Friday 21 February 2014

Extraordinary Meeting - Unlawful payments - My Comment

The Agenda for the Extraordinary Council meeting on Thursday 27th February to consider the Wales Audit Office Public Interest Reports has been published and can be found here.
Reports and documents have also been attached to the agenda.

The council will decide whether or not to accept the two unlawful findings of the auditor, Mr Anthony Barrett; the indemnity for the libel counterclaim and the senior officer pension arrangements. Both relate to Mr Mark James who has currently 'stepped aside' from his post as Chief Executive pending an investigation by Gloucestershire Police.

It also includes a Notice of Motion for a vote of no confidence in Councillors Kevin Madge (leader), former leader Meryl Gravell and deputy leader Pam Palmer. All members of the Executive Board when the payments were approved.


My comment

With regards to the item on the libel indemnity, the legal advice provided to the Wales Audit Office has been published on the agenda (Appendix 2) and it is compelling. I have in fact been looking at this issue and raising my concerns for over six years. To be honest I'm just glad that someone in a position to officially challenge the principle has actually done so.

Back in 2008, when the constitution was changed for Carmarthenshire Council officers to do this (based on the Goudie QC advice, which, basically, advised that it was not a very good idea) a Western Mail editorial highlighted the danger. It was met with a complaint from County Hall and the newspaper agreed to publish a 'correction' letter from Mr Lyn Thomas, the former head of law.

As readers of this blog will know, there have been several attempts to influence editorial control of the local press by County Hall, some more successful than others.

Then, in 2010 local Plaid MP Jonathan Edwards and AM Rhodri Glyn Thomas again raised the alarm about the unique power Carmarthenshire Council had granted itself.  Again County Hall just dismissed the criticism.

All that though is quite separate from the fact that the indemnity and the counterclaim involve myself. In that respect I feel somewhat vindicated, many of the issues I have raised over the past few years related to the 'libel cost amendment' which featured in the trial last February.

The judgement, so concisely summarised in the report prepared for next Thursday's meeting, is something I have to live with but as I have said before, I'll never accept nor agree with the findings. It was a gross miscarriage of justice, nothing less.

Anyway, when the indemnity was granted, it was over a year before the trial, let alone the judgement. The legalities, or, more accurately, the illegalities are one thing, but it is the motive behind the counterclaim which is important to me and the consequential effect on the claim itself.

The legal advice to the WAO stated; "Our view is that the Council did not have the power to fund the proceedings that comprised the bringing of a defamation claim by its Chief Executive".

As soon as the counterclaim was brought, it's immediate effect was to make any early resolution very difficult and highly complex. Another effect was how the counterclaim may or may not have impacted on the views of the judge. The unlawfulness of the funding means the counterclaim should not have happened. The actual impact of this unlawful action on the claim, the trial and the judge, will never be known.

The motive behind the counterclaim was, as I have said, entirely tactical and the only exceptional circumstance (not that the 2006 Order mentions 'exceptional circumstances' of course) were that the council and Mr James were defending the claim itself.

It was brought as a means of defence, and as a means to put pressure on me to either withdraw my claim or settle on terms favourable to Mr James and the council.

It is very significant that the only fresh legal advice obtained relating to this specific decision to provide the indemnity came directly from Counsel representing Mr James and the council in the case itself.

It was not brought because Mr James had suddenly become offended by something I said several months previously.

Cllr Caiach summed it up in a comment she left on a Pembrokeshire blog last week; "..the executive board had told us it was a perfectly legal loophole way of allowing our council to counter-sue bloggers using an officer as a proxy. It was explained to us as a legitimate way of putting pressure on the blogger to withdraw her original legal action..." 

The report to the meeting next Thursday states that the indemnity has now stopped and Mr James must fund the remaining appeal on the counterclaim himself. Take from that what you will.. I wonder whether he would have brought the counterclaim in 2012 if he had had to pay for it himself.

The report also sums up the staggering costs which I have been ordered to pay. As I have said in my previous paragraph, there is an appeal still outstanding and due to be heard at the end of April which relates to the counterclaim. Currently the cost order against me for the counterclaim is £40,875 along with £25,000 damages to Mr James personally. As for the claim, the council are now looking to enforce the cost order against me of £190,390.

