New documents made available by the Competition Appeal Tribunal appear to be an explosive new twist in the case between Agents’ Mutual and Connells’ owned brand Gascoigne Halman.
Neither Gascoigne Halman nor Agents’ Mutual would yesterday comment on the latest development.
The latest twist centres on four tapes and transcripts which were recordings of meetings in Northern Ireland last year, and exhibited by the solicitors for Gascoigne Halman.
The tribunal, which went on to describe them as made for “corporate espionage” purposes, has at the request of Gascoigne Halman’s legal team allowed them – narrowly – as evidence.
However, the Tribunal did say that there was a “long” list of factors against admission. The ruling notes that Mr Maclean, counsel for Agents’ Mutual, “lost the opportunity of asking Mr Notley about his involvement in the production to QE of the audio files (and convenience transcript)”.
The Tribunal said the tapes are “the result of covert recording of conversations whose protagonists (apart from the persons making the recording) did not know they were being recorded”. This, it said, was possibly in breach of Northern Ireland law, and so were potentially illegal.
The Tribunal did not know how the tapes and transcripts were originally obtained. It did know that two people, named only as Y and Z, were involved in the recording.
However, it did not know whether the recording was complete or selective, and whether tracks had been “spliced”.
The Tribunal said it had concerns “that we cannot dismiss”, going on to say: “That is particularly so, given the fact that the audio files were made for what we will broadly term ‘corporate espionage’ purposes.”
The tribunal said the audio files “are of relatively poor quality” and that there were reasons for “treating the transcripts with especial caution”.
Ian Springett, boss of Agents’ Mutual and its portal OnTheMarket, had not been at any of the Northern Ireland meetings concerned.
Because the application had been made in the middle of the trial, it would be “entirely unreasonable” to require Agents’ Mutual to do anything in response to this late evidence.
The Honourable Mr Justice Marcus Smith, chairman of the Tribunal, Peter Freeman QC and Brian Landers conclude: “Taking all of these factors into account, we unanimously rule that – by an extremely narrow margin … the audio files and the transcripts should be admitted into the proceedings.”
In the second new document made public, the Tribunal ordered that the identity of the ‘confidential source’ be deleted from the public version of the hearing transcript.
Anyone present in court on February 9 must not disclose that identity to any other person.
Asked for a comment, a spokesperson for Agents’ Mutual referred us to a statement issued previously, which said: “It would be inappropriate to give a running daily commentary through the media while formal proceedings at the Competition Appeal Tribunal are ongoing.
“Many claims, counter-claims and allegations have inevitably been made and reported during the proceedings.
“These matters should, and will, be determined on the evidence at trial by the Tribunal.”
A spokesperson for Gascoigne Halman told us: “We won’t be commenting while this is ongoing.”
When you see words such as”corporate espionage” bandied about in this whole case it must be creating utter bemusement amongst the general public about the estate agency world .In addition the whole process of selling a house reduced in the public eyes to a cheap fee in a high profile TV advertising campaign and the power of the portals. Where is the leadership of the RICS and the NAEA in all this?
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‘…bemusement amongst the general public about the estate agency world’. Half the reason AM are in this position in the firs place is because the public are barely aware of OTM. I very much doubt as a result, that its even on their radar. Sad but true.
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So X and Y recorded agents and OTM ( they must be agents to record others) unless of course someone from a certain portal dressed as the tea lady
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It would be a “bombshell” if the identity was made public. That is the only reason for keeping it secret. Clearly someone had intent before the meeting and it doesn’t take much to speculate who. My money is on the tea lady. Just goes to show the mind set and dirty tricks agents have to put up with.
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Pass me a cuppa so I can have a good read at the document link above. Paragraph 4 is certainly interesting.
Cue dramatic music
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Absolutely, no idea if the tape has been cut, like they say…. omitting questions or comments made by X or Y which would lead to comments being made which could then be misconstrued.
Disgusting Behaviour….. shame on Z wanting to fund the defence of such activities and against the agents I assume it wants to woo back post a loss for OTM.
