Tuesday 17 December 2013

Daft arrest: the last word? Caebrwyn returns to the High Court

Jacqui Thompson outside the High Court, after permission to appeal was denied

Welsh blogger Jacqui Thompson - who writes as @Caebrwyn - went to the High Court yesterday for a brief hearing of an application for permission to appeal the decision of Judge Tugendhat earlier this year in regard to the libel case regarding Mark James, the Chief Executive of Carmarthenshire County Council. 

As you may recall, Mr James was in charge of the council meeting in 2011 in which Mrs Thompson was arrested for the 'crime' of daring to film a few minutes of the proceedings, from the public gallery, with her phone. She was put in handcuffs, taken to a police station and kept in a cell for several hours until she agreed not to repeat her attempt to do what Eric Pickles urges citizens to do: to take an active interest in the actions and decision making processes of their local authorities, report their activities and hold them to account.

Mr James had then made comments to another blog about Mrs Thompson, which became th subject of her libel claim, met by a counter claim by Mr James.

Mrs Angry wrote extensively about the original hearings, which you can read about  here, and in the posts immediately before it ...


Judge Tugendhat's findings were pretty damning: he dismissed her claims, and concluded that she had "engaged in an unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other Council officers".

Yesterday Lord Justice Clarke found no reason to overturn this opinion, although written permission has already been granted to challenge one aspect of the finding, regarding a post alleging the use of a 'slush fund' for legal action.

Jacqui has now issued the following statement:

Just in case anyone is unaware of what transpired yesterday in London at the Court of Appeal, I was refused permission on all further grounds of appeal. I was present along with my husband and of course my legal team. The legal team representing Mr James and the council also took part.

Aside from the one ground relating to Mr James' counterclaim, which remains ongoing, there is the matter of the costs and damages which have to be resolved. This currently stands at approximately £190,000 for the claim, £41,000 for the counterclaim and £25,000 damages.

I will now have to live with the trial judgement and deal with the consequences, financial and otherwise but I will never accept nor agree with the findings. Yesterday's hearing was yet another devastating blow.

My purpose and motivation for writing this blog has always been, and always will be a means to scrutinise the local authority and to share issues which I feel are important and which would otherwise perhaps remain unreported.

I have always acted with good faith and personal integrity and written this blog with the honest belief and opinion that everything I have said is true to my best knowledge. I have not made unwarranted personal attacks on individuals; my intention has been to highlight failings within a public body where I believe it is necessary and to try and bring some transparency and accountability to my local council for the benefit of residents and taxpayers.

As for the litigation itself, as I have said, some issues are yet to be resolved so it would be inappropriate to comment yet.

My heartfelt thanks, as ever, goes to my legal team, and of course to my family and friends, well wishers and supporters.

The future of the blog? Business as usual.

Mrs Angry was present for some of hearing, turning up rather late, thanks to chaos on this end of the Northern Line - and it was a very short hearing anyway. 

It was easy to find the court: a familiar trail, being the same room where the One Barnet appeal had been heard, and indeed there was a distinct sense of  déjà vu in the proceedings, both in terms of the dismissal of Jacqui's case, and in the sense of the impossibility of success in reversing the judgement of any hearing before their lordships, the ultimate representatives of the law, who exist in a dimension far removed from the world in which most of us now live.

At the original hearing, Jacqui Thompson was presented as pursuing a vindictive, personalised campaign against Mark James. Her defence, that she was in fact seeking to hold the actions of the authority to account, failed to convince Judge Tugendhat.

Jacqui has now expressed her intention to continue with what she sees as her duty: to scrutinise the activities of Carmarthenshire County Council. 

And since the trial several very important issues relating to the authority have continued to present some very acute questions, most of them as yet unanswered. 

The Towy church matter, for example. Mrs Angry understands that the Information Commissioner is shortly due to decide on the question of Carmarthenshire County Council's refusal to respond to FOI requests for correspondance between the evangelical Church and the authority over a controversial grant and land deal.

But more significant perhaps is the matter of Mark James' indemnity from the council, which covered his legal costs in relation to the action against Mrs Thompson, and his pension payments, currently under investigation by the Welsh Audit Office, shortly to publish its findings on the matter, while the council itself has now decided, "without conceding that it is intrinsically unlawful, that the pay supplement policy be withdrawn on procedural grounds." 
Another story covered by Caebrwyn that is increasingly a matter of some concern is the close relationship between Carmarthenshire County Council and the Scarlets rugby team.

