Double indemnity: Day Four in the Caebrwyn libel case

Jacqui Thompson      pic courtesy South Wales Guardian

Back to court 14, and Day 4 of the libel action taken by Welsh blogger Caebrwyn, real name Jacqui Thompson, against Mark James, the Chief Executive of Carmarthenshire County Council, who has taken a counter claim against Mrs Thompson. 

This was an extraordinary day, stuffed full of extraordinary admissions. Now is not the time to comment, of course, as Mrs Angry would not wish to be held in contempt of court, but there is a clue in this sentence as to her general frame of mind at the end of listening to Mr James' evidence. 

And so.

'I call Mark James', said Mr Speker. His client took the stand and was questioned by Ms Michalos, for Jacqui Thompson.

Mr James gave us a full description of the range of his responsibilities. 

He has been Chief Executive since 2002. He is responsible for a staff of 9,500 people, he is primary adviser & advocate to a corporate management team, he is adviser to members on political matters and the responsibilities of the council when necessary. He is a non executive director of the Welsh Assembly, and chairs the Corporate Governance committee, and he is Recording Officer, which requires him to -  

I think, commented Judge Tugendhat, that the court knows what a Recording Officer does ...

On to Mrs Thompson, whom Mr James had described as behaving in a way 'more extreme than a person who is unhappy about something' and then briefly on to the first reference to the peculiar and unexplained matter of the document which came into the possession of Mrs Thompson, having been stamped by two different departments of the council, and suggested to her that Mr Bowen, the planning officer whose libel action preceded this case, had his costs secretly paid for by Carmarthenshire County Council. 

Mr James assured the court that he had checked to see that the council had not, as he put it, 'inadvertently made any payment' to Mr Bowen. Mr James said that there was 'no record of anything'.

About the first time Mrs Thompson attempted to film a meeting with her phone, an officer had been sent 'to ask her to refrain from filming. He had 'engaged her in conversation' and put his hand in front of 'her camera'. She put the 'device' down in her lap. She seemed then, he said, to be 'typing', 'presumably tweeting or something'. She then walked out.


Mr James was asked about the 'bribery' case in which he was involved, and to which Mrs Thompson had made a reference. Earlier in the week we heard that an assistant to Mr James had found an envelope stuffed with cash on Mr James's desk. Mr James then reported it to the police and was a witness for the prosecution. It was claimed in court that the money was intended as a 'donation' for a local swimming pool.

This incident involved a local property developer who was having discussions with the council - not me, said Mr James. He was requesting meetings with Mr James. Mr James had not met him before. He was attempting to bribe you? Yes. Some scope for confusion then, suggested Ms Michalos. 'A man thought that you were capable of bribery. Mr James replied that when the money was found 'I called the Chief Constable immediately'. 

On to some of the issues Jacqui Thompson had covered in her blog, such as the Stradey development. This was controversial and Mr James admitted that the plans were 'called in'. Another local issue of contention was the closure of St Catherine Street in Carmarthen. Was there not criticism that the decision process was undemocratic? No, it was not undemocratic. Would he agree it was controversial? Certainly some reporting of it said it was controversial, he maintained.

What about the action of local MP  Jonathan Edwards, calling for the Audit Commission to look into the planning department at Carmarthenshire County Council, the very same department that Mrs Thompson was so concerned about?

I'm sorry, said Mr James. I can't recall.

Next came questions regarding his former position as Chief Executive in Boston, Lincolnshire. There was an issue regarding a sports arena development which ran out of money, and had to be investigated by the Audit Commission.

Mr James claimed that he had left before 'the deals' were completed. He agreed this was six months before building started. 'I wish I hadn't', he said, because his successors 'didn't seem able to keep it together'. He wasn't involved in the investigation.

Time to raise the issue of the Bowen incident, in which, after what the Thompsons felt were some unfair and inexplicable decisions by the planning department, Mr Thompson decided to go and visit an officer, Mr Bowen, at his home. Mrs Thompson wanted him to come back, as it was inappropriate, and she asked the police to stop him. They did not need to because he had come back of his own accord, in fact.

Mr James put this incident in a very serious light, saying it had caused concern, was very threatening and intimidating, that the officer's fifteen year old daughter had been home alone. Mr James referred to some unspecified incident in the 1990s when a planning officer had allegedly been shot. Mr James was reminded that in fact Mr Thompson had turned back voluntarily, and returned home. Mrs Thompson had not attempted to go to the house. It was also put to him that in a rural area, where everyone knows each other, it is not quite such an unusual thing to visit someone in these circumstances. Was this not another example of him seeking to exaggerate incidents involving Mrs Thompson? He disagreed. But you agree that Mrs Thompson was not involved? Yes.