PS – Can someone put Gibbo back in the water please, I’ve been fishing for 2 days without a catch.
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Sorry to be ‘that guy’ but the people are called Y and Z, not X and Y.
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Z you say.. interesting!!!!!!!!
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SSSSHHHHHHH!!!
Please let it be known that no animals have been injured …yet… during the making of this farcical situation; and that names (including initials) bearing any resemblance to real persons, living or dead, is purely coincidental…
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Perhaps I know, Z had nothing to do with it and it was all X and Y……
Although as Windsor has pointed out…… it is more likely to be just Z involved in this one.
OMG I am confused….
PS – I am not saying O, M or G were anything to do with it, or P & S either. for that matter.
I need to sell some houses, perhaps Gibbo is right.
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Gibbo? I don’t recall a Gibbo, who he?
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NGgibson – AKA Gibbo, but definitely not Gobbo.
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Didn’t you work out who that was and why he is now keeping quiet? In one post he couldn’t hep but give you all the clues you needed.
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Oh No….that means I have to read every single post he has ever made again now….this is getting more and more like ‘House of Cards’. I might start trying to write the book soon. Any suggestions for a good title!
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If your book will be “fictional” then PB should do it!
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The thing about someone who records a meeting is that in itself that act perverts the truth because recording a meeting is a premeditated action which pretty much ensures the the instigator is hoping to engage some form of entrapment.
What I would like to know is if this is only being introduced now, there was clearly some nervousness about doing so.
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The tribunal, which went on to describe them as “corporate espionage”. Says it all.
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Odd to say ‘corporate espionage‘ when the only corporate is Connells.
The PIE articles have shown that the tapes and transcripts were entered so late into evidence that if valuable (and links in the PIE articles to official court papers show judges sided for entry rather than not).
Why would Connells risk not having evidence seen/heard, by risk of leaving to the last minute?
Equally if Zoopla are backing, why would they leave such evidence to the last minute.
The case thickens. Evidence could have come from anywhere from an online agent not allowed in to AM, national press, another corporate, an unhappy tied in AM member wanting out.
Whilst we can only guess, whats a given is that this new evidence was accepted rather than thrown out.
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Don’t get overexcited Mr M. It is clear from the documents released yesterday that the tribunal has very major reservations about the veracity of the recordings and transcripts. In fact they go out of their way to make it abundantly clear that AM has simply to keep quiet in order for the recording and transcripts to be fatally undermined. GH may have scored an own goal in the long run.
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I disagree. The transcripts will stand or fall on their own merit. Without knowing content. We know that the judges saw enough importance to allow as evidence.
AM would be sensible to comment and answer any issues that could be damning in line with why the judges have allowed entry. This part none of us outside the heart of the case yet know.
The court has stated it knows the source or sources of the information and the court placed an order to protect identity, as such they must see the source as credible. So with that established, what has the judge/s seen that could be sway points one way or another?
Interesting case. It will be good post decision to look at the key factors where Competition Judges highlight the way operatives can and can’t operate in the future.
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I can only think that you have either not read the Hearing’s decision in full or that you are deliberately misreading it. Far from it being ‘sensible to comment’ as you suggest, AM would be well advised to keep quiet.
I could paste here a number of quotes from the document that make it abundantly clear the Hearing is unconvinced of the veracity of the tapes and transcripts but this single one will do. It comes right at the end of their decision and should be read in the knowledge that the Hearing has also acknowledged that Springett was not party to the recorded conversations:
We will not entertain any submission that silence on the part of Agents’ Mutual in response to this
material indicates any form of acceptance or evidence that the recordings are accurate or unimpeachable.
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How do you make it one Trevor?
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Sorry – don’t understand ‘make it one’ Robert
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you said “Odd to say ‘corporate espionage‘ when the only corporate is Connells” as if you think there is only one corporation involved in this.
Corporate isn’t an exclusive term to describe estate agency firms that get salary cash from building societies and pension funds.
