Saturday, 25 March 2017

Reputations in the Gutter

This was not meant to happen.

As he dispatched his crack legal team for this final push in the County Court in Carmarthen last Thursday, the chief executive of Carmarthenshire County Council, Mark James, must have been confident of victory. By the end of the day he would have an order forcing the Thompsons to sell their home in weeks rather than months.

The lines had all been carefully prepared. She had brought it all on herself, his lawyers would say, and Mr James, the victim in all this, had been left with no other choice. Justice would be served in an Old Testament kind of way, with no mercy or compassion.

The Thompsons would be homeless, and the council would not rehouse them because, it would be argued, they had made themselves intentionally homeless.

If all of that did not stop her blogging, Dyfed Powys Police might be persuaded to press charges for harassment. They had, after all, been very cooperative and interviewed Mrs Thompson under caution. He might even apply to have her made bankrupt as she was unable to pay the massive legal bills he had run up.

In the event, the hearing at the County Court on Thursday was little short of a disaster for Mr James.

The Thompsons will remain in their home for the next 10 years provided they can come up with £250 a month, and the crushing court costs were slashed by the judge, who added what was left to the damages bill. Mr James will have to find £22,000 out of his own pocket to pay off his lawyers.

It remains to be seen whether Dyfed Powys Police will take Mr James's latest batch of complaints any further, but if nothing else, the PR debacle of the so-called "daft arrest" which triggered this whole saga should make them think twice, and it is hard to believe that the CPS would be willing to play ball.

If that was not all bad enough, the wheels are starting to come off the carefully constructed narrative which Mr James has spun, and the reputation he has been so determined to protect by silencing one of his most trenchant critics through the application of overwhelming legal force is beginning to look rather tarnished.

You can read Jacqui Thompson's own account here and a very anodyne BBC report here.

Gutter

What the BBC report does not tell you about is a development in the case which raises serious questions about Mr James's conduct and caused raised judicial eyebrows on Thursday.

During the course of the proceedings, counsel for the chief executive was asked who would be the recipient of the damages - Mr James in person or the county council, which is what councillors had been told.

The question caught Mr James's crack team on the hop, and they had to ask for leave to confer with their client.

In due course, the court was told that Mr James had changed his mind, as was his right, and that he could "stuff the money in the gutter" if he so chose.

It is only fair to point out that those words were uttered not by Mr James but his counsel, who had just spoken to his client.  But they were spoken nonetheless, and it is fair to assume that they reflect Mr James's own response when asked.

The image of the most highly paid council chief executive in Wales contemptuously chucking £36,000 in the gutter in a county where average earnings are around the £20,000 mark is not going to go down well with the public.

Worse still, the controversial indemnity branded "unlawful" by the Wales Audit Office, was granted after the then Executive Board was told that Mr James would repay any damages to the council:

The Head of Paid Service has confirmed that he is not motivated by a wish to benefit financially and that accordingly should his action be successful any damages awarded to him will be paid over to the Authority and will not be kept by him.'

(Minutes of Executive Board meeting, 23 January 2012).


Two years later in January 2014 the WAO issued two public interest reports taking the council to task for the indemnity and the unlawful pension arrangements it had approved in what amounted to secrecy.

Mr James "stood aside" while a police investigation took place, and an Extraordinary Meeting of the council was held to discuss the findings. Councillors were told once again that Mr James would pay the damages to his employer, even though Mr James had told the press that he might give it to charity.

Mr James would certainly have been aware of the statement made to the Executive Board in January 2012. He was there in person, after all.

It is now clear that both the Executive Board and Full Council were misled, and took crucial decisions on the basis of statements which turned out not to be true.

And things may be about to get worse for Mr James because questions are once again being asked about the statement he made to the Madaxeman blog in 2011. It was that statement which triggered the libel case, with Mr James claiming that it had been shown to councillors and approved by them.

Reputations

It is not just Mr James's reputation that has taken a knock here. The Jacqui Thompson affair has now rumbled on for the best part of six years, and has hung like a millstone around the necks of three council leaders: Meryl Gravell (Independent), who was leader when the indemnity was approved; Kevin Madge (Labour) who was a member of the Executive Board which approved it and who went on to defend it; and now Emlyn Dole (Plaid) who inherited the mess and has taken to arguing that the affair is an entirely personal matter for Mr James.

Worse than that, the affair has tarnished the reputation of the entire council.