Turning now to the letter published on the Madaxeman blog, Ms Michalos read out passages which she claimed implied that Mrs Thompson was involved in incidents in which she did not take part, such as causing rather than requesting police to be called in regard to the Bowen case: what he was trying to do, said Ms Michalos, was to confuse Mrs Thompson's actions with Mr Thompson's. These were misrepresentations. Mr James did not accept that.

On to another issue raised by Mrs Thompson: the matter of the civic car: the limo used by the Chair and Chief Executive, costing £66,000 a year to run, with two part time chauffeurs. Mr James justified the maintenance of this service, and Ms Michalos read out a list of Welsh councils who do not have an official car. Mr James named some that did, including one in England that made Mrs Angry's heart beat a little faster. Yes, it was Broken Barnet, unofficially twinned, blogwise, with Carmarthenshire County Council.

Ah: back to the very interesting document with the two stamps from the Chief Executive's department and the Resources department which Jacqui Thompson thought suggested that Mr Bowen had financial support for his libel case from the council. 

Mr James agreed that the Resources department was responsible for sanctioning payments. 

The document is inexplicable, ventured Ms Michalos.

I agree, said Mr James.
 

Mark James, Chief Executive, Carmarthenshire County Council

The council had never been able to explain why the document had been processed by two different departments.  He agreed with that too. But Mr James had commented at one point in regarding to the stamping: 'if it indeed was' and that it 'appears to have been stamped'. 

Was he implying that it was a forgery?

Mr James said that they could not find any evidence of it, no record. It was perplexing. 

Documents can get lost, can't they? 

Two departments couldn't find any trace. This was quite unusual. Any evidence of his discussions about the document? No. Were these discussions informal chats? Senior director level discussions. 

And now an allegation of forgery: he hadn't made an allegation of forgery. Just ... couldn't find the document, despite a 'forensic' check of our systems.

Did you support Mr Bowen?

They did not, not financially. Otherwise, he was sure individual councillors, especially on the planning committee ... but the council was broadly supportive? Not the council. You personally? He could appreciate Mr Bowen's anger because 'it had been aimed at me as well.' Councillors and officers were in support of Mr Bowen? Yes.

She mentioned remarks made in an email warning Mrs Thompson of defamation, and solicitors. In law, observed Ms Michalos, you cannot defame a council.Was his email a threat on behalf of the council? 

It could be read in that sense, I suppose, he said.

Did the council have a persistent complainants' policy? Now we do. Not then? He couldn't tell her when such a policy was in place. 2006, she said. But you did not deal with this matter under the policy. 

And the matter of the indemnity ... this is meant to be used only in defence cases, and then, in accordance with guidance from the Welsh Assembly, only sparingly, or it could stifle public debate.

He was not aware this was the case. 

In May 2008, the council voted to amend the constitution so as to allow the funding of legal proceedings for defamation in regard to council officers, a change contrary to the orders of the Welsh Assembly.

Mr James said that the council had taken advice when the changes were proposed.

Did he not think it was a matter of public concern? He said he would not necessarily disagree. And then in reference to the need to use this indemnity he remarked in passing that there had been  'other members of the community making fairly defamatory remarks', which was an interesting admission.

In the matter of indemnities, Mr James wanted us to know that he found the alleged attempt by Mrs Thompson's solicitors to check to see if the council costs would cover some of hers 'most hypocritical'. He emphasised his sense of repugnance. Of course in Carmarthenshire, taxpayers can only cover the legal costs of senior officers, not tax payers.

Ms Michalos had another question. When the matter of his indemnity was discussed at a meeting, did he leave the room?

I can't recall, he claimed.

There was no record of this in the minutes, minutes of a meeting from which the public were excluded: did he think this created a lack of transparency? He did not answer. And then:

I can't recall. 

But he would agree with the record, if it said so. And, yes,  he could see why it might be a matter of public concern.

Mr James had stated that the counter claim was brought on the advice of the legal team.

I can't recall.

As to the first meeting where filming had taken place: Ms Michalos pointed out that in fact, contrary to Mr James' assertion, there was no disruption to the meeting where the incident took place, and it was wrong to state that the rules of the council prevented filming. He had said it was clearly stated in the rules. He said he could not remember saying that. He said the constitution did not specifically permit filming and that he took as his guide the Local Government Act of 1972.

When 'the media' wanted to film meetings they were permitted only to film the very beginning and then were obliged to withdraw.

At the meeting of April 13th, 2011, he was asked, you didn't notice Mrs Thompson yourself? Her actions were reported to him. Despite the distance and height of the gallery Mr James claimed he knew what had happened when the officer allegdly grabbed the phone from her. Mr James said he could see 'quite clearly' that he did not make contact. 

Mrs Thompson was sitting, he said, a little off centre. Ms Michalos said she was sitting diagonally to the left.

