Blogger under police investigation faces financial obliteration
See the Carmarthenshire Herald, August 12th, pages 1 and 3
No bungalow for forestry worker
Jacqueline (Jacqui) Thompson, married to forestry contractor Kerry Thompson and living in the countryside between Llanwrda and Caio, started to feel that the county’s planners discriminated against them.
In 1990, Jacqui and Kerry had received permission for a forestry contractor’s bungalow dwelling at Cae Brwyn, Llanwrda, and for an agricultural implement shed. Sixteen years later, in 2006, they applied for a workshop and barn on the site. This was refused by the planning department, under officers’ delegated powers, on the grounds that the applicants had not demonstrated sufficient need or justification for the building, which would be in front of the bungalow and “cause an adverse effect on the visual amenity of the area”.
On three occasions between 2004 and 2007 (applications E/06601, E/17614, E/09739) Jacqui applied, as a voluntary agent, for permission to construct a bungalow, with an agricultural tie restricting its value on the open market, for Kerry Thompson’s brother Eddie, a forestry co-worker. All three applications were refused, and so was an application in 2006 (E/11853) for a temporary mobile home on the plot intended for the bungalow. The final rejection, signed by senior development control officer Graham Noakes and dated December 18 2007, said that “insufficient information has been provided to demonstrate that there is a proven local affordable housing need, the proposal would therefore create a form of unacceptable sporadic development in the open countryside”.
Yet in the following year, 2008, less than a quarter of a mile up the lane from Cae Brwyn, Carmarthenshire’s planning committee approved application E/20004 from CR and DM Griffiths of Betws, Ammanford, for a “single storey dwelling or a dormer bungalow” in open countryside, on land which had been fragmented more than a decade earlier, when the farmhouse, buildings and 34 acres at Hafod Tafolog were sold off “to enable further land to be bought and to make the business more viable”, according to the council’s planning appraisal. One of the reasons given for the approval was the policy permitting a dwelling required for people engaged mainly in agriculture, a category which includes forestry. Despite the permission, to date this dwelling has not been built.
Defamation case brought by Eifion Bowen settled out of court
Jacqui Thompson, who is a community councillor in Llanwrda, and husband Kerry had begun to scrutinise decisions made by Carmarthenshire ’s planning department, then headed by Eifion Bowen, who retired in 2015. On February 28 2006, after one of Eddie Thompson’s applications for forestry worker’s accommodation was rejected, Kerry was annoyed, left the house, and Jacqui thought he might call unannounced on Mr Bowen at his home, so she alerted police to the possibility. Kerry, though, did not visit Mr Bowen’s home.
Kerry, Jacqui and Eddie emailed Eifion Bowen and several other people at the county council on March 1 2006, calling for Mr Bowen’s resignation on the grounds of professional misconduct and gross incompetence. The Thompsons’ antipathy to various planning decisions did not abate. On October 18 2006 Jacqui and Kerry wrote to multiple persons at the county council, to media organisations including the BBC, to their MP Adam Price, the Welsh Assembly’s planning division, and three assembly members. Their letter asked for the dismissal of Eifion Bowen and criticised Mark James and the council’s Head of Corporate Property, Jonathan Fearn, for acting improperly in regard to certain planning applications, although they lacked evidence which would have stood up in a court of law.
Mr Bowen decided to sue for defamation. The case was settled out of court, with Jacqui and Kerry apologising and agreeing to pay £7,500 towards Mr Bowen’s costs. The Thompsons lacked savings, and so in place of cash, Mr Bowen obtained a charge on their bungalow, the value of which is restricted by the agricultural tie on it.
The 2016 value of the property, once the mortgage is deducted, is around £140,000 – half belonging to Kerry and half to Jacqui.
In 2009 Jacqui started a blog called ‘Carmarthenshire Planning Problems and More’. Her comments eventually enraged Mark James, the council’s Chief Executive, who made it known that he had not read postings on the blog, except for extracts brought to his attention by individual officers or councillors, until litigation proceedings started late in 2011.
Jacqui pursued for over £220,000
Now in 2016, after Jacqui lost a libel claim against Mr James and the county council, after Mr James and the council won a counter-claim for defamation against Jacqui, and after Jacqui’s appeal failed, Mr James is pursuing her for payment of £190,390 for the council’s costs, plus a balance of £30,913 in damages to Mr James himself (the original award of £25,000 plus interest at 8% a year) Bailiffs’ fees of around £4,000 were also payable but, according to Jacqui, “seem to have been dropped following their unsuccessful attempt at recovery”. The bailiffs had not found goods worth seizing.
