west*wales*news*review

West Wales News Review — analysis with a sustainability slant

Archive for the tag “Mark James”

Know Your Place! Don’t Annoy Big Shots!

The dangers inherent in upsetting people who are richer and more powerful than you have not been removed from our particular political system.

This week Jacqui Thompson, the Llanwrda blogger who in 2011 was arrested, handcuffed and detained for trying to film part of a public council meeting on her mobile phone, was in court to argue against the immediate forced sale of her family home, owned by her husband, forestry worker Kerry, and herself.

The court appearance was the latest episode in the long-running conflict between Carmarthenshire County Council’s chief executive Mark James, one of the highest paid government officials in Wales, and housewife and (unpaid) community councillor Jacqui.

Mr James secured a publicly funded indemnity to sue Jacqui for libel, specifically for calling him a Pinocchio and for referring to a slush fund.  His action was in response to Jacqui’s  high-risk decision to sue him for libel, after he had criticised her and her family on another blog, Madaxeman, run by Mr Martin Milan.

A key factor is the elected councillors’ decision to offer an indemnity for Mr James’ libel claim. The Wales Audit Office said this was unlawful, and it is forbidden in The Local Authorities (Indemnities for Members and Officers) (Wales) (Order) 2006 — but apparently allowed under a catch-all clause of Section 111 of the much earlier Local Government Act 1972, which permits  authorities to do “anything (whether or not involving expenditure …… ) which is calculated to facilitate or is conducive or incidental to the discharge of any of its functions”. Even rob a bank, perhaps, the wording is so permissive. The council relied on the loophole contained in the 1972 Act, as described in People First’s article below:

http://www.peoplefirstwales.org.uk/2016_11_01_archive.html

The Executive Board meeting which agreed to the indemnity, as reported above, heard that any damages would be paid to the council (paragraph 12, sub-section i).

    “(i) 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.”

Mr Justice Tugendhat, at that point soon to retire, awarded Mr James damages. In his opinion — and libel is often all about opinion, about balance of probabilities, not hard evidence — Mr James was all right and Jacqui was all wrong. The judge’s words prompted Jacqui’s insurers to cancel her conditional fee agreement, leaving her personally liable for every £. She cannot pay it all, even if the family’s bungalow (which has an agricultural tie) is sold.

Last week the judge in the County Court, Carmarthen, declined to allow Mr James permission to sell the house immediately. Instead, there is a ten-year stay of execution, and Jacqui has to pay £250 a month towards the damages bill of £25,000 plus interest and fees, a total around £36,000 before the County Court hearing. The total now exceeds that by over £14,000, because the judge added the latest fees to the damages. Even so, it’s not as much as the nearly £22,000 which Mr James’ team wanted.

Mr James was supposed to pay damages over to the council. That was the arrangement when the indemnity was agreed. Yet last week he appeared to have changed his mind. The court heard, through his counsel, that he could “stuff the money in the gutter” if he wanted.  That’s not what the Executive Board agreed to!

Elections are coming, on May 4th. The Executive Board will have some changes due to retirements, and perhaps after the vote there will be a completely fresh line-up. Hopefully the new board will remind themselves of paragraph 12, sub-section i.

Especially as residents all over the county are looking at their new Council Tax bills and wincing.

PDR

 

 

 

The Dangerous Power of Stories

Elections for county councillors are coming up.  On May 4th 2017 we will be off to the polling stations once again, to choose our councillors.

How will the vote go in Carmarthenshire? I’m not going to guess, but do think that the coalition in power, trying to implement deep financial cuts, has an especially tough job. Their councillors have a record which electors can vote against, while the opposition has only had to oppose.

Plaid Cymru are the dominant force by numbers in the county, with 29 councillors, followed by Labour (22), the Independent group (20), People First (1) and unaffiliated (2).  The Executive Board, which does much of the decision making, is a coalition with five Plaid members and five from the Independent group. The leader of the Board is Plaid’s Emlyn Dole (Lannon), and he has two deputies – David Jenkins (Plaid, Glanaman) and Pam Palmer (Independent, Abergwili).

Labour was in power, with the Independents, until May 2015, and so come the elections, will have been in opposition for two years – long enough for some of their more questionable decisions to be relegated to the back of voters’ minds.

Plaid, though, will be completing two years in the media spotlight, and has to answer to the electorate for decisions made when they were the opposition, decisions such as rural school closures, small town parking charges, the expensive stadium for the Scarlets at Trostre, and legal adventures involving the chief executive and top staff officer, Mr Mark James CBE.

Mr James’ clash with local blogger Jacqui Thompson has been documented in detail – on this blog here, herehere and here. Mr James won. To obtain the damages he was awarded, he could force the sale of Jacqui’s bungalow home, which is also the base for her husband Kerry’s forestry work.

The Thompson v. James and James v. Thompson libel cases still carry a big risk for the councillors in power. Private Eye commented in its November 11th issue that Mark James “persuaded the council to indemnify his legal costs, contrary to guidance from both the Welsh and UK governments”.  The Wales Audit Office said Mr James’ indemnity was unlawful.  It doesn’t take much imagination to guess how national media would present the story – highly paid local government boss got taxpayers’ cash to back libel action against housewife critic. Or similar. It wouldn’t be pretty, and almost certainly the county council would be presented as the Big Bad Wolf, with Mrs Thompson in the role of Red Riding Hood.

Voters tend to remember stories with emotional appeal more than intricate factual detail, whether or not the facts are correct.

And emotional appeals before elections can have far-reaching impact.

Just think Trump. ‘Make America Great Again’ struck an emotional chord. It had nothing to do with facts.

PDR

Solicitors’ ‘defamation highlight’ is low point for client Jacqui

The homelessness facing Llanwrda blogger Jacqui Thompson and her husband Kerry, reported in this week’s Private Eye (p.16), is not exactly a triumph for her legal team.