The idea that this was all an entirely personal matter is not how Mr James or the council portrayed matters until the chickens began to come home to roost and expose the disastrous nature of the advice dispensed by the chief executive in first adopting the indemnity clause and then triggering it.

Here is Mr James himself writing in Y Gair, the council's in-house staff magazine after his court victory. The first paragraph makes it abundantly clear that this was not an entirely private matter:

As you may have heard or read in the press, the Council last month had to defend an action in the High Court, by a blogger, Jacqueline Thompson of Llanwrda. This was a significant case, not only for the Council, but for local authorities generally. The result has been welcomed by Councils across the UK.

Click to enlarge


Costs

To make matters worse for Mr James, the judge clearly felt that the legal costs the chief executive said he had incurred in bringing the action were inordinate, and the bill was cut from £21,763 to £14,348, with that amount being added to the damages.

Mr James will now have to raid his own piggy bank to pay the bills he has run up.

Even the reduced bill of £14,348 is reckoned by those with experience of these matters to be eye wateringly high for what in legal terms should have been a pretty straight forward affair, but Mr James required the services of no fewer than three barristers, including Mr Adam Speker, whose speciality is media law (libel and slander).

The judge appears to have been as baffled by Mr Speker's involvement in this hearing as everybody else, and he duly struck out that particular claim.

The fee for filling out a simple four-and-a-bit page summary of the costs Mr James wanted reimbursed was a modest £880, not including VAT. Not bad for something that would take about an hour to knock together, with time off for tea and hobnobs.

Elections

Whether by accident or design, the hearing took place just days before the county council goes into purdah ahead of May's local government elections. This means that the first opportunity councillors will have to digest the outcome of the case will not be until the summer.

They should have a lot of questions for their most senior employee and ask themselves whether a Head of Paid Service who "changed his mind" is someone fit to remain in post.

24 comments:

jeff3 said...

whot a horrible man but yet justice just a little he should have lost it all with his position in council whot a man whot a hero hay

Anonymous said...

I hope this is properly reported in local media - The Herald should make a meal of it I hope. One question. She has to pay a monthly amount to James to satisfy damages but the cost of taking his action against her originally was indemnified by the council. Does that mean that we have actually had to pay out for this. Is Jacquie responsible to pay these costs as well. What I'm getting at I suppose is how much council tax payers money has been paid out and how much can we expect back ?

Anonymous said...

So eloquently put, expressing the thoughts of so many of us. Mark James has to be the most infamous Chief Executive in the entire U.K. His conduct so unbecoming of someone in his position, and it must be in the Public Interest as to where this £250.00 per month is going. When is there going to be a vote of no confidence in him. His behaviour is quite extraordinary.

Anonymous said...

And how much will you be contributing to Mrs Thompson's costs?

After all, no-one could say you didn't go out of your way to encourage her!

Anonymous said...

You need look no further than Tim Kerr QC’s 2013 report, (http://newsroom.carmarthenshire.gov.uk/media/33895/TimKerrQC.pdf) prepared on the instructions of CCC, giving the reasons to justify the granting of the indemnity to Mark James. At the beginning he states that he has “no legal responsibility or duty of care in relation to the content of this Advice except towards my instructing solicitor and client, the Council. For reasons developed below, I am of the opinion that the decision to
indemnify Mr James in respect of the costs of his counterclaim was lawful.”

There are then three occasions in his report where he refers to the undertaking of Mr James to hand over any damages to CCC:

“12. The report also referred to the duty of care owed to the Chief Executive. It
recorded that he had agreed to pay over to the Council any damages recovered
by him under the counterclaim.


37. …… I think it was eminently reasonable to opt for an indemnity instead, particularly given the minimal extra cost of the counterclaim using the same lawyers and the offer of Mr James to use any damages recovered to offset the cost of providing the indemnity.

41 . Assuming the existence of vires, if ever there was a case that was truly exceptional so as to justify using the power to grant an indemnity outside the 2006 Order, this was it. The following ingredients co-existed to contribute to that conclusion: …… (iv) the undertaking of Mr James to reimburse the cost of providing the indemnity from any damages recovered;


Linda Rees-Jones was asked (23/1/12) by Geraint Norman of WAO if Mr James’ undertaking “will this be formalised in writing” (http://newsroom.carmarthenshire.gov.uk/media/34242/CORRESPONDENCE-BETWEEN-CARMARTHENSHIRE-COUNTY-COUNCIL-AND-THE-WALES-AUDIT-OFFICE-January-20-2012-%E2%80%93-August-2012.pdf).
It is for her to explain why it wasn’t.

