Saturday 5 November 2016

Saint Mark or Mr Burns?

Note to readers: This is a slightly truncated version of a post published yesterday when Cneifiwr was high on Ibuprofen following a visit to the dentist.


Like the ancient mariner's albatross, the Jacqui Thompson libel case is proving impossible for Carmarthenshire County Council to shake off, and the smell from the rotting carcass is getting worse.

This week's Carmarthenshire Herald contains an edited version of Cneifiwr's most recent blogpost, an interview with Cllr Alun Lenny, and a third article setting out a series of very pertinent questions the newspaper addressed to the council which County Hall refused to answer.

In his interview, Cllr Lenny correctly points out that, whatever we may think of the merits or otherwise of the case, a great deal of public money is wrapped up in this. He argues that the council is legally obliged to try to recover the money, although that begs the question as to why the council is not seeking to recover the £41,000 in costs arising from the (unlawful) counter-claim.

Clearly, the council will only ever be able to recover a fraction of the money, and Cllr Lenny suggests a compromise by which the Thompsons could be allowed to remain in their home, with ownership passing to the council.

That is a very reasonable approach, but pigs are more likely to sprout wings and fly before there is agreement from all the various parties involved, not least Mr James and his allies on the Independent benches.

A copy of the Herald's third piece with its unanswered questions can be found at the end of this post.

One of the key questions is what Mr James intends to do with the money he is hoping to raise if and when, like the good practising Christian that he is, he succeeds in forcing the Thompson's out of their home.

Will Saint Mark give the money to "good causes", or will he play the role of Montgomery Burns?

"Trust me, I have a law degree"

Whatever happens, the council has left itself wide-open to challenge thanks to the legal wheeze served up to the council's Executive Board by Mrs Linda Rees Jones and Mr James himself.

If Mr James does not pay the money to the council, it is likely that one of his favourite bodies, the Wales Audit Office, will be asked to find out why not because the Executive Board based its decision to award him an indemnity on the basis of a report back in 2012 which said he would.

If Mr James does pay his damages to the council, the council will be leaving itself open to legal challenge because the deal will have driven a coach and horses through the law. Here is the opening paragraph from a law report published in The Independent back in February 1993:

It was contrary to the public interest that organs of government, whether central or local, should have the right to sue for libel because any governmental body should be open to uninhibited public criticism and to allow such actions would place an undesirable fetter on freedom of speech.
The House of Lords dismissed an appeal by the council from the Court of Appeal's decision (the Independent, 21 February 1992; (1992) QB 770) that a local authority cannot maintain an action for libel.

Although that ruling was later slightly modified in another judgement, it remains the case that councils and other organs of government are prohibited from suing for libel, no matter what Mr James and Mrs Rees Jones would like everyone to think.

A case in which a council chief executive sues an individual for libel with council money and very liberal use of council resources, and agrees before the action is initiated to pay any damages to the council, looks pretty much like a local authority maintaining an action for libel.

Wouldn't it be interesting to hear what the courts have to say?

Whatever happens, this is a nightmare of Mr James's making and it is not going to be over any time soon.

From The Carmarthenshire Herald, 4 November 2016

HERALD readers will this week learn of series of inconsistent statements made by the County Council’s Chief Executive Mark James and the shifting and contorted positions adopted by councillors and council officers to justify bankrolling his defence of a libel claim.

On pages 4 and 5 of this week’s paper, the Council’s position is commented upon by our guest writer, the blogger Y Cneifiwr.

We put a series of questions to the Council asking them to explain, clarify or defend their conduct.
Their reply took three days to arrive and failed to respond to ANY of the issues The Herald raised.
We began by drawing the Council’s attention to the report of a meeting of the Council’s Executive Board held on January 23, 2012.

That report contained the words

‘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’.

We asked the Council to confirm that it would hold Mr James to the personal undertaking recorded and whether it will offset those damages against the costs it is pursuing against Mrs Thompson in its own right. 

We also asked that the Council whether it  drew the Court's attention to Mr James's undertaking when seeking to recover its costs.

The Council refused to answer.

We then drew the Council to the fact that Mrs Thompson does not have the means to meet the costs bill – a factor of which the Council was aware before writing a blank cheque for libel costs - and asked the Council to confirm how much the Council has spent both on enforcement proceedings and in respect of the claim, and to set out the value of time spent by council officers in dealing with the case in any event.

The Council refused to answer.

We asked the Council to explain why the Council is NOT pursuing payment of the separately assessed costs in relation to the Counterclaim which formed part of the indemnity it gave to its Chief Executive.

The Council refused to answer.

The notes record that Mr James was ‘authorised’ by the Council to respond to Mrs Thompson’s posts by placing a comment on the madaxeman blog. It was those comments which led to Jacqui Thompson instituting proceedings against Mr James in the first place.

