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Posted by: John Brace | 20th August 2014

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

                                                     

Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)
Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)

Yesterday on a sunny afternoon, I went to the Wirral Council building pictured above known as the Treasury Building to inspect various Wirral Council invoices. I was exercising an obscure right under s.15 of the Audit Commission Act 1998 c.18. This right means that for a few weeks each year, as an “interested person” you can inspect the accounts for the previous financial year that in the process of being audited by Grant Thornton. You can also inspect all books, deeds, contracts, bills, vouchers and receipts that relate to these accounting records and make copies of all or any part of the accounts and those other documents. This year (for Wirral Council) that period ran from 21st July to the 15th August, so sadly if you’re thinking of exercising this right you’ll now have to wait till next year to do so!

However I had put in my request during that brief time period for five areas I was interested in. I’ve briefly describe what those four areas were, the first was invoices from SCC PLC (which is a large IT company), the second and third batches were invoices for legal matters (solicitors, barristers, expert witnesses, court fees etc), the fourth were some general invoices and the fifth were various contracts (two of which were the Schools PFI contract and the Birkenhead Market lease).

The contracts aren’t ready yet, but the invoices were available for inspection yesterday and I also exercised my s.15(1)(b) right to copies. Just the copies of invoices comes to hundreds of pages of documents (which may take me a while to scan in). Some pages are more heavily redacted than others. However this blog post is going to concentrate on just one which is document 117 in one of the two legal bundles. The document (in the form I received it from Wirral Council) is below (you can click on the photo for a more readable version).

11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted
11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted

A bit of context is probably needed about this invoice first. 11KBW is a London-based chamber of barristers that specialise in employment, public and commercial law. You can find out more about them on their website. This particular invoice for £1,872 (including VAT) was for “perusing and considering papers, advising by email, telephone and writing and drafting grounds of appeal to an ICO decision notice”. Whereas the first bit of that is understandable, if you don’t know what an ICO decision notice is then I’d better explain.

If a person makes a Freedom of Information request to Wirral Council, then is not happy with the response, requests an internal review, then they’re not happy with the internal review they can appeal the decision to the Information Commissioner’s Office (known as ICO). The ICO prefer to deal with things informally, but if they can’t they will issue a “decision notice”. A decision notice is an independent view of ICO’s one way or the other on the FOI request and as to whether the body to whom it has been made has complied with the Freedom of Information legislation and sometimes also the Environmental Information Regulations.

Unless the body to whom the FOI request is made or the person making the request appeals the decision notice within 28 days, the body to whom the FOI request is made has to comply with the decision notice within 35 calendar days. Sometimes ICO agree with the body the FOI request is made to so no further action is required. Other times the decision notice compels the body (unless they appeal) to disclose the information. If the public body doesn’t comply with the decision notice within 35 calendar days then ICO can tell the High Court about this failure and it would be dealt with as a “contempt of court” issue.

Helpfully (unlike a lot of other court matters), ICO have a search function on their website for decision notices. As the invoice is for drafting grounds of an appeal (which has to happen within 28 days of the notice) a search for decision notices from the 27th September 2013 to the 25th October 2013 brings up three decision notices FS50496446, FS50491264 and FS50474741.

The first of those three (FS50496446) states in the summary “As the council has now provided a response, the Commissioner requires no steps to be taken.” so it’s not that one. The last sentence of the summary on FS50474741 states “This decision notice is currently under appeal to the Tribunal” (which is a little out of date as by now the tribunal has already reached its decision on that matter). Therefore this invoice is (by process of elimination) about the eight page decision notice FS50474741.

The decision notice goes into the detail about what the original FOI request (which you can read for yourself on the whatdotheyknow website) was about (made on the 4th February 2012), which is for correspondence between Wirral Council and DLA Piper UK LLP. Much of the correspondence is between DLA Piper Solicitors and Anna Klonowski Associates Limited and includes an amendment to the contract between AKA Limited and Wirral Council. The information also included Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report which was previously published as an exclusive on this blog on December 12th 2011.

