He added: “Whether or not Mr Whiting consented, it is irrelevant, because
testing in relation to Article 22 is a breach, unless it [a rule change] is
granted by the World Motor Sport Council.”
Howard revealed that Whiting had been phoned on May 2 by Mercedes team manager
Ron Meadows, and later by team principal Ross Brawn, to ask whether it might
be possible to run a 2013 car and said he would check with the governing
body’s lawyers in Geneva.
Whiting duly email Sebastien Bernard the following day who advised that such a
test might be possible, but would be subject to Pirelli inviting all the
other teams to test under the same conditions.
Not only were Whiting and Bernard not in a position to grant full permisison,
Howard said, but neither Pirelli nor Mercedes were open with the other 11
teams, or with the FIA. “No teams were informed of the conditions or
even that the test was happening,” he said. “If Mercedes and
Pirelli had been transparent, history would have taken an entirely different
course.”
As to whether the test gave Mercedes a material advantage, Howard said that
was largely “irrelevant” but added that the evidence clearly suggested
that they did.
Howard argued that in terms of reliability alone, it would have been useful to
Mercedes to conduct a 1000km test. “Mercedes did not discover any fault
at test but it is self-evident that had one been discovered, it would have
been rectified,” he said.
He noted that Mercedes say they have now “archived” the relevant data but
said it was not clear when that had happened. The situation is complicated
by the fact that the governing body has a separate supplier contract with
Pirelli, which allows the Italian tyre manufacturer to do 1000km tests with
current teams using a “representative car”.
Mercedes and Pirelli argue that the test was therefore not subject to the
usual sporting regulations. Howard said that argument was redundant, as
Pirelli’s contract with the FIA clearly states that the “governing rules
have binding force…and the governing rules mean the International Sporting
Code and Sporting Regulations.”
Mercedes’ legal counsel Paul Harris QC will respond on behalf of the Brackley
team, before Pirelli present their case later this afternoon.
A decision is expected either this evening or Friday morning. Red Bull team
principal Christian Horner is a surprise attendee in Paris, although in what
capacity it is not yet clear. Edwin Glasgow QC, president of the hearing,
began proceedings by congratulating him on his recent OBE.