However, Mr James gave his undertaking prior to the Exec’s board descision to grant the imdemnity. He was present at the Exec’s board meeting (21/3/12) where his undertaking was included in a written report, which the meeting considered prior to granting the indemnity. He then accepted the offer of indemnity and has since financially benefited from it. It would therefore seem reasonable to conclude that a contract was entered into with CCC by Mr James.

Sian Caiach said...

Thank you for very good summary of the Chief Executive's admission of his change of mind about the fate of the damages he has been awarded. I have been asking about this for some time and not had any answers.Now that he has clearly not kept the agreement to return the damages to CCC which was part of the funding arangements for his libel costs,{ later judged unlawfulby the WAO}, raises a serious concern about his integrity.
The Council is still fuctioning into next month and I have asked Mr Mark James to provide an explanation to every County Councillor as to the reason for his change of mind. The explanation in Court that it was a "voluntary" undertaking and therefore not binding, may be correct in law, but certainly does not seem to have been presented to the Executive Board in those terms at all in the January 2012 meeting approving funding for the CEO. I await responses from Mr James and also Councillor Dole.

Anonymous said...

The gutter was an interesting choice of reference as indeed, this where this greedy man and many of his vile horde of Councilors belong.

Anonymous said...

This morning I received my council tax demand, very close to £2000, from the Council. What will they do with my hard-earned payments – in effect "stuff the money in the gutter" by not keeping Mr James to his undertaking?

I shall be putting this question to my local councillor, others may consider doing the same.

Anonymous said...

Wish you were here in Gwynedd

Anonymous said...

Thought hard about the "gutter" suggestion. What a stupid statement in a Court of Law.

A better idea would be to put a locked recycling bin outside County Hall for collection of the unwanted fivers.

But leave the key with Caebrwyn..

Anonymous said...

Although the outcome of the court hearing is better than expected, £250 a month is still a substantial sum to find for anyone of limited means. Jacqui has been a courageous and outspoken voice for all of us in Carmarthenshire: shouldn't we be showing our tangible support by crowd-funding on her behalf to help finance this burden?

Tessa said...

Great post Cneifiwr. And yes spot on anon @10:11.

Anonymous said...

Correction to my comment of 25 March 2017 at 09:22 – the Exec board meeting was, of course, on 23/01/12. Linda Rees Jones’ report to the meeting can be found at: http://online.carmarthenshire.gov.uk/agendas/eng/COCO20140227/REP03_06.HTM

Anonymous said...

It is a pity that not ALL residents in Carmarthenshire can withhold their council tax until this odious creep is dismissed from office.

As Sian states, this is an integrity issue now and the role this man performs requires utmost integrity. Time and again he has demonstrated a real lack of that only this time is blatantly obvious and also recorded for posterity. This man claims to be religious too. The only religion he prays to is money.

A despicable individual who would be well at home in the gutter, which I understand is about his height too....

Mrs Angry said...

Very well put, as ever, Cneifiwr: and what an incredible story this is. Incredible that successive administrations have allowed such a situation to continue. That this petty, pointless vendetta has achieved nothing other than to make Carmarthenshire County Council a laughing stock, and to shine a piercing light on the extent of democratic deficit in the authority's procedures.

It is time for the balance of power to be restored to a system where elected representatives - with the honourable exception of Cllr Caiach - have lost their sense of purpose, amid a culture of management that appears unable to understand its duties in regard to the principles of transparency and accountability.

You have elections before you now: now is the time for voters to consider very seriously the commitment of candidates to reform within the local democratic process, and to withhold support from those who refuse to acknowledge the problems, or to offer a credible new administration, and a new future for their constituents.

Jennifer Brown said...

