you characterise as liars are lying, beyond reasonable doubt.
This cannot be contemplated without giving the individual whose evidence you choose to reject as
lies the opportunity to deal with the finding that you are attempting to make. That does not mean
making some generalised allegation; you must put a specific allegation to him, which enables him
to respond. It is our respectful submission that the process, simply, does not allow you to do that.
We have only had one week to live with this information. Our attempts to prepare for this hearing
have been derailed and disrupted in number of ways, some inevitable (the interposition of the
Grand Prix), some avoidable (such as the service of wholly unnecessary documents upon my
clients’ principle witnesses during the process of qualifying), only to derail our preparations for the
Grand Prix, for they have now had to take up Italian legal advice to deal with this. Thirdly, it is not
permissible, in circumstances where all proper enquiries have not been made and where we have,
once again, offered the facility to inspect without that being taken up, to accuse us of lying, the
grossest and most obvious breach of natural justice.
May I now turn to the Ferrari conclusions that are before you, in Paragraph 30?
I will read out the conclusions proposed to you by Ferrari, then give McLaren’s answer to them:
A. “The illegal possession of Ferrari’s stolen materials would not have been discovered by Ferrari
had it not been notified by an unrelated third-party about them being copied onto a computer disk.
Coughlan would still be actively employed by McLaren and would still have access to Ferrari’s
confidential information”. I do not know whether this is true. Nor do you. So what? What is the
conceivable relevance of this conclusion to the issues before you today?
B. “McLaren’s ‘whistleblowing’ argument was an opportunistic fabrication.” That is an
outrageous statement, one that is completely untrue and completely unfounded. Mr Costa – and I
am looking forward to this – is apparently going to come along to state that the illegal floor device
was a minor modification merely requiring FIA clarification. Before you hear from him, I invite
you to read Mr Lowe’s response to that suggestion. The fact remains that Mr Stepney drew to our
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 21
attention a device ruled illegal by the FIA. The device was used by Ferrari in the Australian Grand
Prix, which it won. As Mr Dennis told you last time, in the interest of motor sport, we did not
protest this, despite having drawn it to the FIA’s attention before the race took place. A complaint
is made that Mr Stepney had not drawn this to the attention of the main authorities. You may know
that Mr Stepney has written to the President making it clear that he had (page 503, Ferrari dossier).
He says he mentioned it to Mr Wright –
Max MOSLEY
If you wish to make this point, then we must include the e-mails between Mr Wright and Mr
Stepney, as well as between Charlie Whiting and Stepney. If we do so, however, you will see that
they contain no detail whatsoever. If there was any hint of whistleblowing, it was not in those
documents. He had the opportunity to whistleblow at the beginning. He did not. Instead, he
communicated the information to McLaren. Whether he did so as whistleblowing or as a stream of
information is a matter for today. The fact is that he did not give us information, despite being in
touch with our people. It is up to you to make the points you wish, but I would have thought that
this entire exchange greatly undermines the whistleblowing argument.
Ian MILL
With the greatest of respect, it does not fundamentally undermine the whistleblowing argument.
Rather, it calls into question the accuracy of Mr Stepney’s statements. The only reason to even
consider that is because it has been suggested that Mr Stepney acted improperly by going to
McLaren first. Mr Stepney says that this is not what happened. Perhaps he did not give the details
to the FIA; I am not interested in going into the reasons or manner he adopted.
Max MOSLEY
I am sorry to keep interrupting you. We are very interested. If you are saying that he gave the
information to the FIA, we will produce the e-mails demonstrating that he did not. It is a
completely separate matter. What he gave to McLaren and what he gave to us are two entirely
separate things. If you wish to pursue the point, we can, but please do not suggest that there was
any whistleblowing to us, because there was not. He had the full opportunity to whistleblow to us,
being in touch with our people. He chose not to, and for some reason, to give the details to your
client. It is up to you to draw whatever inferences you will from that. Do not, however, try to
suggest that there was any whistleblowing to us.
