MAY 4, 2005
An interesting morning in Paris
The FIA Court of Appeal met in Paris this morning to discuss the case of BAR Honda at the San Marino Grand Prix. The judges present for the case were Xavier Conesa (Spain), Vassilis Koussis (Greece), Erich Sedelmayer (Austria) and Pierre Tourigny (Canada). The FIA was represented by its general secretary Pierre de Coninck, Charlie Whiting (listed as a technical assistant), Jo Bauer (the FIA F1 Technical Delegate) and two of his assistants Kris de Groot and Alan Fuller. The BAR party included 10 members of the team, plus three legal counsels and one observer while both Williams and McLaren sent along observers to watch proceedings.
Much of the evidence was in written form with submissions from both sides. The FIA's statement was uncompromising and charged the team with "bad faith", "fraudulent behaviour" and claimed that the team "set out deliberately to gain an illegitimate and unfair advantage over other teams". The federation asked the court to exclude BAR Honda from the 2005 Formula 1 World Championship and to fine the team at least $1.3m.
The curious thing was that the FIA Stewards from San Marino (Paul Gutjahr, Katsutoshi Tamura and Giuseppe Muscioni) were not called to explain why they ruled on Sunday night at Imola that the BAR was legal. The FIA says that this is because the Stewards are judges of the first instance and appeal courts do not question judges but rather judge on the issues involved.
The case began to get interesting when Bauer took the stand and was asked a series of questions by the BAR lawyer David Pannick QC. Bauer was asked if he knew about a second collector tank inside the main BAR fuel area.
"We have been aware of that since the Malaysian Grand Prix this year," he said.
Asked whether he accepted that the tank had a legitimate use and whether he accepted it was not a sham, Bauer said that he did. He added that he had no concerns at the time about the collector tank and when asked if the team had cooperated fully in allowing examination replied: "Yes, they did."
When questioned about Imola specifically, Bauer confirmed that BAR had told him that the car could not operate properly without engine malfunction below 600kg and confirmed that the team had produced charts and documents to establish that the car had been legal at all times.
The questioning revealed that "fewer than 10%" of the 250 weighings made each year involve the draining of the fuel tank and that the Imola inspection was the first time ever that "a hoover" had been used to get fuel out of the tank.
Pannick then asked whether there were similar systems used by other F1 teams but Bauer declined to answer the question on the grounds of confidentiality.
Bauer confirmed that he had had meetings with the stewards and, when asked to confirm that there had not been any suggestion that BAR Honda was guilty of fraud, bad faith or deception, replied that "this was not part of the discussion.".
When asked by one of the judges whether the system was legal according to the regulations, Bauer replied that it was.
There followed a questioning of de Groot, the man who had been responsible for doing the fuel check at Imola.
It was clear from this that De Groot's interpretation of events was different to that of BAR and that the contention was over what the team was asked to do. Asked whether there was an allegation that the team had defied the request, he replied: "I asked for a full drain out and afterwards I found more fuel." He added that "most teams take it as a matter of course that the collector will be drained." BAR clearly interpreted his instruction as being to do what is called a "lifted pump", a procedure by which the front of the car is raised and the fuel in the tank is pumped out and the car weighed.
Asked whether he was seeking to mislead or failing to act to help the FIA the BAR chief mechanic Alistair Gibson replied: "Not at any time".
BAR technical director Geoff Willis spoke of the team's "strong culture of integrity" and said that "at no time would I allow the team to do anything illegal".
There followed questioning of Willis by Whiting from which it was clear that the crux of the matter was what the team had been asked to do by de Groot.
"In my experience," said Willis, "the draining of a collector and the draining of the main fuel tanks are separate activities".
He added that for the car to operate normally it was necessary for there to be fuel in the forward collector.
"We believe that the weight of fuel in the collector is part of the weight of the car," said Willis.
Whiting then asked how much fuel should be allowed if fuel could be counted towards the weight of the car.
"That is a difficult question to answer," said Willis, "because I am not aware of individual requirements of different fuel systems. It is not that significant amount but there is an amount of fuel."
Willis explained that the BAR's collector tank was designed to hold nine kilos of fuel and had been designed in response to the introduction of a high pressure fuel system on the Honda engine. When asked if the fuel was used as ballast Willis replied that "we put enough fuel to get to the end of race while maintaining the car in a runnable condition" and added that a number of other fluids are in the car, notably oil and water, and are not used as ballast. Willis went on to describe what happened when there was not enough fuel in the collector tank and explained that at Imola there was more fuel left at the end of the race than normal because Button was in a safe third place and was told to back off in order to protect his brakes and so used less fuel in the last stint than normal.
