A tangled web

Oh, what a tangled web we weave when first we practice to deceive.
(Marmion, Sir Walter Scott)

Another chapter has been written in the Jacqui Thompson case with the decision by Carmarthenshire County Council to pursue her for £190,000 in costs arising from the libel case involving her and the council's Chief Executive, Mark James.


This is a case of much more than purely local significance, as it raises questions which go to the heart of what it means to live in a democracy based on the rule of law, and the extent to which citizens are free to express opinions about government without fear of punishment and the arbitrary application of state power.

____________

Whatever happens in the weeks and months to come, it is certain that the council will find itself having to write off at least £190,000 at a time when it is cutting basic services and throwing teachers and other employees on the scrapheap.

Like so much else in this saga, the figures quoted by the council are a fiction.

The £190,000 relates to costs incurred in defending a claim Jacqui Thompson brought against Mr James after he attacked her and her family in a piece he sent to the Madaxeman blog in the wake of her arrest for filming a snatch of a council meeting in June 2011.

On top of that is a further £40,000 relating to Mr James's counterclaim, suing Mrs Thompson for libel for comments made on her blog. The Wales Audit Office later ruled that the council's decision to award Mr James an indemnity to fight this part of the case was unlawful.

How this split in costs came about is something of a mystery because those of us who attended the trial could not help but notice that a great deal of the court's time was devoted to developing a case against Jacqui. In normal circumstances the split would most likely have been challenged, but the decision by Jacqui's insurers suddenly to pull the plug meant that this did not happen.

And it does not end there. Not by a long chalk, because senior council staff, including Mr James himself, have spent countless hours preparing the case and defending the unlawful indemnity. And now even more midnight oil is being burned as the council tries to find a way out of a mess which was all of Mr James's own making. This doomed attempt to try to reclaim the costs will land us all with yet more legal bills.

The chief executive alone plotted the course the council has followed, confident that Meryl Gravell and Co would give him whatever he wanted.

The infamous libel indemnity clause, now currently languishing in suspended limbo, was Mr James's brainchild. It sought to bypass legal prohibitions against using public money to pursue libel cases and open up the way for any arm of government to pursue people who said things they didn't like through the courts, just as the likes of Robert Maxwell and Sir James Goldsmith used the courts to try to silence press criticism.

Carmarthenshire County Council hid this behind a fig leaf, saying that the power would only be used in vague and undefined "exceptional circumstances". In reality, Mr James was judge and jury when it came to deciding what was exceptional.

It was Mr James who lay behind Jacqui's arrest for holding up a smart phone to film a small snatch of a council meeting, as later became clear in correspondence which showed just how unhappy Dyfed Powys police were to have been dragged into what became a public relations disaster. Let's not forget that nowhere in the council's constitution nor anywhere else in County Hall was there anything to say that the public could not film or record public meetings.

Filming was illegal because Mr James said it was, although wisely neither the police nor the council was willing to press their luck by going to court to convince a judge and jury of the council's case.

Having seen the council's reputation trashed in the press, Mr James took the unique step for a Welsh council chief of submitting his thoughts to the Madaxeman blog in November 2011, even though he could have issued a statement through the council's press office or picked up the phone to the Carmarthen Journal or Llanelli Star, as is often his custom when he wants to communicate with the masses.

With the exception of Carmarthenshire, council chief executives are very shy and retiring flowers when it comes to the media. When did you last hear Bronwen Morgan in Ceredigion sounding off in the local press, let alone a blog? And the unlamented Bryn Parry Jones of Pembrokeshire was almost as reclusive as Howard Hughes, as witnessed by the fact that the media, the BBC included, only had one rather fuzzy stock photograph of his Bryn-ness to prove that he had indeed descended to live among us mere mortals.


Mr James's brief foray into the world of blogging threw petrol on a fire which had nearly run its course. By attacking not just Jacqui but her entire family, Mr James triggered a writ for libel. Only Mr James knows whether that was his intention.

The lawyers got to work, and as is usual in such cases attempts were made to avert a trial by negotiating a settlement. Jacqui's legal team were convinced that they had a deal a few weeks before the trial began, only to find that it was torpedoed by County Hall. Mr James, armed with a blank cheque, was clearly keen to have his day in court.

British justice is supposed to be blind, but the blank cheque ensured that Mr James had the best legal team money can buy, and the scales of justice responded accordingly.

Following the crushing verdict, the Chief Executive embarked on a prolonged victory parade with newspaper interviews, a radio appearance and a lengthy self-congratulatory piece in the council's staff magazine. He had done it all, he claimed, to protect the meek and mild, and his victory would pave the way for other public authorities to follow his example.


And he would have got away with it if it had not been for Mr Anthony Barrett from the Wales Audit Office, who ruled that the indemnity which allowed Mr James to counter-sue had been unlawful. A massive spanner had just been thrown into Mr James's works.