Anon 08:54 from the tone of your comment do you think Jacqui was doing something illegal in regards to her Blog? Maybe you could point to instances where Y Cneifiwr encouraged her in wrongdoing. We have freedom of speech and expression in this country and Public Bodies cannot take on their critics for libel. Nowadays with so little investigative journalism it forces the ordinary citizen to broadcast the misbehavior of public servants and bodies, who abuse their positions, themselves. When the public body fails to acknowledge their own failures and instead denigrates anyone who raises concerns or complaints regarding that body's wrongdoing what other course have people got other than to go public? The Ombudsman and his reports fail to hold the wrongdoers to account because the ordinary member, even if on the relevant scrutiny committee, has no opportunity to scrutinise or question the findings. It is mainly through our Carmarthenshire bloggers we hear about matters the Carmarthenshire County Council (CCC) want hushed up. Have you not seen how damaging to their quality of life the CCC's wrongful actions have been for numerous people living in Carmarthenshire? They are never compensated properly, if at all, even when the misconduct of officers is proved. Anon you want to delve a little deeper into why CCC has such a bad press (the actual press do pick up on these stories sometimes) from bloggers.
Y Cneifiwr, I remember that piece in Y Gair and was hunting around the other day to find it (chucked it out I expect). Doesn't that prove the CCC and Mark James were going after Jacqui to silence her and her blog because she was reporting what the CCC wanted kept from us. On a personal basis Mark James could have defended himself against Jacqui's libel claim but there he is crowing how it was the CCC who was defending itself. With that and his promise to to give the CCC any damages he won from his counter claim paid, also, from the public purse was proof that this public body used slight of hand to try to silence and destroy the livelihood of someone whose blog was a thorn in its flesh. It seems the present Executive and Mark James are insisting he voluntarily offered his employer (CCC) any damages he received so they had not colluded together to get round the Derbyshire ruling by the Lords. His crowing about how this was a significant case and welcomed by Councils across the UK proves he was thumbing his nose at our right to freedom of expression and speech (He appears to imagine himself a hero to all Councils unhappy with their vocal dispossessed citizens as he'd shown them how to silence them). He would have been cock a hoop about how he and the CCC had driven a coach and horses through the Lords ruling which was made to allow us to criticise our public bodies and the wrongful actions of it's officers. Looks like there could be ample proof that Mark James (CEO) and the CCC colluded to get round that ruling. Critical comment in the public interest is an anathema to the CEO & CCC.
This explains Lords ruling http://www.newstatesman.com/david-allen-green/2013/01/should-public-authorities-be-able-sue-libel . It was mentioned at Thursday's hearing so I looked it up. If only the London Court case had been in front of a jury not, what on the face of it appears to have been, a very biased Judge.

Tessa said...

I'd prefer to "stuff the money" right where the sun don't shine. Although as was pointed out by Cadno recently, as far as many councillors were concerned - the sun shone out of it. And squeezing my fist in past so many of the obsequious gimps around it might prove difficult.

Verity said...

Perhaps the £250 monthly payments should be left in cash in a brown envelope on the little man's desk?

Anonymous said...

If my memory serves me correctly, a few years back there was a brown envelope left on the little mans desk, with £5,000 worth of notes stuffed into it, followed by a court case where the property developer concerned who had left it there, was eventually found not guilty of bribery and corruption?

Verity said...

Exactly, Anon@11.19: that was what I referring to. Unfortunately for the little man, in that case the property developer concerned was in the fortunate position of being able to afford one of the top ten barristers in the country to defend him. It would seem that the little man learned a lesson from that experience and made sure that he had similar top-notch barristers on his side when it came to attacking Mrs Thompson - who obviously couldn't afford a similar level of representation.

Anonymous said...

It was very strange that the little man himself was not investigated as he was allegedly to be the recipient.

Cneifiwr said...

Anon@ 08.18 and others. It is only fair to point out that the chief executive himself referred the matter to the police after a large sum in cash was left in his office. Put simply, the court found that the affair was down to a misunderstanding. The cash was meant to be a donation, not a bribe.

All a bit strange, but that about sums it up, and the matter is best left there unless significant new evidence to the contrary emerges.

Anonymous said...

Hmmmmmmm

Anonymous said...

Cneifiwr @ 15:12

Absolutely, why would Mr James be bothered with a ‘donation’ of £5000? Such a paltry sum would be destined straight for the gutter.

In Jan 2014 Mr Barrett of the WAO reminded us that over £27,000 was paid to Mr James as a pay supplement in lieu of pension contributions and that "The council has paid out over £26,000 in external legal costs since 2012 under the decision to indemnify the Chief Executive….The libel counterclaim is still on-going and it is unclear what the final external legal costs to the council will be."

Add these amounts to the £25,000 damages and you can conclude that, over the last few years, Mr James’ deep pockets have benefited from the generosity of the Carmarthenshire taxpayer to the best part of £80,000, all thanks to the unlawful actions of CCC.