When the AKA report was published, the issue made the regional TV news (you can view a video clip of that below this paragraph) and a no confidence vote which removed both Cllr Steve Foulkes as Leader of the Council and the minority Labour administration. The Labour administration was replaced by a short-lived (~3 month) Conservative/Lib Dem one in the February of 2012. The whole matter was a very sensitive (and somewhat embarrassing) period in Wirral Council’s history (even more than the public inquiry into library closures was) and it’s probably somewhat understandable as to why Wirral Council didn’t want information as to what happened “behind the scenes” being released into the public domain. As far as I remember (and it was some years ago so I hope my memory is correct on this point), Wirral Council was paying DLA Piper to give legal advice to itself and AKA Limited. This was in relation to the inquiry of AKA Ltd started by Cllr Jeff Green into Martin Morton’s whistleblowing concerns (in the brief period when as a Conservative councillor he was Leader of the Council).

However, in addition to the details of the decision notice, other information has been blacked out. The part at the top right where it states “professional fees of”, I think relates to a junior barrister called Mr Robin Hopkins who is also on Twitter. The reason behind this is that at the bottom of the invoice it states “PLEASE MAKE CHEQUES PAYABLE TO Mr Robin Hopkins” and his name also appears as the organisation name on the list of invoices Wirral Council publish of over £500 for October. On Wirral Council’s systems although a small number of invoices from barristers chambers come under the name of the barrister’s chambers, most appear using the barrister’s name as the organisation.

As to the name of the Wirral Council officer that the pro forma invoice is addressed to, it would seem most likely that this is Surjit Tour. Not only does his short name fit what is blacked out, but he’s also the Head of Service for this service area within Wirral Council. I don’t know whether he’d actually be the solicitor at Wirral Council giving instructions to the barrister on this issue (as there are over a dozen solicitors employed at Wirral Council). I’ve no idea whose signature it is on this invoice and there are three other places on the invoice where officers’ initials or names have also been blacked out.

When the appeal to ICO’s decision notice was heard at the First-Tier Information Tribunal you can read this post about it on Paul Cardin’s blog, there’s another write-up about it in Local Government Lawyer and a copy of the 16 page unanimous decision of the tribunal can be read here.

The invoice (partly revealed) with my educated guesses in green as to what’s behind the redactions is below. However it begs the question, why did Wirral Council redact this information and what have they got to hide? Or is it just a case of they’d prefer the press and public to forget about the entire Martin Morton/AKA issues which were compared to “Watergate” by Cllr Stuart Kelly? If they’d chosen not to appeal this decision wouldn’t that meant a saving of £1,872 that Wirral Council could have instead spent on education or social services? I thought that a Labour councillor (was it Cllr Phil Davies?) stated that the current Labour administration was “open and transparent”? Only as recently as June of this year wasn’t the Cabinet Member Cllr Ann McLachlan stating “the key problem here that we have a high volume of FOIs from a small number of people”? So do Wirral Council see the people making FOI requests as the problem rather than their own cultural attitudes towards openness and transparency?

Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)
Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)

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Responses

  1. Why john did it cost the IC officer time to obtain para j of the Timmins review? Ms R Lyons spent time, all expensively, and futilely, to conceal that prior to D Garry , there was an indexed full report on BIG. The cat is out of the bag and it may be that Mr Garry’s colleague did not attempt to “cover up”. If this be then WBC is afraid of the juxtaposition of the two reports BE’s preceding DG’s and how DG arrived at hios subversion of truth.

    The comment from council officers prior to promising to publish the Timmins review (after 1 year plus of Internal reviews and ICO time) was that they would not publish anything that could lead them to being sued.

    By deduction then the one paragraph j redacted musat contain that which is capable of their being sued upon. I duly have FOI requested this prior secret report “that should not be put in the public domain” {I quote from the redacted paragraph.

    • Well as far as I know haven’t both David Garry and Beverley Edwards both left the employment of Wirral Council?

      I’ve met Rosemary Lyons in the past, in fact I think there’s video of her advising a Planning Committee Chair, was it Cllr David Elderton about filming and making comments about Wirral Council being open because they publish the agenda and reports before the meeting?

      The same comments relating to a fear of being sued were made about the publication of the Anna Klonowski Associates report being published, in both draft form and the final form (which had all the names replaced with numbers requiring a key to the names to make any sense out of it).

      Remember Rosemary Lyons’ boss is Surjit Tour. Solicitors by default are used to keeping things secret and the less they let out into the public domain, the less damaging information politicians can use against them… however they’re working in the public sector, not a firm of solicitors.