Yet Simons Muirhead and Burton, her solicitors in the 2013 libel court case in which she sued Carmarthenshire County Council’s chief executive Mark James and lost, and he counter-sued her and won, claim the litigation as one of their “defamation highlights”.

“Lucy Moorman and Jeffrey Smele represented award-winning blogger, Jacqui Thompson, in her libel action against Carmarthenshire County Council and its Chief Executive, Mark James, who also counterclaimed,” their website proclaims.

Lucy Moorman, a barrister, is now a pre-transmission advice lawyer at the BBC. Jeffrey Smele remains at Simons Muirhead and Burton, as a senior lawyer.

No mention on the web page, though, that the judge, Mr Justice Tugendhat, found for Mr James both times, after deciding to accept his evidence and to reject Jacqui’s.

To be fair to the solicitors, so much of a libel trial heard by a single judge appears to depend on their personal interpretation of motives, which is hard to predict.

Jacqui’s double loss should have been covered by her legal insurance, but Temple Legal Protection Ltd  cancelled the cover (always read the small print) after hearing Mr Justice Tugendhat doubt Jacqui’s truthfulness.

Asked if she had been aware that her cover could disappear, Jacqui said yes, she knew, it had all been explained to her, but she never thought it could happen because she knew she was telling the truth.

That assumption, in the dangerous world of libel, was mistaken. The judge decided that Jacqui and her family had waged a “campaign of harassment, intimidation and defamation of Council staff and members for some considerable time”, and that Jacqui’s terms ‘Pinocchio’ and ‘slush fund’, applied to Mr James, were libellous.

Lacking insurance after losing, Jacqui found herself liable for costs and damages exceeding a quarter of a million pounds. Her only big asset is her share of the bungalow in which she and Kerry live. Mr James has applied for a court order to enable him to sell the bungalow to recoup damages.

Sudden withdrawal of insurance cover has left Jacqui and Kerry in a nightmare situation. Should it be allowed when, as here, Jacqui is not facing a criminal charge? At the behest of Mr James, Dyfed-Powys Police investigated Jacqui for perverting the course of justice but could not find evidence to warrant a criminal prosecution.

Jonathan Edwards, MP for Carmarthen East and Dinefwr, where Jacqui lives, said he has never been lobbied about the withdrawal of insurance cover, but sees the injustice in its summary removal.

“A fair justice system is the foundation of our modern society which binds us together in our belief of fairness and accountability.  Part of our justice system is, of course, the principle of equal access to justice for all,” he said.

“This particular case, and the cancelling of legal insurance, is not an issue on which I’ve ever been lobbied and I am unaware of any widespread practice of policies being cancelled.

“If such a practice is indeed widespread then changing the law to prevent this would seem sensible in order to ensure justice is not reserved to only those who can afford it.”

Remembering that Mr James had the security of an indemnity from public funds, and Jacqui had only a (misplaced) confidence that she would be vindicated, and the extreme imbalance in the legal system is plain.

Insurance companies willing to cancel cover, although evidence does not reach the standard required for a criminal trial, tilts the scales of justice even more in favour of those with fat wallets or access to the public purse.

PDR

Whistleblower Jacqui Thompson closer to homelessness

Whistleblowing in public threatens to make Llanwrda blogger Jacqui Thompson and her husband Kerry homeless.

Jacqui has received a court letter saying that Mark James, Chief Executive of Carmarthenshire County Council, has applied for an order to sell her home, so that the proceeds will provide libel damages awarded to him of £25,000 plus interest at 8% and fees, currently a total of £35,392. The damages were awarded in 2013 when Jacqui lost a libel claim against Mr James, and he won a counter-claim against her.

“There will be a court hearing to decide whether the order is granted,” said Jacqui, “but the odds are in his favour.”

Jacqui’s sole financial asset is the home where she lives with husband Kerry, a long-established forestry worker. They have a self-built bungalow in wooded countryside north of Llanwrda.

xxxxx

Jacqui Thompson: blogger about to have her home sold by court order

The threat to sell the Thompsons’ home is, seen from the outside, an example of a powerful institution turning on a critic. Jacqui became angry about inconsistencies in planning decisions made by the county council, and began writing a critical blog, ‘Carmarthenshire Planning Problems and More’.

There is no requirement to pass a legal exam before starting a blog, and Jacqui strayed into hazardous territory, although was unlucky to come up against a chief executive determined to protect his and his council’s reputation, come what may. He wrote about Jacqui on Martin Milan’s ‘Madaxeman’ blog, including these words quoted by Mr Justice Tugendhat in his judgement on Jacqui’s libel claim:

 

“Mrs Thompson and her family … have been running a campaign of harassment, intimidation and defamation of Council staff and members for some considerable time… [and that, in respect of the incident on 13 April 2011] … the Council would have made a formal complaint of a deliberate attempt to ‘pervert the course of justice’ to the Police by making false statements, but the [Council] officer concerned … did not want to make a fuss…”

 

Jacqui objected and said she would sue. Chief executive Mark James, protected by an indemnity funded with public money, opted to counter-sue. The grounds were that Jacqui had called him a ‘Pinocchio’ and said he had a slush fund for legal fees and indemnities.

The now-retired Mr Justice Tugendhat, heard the case in February 2013. The learned judge disallowed a jury trial, and chose to agree with evidence on behalf of Mr James and to disagree with evidence submitted by Jacqui’s legal team. She thought she was protected by insurance from the specialist provider Temple, but cover was unceremoniously removed when the judge said he thought, on a balance of probabilities, that she was not telling the truth.

There was no incontrovertible proof that Jacqui lied, but that did not matter in a libel trial.

Withdrawal of insurance cover makes her liable for court costs of £190,390 as well as for the damages awarded to Mr James, and a smaller amount of £7,500 in costs awarded against her after an earlier conflict over a planning decision, settled out of court, with the now-retired head of planning Eifion Bowen.