Rather than accept the ruling, the council attacked Mr Barrett and spent yet more money trying to shore up its position.

The simplest and wisest course of action at that point would have been to scrap the indemnity clause, admit defeat and ask the chief executive to cough up the costs of his counter-claim, but with Mr James running the show, supported to the hilt by the likes of Meryl Gravell, that was never going to happen.

So what we got, eventually, was a fudge. The council announced that it would "suspend" the libel clause, putting it out of action for the foreseeable future, without acknowledging that its use against Jacqui Thompson had been unlawful.

The Welsh Government was asked to give its opinion, and as usual it ducked by saying that this was a question which could only be decided by the courts. Reasoning, probably quite rightly, that nobody would now be daft enough to follow Mr James's example, the legality of the indemnity and the clause itself now reside in the land of the living dead.

Defending the council's actions at the time, the then council leader Kevin Madge expressed the hope that a line could be drawn and, in his usual platitudinous way, we could all move on. That ignored the fact that there was still the not-so-small matter of the costs to be resolved.

Three years went by with almost no movement, although there was a brief flurry of correspondence between Jacqui Thompson and Mr James's solicitors who were pressing for payment of Mr James's damages.

Her offer to pay the huge bill in modest installments was not accepted.

That brings us up to date and the start of what is obviously a carefully planned tactical campaign. First, bailiffs acting for Mr James turn up unannounced at Jacqui Thompson's home. They left empty-handed, finding nothing of value to seize. More calls followed, and with equally little success.

Something was clearly up.

Next Mr James launches the first part of his PR offensive, telling the press that he was being forced to take action because Jacqui Thompson had not responded to a request for proposals. Jacqui Thompson responded by showing documents to the press which, if we are to be charitable, showed that Mr James had, in Hilary Clinton's phrase, "mis-spoken".

Purely by coincidence no doubt, a mysterious item then appeared on the agenda for the council's Executive Board to discuss the recovery of unspecified legal costs. The item was marked exempt, meaning that the council would discuss the matter behind closed doors and the supporting documents would not be published. The justification for the exemption was that the report contained "information relating to the financial or business affairs of any particular person (including the authority holding that information)".

A few days later Jacqui was contacted by a journalist working for the Carmarthen Journal who informed her of the Executive Board's decision, adding that he had been given sight of the supposedly secret report.

By whom it is not clear, but the fall-guy this time is council leader Emlyn Dole who gave the Journal a fairly anodyne statement saying that the council has a duty to protect public funds. That is true enough, but he was ill-advised to talk to the newspaper before publication of the meeting minutes.

What is certain is that the leak would have been made with the blessing of the council's press office and the chief executive himself who controls the press office.

Looked at in the cold light of day, we need to follow the money and ask who stands to benefit from the council's extraordinary contortions. Not Emlyn Dole for sure.

So where does this leave us?

The council has sat on the unresolved issue of costs for three years, and clearly at some point decisions would have to be made to clear up the mess to comply with auditing regulations. It is Emlyn Dole's misfortune that he inherited the problem and that it has to be resolved on his watch.

Although the attempt to recover the £190,000 will fail, it is also the case that the council cannot simply write it off without being seen to go through the motions of trying to get its hands on the loot, even though this farce will cost yet more money.

More interesting is the fate of the £40,000 run up by Mr James's counterclaim. That liability arose because of the unlawful indemnity which, if it was anything like a normal indemnity, would only have kicked in if Mr James had lost.

In a statement put out on 30 January 2014, the Council confirmed this when it said:

The indemnity was just that, an indemnity against costs should the Chief Executive not be successful in his counter claim. In the event of course, he was successful and the judge awarded costs and damages against the other party.

It is now clear that the council paid the costs of the counterclaim anyway, landing us all with an additional £40,000 bill for which we, as taxpayers, were not liable.

The supposedly secret meeting of the Executive Board performed yet another crab-like sideways shuffle when confronted with this problem, and decided to defer a decision, probably because it knew that spending yet more public money on trying to recover a debt which was incurred unlawfully would risk challenge and censure.

Cllr Dole is now keen to stress that the counterclaim, and the problems arising from it are a private matter between Mr James and Jacqui Thompson. That is certainly how it should have been from the beginning - if Mr James wanted to sue Jacqui, he should have done so at his own expense, but in reality this was the council suing a private individual by proxy, with Mr James calling all the shots and being the only person who stands to make money out of the affair.

Instead of deferring a decision, the Executive Board should have asked Mr James to pay up the £40,000 and try to recover the costs himself, but then Mr James and Meryl together have the power to veto anything they don't like.

The council will have to bite the bullet eventually, and Emlyn Dole needs to ensure that there is not a heavy political price to pay as well.