      This may sound very strange, but I can get access to and copies of court records (unredacted) quicker than spending a year or two jumping through hoops and playing FOI exemption bingo with Wirral Council. I think you made a similar comment about some records in France too? Ultimately you have to put this down to cultural issues at Wirral Council and attitudes which take a long time to change.

  2. Well done John” alias Hercule Poirot “Brace what a man trying on behalf of Wirral residents to uncover the truth about the goings on at the clown hall.
    The council officers “public servants” will hide, lie and do anything to cover each others backs and avoid dire consequences, I understand Wirral have 18 solicitors so what are we paying outside council for advice not to put things in the public domain, surely there must be case law so why not look it up themselves rather than pay £1500.00 plus vat to an outside source .
    John I despair at our woeful council who spend millions on pay outs to disgraced officers who never had a case to answer & refurbishment of the clown hall & £50k on a jolly for the councillors,
    Surely one day as sure as eggs are eggs they will trip themselves up and the home truths will be told, keep up the good work mate.

    • As far as I can tell, although it may have been 18 in the past, it’s now 14.

      Well they paid the money for an “expert” to ensure that they won the tribunal case in their favour and not ICO’s.

      Thanks for the compliments.

  3. KBW have a very cosy relationship with the ICO and they get a large slice of the ICO cake representing the ICO at FTT and UT hearings.
    I can never understand why the ICO need to hire KBW lawyers for FTT and UT hearing because they have at least a dozen solicitors permanently employed at the ICO.
    When I submitted a FOIA request to the ICO asking for info ref KBW invoices and charges they slammed down the vexatious shutters.

    I too visited my local council ( Devon County Council) to inspect the books in the short available window and according to their approved audit they didn’t incur one single penny in the year for 13/14 for FOI.
    The DCC recently released FOIA report to the local newspaper that they had spent £ 22k in the last four years on my FOIA cases alone.

    • That’s interesting to hear that KBW have previously represented ICO at FTT and UT level.

      I’ve known a firm of solicitors many years ago, after many months of representation in a legal claim then back out of representing someone in a legal dispute, merely because a conflict of interest was spotted, in that the solicitor’s firm had previously represented the other side in a previous case.

      Some of the invoices I got at audit had been previously turned down under the FOIA regime for varying reasons. However the new transparency code (a legal requirement that came into effect for local councils in May) gives them six months (till November of the year) to publish contracts and invoices (over a certain amount).

      The truth is though, when FOIA requests get to the FTT or UT (the former is a tribunal, the latter is a court or am I wrong), the situation is so complicated by then that in house solicitors probably feel out of their depth and by hiring outside legal counsel have a convenient scapegoat if the case is lost (without any career repercussions for the local government officer).

      However most FOI requesters as individuals (the media have legal departments and access to legal advice) will be litigants in person and put at a disadvantage compared to a taxpayer funded barrister with say years of experience of previous cases in that area.

  4. Quite right Mr Brace ” First Tier Tribunal ” ” Upper Tribunal ” Tribunal basically means ” Court ” (French). If you follow the “Wednesbury Principles”
    normally, but not always gives you your grounds for Appeal, which in this case would be to the ” Court of Appeal ” I think that you already know the difference between Queens or Kings Counsel and Solicitors and the different rights of audience

    • Yes, I’ll clarify (in English rather than French). The First-Tier Tribunal (Information Rights) is governed by the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. It’s a tribunal, therefore the civil procedure rules don’t apply (or at least that’s what I was told by Roger Towers, a clerk to the tribunal in July).

      The Upper Tribunal is governed by similar rules set down in various statutory instruments and then as you know there is a right of appeal from that to a court (which is governed by the Civil Procedure Rules).

      I’m familiar (albeit it a little rusty) with who has rights of audience in a court and it’s changed in the recent past. For example if we’re going back pre-1990 solicitors didn’t have a right of audience in higher courts, which is why they instructed barristers. However that changed and as with everything it’s complicated and forever changing! For example in 2008, in a county court case the district judge allowed the McKenzie friend to speak, but in 2011 I saw a different judge (same court) remind the McKenzie friend that they didn’t have a right of audience. I saw the same thing (McKenzie friend wise) happen earlier this year in a case I was reporting on and in that case the District Judge told the husband of a defendant that he couldn’t (or wouldn’t) accept them as their wife’s representative in court.