This concurs with what Button told this website after the race, before the legal problems began.
Whiting argued that the Technical Working Group in 1994 made it clear how fuel should be measured. Pannick said that this was not reflected in either the sporting or technical regulations.
In his summing up the FIA's Pierre de Coninck said that BAR had broken Article 2.6 of the Formula 1 Technical Regulations which states that "no mechanical design may rely on software inspection as a means of ensuring its compliance". The argument was that the data the team supplied to the stewards after the race was "unacceptable" because it came from the team.
Clearly, if this was the case, this was forgotten at the time by all concerned.
De Coninck argued that BAR should not be allowed to include fuel as part of the weight of the car and that the case had added nothing to modify that position. He said that the accusations of bad faith and fraudulent conduct were very grave allegations and that they would not have been made "without real and serious grounds".
He went on to state that BAR's position that it had found a loophole in the regulations was not acceptable.
Pannick laid out the case in his summing up in a very clear fashion.
"There are two main issues before the court," he said. "The first is whether we complied with the regulations relating to the weight of the car. The second issue, even if we were wrong on the proper interpretation, should this court make a finding of fraud, bad faith and deception?"
He laid out the fact that there is no provision in the technical and sporting regulations which expressly defines how the weighing should be done and pointed out the F1 rules are not consistent with the rules in other formulae where the weighing process is very clearly defined.
He argued that it is not permissible for the FIA to make new technical regulations by way of the Court of Appeal and said that while Whiting had referred to a Technical Working Group discussion in 1994, that body exists "to consider and formulate possible amendments and no such amendment has been brought forward" and went on to argue that the weighing procedures in the rules state that one should add nothing to nor take anything out of the car and that by removing fuel from the collector tank the FIA had created a car that could not be raced.
"One must at the very least include in the minimum weight the amount of fuel which is needed to ensure that the cars engine can operate without a technical malfunction," he said. "And you have heard evidence from Mr Willis that this car simply cannot operate without a minimum of six kgs of fuel."
He also rejected the use of Article 2.6 saying that the rule was not dealing with the weighing of the car but rather with "the design of the car, its components and its systems. Which are entirely different matters."
"We respectfully submit that we have complied with the regulations and that the FIA is asking the court to write into rules something that is not there," he said. He added that maybe it is desirable that there be a clear regulation in the future and that the court might lead to that.
The more serious issue of the allegations of fraud, bad faith and deception was Pannick's final target.
"There is no dispute that the collector has a proper purpose, there is nothing in any way deceptive. It is a normal piece of machinery. There is no dispute that the FIA inspected this car after the Malaysian GP and that the FIA was aware of the collector and of its function. There was no suggestion that the team failed to co-operate or sought to conceal the collector."
"It is," he added, "a very unpromising start to allege that we are guilty of fraud or bad faith."
Pannick argued that the complaint against the team was that de Groot asked for the fuel to be drained and what actually happened was a lifted pump procedure.
"It is plain that the FIA cannot establish that this is more than a misunderstanding," Pannick argued. "The mechanic understood what had been done on every previous occasion for fuel to be removed. Unfortunate as this may be, it was a misunderstanding."
He added that it would have been "a remarkably stupid thing to do when they team knew that Bauer was aware of the collector".
Pannick went on to point out that on Sunday night de Groot's concerns did not form any part of the discussions with the stewards and did not lead to any finding by them.
"It is quite remarkable that these serious allegations should now be made," he continued. "It is my submission that the general principles of law are that the more serious the allegation, the stronger the evidence required."
He concluded by saying that the problem was "at worst, a minor misunderstanding which was followed by BAR taking every step possible to assist the FIA."
Pannick argued that if BAR's interpretation of the rules was the wrong interpretation the team should be fined rather than having points taken away.
It was clear after the court that the journalists watching had different views on the subject, some believing that it has long been understood by everyone that the weight of the cars is without fuel on board. That may be so but you cannot find that written in the regulations. The court must now rule whether established practices are the same as regulations.
Our feeling is that BAR's interpretation is adventurous.
If the established practices are upheld, then it would be wise for the FIA to clarify the rules so that this cannot happen again.
On the question of BAR being engaged in fraud, bad faith and deception, the evidence put forward by BAR and statements made by Bauer were very persuasive and it would be a major surprise if the court was to rule that these grave allegations are true. Indeed it is not clear why they were there at all as Bauer clearly indicated that he did not have a problem with the system and there was clearly a difference of opinion about what De Groot said. If de Groot had a problem with BAR's activities, he did not mention it to the stewards. Nor for that matter did anyone tell the stewards that they could not rely on BAR data, which clearly they did.
The court thus left a number of questions unanswered about how decisions were made at Imola.
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