Legal lows

Update 10 June

Anyone expecting to see a return to the good old days of campaigning, investigative journalism at the Carmarthen Journal or its sister, the Llanelli Star, is likely to be in for a very long wait indeed:


(Clipping from Private Eye, with thanks to Robert Lloyd)

Update 8 June

Jac o' the North has come out, all guns blazing, in his response to the threats of legal action by Pembrokeshire Housing Association and Mill Bay Homes. What is now clear is that their legal representatives sought at the same time to muzzle the owners of a property adjacent to Mill Bay Homes' development in Pentlepoir who have made some very serious complaints about the conduct of the company.

In other news, Dyfed Powys Police is facing questions over its decision to accept a claim of harassment made by Mark James against Jacqui Thompson for investigation. In previous investigations into Mr James's conduct in public office, Dyfed Powys handed responsibility to another force because it acknowledged that close relationships existed between it and the council. Why do earlier concerns about the force's independence and integrity in matters relating to the council chief executive appear no longer to apply, especially in view of comments made by the former Police and Crime Commissioner about a "Sicilian Cartel"?

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Free and independent media are an essential precondition of a healthy civic society in a democracy, and among those who subscribe to those values, you will not find anyone in Wales who believes that our media are in a state of rude, good health.

We have no daily national newspaper, our local press is a shadow of what it once was, and the BBC's English output has feet which are all too often made of clay. This week, for example, the BBC found itself having to apologise for the second time about an edition of Week In Week Out entitled "The Cost of Saving the Welsh Language". The programme was unbalanced, and some of its claims were patently false.

Week In Week Out is the flagship of the BBC's investment in investigative journalism in Wales. In fact, it is the only ship in the fleet, and its reputation has been left badly damaged by the programme.

If our media in general are in poor health, investigative journalism, the coal pit canary of media freedom, is gasping for breath. It is all but extinct in what is left of our local newspapers, the exception in this part of the world being the Herald's stable of titles. In English, we have just WIWO, Martin Shipton at the Western Mail, occasional forays by the Daily Post and a handful of blogs. The Daily Post's commitment to our fledgling Welsh democracy can be judged by its decision no longer to employ a reporter in the Senedd.

When it comes to blogging, the investigative end of the spectrum is now limited to Jacqui Thompson's Carmarthenshire Planning Problems, Jac o' the North and the Pembrokeshire pairing of Old Grumpy and Jacob Williams, with occasional efforts from this blog, Oggy Bloggy Ogwr and West Wales News Review.

Old Grumpy has had his troubles in the past, and went off air for a long period. Jacqui Thompson's blog is still under very heavy fire, and now Jac o' the North is being bombarded by the lawyers.

Just as you will never find a politician who does not claim to be in favour of motherhood, apple pie, openness and transparency, those who release the legal rottweilers in libel cases always protest that they are in favour of free speech, while trying to throttle it.

Jacqui Thompson and Royston Jones are poles apart politically, but what they both have in common is that attempts to silence them are being funded from the public purse.

Eight weeks after the Chief Executive of Carmarthenshire County Council went to the police to allege harassment, Jacqui Thompson is still waiting to hear whether the boys and girls in blue intend to finger her collar again - the first time being the notorious #daftarrest incident.

Having checked with the police to find out what was happening, she has been told that the police are waiting for documents "from the council", and it is clear that the council is still expending considerable resources on what is supposed to be an action brought by Mr James as an individual.

She is also still waiting to hear what steps both Mark James and the county council intend to take to try to enforce Mr James's damages award and the recovery of costs.

Neither Mr James nor the council will admit that they were wrong to pursue the line they took against Jacqui Thompson, but in a wider sense the outcome is not in doubt. The Thompson case will hang around Mr James's neck, giving off a pungent stench like the Ancient Mariner's albatross, for as long as he remains in office. The council, in heeding his advice, has been made to look like a foolish bunch of bully boys, and the taxpayer will end up footing the bill.

As this is public money, costs were never a cause of sleepless nights for Mr James or the councillors who supported him in his folly.

An interesting speculation is whether the outcome of the case would have been any different if it had been fought under the 2013 Defamation Act, which was supposed to reform the law on libel and reduce the number of cases going to court.

Nobody knows is the answer to that one, but the early indications are that those who can fall back on public money to pursue their critics through the courts have not been deterred from trying their luck.