Jacqui cannot afford to pay, because her legal insurers, Temple Legal Insurance, revoked the after-the event policy which would have protected her financially in case she lost, following the libel trial verdict given by Mr Justice Tugendhat who had concluded that Jacqui had lied, thereby attempting to pervert the course of justice. This let the insurers escape from the contract.
In April 2016, Jacqui received a letter from solicitors acting for Mr James personally, saying that he intended to ask the High Court to start contempt of court proceedings against her, and also – quite a frightener, this – informing her that Mr James has asked police to investigate if she can be prosecuted for the crime of harassment. She learned later that an investigation for perverting the course of justice was also being considered.
If the case reaches court, and Jacqui is subsequently found guilty, she could be jailed.
Matthew Paul, barrister and Conservative candidate for Carmarthen East and Dinefwr in May’s elections for Welsh Assembly elections, went public with opposition to the council’s continuing pursuit of Jacqui. Commenting in The Herald on April 22 2016 (p.22), Matthew Paul wrote:
“The High Court’s judgment (and that of the Court of Appeal) in Thompson v. James was badly wrong. It would have been entirely possible to find that neither party had libelled the other, and that the case was an immense waste of Court time and public money. Mr Justice Tugendhat should have ruled that Thompson’s comments made on the blog were plainly political, and protected both by the common law and Art. 10 of the ECHR [Article 10, on freedom of expression, in the European Convention on Human Rights]. Quite independently of the EU, our own Courts failed lamentably in this case to protect free expression.”
Arrested for filming at a council meeting
The hashtag #daftarrest was popular on Twitter as a response to Jacqui’s arrest for filming a council meeting in June 2011. In February that year in England, Bob Neill MP, a junior minister in the Department for Communities and Local Government, wrote to all council leaders in England urging them to be as open to ‘citizen journalists’ as they already were to professional journalists. He was concerned about “recent stories about people being ejected from Council meetings for blogging, tweeting or filming” and said he wanted all councils to “take a welcoming approach to those who want to bring local news stories to the wider audience”. Welsh councils, though, were beyond the influence of Mr Neill, local government being a devolved matter.
Jacqui continued to attend council meetings and to blog. On March 14 2011 she made an error onto which Mr Justice Tugendhat later pounced. She wrote on her blog that the council had amended its constitution so that libel claims against officers could be funded by the taxpayer, and she also said that a “statement is only libellous if it is untrue and I am certain that I have never said or written an untruth about Carmarthenshire County Council”.
This contributed to her undoing, because Mr Justice Tugendhat had noted that in their defence to Eifion Bowen’s earlier defamation claim, Jacqui and Kerry Thompson had not said that the words which defamed Mr Bowen were true. The Thompsons had apologised. Therefore, the learned justice concluded, Jacqui had not told the truth to the court when she said that she “really did mean every word of her apology”, because in his view she could not make a sincere apology while also believing that she was in the right.
On Thursday March 31 2011 Jacqui was in the public gallery filming a meeting of the council’s planning committee when an officer ordered her to stop. She filmed again on Friday April 13, using her mobile phone, but Democratic Services Officer Martin Davies arrived in the gallery to tell her to stop. Here evidence diverges. Jacqui’s husband Kerry was not in the gallery, but telephoned the police to report the alleged incident to police when Jacqui had returned home. He passed the phone to Jacqui, who told police that no members of the public, as opposed to council staff, had been in the gallery. Jacqui said that Martin Davies tried to seize the phone from her hand, an act which she said was attempted theft and assault. Mr Davies, though, said to police that “at no point did I attempt to take the phone off her”.
There were no close witnesses. From the council chamber below, only heads can be seen in the gallery unless those seated there are particularly tall. When Mr Davies arrived, some officers of the planning department were at the back of the gallery, but they left during the exchanges between him and Jacqui.
This incident featured prominently in the 2013 libel trial. Mr Justice Tugendhat made several assumptions about how Jacqui Thompson and Martin Davies would have behaved. He suggested, in paragraphs 204 and 205 of his judgement, that as Jacqui had “repeatedly shown herself to be ready and willing to make allegations against Council officers when she claims to have a grievance, so if she had considered while in the Public Gallery that she had a legitimate ground to complain, I think it probable that she would have complained in the presence of all those in the Chamber.