Ian MILL
Mr Mosley, I am not interested in debating the detail with you. It is simply that Ferrari states that
there was no disclosure to the proper authorities. If the FIA says that it did not receive the detail,
so be it. But how can this affect the suggestion that the whistleblowing argument was an
opportunistic fabrication? I could see this if there were no basis for saying that that which he
disclosed to our clients was an illegal device. It cannot be said, because it was and was ruled as
such. Nothing has changed in relation to that.
Extraordinary Meeting Fédération Internationale de l’Automobile
Paris, 13 September 2007 22
C. “At the hearing on 26 July 2007, McLaren formally announced that it had carried out a
thorough in-house investigation and that it could guarantee that no information coming from
Stepney through Coughlan had penetrated McLaren. There are only two alternatives: either (i)
McLaren did carry out thorough investigations, in which case it necessarily discovered the
inconvenient truth, but decided to hide it, or (ii) McLaren did not carry out thorough
investigations. In both cases, McLaren did not tell the truth to the WMSC.” Neither of those is a
justified conclusion. You have my submissions on that already. The suggestion that we discovered
an inconvenient truth is not only offensive, but completely inconsistent with Mr Dennis’ disclosure
to the President at the beginning of August. Secondly, we did the best we could with the time
available to us since 26 July. If you feel we could have done better, we are very sorry, but you did
not ask us to do anything else. I am sure that we could have been more proactive, but we did not
think about it and I am sorry for that. There is no basis for a serious sanction against us because
there were steps we could have taken which we did not.
D. “The repeated assertions that McLaren was not interested in Ferrari’s brake balance system
were dishonest.” Where does this come from? The only assertion regards Mr Taylor, who said that
he was not particularly interested in the drawing. Mr Taylor said that he was not interested in the
brake balance process at McLaren. That was not his task. It was not as though he was someone
busy working out the variable brake balance system for McLaren; he was working on something
else. Asked about it, he said he was not interested. It is not the same thing as saying that McLaren
was not interested. Of course McLaren was interested! Just as, when we put our quick-shift on our
car, Ferrari will be interested and will study the on-board footage to see what it can discern from it.
E. “The extent and timing of the contact between Coughlan and Stepney leads to the irresistible
inference that data and information about Ferrari’s cars, race preparation and race plans was
being improperly fed to McLaren by Stepney”. There is an inference that some information may
have been improperly fed by Stepney to Coughlan. There is no inference that it was going to
McLaren. The evidence adequately and completely rebuts this.
F. “Mr Lowe’s failure to reveal that he was privy to information passed on to McLaren about
Ferrari’s brake balance system casts doubt upon the objectivity and reliability of this report and
his evidence to the World Motor Sport Council on 26 July..” However it is phrased, this statement
is asserting that he lied. This is completely unjustified, baseless, groundless and false. I have
already explained why.
G/H. “The doubts which the WMSC already had about Jonathan Neale’s evidence regarding
Coughlan’s trip to Barcelona are well-founded.” “Mr Neale’s account of his meeting with
Coughlan on 25 May 2007 cannot be believed.” That is not open to say, in this hearing. Mr Neale
had nothing whatsoever to do with the subject of this new evidence. You heard his evidence.
There is no basis upon which you can begin reinvestigation or cast fresh doubt on that.
To be complete, I must turn to paragraph 31: “It is now perfectly obvious that McLaren did use
confidential information belonging to Ferrari which was improperly obtained by Coughlan from
Stepney. The knowledge and use of that information gave McLaren a substantial unfair advantage.
In common parlance, they were cheating.”
Please consider the complete lack of specificity in any of that. You cannot convict McLaren on the
basis of such generalised allegation. It must be specific, put it before McLaren and give
opportunity for the facts to be found. The fact that Ferrari put it in this way simply demonstrates
what I said from the outset: that there is not a shred of evidence to support any such conclusion.