We asked the Council to confirm which councillors and/or officers authorised Mr James to post a response on the madaxeman blog.

The Council refused to answer.

We then drew the Council’s attention to the formula of words used to justify non-disclosure of advice tendered to the Council before it offered Mr James an indemnity.

That note read: ‘The nature of the legal proceedings and the extent to which disclosure of the legal advice contained in it would assist the other party to the litigation and undermine the position of the Council and the Head of Paid Service in the proceedings should be weighed against the public interest in disclosing the information upon which a decision to spend public money is based. On balance it is considered that the public interest rests in favour of maintaining the exemption and ensuring the provision of legal advice within the same degree of confidentiality as enjoyed by the other party to the proceedings’.

We pointed out that, applying the words' rationale meant that as the identified risks no longer existed, the balance must have logically shifted in favour of disclosure. We asked, therefore, for a copy of the advice referred to by return. Otherwise, we asked for the Head of Legal to explain why the view expressed above on disclosure January 23, 2012, is consistent with any current refusal to disclose. 

We drew the Council’s attention to the fact the advice was for the benefit of the Council as a public body, not its Chief Executive as a private individual.

The Council refused to answer.

Moreover, the terms of the refusal are themselves revealing.

We asked the Council to respond as a body corporate and for the Head of Legal to respond in her own right.

What we got was: ‘Neither the council nor Mr James has any further comment to make’.

But we never asked Mr James to comment at all. In the libel action, he acted as a private individual.
If we had questions about Mr James, we would have asked him direct. It appears that, as Mrs Thompson and others have long-suggested, there is confusion about the role of the Council as a public body and Mr James’s position, as its employee and a private individual. In litigation, the roles are distinct; but it now seems as though what Mr James wants and what the Council does are indistinguishable.

The Herald is aware that some councillors have strong misgivings about the policy adopted by the authority and are concerned that the litigation and its aftermath stand to cause irreparable damage both to Carmarthenshire County Council as an institution and to public confidence in their representatives’ ability to hold officers to account, or not just be a rubber stamp for officers’ decisions.


Anonymous said...

speechless !

Anonymous said...

This is so sad give here the money back , this should have not started in the first place

Emlyn Uwch Cych said...

If that's what Ibuprofen does, Cneifiwr, I dread to contemplate the effects of Codeine.

Seriously, thanks for relating the latest twists in the Jamesgate saga. Now, who on Earth (or at least our little Carmarthenshire corner) has the orchids to bring it all to a fair and just conclusion?

You have clearly set out what an abuse of power and authority this whole sorry affair has been. Enough: Cllr Dole must call James to order, and go back to the settlement which Thompson thought she had.

Yes, council tax payers' money has been squandered and a county's reputation sullied, but now is the time to draw a line under it all.

Anonymous said...

Didn't Mark James sue for being compared to Pinnochio? Well well.
As for his deep hurt over the use of the term slush fund -er - didn't he dip into other people's money to fund his own personal action? For this he is making a family homeless!! Where is our Government in this staggeringly shameful abuse of power?

Anonymous said...

There is still a long way to go with this.The pressure is building.There are councillors on the executive board who know exactly what happened at the 'indemnity'meeting even if Mark James could'nt remember if he were there or not.
Come on councillors admit you were wrong,cut your losses and go.

towy71 said...

This whole situation beggars belief, what sort of oversight is done by the Welsh Assembly that allows this farce to drag on??

Anonymous said...

Sounds like an extract from the 'Nutty Professor' to me. Time for a public enquiry. The public are waking up to what's going on and something needs to be done before there is irreparable damage to the Council as a whole.

Anonymous said...

After reading the Wikipedia entry for Montgomery Burns I can only come to the conclusion that either Mark James and Montgomery Burns are one and the same person or twins separated at birth.
“He uses his power and wealth to do whatever he wants, usually without regard for consequences and without interference from the authorities.”

Anonymous said...

Got a twitter account?

Then push for a wider audience and an investigation by bringing these matters to those that can do more:

The more people that knock the door the more chance it will be investigated.

The sooner tv journalists start investigating the sooner WAG will need to act.

Anonymous said...

Yes anon 18 21 Wider audience needed to expose Assembly's role in complete unwillingness/impotence to act.

Sian Caiach said...

In a letter dated November 4th after I'd failed to get my question to him on the matter accepted for full Council Emlyn Dole replied to my points.This is the summary:
1. The decision to grant Mr James the indemnity was made by a previous administration.
2. The Wales Audit Office’s view that the indemnity was unlawful has not been tested by the courts.
3. The damages awarded in the High Court are legally enforceable.
4. The damages awarded to Mr James are a personal matter and he is free to act as he wishes. Councillor Dole had not had any conversation with him on the matter but was likely to do so.
5. The Executive Board have decided, he reminded me, to extract the £190,000 legal costs awarded against Mrs Thompson as the council tax payers should not have to bear these costs.

