Lawyer Andrew Fitchie gave explosive evidence to the inquiry in October 2017 when he said that Edinburgh City Council was not always told the truth about the risks surrounding the scheme by arms-length firm TIE, which was set up to manage the £776 million project.
The evidence was regarded as important because of the council’s central claim that it was not given proper information by its legal advisers.
Mr Fitchie – who had to hand back a £50,000 personal bonus paid by TIE for his role in the project – was closely questioned over two days at the inquiry and at one point admitted councillors were given misleading information about the risks just before signing the contract.
But now The Scotsman has learned that lawyers for Mr Ritchie’s firm DLA Piper have issued a written final submission in which they claim that their client was exhausted when he gave his evidence and had only recently returned from a transatlantic trip. Mr Ritchie was a former partner at DLA Piper, who had been seconded to TIE.
The submission to inquiry chairman Lord Hardie said: “Under forceful cross-examination by senior counsel to the inquiry, and at times when pressed directly by the chair of the inquiry, Mr Fitchie gave evidence which might suggest failings on his part to prevent misleading information being given by TIE to City of Edinburgh Council (CEC).
“However, that evidence needs to be placed in context. It came in response to questioning during which he was not shown all of the relevant documents together and at a stage which was late in the day when Mr Fitchie was clearly exhausted.
“As the inquiry is aware, Mr Fitchie had travelled from the west coast of the US the day before his evidence and would also have been dealing with the consequent time difference.”
The submission said the issue was taken up again the following day: “It may be suggested that Mr Fitchie appeared, under further vigorous cross-examination, to accept that he had been aware that TIE had knowingly misled CEC, and that he failed to do anything about that,” it said.
“Any apparent concessions followed upon the putting to Mr Fitchie of highly selective parts of relevant documents. Without being shown the full suite of documents that CEC officials had before them at the time, the weight that can be given to that evidence is questionable.”
The submission said when the complete documents were shown to Mr Fitchie, he gave quite different answers.
“When that was done Mr Fitchie clearly demurred to the prior suggestion that the report was misleading,” the submission said.
Edinburgh City Council, in its written submission, claimed neither Mr Fitchie nor DLA provided “complete and accurate advice” to TIE and the council on the likely effects of entering into the contract as drafted.
Other witnesses told the inquiry provisions in the contract allowed the consortium Bilfinger Berger Siemens to hold the council and TIE “to ransom”.
DLA Piper insisted Mr Fitchie had explained the implications of the contract. But they added that relevant council officials should have read and understood the contract too.
“It is contended by DLA that a reasonable public sector client, with its own in-house legal, technical and commercial departments should have been reading the full suite of documentation and advice and raising any areas where clarification was needed.
“Had CEC officials done that, it is submitted that they should have been perfectly well informed.”
Edinburgh’s trams were delivered years late, hundreds of millions of pounds over budget on a shortened route. The eventual £776m tram bill was more than double the sum earmarked at the outset. The cost of the tram inquiry has now reached £9m, according to Transport Scotland.