At a time when radical cuts are being made in the authority's budget, including grants supporting  leisure and sport, extensive financial support - reportedly up to £20 million in aid - has been made available to the Scarlets. 

See here, today's BBC Wales coverage of the issue:

It seems to defy belief that such a massive amount of public funding would be made available in this way at any time, but in these times of austerity, and the prospect of further cuts in services in the years ahead, to continue with such seemingly unlimited generosity is highly questionable.

Updated Wednesday:

It is reported in 'Wales Online' this morning here that Councillor Sian Caiach, who is almost unique in having the courage to challenge the actions of the current administration in Carmarthenshire, has now made a formal complaint to the European Union regarding allegations about the level of public money given to the Scarlets. If such funding is found to amount to 'state aid', it would be held to be 'anti-competitive' and the team would be required to return it. With interest.

What will happen in the matter of the libel indemnity and pension payments to Mr James should the Audit Office find that they were indeed unlawful is unclear: will he have to repay the money? We do not know.

What we do know is that Jacqui Thompson has no indemnity against costs or damages, as her insurance cover was withdrawn in the light of the severity of Judge Tugendhat's findings. She now faces the loss of her home, in order to pay the costs of the case and the compensation owed to Mr James.

Of course one of the worrying but less understood implications of the new press regulatory Charter is that  even if successful in a court case, a judge will be able to award costs against any publisher who has decided not to register as a member. Some argue, indeed, that the Charter positively encourages such a move. For good or bad now, it seems, bloggers, and any other small publisher without significant financial resources,  may well be bullied into signing up, whether they want to or not, for fear of the consequences.

Many lessons for bloggers in this cautionary tale from South Wales: and yet - lessons for others too, which may not be apparent quite yet. All eyes on Carmarthenshire, then, in the New Year.


Don't Call Me Dave said...

I think one of the most worrying aspects about this whole matter has been the conduct of the councillors. As we have seen in Barnet over the years, Carmarthenshire county councillors seem to be unable or unwilling to stand up for residents against the might of the executive and chief officers. DCMD is not familiar with the details of this libel case, but if the taxpayer is picking up the tab, the council could and should have insisted that the matter be resolved without recourse to the courts.

Any council officer should have the right to defend himself against what he considers to be false allegations, but there is something quite Orwellian about the full weight of council machinery bearing down on an individual resident, with limited resources, who dared to speak her mind. Would the council have allowed this matter to proceed to court if the defendant had been Rupert Murdoch instead of Mrs Thompson?

Mrs Angry said...

Very interesting question, DCMD. As for the councillors: watching the live webcasts one can only marvel at the way in which elected members are spoken to by officers. Here in Barnet at least our senior management team goes through the charade of pretending the councillors are in charge, even if they are not. One thing that both councils have in common is a democratic deficit that has built up in the absence of an effective opposition, and with the support of an indifferent local press, too scared to challenge and investigate serious issues of public interest. Hence the expansion of the blogosphere, in both areas, and the consequent attempts by both authorities to silence it.

John Brace said...

Thanks for giving us an update on this case, initially I thought from your tweet it was all over, but you point out there's still the "slush fund" matter to be resolved.

I realise you probably know all this already Mrs Angry, but it's worth stating it all the same in relation to the law on libel and blogging.

Reporting on meetings of local authorities is covered by qualified privilege under libel law see the Defamation Act 1996 for the details and court cases attract absolute privilege.

What that means basically is that bloggers can't be sued for fair and accurate reports about legal proceedings published around the time they happen. Reports on local authority meetings again can't be the subject of libel proceedings, as long as they are a "fair and accurate" report.

The threshold for suing for libel in relation to reporting on a local authority meeting is that "the publication has to be shown to be made with malice" and the publisher has to have refused a previous request to change things.

So far so good, but the problem lies with writing about local authorities and those who work for them outside the areas of formal meetings and court cases.

Mark James' counterclaim against Jacqui Thompson was funded by Carmarthernshire County Council.

Carmarthenshire County Council were in this case the second defendant (and I have no problem with them funding their own legal costs if they are sued by someone).

However Mark James was sued as an individual (the first defendant) and his counterclaim funded by Carmarthenshire County Council (and I doubt the award of damages awarded against Jacqui Thomson would be so high if this counterclaim hadn't been brought).