Jacqui pressed for filming of council meetings to be allowed, and that now happens – and filming of planning committee meetings and executive board meetings too. Filming of planning committee deliberations has shown inconsistent decisions of the sort to which Jacqui objected, but current chair Alun Lenny makes a point of requiring members to justify decisions which appear to conflict with planning policies, and the chances of irregular decisions being made are much reduced.

Is the county council grateful for Jacqui’s prompting?

Individual councillors may well recognise beneficial impacts of her actions – which led to her being arrested and handcuffed for filming part of an open, public meeting on a mobile phone — but the chief executive has chosen to pursue her to the point of forcing the sale of her home, and that would make her and Kerry homeless.

Jacqui has asked for support from her AM and MP, Adam Price and Jonathan Edwards, and from the Welsh Government’s First Minister Carwyn Jones, and the Cabinet Secretary for Finance and Local Government, Mark Drakeford.

“I’m hoping to bring some political pressure to bear,” she said, “although I’m not sure it will help our predicament.”

PDR

An earlier version appeared in the Carmarthenshire Herald, October 28 2016

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.

 

Appeal fails

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.”

PDR

Trisha’s Torment: When Turning a Blind Eye Lets Abuse Escalate

Police Apology Leaves County Council Isolated

When two powerful institutions both decided to back one party to a dispute without properly evaluating the evidence, the result was denial of justice.

In the case of Trisha Breckman and Eddie Roberts, a couple in their 70s living in Maesybont, Carmarthenshire, that denial of justice is a little eased by a recent full unreserved apology from Dyfed Powys Police – an apology which Trisha and Eddie say goes far beyond any statement so far made by Carmarthenshire County Council, the other authority in the case.

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Trisha Breckman has now received a full apology from Dyfed Powys Police — but she notes that Carmarthenshire County Council has not yet followed suit.

Rhodri Glyn Thomas, the Welsh Government member for Carmarthen East & Dinefwr, and county councillor Cefin Campbell both believe that Trisha and Eddie have suffered because of intransigence by the county council, and have supported them through difficult times.

The police apology, signed by Simon Prince, the Chief Constable, and Christopher Salmon, the Police and Crime Commissioner for Dyfed Powys, includes these words:

“It is quite clear that you have been severely let down by the authorities (my emphasis) and for the part played by Dyfed Powys Police in this we apologise whole heartedly.”

In addition to the apology from Dyfed Powys Police, Trisha Breckman received a further apology from Christopher Salmon, as follows:

“We are apologising for all the hurt and pain caused throughout your experience, including any implied attack on your integrity.

“I do not want to lose the force of an unbounded apology. However it absolutely applies to any unsubstantiated comment or accusation, implied or otherwise, against your integrity. We acknowledge they are hurtful, embarrassing and deeply personal. For that we are sorry.

“Officers will continue to do all they can to help you with any ongoing issues. You are not accused of anything and your integrity is not in doubt.”

Despite this apology, the repercussions of 11 years of officialdom’s hostility remain, and include financial problems which the couple cannot easily resolve because Trisha and Eddie have advanced in age, Trisha to 71 and Eddie to 78.

The couple bought Pant y Castell Fach – a cottage, outbuilding and over six acres — in 2003. Trisha was looking forward to a quiet life on the smallholding with its pretty cottage, and enough land for her elderly Connemara mare Minnie and for the cattery she hoped to establish – and for which she obtained planning permission. The couple paid mostly in cash but also took out a mortgage to fund construction of the cattery.

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The pretty but not-so-tranquil setting of Pant y Castell Fach. 

The cattery was never built, because of problems which emerged as soon as the couple moved in, and which left Trisha feeling too nervous to remain in the cottage on her own. This meant that Eddie, who had been intending to live in Sussex for part of the week and repay the mortgage with earnings from his taxi business there, decided he had to live in the cottage full-time, so that Trisha would not be alone.

Why had Trisha become anxious? She was embroiled in a dispute with their neighbours, a dispute which took over her life, and which diminished the pair’s financial resources so much that the only way they can repay the mortgage is to sell the property.

But their long-running history of dispute with the next-door landowner, which would have to be declared to an intending purchaser, has depressed the market value.

 

Injustice is Blind

Above Pant y Castell Fach, across a field, lie the yards of Blaenpant Farm, which when I visited in September 2015 was quiet and peaceful, with just one heavy goods vehicle parked in the yard. What could possibly be amiss?

The twilight zones of planning law are amiss. Twilight can hide, in its long shadows, changes of land use from agricultural to industrial.

Blaenpant Farm completely surrounds Pant y Castell Fach. The farm even includes the top of the access track from the B4297 road  to Pant y Castell Fach, over which Trisha and Eddie have a right of way.

For Trisha and Eddie, Pant y Castell Fach was to be their country retreat, and they expected a degree of peace and quiet, but instead found themselves living next to a heavy haulage business operating without planning permission – a business which the county council’s planning department omitted to notice. In the opinion of the then-Planning Enforcement Manager, Brian Canning, and the Head of Planning Services, Eifion Bowen, there was no breach of planning regulations, and no industrial business operating without the need to pay business rates (because farms are exempt). Instead, officers in the planning department accused Trisha and Eddie of making baseless complaints. Eventually the pensioner couple were put on a list of persistent complainants and for a time were stopped from contacting council staff and councillors, with the exception of one designated person, the then-Director of Regeneration and Leisure, Dave Gilbert.

The council’s verdict that the scale of industrial activity on the yard at Blaenpant was acceptable for a farm meant that both council and police took the side of the then-occupants of Blaenpant, Andrew Thomas and the late Karen Bowen Thomas when they, enraged that Trisha and Eddie had complained about industrial operations on Blaenpant, embarked upon a campaign of harassment.

