Saturday 12 January 2013

In the Courts

In a month's time a couple of groups from Carmarthenshire will head off down the M4 or board a train for London. They won't be going to see the sights, do a bit of shopping or take in a West End show, but will instead head for the Gothic surroundings of the Royal Courts of Justice to take part in the Caebrwyn libel case. As things stand it seems that the case will be heard by a jury, which is in itself very unusual these days, as most actions for defamation are heard by a judge alone.

The case rumbled on all through 2012, with teams of lawyers shuttling back and forth between their chambers in London and Carmarthenshire. The case paperwork runs to thousands of pages, and the costs are already eye watering. What the final bill will be is anyone's guess, but most cases of this kind don't leave much change out of a quarter of a million, and costs could be significantly higher.

The County Council is funding both the defence of an action brought by Jacqui Thompson against Chief Executive Mark James, and, uniquely, a counter-action Mr James is bringing against Mrs Thompson. If the council loses and costs are awarded against it, taxpayers in Carmarthenshire will be left with a very big bill. The sort of money which could save some of the council services which are currently being lined up for the chop, such as libraries, road maintenance, respite care, and so on.

Cases such as this are extremely rare for the good reason that it is a principle of the common law that a public authority cannot bring an action for defamation. Carmarthenshire believes it has found a way round that, and is relying on what are called powers of competence to justify funding the chief executive's counter-claim. In practice, then, the council is suing a member of the public by proxy.

Other councils may well have considered doing this, and some are undoubtedly waiting on the outcome of the Caebrwyn case. Until now, none has followed Carmarthenshire's lead.

As it happens, a case with interesting parallels in the English county of Rutland made news this week. Rutland, with a population of under 40,000, is a full-blown county and run by the Conservatives. Three independent councillors worried about the way in which the council is being run came together to form the Rutland Anti-Corruption Party, and the feathers have been flying ever since.

Last week the council agreed to set aside £90,000 to fund an action for defamation which could be brought by the chief executive against the three councillors. At the last minute the council and chief executive drew back from issuing proceedings for defamation and opted instead to take out an injunction against the three councillors to "prevent harassment" of the Chief Executive and other officers by the Anti-Corruption Party.

Like Carmarthenshire, Rutland appears to base its case on an argument that it has a general power of competence, claiming that the new Localism Act allows such actions because the act says,

A local authority has power to do anything that individuals generally may do.

This opens up all sorts of intriguing possibilities. Could a council get married in church or enter into a civil partnership? Could it apply to become a citizen of another country?

David Allen Greene writing in his legal blog in the New Statesman reckons that the Rutland case is based on a fallacy.

At this distance it is not possible to know precisely what has been going on in Rutland, but the three councillors say on their website:

"There is a concern that Full Council Meetings on major issues are brief, raising suspicions that decisions may be pre-determined. The Scrutiny process is minimal. Well qualified Councillors are side-lined, with little or no influence in debates that could be about spending £Millions of public money."

Sounds strangely familiar, doesn't it?

For its part, Rutland council says that the three councillors have been "bombarding" officers and other councillors with e-mails and questions, and that that bombardment constitutes harassment.

Whether or not there is a legal definition of "bombardment", I do not know, but in Carmarthenshire "several" appears to be defined as "more than one", while a "bombardment" is a number greater than two.

In 2011 the council acted to stop what it claimed was a flood of notices of motion from the People First Group, and the constitution was changed to require notices of motion to have 7 seconders - a hurdle which is set higher than in any other Welsh council. From memory, the group had submitted three notices of motion, and all were vetoed by the Chief Executive and not debated.

At the time the Labour group on the council was barely above the threshold of seven, and Cneifiwr warned that this illiberal measure could well come back to bite some of the larger parties in future, because what it effectively does is to silence minority voices.

Plaid Cymru is the largest political group on the council, but that has not prevented the Chief Executive from vetoing its motions recently, and there have been rumblings about the number of notices of motion being submitted by the Plaid group in the last few months (not quite one a month).

Cllr Siân Caiach and former councillor Arthur Davies were put into special measures for asking "too many questions", and for months on end they were prohibited from asking questions of any officer other than the chief executive. Perhaps he should have taken out a writ instead.

But it is not just councillors who could find themselves on the receiving end of a writ or action for defamation if either of these two cases establishes a precedent.

According to Carmarthenshire County Council, Jacqui Thompson was warned "several" times about not filming. Again, if I remember rightly, she was warned once and arrested the second time. Other members of the public and even local newspapers could find that they are in trouble if the council considers, in its opinion, that their actions amount to harassment because they complain too much, ask too many questions or just criticise the council too often.

You have been warned.


Anonymous said...

A need for new Parliamentary legislation, think, to prevent collectives of persons being treated as a single person in law.

Cneifiwr said...

Or perhaps a simple measure outlawing the use of public funds to bring actions for defamation.

Anonymous said...


Local government needs sorting! WAG must act. If not, the people will.

Anonymous said...

That simple measure is the Local Authorities (Indemnities for member and Officers)(Wales) Order 2006 S6(3)and as for corporate claims by governing bodies, that prohibition was enshrined by the Law Lords in the Derbyshire v Times case. The question is whether the Local Government Act 2000 has provided the unintended consequence of overriding these safeguards.

Cneifiwr said...

Nearly. The Order allows for councils to indemnify councillors and officers to defend actions for libel. Councils are not allowed to provide indemnities for actions to be brought under the Order, but that (probably unintentionally) leaves the door open for Carmarthenshire to argue that indemnities are sanctioned under different statutes - the power of competence argument.

What is needed is an amendment to the Order banning such indemnities full stop.

ApWilliam said...

Good post but I seem to remember that Cllr Siân Caiach had problems when Plaid were in cahoots with the independents too.

Anna Mosity said...

Re @APWilliam - as far as I can remember Cllr Siân Caiach was first elected to CCC in 2008, so has never been part of the ruling administration in County Hall. According to WalesOnline she fell out with Plaid over an email that her daughter sent to Ieuan Wyn Jones regarding tuition fees when Plaid was in power in Cardiff Bay.

Mark James complained that she and Arthur Davies were asking more questions than the rest of the councillors put together - which is quite a reflection on the rest of the councillors!

The problem is that senior officers across the UK, but particularly in Carmarthenshire, think that they are running a private business and all this democracy rubbish is just a pain.

If this was a private business it would be in administration having seen its debts rise from around £100million to over £1/4billion in the last 10 years or so.

Plaid Gwersyllt said...

Is Sian Caiach non aligned now or is she in a group?

Cneifiwr said...

Following the election, Cllr Caiach is the sole representative of People First.

Cneifiwr said...

Thank you to the person who sent a very pertinent comment about this libel case earlier today. After careful consideration, I have decided not to publish it, partly because it contains a slight inaccuracy, but also because with the trial now so close, this matter is extremely sensitive.

But I wholly agree with your sentiments.