A photograph was produced which showed that the view of the gallery in fact revealed only the head and shoulders of seated members of the public. 

Ms Michalos said 'so you have no idea whether Mr Davis had contact with Mrs Thompson'.

'For all you know', she added, 'Mr Davis could have been stroking her leg ...?'

At this point, the judge raised his eyebrow, and gave what can only be described as an old fashioned look at Ms Michalos. The court tittered.

'Yes,' said Mr James, 'I guess ...'

And if Mr Davis had taken the phone he would not have been able to see.

Mr Davis had been interviewed by police twice, once under caution. He was not investigated by the council. I spoke to him, said Mr James. But no investigation because the police did not believe the allegation. It wasn't that they did not believe it, but that there was not the evidence, it is not the same, said Ms Michalos. Mr James repeated that he believed Mr Davis did not assault Mrs Thompstone, nor 'steal' her phone.

James now claimed that Mrs Thompson 'and her actions' were the subject of almost weekly meetings for discussion. He said there were no minutes of these discussions. Ms Michalos said there had been no disclosure of any material supporting this claim.

There was also the matter of an email sent to the police Chief Inspector with what Ms Michalos considered to be 'prejudicial material' relating to Mrs Thompson and which made the email like the letter sent to Martin Milan, 'completely inappropriate'. 

On to the incident which lies at the heart of this case: the filming of a few minutes of a council meeting by Jacqui Thompson, on her phone, which led to her arrest, being placed in handcuffs, and being taken to a police station.

Blogger Jacqui Thompson is arrested for filming a few minutes of a public council meeting with her phone

pic courtesy Alex Murray Smith

A councillor told her to stop filming. She put her phone 'even further up' and carried on. James asked to stop. She refused. He advised that the meeting should be adjourned. When the police came, he did not see what happened. 

But, he added, when she was arrested, a lot of members were applauding.

I asked one of the officers to call the police, he confirmed. 

He then rather bizarrely stated: I had nothing to do with her arrest. He was 'surprised' when she was arrested.

Was he aware of a lot of debate about filming?

A lot of 'media coverage', he replied.

He was asked about Eric Pickles being quoted (in the same speech he praised Mrs Angry and the Barnet bloggers, in fact ...) as saying that her treatment had been 'out of line'?

Mr James said that he 'did not much follow Eric Pickles' ... England was subject to the Department of Communities and Local Government, but - here his own counsel tried to object to the line of questioning, but was disregarded.

About the undertaking Mrs Thompson was forced to sign not to film? Two meetings had been disrupted, he claimed. 

Councillor Caiach and another had tried to have the minutes which stated there had been disruption amended. Mr James was not surprised when Councillor Caiach was mentioned. He insisted the meeting was certainly disrupted.

Another question about when Mr James had first looked at Mrs Thompson's blog. It emerged that this was not until after the decision to take a counter claim for libel. He said he had seen 'lots and lots of extracts' though.

Ms Michalos put it to him that he should most certainly have looked at the blog first. He disagreed. She repeated that there had been no disclosure of any evidence showing that he had discussed extracts or even been shown them, and he had not kept any hard copies.

No.

For all you know, such posts could have been deleted, couldn't they? 

No answer. 

Would it not have been the fair thing to do to put any complaint to Mrs Thompson first?

There was a 'constant campaign' by Mrs Thompson, and Mr Milan was 'impugning our integrity and honesty ... saying the council should be swept away ... '

Mr James had copied his letter to Mr Milan's Madaxeman website to 74 councillors. Not one had objected, he said. Quite the reverse.

You have your sequence wrong, said Ms Michalos. You copied the email after you allowed it to be published, so you did not consult with them. You didn't ask for their approval.

James had only shown the letter to the council's legal officer and press officer. Having seen the contents, Mr Milan asked if he was sure that he wanted to go ahead with publication. After 21 minutes, he gave the go ahead. 

You could have not replied, said Ms Michalos.

And perhaps I should not have done, said Mr James, quickly, with a smile.

Clarifying a few points, he admitted that the new theatre, as Jacqui had claimed, was given the name that came second in the vote. Was there public concern and criticism? He did not know ... there was in the press ... 

About the 'slush fund' ... Mr James, whose legal costs are being entirely funded by local taxpayers as a result of the amendment to the constitution that counsel argued was in defiance of the Welsh Assembly's orders, objected to this term, and the reference to 'his cronies' ... it was totally unnecessary. He referred to Mrs Thompson's 'level of absolute vitriol and said she was completely 'obsessed,' The council did not have a secret fund: it does not exist.

Ms Michalos suggested that in fact Mr James should be embarrassed at using taxpayers' money to fund this action.

There was no re examination by Mr James' counsel.

The trial continues tomorrow, and expects to finish hearing evidence on Wednesday afternoon.