Film evidence of the harassment was presented in television documentaries, but failed to persuade the authorities to reconsider their positions.  In 2010 a planning inquiry by inspector Clive Cochrane determined that an area of land on Blaenpant Farm, away from the yard and adjacent to the Carmel telecommunications mast, was being used unlawfully to store a long list of non-agricultural equipment – industrial skips, lorries, lorry engines and parts, container body shells, excavator and bulldozer plant, a fire engine, tarmacadam planings and more –and must be returned to agriculture. Later Mr Cochrane, then retired, told the BBC that he could confirm everything that Trisha and Eddie had said about operations at Blaenpant lacking planning permission

Commenting on the main farmyard of Blaenpant, Mr Cochrane said in his inquiry report:

“During the inquiry, copies of two VOSA (Vehicle and Operator Services Agency, since replaced by the Driver and Vehicle Standards Agency) licences were produced to show that Blaenpant Farm is an operational base for six lorries and five trailers owned by two different haulage companies. I understand that the appellant also operates haulage and scrap metal businesses at other licensed vehicle operating centres in the Swansea area.

“The licensed operations and the use of the yard and buildings as a haulage depot, storage of related items and HGV maintenance area, combined with the keeping of horses, is not an agricultural use of the existing buildings and open yard. This appears to be in contravention of the conditional planning permissions for the buildings and may be unlawful without further planning permission for an apparent change of use.

“It demonstrates to me that there is very little genuine farming activity at Blaenpant and that other, possibly unauthorised, commercial activities are occupying the land and the buildings reserved by planning conditions for agricultural use.”

This contradiction of the ‘Blaenpant is a farm’ position maintained by Carmarthenshire’s planning department was reinforced in 2012, when a verdict of maladministration from the then-Public Services Ombudsman for Wales, Peter Tyndall, had to be accepted by the county council, but to Eddie and Trisha it seemed that acceptance was grudging, and they did not notice any change in the council’s attitude to them.

The 188-page anonymised report from the Ombudsman contains, as Appendix 3, comments from the former Planning Enforcement Manager for Carmarthenshire County Council.

The Planning Enforcement Manager told the Ombudsman, in his reply to the draft report, that

“I consider the contents of your report in relation to my involvement in this very long-running and difficult case to be biased and lacking in any evidential basis. You insult my professionalism [and that of the Head of Planning] in stating that our ‘dislike’ of this woman (Trisha Breckman) would influence the manner with which we dealt with her many and varied complaints over the years.”

His reply maintained that “we acted with integrity in not being intimidated by this woman, who would seek to move heaven and earth to get her way”.

He went on to challenge the  validity of the Ombudsman’s findings, and said “It is my fervent hope that Carmarthenshire County Council seeks counsel’s advice in order to vigorously challenge your recommendations in this matter”, concluding “I did not want to get involved in this matter from the outset. I have absolutely no interest in your final conclusions so would be grateful if you would refrain from contacting me again.”

The Planning Enforcement Manager had told the Ombudsman’s enquiry that he could not recall earlier complaints made by the previous occupiers of Pant y Castell Fach, he could not recall seeing a log of HGV-related activity completed at the end of 2001, he could not recall if he had been aware that former occupiers had said they were threatened by Mr Thomas after complaining about the extent of haulage activities at Blaenpant. He did not recall if Blaenpant was licensed as an operating base for one HGV, but he did recall that the operating centre for the lorries was elsewhere. He never saw anything to suggest that a change of use from farming to industry had occurred. He did not recall being shown photographs of lorries, he could not recall if he was offered video footage of HGV activity during a meeting with Eddie Roberts and his surveyor. He could not recall a planning report of September 2006 which referred to the primary uses of the site as being equine and a lorry base, and he believed that statement to be incorrect, based on a snapshot assessment of the planning officer and going beyond what the officer was in a position to say.

Mr Thomas had said under oath during the 2010 planning inquiry that for ten years he had been using the farm as a base for five or six lorries, but the Planning Enforcement Manager did not think that any weight should be attached to this statement. In his view, the late Karen Bowen Thomas, who died at the end of 2008, would have had a clearer idea of what had been going on.

In what seems a revealing statement, the Planning Enforcement Manager told the Ombudsman that he was extremely principled and would never desist from taking action on the basis of some other ulterior motive, for example, because an officer was being intimidated.

He also claimed, falsely, that Trisha had been convicted of assaulting Karen Bowen Thomas.

In his view, Trisha was a “complete nutcase”, and the Ombudsman’s investigation was “a worthless process”.

The Head of Planning Services was the immediate superior of the Planning Enforcement Manager, and he did not consider that the council had failed to do something it should have done. He did, though, suggest to the Ombudsman that planning enforcement was not the best process for mediation, and therefore it could be helpful to have a more formal mediation service.

In the absence of any mediation, this is what happened.

 

Evidence Disregarded

When Trisha and Eddie first became concerned about the scale of haulage and other industrial operations on Blaenpant, the council’s planning department advised them to get some evidence. So Eddie and Trisha started filming the lorry movements. The film evidence convinced ITV Wales’ current affairs programme Wales This Week, which reported on the dispute six times between June 2005 and March 2008, and also persuaded BBC1 Wales, which broadcast The Good Life Gone Bad in October 2012. The programmes are on You Tube for anyone to watch.

The Thomases had arrived at Blaenpant in 2001, and the lorry operations, branded KBHS Ltd, got under way on the site.  A former owner of Pant y Castell Fach, John Lawday, logged the movements and informed the council, and so did John Bleasdale, who lived nearby at Ffynnon Goch. Mr Lawday sold up soon after the Thomases arrived next door, after 26 years in the cottage. The next occupant was Anne Gifford, who quickly put the property back on the market and was gone in the space of a year. She sold to Trisha and Eddie.

Coming from the south of England, Trisha and Eddie had no idea that complaints about their neighbour’s haulage activities were accumulating in the county council’s planning department, and they say nothing was uncovered during legal searches. The fact that the vendor wanted to move away so quickly might have rung alarm bells, but did not. The fact that the top section of the access track was on Blaenpant land should have prompted questions but did not. In the year after they moved in, Trisha and Eddie became aware that all was not well. “It was actually within a few months of moving here, planning officer Ceri Davies informed me there had been problems here,” said Trisha. “He was here to discuss our plans for the cattery. Nigel Stringer of the Countryside Council for Wales also visited the first year and told us the same thing. In addition, an officer of the Country Land and Business Association informed us that ‘there have been lots of problems here’.”