Jac o' the North has taken a great deal of interest in the affairs of housing associations in the last couple of years. These are bodies which receive huge amounts of public funding, and yet they are far from being transparent or accountable. A number of them are or have clearly been very badly run. Some of their top brass make a very lucrative living out of running what are supposed to be not-for-profit organisations designed to help those priced out of the property market. And not least, political nepotism and patronage are rife.

A couple of years back, this blog took a brief look at Hafan Cymru, based in Carmarthen, which was set up to help the homeless, victims of domestic abuse and other vulnerable groups with housing. The charity was in the news in 2013 amid a welter of claims of bullying of staff, secret pay deals, massive pay rises for a few top managers and a £15,000 "essential" MBA course for the now former chief executive, paid for out of charity (i.e. public) funds.

The lawyers did very nicely out of that spat.

Much more recently Cantref, the housing association based in Newcastle Emlyn, has to all intents and purposes gone bust. Once again there were accusations of poor staff relations, large amounts of money wasted on consultants and bad governance.

Something must have gone very wrong at Cantref because the association was subject of a rare statutory investigation instigated by the government. The report which came out of that has remained firmly under lock and key, and almost no details about what went on there have been made public.

Cantref is now in the throes of being taken over by Wales and West, a Cardiff housing association with, it is rumoured, an unusually close relationship with the Labour Party. Some Wales and West staff, no doubt acting in a personal capacity, are said to have boasted that they helped remove posters and placards put up in Cardiff by opposition parties during the recent election campaign.

In the last few weeks, Jac o' the North has paid particular attention to Pembrokeshire Housing Association (PHA) and its property development subsidiary Mill Bay Homes Ltd (MBH).

It is now clear that there were some errors of fact in these pieces, and they have provoked a furious and extremely aggressive response from solicitors representing the two companies, with threats of action for defamation and an injunction. As a result, the offending articles have been removed from the blog.

One of the things which got the lawyers particularly worked up were questions about the extent to which PHA and MBH had met regulatory reporting requirements. Both come under the Financial Conduct Authority which presents its information to the world in a peculiarly confusing way. It also charges extortionate rates for anyone wanting to view basic information.

Click to enlarge

The FCA was set up by parliament to regulate a wide range of companies, societies and other bodies, and its aims include protecting consumers and informing the public. A search for the  accounts of PHA and MBH returns nothing after 2013, whereas the solicitor acting for these two clients has now produced e-mails showing that more recent reports have been submitted.

Click to enlarge
(Search conducted on 5 June 2016)

It is easy enough to contact Jac o' the North, and the simplest and most cost effective thing for PHA and MBH to have done would have been to get in touch and set the record straight. Instead, they phoned their legal rottweilers.


Now it has emerged that PHA and MBH have not only targeted Royston Jones, but have set the lawyers on a family who were unwise enough to complain about one of MBH's developments.

If the 2013 Act was meant to curb the litigious inclinations of those who think the world has a right only to glossy PR extolling their virtues, nobody seems to have told Pembrokeshire Housing Association or Mill Bay Homes.

The Act makes it clear that those seeking remedy must show that they have suffered 'serious harm'. In the case of corporate entities such as PHA and MBH, serious harm means that they have suffered or are likely to suffer significant financial loss as a result of a libel.

Because the 2013 Act is still in its infancy, a challenge for the courts is to establish what is meant by serious harm, and in particular what counts as a significant financial loss.

As a not for profit organisation, proving significant financial loss could be tricky for PHA, but in the case of MBH it might boil down to something like prospective house buyers telling the company that they had pulled out after reading Jac o' the North. Unlikely, but we are dealing with the Alice in Wonderland world of the legal profession here.

Fortunately, help is at hand in the form of yet another housing association which decided to try its luck with the 2013 Defamation Act after it read a piece in the Sunday Mirror. 

Midland Heart Housing Association clearly thought litigation in defence of its chief executive was money well spent, and it came a cropper. You can read more about this case here and here.

Solicitors acting for PHA and MBH contend that MBH is not a publicly funded company, which is true in the sense that it does not receive public funds to pursue its speculative property development business. But this is a chicken and egg argument because the company was set up by its parent which ultimately exists only because of public funding.

The moral of this complicated little tale is twofold.

If you are a blogger or a newspaper, tread carefully when criticising those with access to taxpayers' money.

If you are a chief executive of an organisation which depends on public cash, remember that litigation to protect your reputation may well end up doing really serious harm to your cherished public relations image, even if you win.