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Yes Robert. And you picked up on it. I totally get your comment, and had thought it when I left comment. But my usage was meant as corporate in the tense of ‘estate agency operation’ not wider inclusion.
I was trying to bring a view as to why would Connells ‘a corporate estate agency’, the only corporate agency mentioned.
WHY if they had had such evidence risk leaving it to the last moment, in fact beyond the entry deadline that could risk such evidence being excluded. The same with Zoopla, PIE reported they had made it clear there is a financial contribution, so again if they had such transcripts and recordings earlier, why would they have left such evidence that judges have allowed in, to have not come forward earlier.
Thus maybe its a source and were all off track. Could be a AM/OTM agent wanting out, or even an online only agent not allowed in, media or a variety.
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Clutching at straws comes to mind.
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“Odd to say ‘corporate espionage‘ when the only corporate is Connells.”
Oh, dear, Mr Mealham – seems like the words you are being forced to eat are rifting on you – and you’ve just blown chunks.
YOU, of all people – self-styled Defender of Agency… Righter of Wrongs… Legalese Gob-On-A-Stick … the list is endless of your talents and attributes – know darn well what the definition of ‘corporate espionage’ is, but maybe you need a refresh so here it is:
“Industrial espionage, economic espionage, corporate spying or corporate espionage is a form of espionage conducted for commercial purposes instead of purely national security.”
But, of course, the words contained within the Admissibility Ruling that give it all away have so far not sunk in – so I would imagine the Hearing will be done and dusted well before you cotton on to the meaning of the above…
Oh – and I’ll warn Management you’ll scweam amd scweam for this to be removed ‘cos I’m being nasty to you… save you the bother ;o)
Always a pleasure – never a chore…
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Thanks PeeBee. Of more interest is the definitions of:
Cartel.
Anti-competitive
Articles 101 and 102
The 1998 Competition Act
Horizontal agreements (wrongful use)
Happy for you to remind us of what the official definitions of those are.
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All of which allow restrictive practice … subject to justification That is what this all about in the end. As to Cartel that can also refer to when a business has no choice and is forced by lack of choice to enter into an agreement. In this case their is justification as 7,000 thought so ( third of the industry) and there was choice, they didn’t have to join AM if they didn’t want to, they could have continued to use RM, Z or dare I say INEA! The reason for OTM was to break the monopoly of RM & Z (was going to add INEA, but that would be an overstatement) which goes in favour of improving and opening the market to agents which were being stuffed. Also no regulator took action with OTM OOP rule, had plenty of time to consider and the OFT came out and said they wouldn’t. This is a private case, a corporate that is anti-OTM and has conflict of interest with its partner that is prepared to help pay their bill … looks very much like corporate espionage and collusion to stop a competitor gaining traction … one that is dearly needed within the industry. The judges will see this, they are not daft. It could very well be that they allowed the tapes purely to underlie the steps organisations will take to stop OTM in a free market and rebound on Connells, giving OTM justification to protect its business plan to enter the market?
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Interesting Woodentop. We must be following different cases.
Ive bèen in court odd days watching and listening to the one im following.
Again we can only wait to see the outcome.
Portals and platforms on the AM ban list dodnt ask to be placed on a ban list.
If RM or Z had created a OOPR 2-3 years ago. OTM would not have been able to be a new entrant.
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“If RM or Z had created a OOPR 2-3 years ago. OTM would not have been able to be a new entrant.”
Oh, Mr Mealham… please explain that one to us. Nice and slowly, fully and, of course, in glorious PANAVISION and Technicolor…
PUUURRRLLLEEEEAAAASSSSEEEEE!
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I’ll leave it for you to work out PeeBee. But as 1 and 1 make 2 and if RM (1) and Z (3) had already had signed agents up pre OTM (3) starting.
Then OTM would have been the 3rd portal beyond agents having been already on a hyperthetical OOPR.
ie If all agents had already been conntracted in such a way to not be able to engage beyond the two portals they were on.
Then AM/OTM would have been blocked from engaging agents who would have had years to run under a OOPR before being able to join OTM.