Alarm bells now sounding loudly, Trisha made a Freedom of Information request for data on complaints relating to Blaenpant which had reached the council’s planning department, and was given a file documenting complaint after complaint. But according to the council, Blaenpant Farm was merely a contact address for a haulage business operated elsewhere.

When Andrew Thomas and Karen Bowen Thomas found out, somehow, that Trisha and Eddie were asking questions about the haulage business – and about quarrying and lorry maintenance work at Blaenpant — retaliation started. Karen unfortunately died prematurely in 2008 and so is unable to comment, but incidents are on film.

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An old heavy goods vehicle looms above Trisha’s and Eddie’s home.

A huge removals lorry appeared on Blaenpant land by the boundary with Pant y Castell Fach, becoming a major element of the view from the cottage. A couple of pigs called Eddie and Trisha were penned outside a bedroom window, and Karen would sit with them making personal comments which, when heard on film, sounded threatening. A large board on stilts was erected blocking the view from a bedroom. But worst of all, the Thomases narrowed the access track from 15 feet to nine, erected motorway-style crash barriers on either side of it, and put in two gates which they threatened to lock. Trisha and Eddie felt like prisoners.

Incidents on the access track, including Andrew Thomas letting a horse loose down the track into Trisha and Eddie’s garden, led to police action but, bizarrely, against Trisha, who was arrested on five occasions, and on the horse incident day she was taken away in handcuffs because police believed Karen Thomas’s accusation that Trisha had assaulted her. The film evidence reveals Trisha to be frightened and panicked, but not the aggressor. Police later did drop the charge.

Trisha never has been convicted of assault, but Andrew Thomas has. In 2006 he assaulted two young women in Carmarthen, who were trying to stop him from haranguing Eddie Roberts. Eddie, working as a taxi driver, was in his cab at a taxi rank, and Andrew was outside the car. The two young women gave evidence and Andrew Thomas emerged from the court a convicted man.

First haulage lorries, then buildings and other development — for which there were planning applications, no less than 16 between 2002 and 2011, all but one for  agricultural or equestrian activities, and none for industrial uses. Planning officers did in fact worry about a lack of agricultural activity on the farm (although not to the extent of taking Eddie’s and Trisha’s complaints seriously) and rejected an application for an implement store and hay shed 99 feet long and 50 feet wide, but permission was granted on appeal. In 2009, Andrew Thomas applied for permission for an area of hardstanding adjacent to the Carmel transmitter mast, on the south-western side, to be used for storing agricultural vehicles and implements. Carmarthenshire County Council refused, one reason being insufficient farming activity at Blaenpant to warrant it. So Mr Thomas made an appeal, but as we have seen, an inquiry heard by planning inspector Clive Cochrane turned it down.

When in 2012 the Ombudsman found in Trisha and Eddie’s favour on those issues where clear evidence existed, and against Carmarthenshire County Council, the council delayed putting the report before any councillors for several months. The full council never was shown the report. Instead, an edited version was presented to the planning committee.

Andrew Thomas had, after a three-year civil court case ending in 2008, been obliged to widen the access track and to take away one gate and leave the others open, to give unimpeded access to Pant y Castell Fach and remove the sense of claustrophobia which the line of gates had created.

But nothing has been done to compensate Trisha and Eddie adequately for the emotional trauma they suffered after the council cast them as villains in the drama.

 

Flow of Planning Applications

Planning applications for buildings on Blaenpant streamed in to Carmarthenshire County Council and included the following.

In April 2004 came an application (E/06708) for intended permitted development on Blaenpant, construction of an agricultural implement store and hay shed, 99 feet by 50 feet. This did not get the go-ahead, and Karen Bowen Thomas was told to submit a formal planning application. She did so in July, asking (E/07519) for a store for farm machinery and hay, but the planning committee said no. The refusal letter, from Head of Planning Eifion Bowen, explained that there was “insufficient justification for the proposed development at this location due to the lack of agricultural activity at the farm unit” and also because the applicant had failed to demonstrate that the shed was reasonably necessary for agriculture.

So back in 2004 the council was well aware of a lack of agricultural activity at Blaenpant.

Karen Bowen Thomas appealed, and the appeal was upheld, albeit with conditions, such as a stipulation that the building be used for storage only. The shed was built, with the help of another permitted development (E/09576) from the council, for the excavation of quarry overburden and rock and the use of the material for levelling the ground on which the building would be constructed. Far from being used for storage, the building housed horses, as subsequent photographic evidence showed.

Next, in October 2005, Mr and Mrs Thomas applied (E/11544) to convert a former cowshed to a farm office and tack room, and received permission. In August 2006, they applied (E/14109) for a detached garage, which was allowed. They were not so fortunate with a much larger application (E/14145) the same month, for a cow shed 97 feet by 30 feet, which was refused for the same reasons as the agricultural implement store two years earlier: lack of agricultural activity and no demonstrable need for a large cow shed.

After a minor application (E/14648) for roof alterations on another building, which was approved, the cow shed application was resubmitted in all but name, this time (E/17981) as a notification of permitted development and in the guise of a hay and implement shed, a little smaller at 78 feet by 30 feet. This would be the second large implement and hay store, on a farm where there was a “lack of agricultural activity”.  The planning department agreed that this was indeed permitted agricultural development not requiring planning permission, and so therefore there was no need for the councillors on the planning committee to consider the application.

The first and second buildings had a total length of 177 feet, and sufficient indoor space to store a substantial number of tractors or other vehicles.

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Storage buildings on Blaenpant Farm, Maesybont. Trisha Breckman’s home is below the end building, to the left. There is a quarry to the right of the buildings.