"What will happen in the matter of the libel indemnity and pension payments to Mr James should the Audit Office find that they were indeed unlawful is unclear: will he have to repay the money? We do not know."

According to this BBC article the Wales Audit Office have already determined that they view that Carmarthernshire County Council paying Mark James' legal costs was unlawful (the amount has been quoted as £23,217).

The public interest report (if the Wales Audit Office get around to finally publishing it) will of course make interesting reading.

However it would seem desperately unfair if the award of damages made against Jacqui Thomson at the earlier hearing is higher, because Mark James was allowed to bring a counter claim funded by a decision that auditors claim is unlawful?

I'm sure those more well versed in libel law and case law will be able to cite either a law or previous cases which state a local authority can't initiate libel proceedings.

The area of whether it's lawful for a local authority to fund the legal costs of one of its employees not just to defend a libel case brought against them, but to countersue a claimant (and seemingly skirt round the requirement that under normal circumstances they couldn't do this) is one that the auditors are under the opinion that it isn't lawful.

I'm sure the public would also think that a person on a Chief Executive's salary (which in my neck of the woods attracts about £135k) if they want to launch a counterclaim for libel should either fund it themselves or request that their legal costs funded by whatever trade union or professional body they're in.

It's the unfairness of having higher damages awarded against her that stem from a payment to one of the defendants that the auditor deems unlawful that is the aspect of this case that gives the impression that justice hasn't happened (or at least hasn't happened yet).

Don't Call Me Dave said...

Indeed, Mrs Angry, the absence of opposition and local press is precisely the reason why DCMD set up The Chigwell Times (www.chigwelltimes.co.uk) against your advice. He has already identified £60K of tax raised in questionable circumstances. Keep reading to find the details.

Mrs Angry said...

John, very good points. I find it puzzling that having found the indemnity payment was unlawful, the Audit Office has still not published the long awaited public interest report. One might think that in the public interest, transparency and clarity over this issue should be paramount.

DCMD: why the f*ck are you living in Chigwell? Is this move in homage to the Chigwell Skinhead, Norman Tebbit? Mrs Angry is not sure you will be comfortable beig surrounded by working class Tories, Lord Snooty: the sort of people who eat peas with their knives: oh, the horror ...

John Brace said...

On the public interest report issue, there was one published not so long ago about the local Council I write about Wirral Council.

If I remember correctly a number of versions went back and forth between the Audit Commission (I presume the Wales Audit Office is the Welsh equivalent) before the final version was published.

Months later the Audit Commission published the final version. If a public interest report is published there has to be a full Council meeting within a month, somebody managed to publish the wrong version for that meeting and publushed on the Council's website an earlier version of the public interest report.

The issue led to four senior officers being suspended including the then Director of Law and Director of Finance. There was however once the "independent person" investigated "no case to answer", the four suspended individuals left (costing about £1 million in things like legal costs and compensation), plus the costs of temporary replacements until permanent people were found for the roles.

Basically only the sort of fiasco that happens when politicians start using the blame game to deflect attention away from their own involvement and make senior officers into scapegoats with the taxpayer footing the bill for public interest reports and payoffs.

Would anything like the above ever happen in Barnet?

Don't Call Me Dave said...

I moved to be closer to Uncle Eric!

Mrs Angry said...

Hmm, John ... I refer you to the Icelandic banking fiasco, still reverberating today. Funny old game here in Barnet: senior officers have it their way most of the time, on the quiet, but when anything goes wrong, through their fault or not, they are expendable, and know they will carry the can. The Tory councillors, on the other hand, survive anything, rather like cockroaches. During the lifetime of the administration, that is, and usually by the time of the next election the knee jerk Tory voters have forgotten all the scandals ... until this current lot, who have excelled themselves in alienating their own natural supporters.

DCMD, I rather think Uncle Eric dreams of moving closer to Mrs Angry, shyly and slowly westwards along the North Circular ...

John Brace said...

My local authority had some investments in an Icelandic bank too (although from memory has got back at least 95% of their investments).

Wirral Council runs the local government pension scheme called Merseyside Pension Fund (which covers the local authorities on Merseyside, various private sector organisations that have contracts with local government and some other bodies such as schools and colleges).

I think it was in their capacity as adminstering authority for the pension fund that the investments in Icelandic banks were made.