Myfanwy said...

How sorry I am that I ever voted for Plaid councillors; they have shown themselves to be just as compliant and spineless as any of the other lot. Cllr Caiach's summary of Doleful's risible reply sums up their attitude neatly. All the bluster and threats about what they would do, once in power, regarding the James situation have proved to be as hollow and meaningless as they are.

I have never felt less like voting for any one of these pathetic and depressing creatures - please, will someone with integrity and courage stand for the council next May? (And don't suggest "do it yourself" - I'm too old -young, fresh, principled energy is needed!)

Anonymous said...

"The Executive Board have decided, he reminded me, to extract the £190,000 legal costs awarded against Mrs Thompson as the council tax payers should not have to bear these costs."

And how much more has this circus spent on recovering that figure?

Martin Milan said...

How often does a council, or any public body, simply flat out refuse to respond to questions from the press? Surely they realise that they are effective saying, to the people of Carmarthenshire who fund this disgrace, "Yah boo - we're not for you".

Haven't readers got a right to know what the local authority is doing in their name with their money? Isn't this the very essence of what "Public Scrutiny" is about?

Why would a body without anything to hide (the best council in Wales lol) engage in such practices? Surely they want to explain to the populace how we have it all wrong, they are truly a shining beacon of democracy and there's nothing to worry about at all?

Does there failure to do this indicate that they are not convinced that they can mount such a credible defence of their actions - and if so - doesn't that suggest that the council is not fit for purpose in it's current form?

Ken Haylock said...

Of course you were asking a question about the Chief Executive, which is Verboten! Without the ability for elected councillors to hold the executive to account in any meaningful way unless the executive graciously consents (and it clearly doesn't), Carmarthenshire isn't democratic, it's a dictatorship with a bit of democracy window dressing set around it as garnish. And it's not even like it's an elective dictatorship, where the voters get to chuck the dictator out at the end of their autocratic term, because the dictator is unelected, unchallengeable and uses the power of patronage that he has somehow given control of to ensure that whatever the voters say, and how they move the garnish round the plate, the big steaming ---- in the middle remains unmoved & unmoveable by anybody or anything...

Anonymous said...

As a doctor, Sian Caiach will no doubt be able to confirm that, from his reply, Cllr Dole seems to be suffering from a condition known as ‘convenient selective amnesia’.

Whether he remembers it or not, at the extraordinary meeting of 27/2/2014 Cllr Dole voted for the motion to: “Accept the findings of the Wales Audit Office and agree to withdraw the provision in the council’s constitution which allows for the granting of indemnities to Members and Officers to bring actions for defamation.”
The WAO’s report findings were that: “The decision taken by the Executive Board, to indemnify the Chief Executive in respect of the costs of a libel counterclaim, was unlawful and payments made as a result of that decision result in an item of account that is ‘contrary to law’”

He may also have forgotten that at the same meeting ALL councillors were presented with a report by Roger Jones and Linda Rees-Jones on the granting of the legal indemnity which stated: “...the Chief Executive was awarded £20,000 damages as well as an additional £5,000 aggravated damages, which said £25,000 is to be paid over to the Council.”

Anonymous said...

What an unholy mess. Where is our Government in all of this - what do they have to say - nothing - so far?? What a disgrace! If ever there was a need for 'special measures' it is now. Somebody has to step in to give us confidence back in the system we all pay for, and to control certain powerful people who abuse it.

Anonymous said...

Sorry you voted plaid ? Labour were there when all this kicked off . So labour councillors are no way accountable then ?

Myfanwy said...

As I said, Anon @18.57, they are each as bad as the other and yes, of course, Labour and the Indies are also to blame but given the amount of huffing and puffing Plaid were doing when in "opposition", I expected much more of them once they gained the power to make a difference. Unfortunately their craven attitude has been a huge disappointment.

Anonymous said...

Circumstances alters courses! That's the reservation I have when people say vote in new Councillors to make a difference. Will it make a difference? I think not.

Anonymous said...

'The Council refused to answer.' Many years ago I heard a wise old judge tell an accused in court, "Innocence cries out to be heard, whereas guilt hides in the dark."

So much for open and transparent government.

I can recall so many shenanigans that occurred when I was employed by the local authority. I used the whistleblowing policy to report it to my senior officers (note I don't use the term superior), but they swept matters under the carpet.

Did they respond to the charges that there was misappropriation of monies from the 'Coastal' scheme - designed to be used to help young people into work - so that it could be spent other council projects? It's all gone very quiet on that issue.

Was Mr James aware? Has he got his finger on the pulse? If he hasn't why not? He should be the guy that carries the can for his organisation's faux pas and acts of skulduggery. But then I seem to recall him being referred to as the smiling assassin when I worked for the County Council. Thank goodness I was able to take early retirement in 2014.