  5. You will also find that there are time limits and “Points of Law” Leave to Appeal by the preceding Court and Appeal without leave, this can be very expensive if you lose your case. Oh and it is 72, however you will find that the Respective Constitutions would have always had a system of Audit (Checks and Balances)

    • Well that’s why it’s best at the end of a case, the party losing asks there and then for permission to appeal (usually denied).

      You’re right though there are time limits set down for appeals. For example I think the time limit for appealing a county court judgement is 21 days. I know though of a county court judgement being (from what I remember) altered outside this time limit (an application unopposed by the defendants’ barrister) as the defendants’ names were incorrectly entered on it due to an error made on the original claim form (pointed out at the time to the judge making the order but seemingly ignored). From what I remember there is a part of the Civil Procedure Rules that applies to minor corrections such as these to court orders though.

      The higher the court is, the greater the quantity (and risk) of costs being awarded against the losing party apart from caveats such as for example judicial review cases funded through legal aid.

  6. In answer to your original question: because there’s so much to hide in relation to the AKA report and Wirral Council have a bottomless pit of public money to ensure it remains hidden.You may be interested to know that DLA Piper contacted me on June 4th 2013 at the request of Anna Klonowski insisting that I did not contact her in relation to matters such as omissions from the Independent Review ,failure to complete her commission and legal advice provided by ,yes you guessed it……DLA Piper.
    I surmise all the above will need to seek further legal advice when the book gets published.

    • Thanks for leaving a comment Martin. I’ve just returned from where I put the two bundles of legal invoices for Wirral Council (2013-14). It comprises approximately 300 invoices covering legal expenditure on a vast array of issues from child protection, planning and employment issues.

      What I do remember (when requesting these) was a small (£700) amount was paid to DLA Piper (which I had presumed at the time was to do with Paul Cardin’s FOI request) which I now know was dealt with by 11KBW (even if it was about the DLA Piper letters to Wirral Council and AKA).

      Out of the invoices I have for Wirral Council 2013-14 only one is for DLA Piper for £700 paid on the 12th August 2013 and looking at it it’s something to do with a conveyance to do with a purchase of land (transformation and resources department).

      Weirdly with that one there’s just a PR1 form (payment requisition by BACS), no accompanying invoice and the year on it seems to have been altered from 7th August 2012 to 7th August 2013.

      So it seems if DLA Piper contacted you they weren’t paid by Wirral Council to do so at least in FY 2013-14 (despite the previous agreement with AKA to cover her legal costs associated with their report). Maybe that agreement ended once the report was published!

      Good luck with the book, I feel this blog at times is my attempt to write a very long and ever changing book about Wirral Council! Just out of curiosity, the invoices I’ve got that Wirral Council paid in 2013-14 to Ralli and/or Kirwans wouldn’t be connected with you would they? I can scan them in and put them here if the specifics would be useful.

      It’s just Wirral Council seem to use a pay reference starting 14(plus 5 digits) for regular legal work for parties doing work for them, but about 6% of the invoices are paid using a 6 digit pay reference starting with 2.

      I wondered if the ones beginning with 2 is where they’ve lost a case and have to either pay the other sides’ legal costs or there’s a court order stating something like a DNA test has to be done (either fully or partly at their expense).

      Anyway good luck with the book. I wish I had the patience (or time) to write one myself! If I did it’d probably be called: “A history of Wirral Council from libraries to Lyndale (2010-2014)”. 🙂

  7. You will find with the “Mckenzie Friend” you give your advice quietly and basically without bothering the LCJ or the Court, Had they wanted to pursue any sought of case or the husband had some knowledge, he may have requested/asked the Court to be a “Friend to the Court” Amicus Curiae, but having not dealt with the Courts on the Wirral, I do not know how this would have gone.

    • Yes indeed I agree with your description of a Mckenzie Friend.

      The specifics were (it was a case I was reporting on) it was a fast track trial in February 2014 for a possession order (brought by the local authority) against two defendants in the Birkenhead County Court.

      The local authority was represented by the barrister Sarah O’Brien. The defendants were both trustees of the Upton Park Pony Association (I think they were mother and daughter).

      I am aware of the friend of the court term, but I’ve heard it used more in relation to the American legal system and I’ve never been involved with or reported on a case here in the UK where it’s been used.

      Just because I am intrigued, what type of courts (or area) do you have experience of? Are you a solicitor, barrister or someone working in the legal field yourself?

    • Is this you?

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