The applications continued. In January 2008 Mr and Mrs Thomas requested permitted development rights (E/18176) for a new road, opening into the access track to Trisha Breckman’s and Eddie Roberts’ home and continuing across a field up towards the Carmel telecommunications mast. Planners told them that formal permission would be necessary, and the application was withdrawn — but by summer 2015 the road was completed, without permission.

Also in 2008, in September, Mr and Mrs Thomas asked (E/19928) for a replacement agricultural building, which was allowed as the footprint was only slightly larger than the existing structure.

In July 2009 Mr Thomas, who by now was bereaved, applied retrospectively (E/21494) for a hardstanding area adjoining the Carmel Transmitter Mast, for the “parking and storage of agricultural vehicles and implements”, but this was turned down and the subsequent appeal was dismissed. As noted above, the items stored by the Carmel mast had included skips, lorries, lorry engines and parts, excavating and bulldozing equipment, containers, a fire engine, and tarmacadam planings.

The reports, logs, investigations, photographs and films documenting the disputes between Trisha and Eddie and Andrew Thomas and the late Karen Bowen Thomas, and between Trisha and Eddie and officers of Carmarthenshire County Council, form an archive in themselves, containing more detail than can be summarised here. The Ombudsman, who had access to this library of information and to the principal participants, came to conclusions which Carmarthenshire County Council resisted.

In response the council officers, who include the Chief Executive, Mark James, opted to try and bury the Ombudsman’s findings — under the tarmacadam, so to speak.

 

No Answers

I contacted the county council’s press office at 9.13am on Friday October 9th, with these three questions:

  1. Will Carmarthenshire County Council also issue a complete apology to acquit Mrs Breckman from blame for  the breakdown in relations with Mrs and Mrs Thomas which resulted in Mrs Breckman’s arrests? (The Ombudsman required the county council to issue an apology, but in Mrs Breckman’s view it was very restricted and failed to absolve her from all blame.)
  2. Will all councillors be given access to the Ombudsman’s full report? (The Ombudsman required this to happen, but I have been informed that only an edited version was offered, and then only to members of the planning committee.)
  3. Has the county council amended the procedures around planning enforcement, so that when there is a profound disagreement between a complainant and an enforcement officer, an independent arbitrator is brought in at an early stage? (This was a suggestion made by Mr Eifion Bowen, former Head of Planning Services, and reported by the Ombudsman.)

A reply came at 1pm on Monday October 12th, in the form of a statement by Mark James. The statement did not, in my view, respond to any of the questions I had asked. Mr James said:

“The most recent outcome of an investigation (August 2015) by the Ombudsman on a complaint by Mrs Breckman concluded: ‘I believe that the Council has taken the appropriate steps in investigating the breaches of planning control reported and identified and issuing proceedings to either restore the land to its former condition or, in the case of the unauthorised track, consider its planning merits through the submission of an application. Again, I cannot identify any evidence of maladministration in the way in which the Council has acted.”

I had not asked about an unauthorised track. On the matters of events leading to Mrs Breckman’s arrests (for which the police have now apologised); of the 2012 Ombudsman’s report being withheld from the full council; and of any plans to bring in independent arbitration — silence.

PDR

Maria Miller and Mark James: tales from loophole land

News that Culture Secretary Maria Miller MP could take advantage of a legal loophole to avoid capital gains tax on the sale of her former ‘second home’ in Wimbledon, London, strikes a chord with recent events in Carmarthenshire and Pembrokeshire, where in both counties the cuts-bedevilled local authorities spent thousands of pounds and hours of staff time devising special, favourable pension arrangements for top officers.

In Carmarthenshire, there is also the matter of the Libel Indemnity — council funding to enable Mark James, chief executive, to counter-sue blogger Jacqui Thompson for libel. The whole libel debacle, the determination to silence a vocal critic of council practices, resonates with the efforts of Maria Miller’s entourage to block the investigation into the mortgage interest she reclaimed for her ‘second home’, and to halt the work of a journalist, Holly Watt, who was working on the story for the Daily Telegraph. Attempts to silence the critics, and with public money too, are a dangerous aspect of modern Britain.

So far, the Prime Minister has publicly backed the Rt Hon Maria Miller, MP for Basingstoke, against the Parliamentary Standards Commissioner, and by so doing he seems to condone the use of legal loopholes for personal financial gain. The story about Mrs Miller became even more serious yesterday, when Holly Watt and James Kirkup reported in the Daily Telegraph that the ‘second home’  became the ‘main residence’ before Mr and Mrs Miller sold it in February this year, for £1.47 million. This was about £1,232,500 more than the purchase price back in 1996.

Taxable capital gain? Not if Her Majesty’s Revenue and Customs accept the Wimbledon house as Mr and Mrs Miller’s main home at some point during their ownership, because one’s main home is exempt from capital gains tax, which is otherwise levied at the rate of 28% for higher-rate taxpayers. Of course, the Wimbledon residence was the ‘second home’ when Mrs Miller was claiming parliamentary allowance for it, but according to HMRC the ownership test is not onerous, only that “the property must have been your only or main home at some time during the time that you owned it”.

Tax regulations are fiendishly complex, and experts derive their livelihoods from finding and exploiting arguable loopholes in them. Loopholes might be legal, but in practice they enable people wealthy enough to employ experts to increase the financial distance between them and the rest of the population. At public expense, Carmarthenshire and Pembrokeshire county councils engaged Tim Kerr QC to counter the findings of the Wales Audit Office that both councils had spent money unlawfully, for the benefit of their top officers. In London, Mrs Miller — who as Maria Lewis was brought up in Bridgend and attended Brynteg Comprehensive School — appears to have been able to claim mortgage interest  on a variable amount mortgage which in May 2005 was £425,000 (£187,500 more than the original purchase price, incidentally) and then to redesignate the property as her main residence and thus avoid capital gains tax on a property purchased for £237,500 and sold for £1.47 million.

It may be legal, but is it ethical? The Prime Minister, for one, seems to think Maria Miller’s expense claims are perfectly OK.