“But even if I were wrong about that, I have no hesitation in preferring the evidence of Mr Davies. His evidence was convincingly given, and remained consistent.”
Mr Justice Tugendhat went on to say, in paragraph 207, that he found “Mrs Thompson’s complaints, assault and attempted theft, were false and false to her knowledge at the time. She was attempting to pervert the course of justice when she made her allegations to the police, and when she made her statement”.
This reference to an attempt to pervert the course of justice contributed to the post-trial decision of Jacqui’s insurers, Temple Legal Insurance, to revoke the after-the-event policy which had been taken out by Simons Muirhead & Burton, Jacqui’s solicitors, leaving her personally liable for all the costs and damages.
The filming incident which led to Jacqui’s arrest was on Wednesday June 8, 2011, when the council chair at the time, Ivor Jackson, refused permission for supporters of the Noddfa Teilo Day Centre for the elderly, Llandeilo, to present a 1,500-name petition against its impending closure. One may ask, if that is not a matter of genuine public interest, what is?
Council chief executive Mark James ordered the police to be called. Four officers arrived swiftly and arrested Jacqui in case she was about to breach the peace. She was handcuffed, hauled off to Llanelli Police Station, detained for several hours and allowed to leave only when she signed an undertaking not to try and film council meetings again.
Accusations on Madaxeman’s blog
Martin Milan writes a blog as the Madaxeman. After the #daftarrest, he defended Jacqui’s right to free expression, and asked Mark James if he would like to respond. Perhaps not all chief executives would rush into digital print on a site called Madaxeman, but Mr James responded with some harsh comments, to which Jacqui took exception, above all because of criticism levelled at her family, she said.
The comments are no longer in Madaxeman’s archive but included in Mr Justice Tugendhat’s judgement on the Jacqui’s libel action against Mark James, dated March 15 2013. One sentence of Mr James’ contribution reads: “Mrs Thompson and her family are well known to the Council and their actions have required Police involvement on more than one occasion. They have been running a campaign of harassment, intimidation and defamation of Council staff and members for some considerable time. This is since the Council’s Planning Committee repeatedly turned down their planning applications to develop their land at Cae Brwyn near Llanwrda for housing….”
The words ‘develop’ and ‘housing’ convey, to some readers at least, a picture of ‘a housing development’, a number of homes on a commercial development. This was not the case, because as noted above, the application was for a forestry worker’s bungalow.
Suit and counter-suit
Jacqui took exception to Mark James’ comments on the Madaxeman’s blog, asked for a retraction, but did not receive one. She then opted to sue for libel – a decision with huge repercussions. Mr James was able to defend and counter-sue without any financial worries because in 2008 Carmarthenshire County Council amended its constitution to allow public money to buy indemnities for defamation cases.
Mr James’ counter suit included complaints that Jacqui had accused him of holding a slush fund and had also called him ‘Pinocchio’ after the wooden character in the classic children’s story, whose nose lengthens when he tells a lie.
Jacqui’s solicitors, Simons Muirhead & Burton, secured the services of a barrister who is better known for copyright, trademark and intellectual property law than for defamation: Christina Michalos (rated in band 4 for defamation proceedings, according to the 2016 Chambers & Partners’ ranking of lawyers and law offices). Mr James and Carmarthenshire County Council, with the indemnity funded by the public, chose Mr Adam Speker (rated in the top band, 1, for defamation). Both were attached to the same chambers, 5RB. Mr Justice Tugendhat, the libel trial judge, was also a 5RB barrister when practising as Michael Tugendhat QC.
Mr James/Carmarthenshire County Council engaged a highly esteemed barrister, in the knowledge that their publicly funded indemnity would pay, if they lost, or Jackie would pay, if they won. At least, they assumed she would be able to pay. She assumed she would be able to pay, because her solicitors had arranged after-the-event insurance cover.
Judge refuses trial by jury
Jacqui expected a jury trial. It did not happen. It was listed as a jury trial. The International Forum for Responsible Media blog, dated January 16 2013, listed upcoming media law cases for January to March, and said:
“There is one jury trial, in the case of Thompson v James, listed for 7 days beginning on 11 February 2013. This is a claim brought by the author of the Carmarthenshire Planning Problems blog, Jacqui Thompson, against the chief executive of Carmarthenshire Council in relation to a letter dated 28 July 2011. Mr James has brought a counterclaim for libel, funded by the local authority.”