Really not that difficult to understand PeeBee.
So OTM imposing the OOPR means it stops new entrants and stops existing portals and platforms from growing or expanding.
It was part of the defences points. And quite rightly so.
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Sorry. Small keypad. Should have read:
But as 1 and 1 make 2 and if RM (1) and Z (2) had already had signed agents up pre OTM (3) starting.
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Your ‘small keyboard; is an issue that I will have to leave in your hands, Mr Mealham. A bigger problem seems to be the autocorrect that kicked in on your apology. Allow me to UNautocorrect for you – as clearly the post should have read:
“Sorry to anyone having the misfortune to read the immediately preceding post. It is complete and utter b******s- but PeeBee flagged up my previous b******s and I thought I could come out the smart@r$e… but instead have dug a deeper, steeper-sided hole.”
There you go, Sir – always a pleasure; never a chore…
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Really not hard to understand PeeBee. Let me try and make it easier for you.
If Rightmove, (that’s the no.1 portal) and Zoopla (the no.2 portal) being websites agents go on so public can see their listings (thats properties, PeeBee).
If the No.1 and no.2 portals had, had a OOPR then your beloved OTM (3) site would have been unfairly blocked from recruiting agents. (That’s people who list and sell houses.
A such, such a rule would have been restrictive to AM/OTM entering the portal market.
I hope the above is simple enough for you to take in. Third time lucky PeeBee.
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There we go – it took you THREE attempts to make your b0llocks into barely-understandable, yet still as complete and utter, b0ll0cks.
IF RM & Z had OOPs in place, as you so smugly suggest, three years ago**, then Agents who were Contractually tied to both portals would have had A FREE CHOICE whether to LEAVE one of those Agents AT THE END of their Contracted period (note Mr Mealham I don’t condone the practice of BREAKING AGREEMENTS in the way you seem to…); and those Agents who were NOT on both portals at the time (you know – like the ones you have previously publicly stated should share portal listings to save £££££££££££££s – or the ones who simply do what they do without having to resort to piggybacking off others to find decent buyers at the best price for their vendors) would also have A FREE CHOICE as to whether to take a SECOND portal – or even to DROP THEIR SINGLE portal in favour of OTM,
Three words above, repeated twice, have been highlighted, Mr Mealham for the single purpose of helping a very, VERY slow penny to drop.
Sincerely suggest you don’t admit that, two-and-a-bit years down the path, you still don’t (or simply won’t allow yourself to) hear its coppery rattling on the ground…
** Some would argue that they did, by way of cost to be on them making it difficult for the majority of smaller independent Agents to allocate additional spend with other, smaller portals.
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It does Woodentop and having now read it, it seems it wasn’t nervousness about producing the recordings, which by all accounts appear to have been “edited” but more a question of not producing them before Jon Notely appeared before the tribunal and could be presumably questioned and cross examined on them.
However this court case turns out you have to seriously ask whether you want to deal with a company like Zoopla dont you?!
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My likening this court room carry on to that of ‘Sun reader’ mentality last week was meant to be a light hearted poke at how low can our industry go.
Looks like I was closer to the truth than I thought. ‘The Sun’ – ‘Entrapment’ – ‘Estate Agency’ – ‘REALLY’ !!! My money is on the guy that refused to eat the microphone shaped jam donut.
I’m still bemused at the notion that Springett had to ‘lead’ or ‘coerse’ agents to leave the other 2 when RM openly take the proverbial by announcing profits in excess of 70% the same week they write to their members and increase their charges. I think this court case is in dire need of a good healthy dose of reality.
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Springett created and drove the collective plan. The plan centred around embargo’s on other portals and platforms and online only agents.
To encourage subscription growth, tools such as horizontal agreements (letters of intent) were used and post intent tie in periods locking agents support on the embargo’s and claimed anti competitive practices for as long as agents signed up for. In cases 5 years that would lock out, or restrain other market operatives in otherwise a competitive open market place of non restrictive choice.