In our legalistic society, loopholes and ambiguities are there to be exploited for private benefit.

See also Britain’s Dangerous Social Divide on http://www.ecopoliticstoday.wordpress.com

Heavy Cost of Carmarthenshire’s Loophole Syndrome

“Who pays for the fairy lights?” my daughter asked when viewing the town’s Christmas decorations one year.  The answer was all of us, to a greater or lesser extent, whether we wanted to or not.

Those Christmas lights flashed into mind again today, watching the webcast of Carmarthenshire County Council’s special meeting to discuss the Wales Audit Office’s findings that they had made illegal payments.

Mr Tim Kerr QC was down from London for the day. QCs retained as advisers are not usually cheap. There would have been no need to engage a barrister if the county council had accepted the Audit Office’s findings last year. The council, though, is suffering from loophole syndrome, the obsessive search for escape clauses in dense legal texts.

Egged on, as it were, by their legal advisers, the in-power coalition of Labour and ‘Independent’ councillors refused to accept the verdict  of Anthony Barrett, the assistant auditor general for Wales, that an indemnity to chief executive Mark James was unlawful. Instead, they voted to ‘note’ the auditor’s findings, and to withdraw the indemnity pending further legal clarification.

The legal loophole, described in a previous post here, is not accepted by the Wales Audit Office. “The law is very clear,” said Mr Barrett, but rather predictably, Mr Tim Kerr QC cast doubt liberally upon the minds of Labour and Independent councillors. The Wales Audit Office is not an authoritative source of law, said Mr Kerr, it is arguable that the council does have the power to grant an indemnity.

The particular indemnity, that granted by the council’s Executive Board to chief executive Mark James to fund his defence of a libel accusation by blogger Jacqui Thompson and – the point at issue – to bring a counterclaim against Mrs Thompson for defamation, was agreed when Cllr Meryl Gravell was council leader.

Exactly what will satisfy the Executive Board that they acted unlawfully is unclear. It would probably have to be a redrafting of the 2006 Order prohibiting publicly funded indemnities for officers or members to make defamation claims against individuals. Redrafting would have to state in simple English and Welsh that there are no exceptions whatsoever to the Order. Who’ll be paying for the redrafting? All of us, naturally.

The council did vote to accept the Audit Office’s findings of unlawful payment of cash to Mr James, in place of employer’s contributions to the local government pension scheme, from which Mr James had opted to withdraw. There were even some apologies for making mistakes. “The process was wrong,” said Cllr Anthony Jones (Labour, Llandybie), who visitors from other lands might well have mistaken for the leader, so authoritatively did he speak.

Plaid Cymru’s Peter Hughes Griffiths (Carmarthen Town North) brought a motion of no confidence in current leader Kevin Madge (Labour, Garnant), deputy leader Pam Palmer (Independent, Abergwili) and past leader Meryl Gravell (Independent, Trimsaran), but Labour and the Independents refused to support it.

Cllr Kevin Madge spoke about chickens coming home to roost (but not his chickens, those belonging to the opposition), about the marvellous new bungalows for the elderly (“something to be proud of”), about his pride in Carmarthenshire being one of the best performing local authorities (in his view). Cllr Pat Jones (Labour, Burry Port) also expressed her delight about the bungalows. Cllr Colin Evans (Labour, Pontamman ) referred to “this prestigious authority”, and Cllr Philip Hughes (Independent, St Clears) claimed that Carmarthenshire has “come out of the recession unscathed” thanks to the good leadership of the officers and the Executive Board.

Leaving aside the moot point whether most residents feel unscathed by the recession, the impression given was of a ruling group now accustomed to living in a bubble of self-congratulation, insulated from opposing points of view. I’d like them to remember who is paying for their fairy lights (and for barristers’ opinions).

Pat Dodd Racher

Whatever Happened to the Ideal of Public Service?

Whatever happened to the ideal of public service?

Standing back a minute from the immediate furore about illegal activities in Carmarthenshire County Council, a question which hangs suspended above our heads is:

When the council is slashing £30-million-worth of services over three years because there is allegedly no alternative, why does it continue to throw money and time in defence of a chief executive who chooses to use public funds to buy an indemnity so he can afford to counter-sue a resident for libel, and who chose to leave the local government pension scheme which his own council administers, but who received the amount that formerly would have been paid in employer’s contributions –  in cash, available to spend immediately, instead of being locked up in a pension fund until retirement?

Legal advice is beyond the financial reach of most of us, as it can cost several hundred pounds per hour, into the thousands of pounds to tap the wisdom of the most successful legal brains. Yet Carmarthenshire Council has obtained legal advice from a London barrister to try and bolster its position, AFTER receiving the decision of the Wales Audit Office that these two particular spending decisions are unlawful. If it can be proven that the barrister, Mr Tim Kerr QC, provided the advice free of charge, my assumption would of course be unfounded. The argument about misplaced time and effort would remain, though. The council’s counter-attack absorbs energies that would be better devoted to the weighty task of rebalancing the county’s finances to spend less on vanity construction projects so that more can be pumped into services which make the difference between a miserable and an adequate quality of life.

The unpleasant situation suggests to me that to an excessive extent the Executive Board, who have protected the chief executive, Mr Mark James, like a posse of bodyguards, have had their current priorities guided away from serving the entire population of the county, and towards expensive ‘reputation management’ for a single individual.

Of course individuals should be protected, but the Executive Board is taking its duty of care to an extreme that now seems indefensible, considering that other individuals, blogger Jacqui Thompson among them, have been pilloried for daring to criticise the council’s activities and decisions. It seems that for the Executive Board of 10, led by Labour’s Kevin Madge, it is more important to protect a single handsomely rewarded personage, than to heed the damaging findings of Anthony Barrett, the assistant auditor general for Wales.