If next Thursday the council votes to accept the auditor's findings then this will avoid a protracted and expensive legal battle between the WAO and the council but it will also mean that Jacqui Thompson will have won a small victory, even if it's only a moral one. I believe there are some within this council who couldn't bear that, on a personal level and who would be prepared to spend an infinite amount of taxpayers money to prevent it.

If council rejects the auditor's findings then I'm not sure what will happen. The auditor has the option to take the council to court. As I said, it will be long and expensive but will be considering an important point of law.

The question is whether or not the council feels it has the stomach to prioritize and commit scarce resources on behalf of the one recipient of the indemnity.

Of course, there is not just one unlawful finding, there is also the pension payment which the council must vote on as well. The Executive Board has already withdrawn the 'pay supplement policy' but refused to accept it was 'intrinsically unlawful'.

The legal advice provided by Mr Tim Kerr QC, which was jointly commissioned by Pembrokeshire Council, is interesting as it states that, on balance, a court would be quite likely to agree with the auditor.

This was the advice which officers at Pembrokeshire Council refused to disclose to its councillors when they voted on the WAO report during the infamous meeting of the 14th February. Not surprising really.

As a footnote, several Pembrokeshire Councillors have put forward Motions on Notice for their next meeting on the 6th March to suspend both the Chief Executive, Bryn Parry-Jones and the Monitoring officer, Lawrence Harding, of 'white envelope' fame.

Anyway, back to Carmarthenshire and both of the reports written for the meeting contain the same sentence 'It should be noted that no allegation of misconduct by any Member or Officer is referred to in the PIR.'

This statement is correct of course, and, in fact there was no mention of misconduct in the Caerphilly PIR either. Last week the Caerphilly Council Chief Executive and deputy were charged with misconduct in public office.

The remit of the auditor is not to allege criminal activity, his remit is to protect the public purse. Whether or not there has been criminal activity and misconduct in public office is entirely a matter for the investigating police force.


Anonymous said...

Am I reading this right. the council received advice in 2008 basically advising against instituting libel actions. in 2012 they receive further advice from the WAO to consider the advice from 2008 and also to obtain fresh legal advice if they decide to support the CE. this fresh advice would need to consider the circumstances of the case in question. The council ignored this advice and went ahead anyway and only get another legal opinion a year later.

On top of this a councillor has now said that councillors were told that by granting the indemnity it was a device to silence critics !

ave Ingot this right ?

caebrwyn said...

@Anon 17.08

Yes you are right apart from one point, the 'fresh legal advice' they obtained in 2012 was provided by Counsel directly representing Mr James in the case and therefore could not be considered either independent nor impartial

Wavell said...

Discuss the two WAO points by all means, but for Council to decide whether or not to accet them is a bit poinless as they are now in other hands.
There should (in my opinion) be no vote on this, but if they insist then the entire executive board members should declare an interest.
On the proposal of no confidence, then obviously the three in question would not be eligible to take part (leave the room).
Finally, having read the advice given, I can only assume they were either stupid or arrogant or maybe puppets.
Could they ask Mr.Kerr (or any other legal guy) to fight the battle on a "no win-no fee" basis ? No chance .
That's my opinion, I could be wrong.


nospin said...

If they agree to accept the illegality of the idemenity, couldn't your council argue that without that idemnity he would not have counter claimed therefore all cost incurred by him are CCCs & his responsibility not yours.

Aslo could they not argue the whole of his claim should be decalred null and void and a retrial based on your claim only should be held, so the outcome in the form of damages should be removed, because the whole of his claim was based on illegal payement for the case.

passerby said...

nospin, exactly...that's what i been saying all along, and trying to encourage councillors to see from that angle

Anonymous said...

If and it is if Mark James is successfully prosecuted under criminal proceedins for the unlawful payments then any claim for costs should be stayed as you cannot be libelled if you have a criminal conviction.

However, it appears that the counterclaim was more for harassment rather than libel?

caebrwyn said...

@Anon 14.50 28th Feb
How any of this, or future developments impact on the case remains to be seen.

The counterclaim was brought purely to put pressure on me to withdraw my claim.