The case appears brought to court under the Competition Act 1998 which is a offshoot of EU anti-trust law/competition law.
If evidence shows wrong doing and the court rules that anti-competitive structures have been engineered this could be a much bigger Cartel case than the Trinity and Three Counties case.
My hope is that agents who subscribed in the movement and were assured by the AM/OTM board that all was above board have fair defence that they were misled.
All said at this stage there is no finite decision and the courts say will be final as whether AM are right or GH Connells.
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After all that has been posted on here I find it inconceivable that any agent could ever claim to have been misled. Agents including GH made decisions based on a very clear basis, if you join AM and subscribe to OTM you have to chose to only advertise on one other portal. INEA members could have joined OTM if they chose to be on INEA and OTM Your job, same as Zooplas or Rightmoves job is to make your site more compelling to agents than all of your competition, whether that is Rightmove, Zoopla Homes on Line, Askthehomesearch HousesinSale or Houser or any of the other 98 or so portals
GH made that decision and joined but then changed their mind once the Connell’s cash came along. The whole point of an executive team is to make executive decisions, are you suggesting the GH executive board weren’t bright enough to work out the implications of the OOPR, their legal advisors were negligent or weren’t consulted or that The AM sales machine had some Derren Brown superpowers capable of misleading an otherwise intelligent management?
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MLS is not about being the most compelling (portal site) Robert.
MLS is about bringing agents together to work together and generate access to more listings, more outlets and premium fees that open to co broker sharing.
Our offering isnt about being a portal to encourage agents competing and fighting against each other that can also encourage fee reductions.
Typically MLS will encourage better for agents and the clients they serve.
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Sorry Trevor my post was about GH being misled about the OOPR, If GH were about to sign with INEA but then joined AM to list on OTM I can understand you mentioning MLS in reply to my post, otherwise you have me flummoxed why you’ve mentioned it.
Gotta go; I have to pull up a large tenor!
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Only GH and now Connells could answer WHY Robert. Maybe as founder members were breaching the OOPR and were not dragged into court GH felt they could too.
Maybe they felt it wasnt a lawful contract post due dilligence.
If the contract is found unlawful. The situation could void all contracts.
We can only wait and see.
As to INEA. we are a MLS and only 10% portal. We should not have been on an embargo list as a portal. You mentioned INEA so I was just defining the difference of what a portal is compared to MLS.
Safe journey.
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Some pretty big words there Trev. Posturing comes to mind but I have to say you can’t say INEA is anything to rave about with the membership numbers within the industry. Your interest is clearly down to OTM being a competitor to INEA, simple as that. But is it a competitor? You say you are on an embargo list, they weren’t exactly queuing up to join you and haven’t been for years before OTM came along. Agents could still join INEA if they wished, just not OTM unless they drop RM … wishful thinking!
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Many true words there Woodentop. Sadly weve never attracted the big funding AM/OTM did.
All said I would say we take the agent regulations and legislation side more serious.
But the fact is even little old INEA had many of our agents targeted and thretened saying they had to leave us due to the OOPR.
WRONG. So alike any business we forwarded the OTM letters to the CMA. If OTM hadnt attacked us we wouldnt have retalliated.
If AM/OTM are found guilty, INEA may still be about when OTM has long gone.
Thus we await to see what the judges outcome is. For sure with the OOPR gone we’ll be able to upgear on recruiting agents again.
The last year for us has been about working closer with some agents as tk the value in agent to agent main/sub agency marketing to open access to listings and helping agents gain higher fees.
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I can see how removing a temporary barrier that only affects 27% of the industry would be a benefit to membership Trevor but why aren’t you concentrating on the other 73% of agents who are not AM? they aren’t affected by OOPR.
I can see why the 3.6% internet listing sector wouldn’t be of interest but you have all the pre AM Connells group to go at, Countrywide, LSL, Foxtons and a raft of small independents to go at, over 69% of the industry. It’s easy to see a hurdle as a barrier but why not walk around the barrier instead of struggling to climb over it?
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