Apart from Kevin Madge, the members of the Executive Board are:

  • Tegwen Devichand (Labour), Dafen
  • Pam Palmer (Independent), Abergwili
  • Keith Davies (Labour), Kidwelly
  • Jeff Edmunds (Labour), Bigyn
  • Colin Evans (Labour), Pontamman
  • Meryl Gravell (Independent), Trimsaran
  • Jim Jones (Independent), Y Glyn
  • Mair Stephens (Independent), St Ishmael
  • Jane Tremlett (Independent), Laugharne Township

In public life, criticism is part of the expression of democracy.

by Pat Dodd Racher

Stamping on the lid…

An increasingly angry frustration simmered under the surface yesterday, October 9th, at Carmarthenshire County Council’s monthly meeting of the full council, which I watched via the webcast. I worry that webcasting reveals the machinations of the hierarchy in such a depressingly grey light that, come the first opportunity, the ‘cabinet’ will opt to stop the experiment.

Yesterday’s session was like watching an attack on a strongly defended castle. The Plaid Cymru members were the raiders, the Labour and Independent Party councillors were defending with all their strength and guile. Is this the best way to organise local government? I hope not, because the continuous warfare diverts energies away from the job in hand, of providing public services for the county’s residents.

Chairman Terry Davies (Labour, Gorslas) was determined for the camera to record only polite assents. “Less of this nonsense” he ordered when an undertone of dissent rumbled around the chamber, adding that goings on of the sort televised from the House of Commons would not be tolerated in Carmarthenshire.

The similarity between the stated positions of Labour and ‘Independent’ councillors is striking. Of course, in Carmarthenshire, ‘Independent’ does not mean independent. The Independents form a group or ‘party’. The current composition is Labour 22 seats, Independent ‘party’ 22 seats, genuine Independent 1 (John Paul Jenkins, Elli), Gwerin Gyntaf/People First 1 (Sian Caiach, Hengoed),  and Plaid Cymru 28. Plaid Cymru is the largest group but Labour and the Independent ‘party’ form a coalition to keep Plaid councillors as far away from any decision making as they can, thus denying meaningful representation to many thousands of voters.

At the meeting yesterday, the coalition used its heavyweight presence to stonewall. Cllr Peter Hughes-Griffiths (Carmarthen Town North), leader of the Plaid group, put a motion of no confidence in the Welsh Government’s health minister Mark Drakeford, who had decided to downgrade the accident and emergency unit at Prince Philip Hospital, Llanelli, to a nurse-led unit. The Labour/Independent coalition countered with a watering-down amendment removing the ‘no confidence’ element.

Cllr Hughes-Griffiths was in no mood to agree to the amendment. “This council is suffering a great deal of shame these days and this is further shame,” he said sternly, reminding councillors that the most heavily populated area in the whole region covered by the Hywel Dda Health Board was losing its doctor-led accident and emergency service.

The far milder amendment, seeking further discussions with the Health Minister, was proposed by Cllr Tegwen Devichand (Labour, Dafen). She was supported by Cllr Sue Allen (Indpependent, Whitland), whose argument centred on the premise that “we can’t all have what we want”, and by Cllr Anthony Jones (Labour, Llandybie) who said that councillors are not the experts and should be guided by professionals in the NHS.

The efforts of Plaid Cymru councillors were to no avail. Cllr Jeff Owen (Tyisha) pointed out that forcing people to travel further to an open accident and emergency unit staffed by doctors was counter to the priority for us to reduce travel, fuel use and emissions from burning fuels. Cllr Gwyneth Thomas (Llangennech), said that the previous day the accident and emergency unit was overflowing with patients, and six ambulances carrying patients were waiting outside. The coming downgrade would endanger patients’ lives, she feared. Independent councillor Giles Morgan (Swiss Valley) spoke out against the party line and said there had been no consultation about putting nurses in charge of the unit, that the risk analysis had been poor, that the impacts on the ambulance service had not been considered, that according to the Welsh Government the downgrade would be only “probably safe”.

The votes were predictable. The amendment was approved and became the main motion, which was also carried.

The meeting continued on its pre-ordained path. Councillors with opinions counter to the received wisdom of the Labour/Independent ‘cabinet’ and the top officers were slapped down. Mansel Charles (Plaid Cymru, Llanegwad) was scathing about the council’s plan to close Llanfynydd Church in Wales Primary School. Cllr Charles, a school governor, highlighted a common practice to speed closures – to spread rumours of likely closure, so that parents do not choose the school for their children. “It’s a way of getting parents to close a school for the authority,” he said, and he called the council’s view, that the school was educationally unsustainable, a “disgusting slur”. Cllr Charles’s views were disregarded by Director of Education Rob Sully, in charge of the council’s ‘modernising education’ programme, which means fewer but larger schools, and long journeys imposed on children.

Right at the end of the morning – the county council holds meetings in daytime – Cllr Darren Price (Plaid Cymru, Gorslas) tried to raise an urgent item. He quoted rule 22.1 in the council’s constitution, allowing the suspension of standing orders, which would enable him to raise the urgent item.

Neither the chair, Cllr Terry Davies, nor the chief executive, Mark James, had any intention whatsoever of allowing standing orders to be suspended. The ‘urgent item’ would almost certainly be the finding of Anthony Barratt, auditor with the Wales Audit Office, that two payments relating to chief executive Mark James, an indemnity for a libel action against blogger Jacqui Thompson and cash instead of employer’s pension contributions, were unlawful. Linda Rees Jones, the council’s acting Head of Administration and Law, knew exactly what to do. She ruled that the council had to vote on whether to lift standing orders before Cllr Price could tell anyone what the urgent item was. Councillors voted against suspending standing orders. In a blink, the chief executive ended the meeting.

The lid was back on, but with steam escaping from the bubbling pot underneath.

by Pat Dodd Racher

More on the meeting itself at

http://carmarthenplanning.blogspot.co.uk/2013/10/another-meeting-another-travesty.html

http://cneifiwr-emlyn.blogspot.co.uk/2013/10/council-meeting-october-9.html

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