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.

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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.

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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.