Yet just before the trial was due to start, Mr Justice Tugendhat decided that there would be no jury. He, as the presiding judge, would determine the outcome.
That is now normal, because the Defamation Act 2013 removed the previous presumption in favour of jury trial. Solicitors Brett Wilson LLP explained in an article on their website dated October 8 2014, titled ‘The end of jury trials in libel claims?’ that Mr Justice Walby, who had just rejected an application by The Times Newspapers for a case to be heard before a jury, took the view that
“it was in the public interest to have the trial by Judge alone, holding that the Defendant does not ‘identify any skills, knowledge, aptitudes or other attributes which are likely to be possessed by a jury which would make it better equipped than a judge to grapple with the issues that arise and may need to be tried’.”
“Mr Justice Walby went on to say that “there are real risks of a jury verdict being unclear or misunderstood or both.” He remarked that the greater the public interest, the greater the need for trial without a jury as this would provide for a reasoned judgment.”
Using this line of reasoning, it is hard to envisage any circumstances when a jury would definitely possess more skills, knowledge, aptitudes or other attributes than a learned judge!
The Defamation Act 2013 did not come into force until January 1 2014, almost a year after the Thompson-James case was heard in February 2013, so Mr Justice Tugendhat’s decision to refuse jury trial, late in the day, was an unwelcome surprise to Jacqui and her legal team.
Mr Justice Tugendhat’s judgment
The boundary between free speech and libel is somewhat of a moveable feast. A great deal depends on the judge’s assessment of motives. Mr Justice Tugendhat could not discern any motive other than a wish to harass Mr James and the county council – not genuine political comment, not a desire to inform the public.
In Mr Justice Tugendhat’s opinion, Jacqui had engaged in an unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other council officers (paragraph 423 (i)), and her motive was revenge (paragraph 406). The judge’s decision that the motive was revenge, following the county council’s refusal of applications for planning permission for a forestry worker’s bungalow, seems to stem from the fact that he could not see any other possible motive.
Permission to appeal against the judgement was refused except for one small point relating to the interpretation of ‘slush fund’, and in May 2014 Lord Justice Longmore wholly agreed with Mr Justice Tugendhat that the term ‘slush fund’ implied money available to fund corrupt purposes, and that no such fund existed.
In Jacqui’s view, she used the term ‘slush fund’ to refer to the council’s alteration to its constitution in 2008, to allow public money to indemnify libel claims brought by staff or councillors – a state of affairs which the Wales Audit Office’s assistant auditor-general, Anthony Barrett, declared unlawful in January 2014.
The restricted grounds for appeal, and the fate of the appeal, highlight for me the lack of depth in the trial. It was all about semantics, debates over the meaning of words, and colossally expensive debates at that.
Was it wise to criticise Mark James, or before that Eifion Bowen and Jonathan Fearn, by name in the absence of hard evidence? No, it was not. But since then, evidence of inconsistencies in Carmarthenshire County Council’s planning decisions have come to light. The inconsistencies seemed to arise from an institutionalised acceptance that the status of the applicant is a valid consideration. That is changing, but then planning committee meetings are now webcast for all to see.
We have no option, says council
The Herald asked Carmarthenshire County Council three questions:
- Is the chief executive considering whether to draw a line under the past litigation and stop pursuing Mrs Thompson for a bill which is larger than her total financial resources?
- In what ways does pressing Mrs Thompson for payment benefit the council’s reputation in Wales and the wider UK?
- Is the council not concerned that the current police investigation into Mrs Thompson for harassment and perverting the course of justice could make it appear excessively hostile to criticism, in the eyes of the general public?
In response, the council has issued the following statement:
“Mrs Thompson initiated the action after bringing defamation proceedings both against the Council and Mr James in his capacity as its Chief Executive. This action was defended and won overwhelmingly.
“Costs would usually have been recovered from Mrs Thompson’s insurers, however they withdrew from this citing a lack of good faith on her part.
“The council therefore had no option other than to pursue Mrs Thompson directly for the costs incurred after successfully defending itself in proceedings brought by her.
“It is standard procedure for the Council to pursue any debts against it, it has the responsibility to the council taxpayer to do so.
Whether Mrs Thompson has the means to pay will be something for the court to consider.”