Month: November 2013

EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 1

EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 1

EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm)

                         

I was at Birkenhead County Court for an application hearing in the case of Wirral Borough Council v Kane and Woodley heard in front of Deputy District Judge Grosscurth starting at 3pm.

Kane and Woodley are the defendants in the case where Wirral Council is seeking a possession order for Fernbank Farm. Although the defendants had previously been represented earlier in the case by Kirwans, they were no longer represented by Kirwans and had chosen Cllr Ian Lewis to represent them.

Representing Wirral Council was a man called Ali Noman Bayatti (who is a solicitor working for Wirral Council). I refer to him by the party he was representing (Wirral Council).

In the minutes before the case was heard Wirral Council made an offer to the defendants to agree to a possession order which wouldn’t be implemented for a further eighteen months. However the defendants rejected this offer.

The defendants and Wirral Council went to the Judge’s chambers first for a few minutes. Then the press and some other interested parties (who were not parties to the case but were interested in its outcome) were invited into the Judge’s Chamber.

There were less seats than people so a number of people had to stand. Deputy District Judge Grosscurth started by saying that they were “limited on seats”. Deputy District Judge Grosscurth said he no objections to Cllr Ian Lewis speaking during the case, he asked if the form had been signed? Cllr Ian Lewis said it required the defendants’ signatures. The defendants signed the form. The Deputy District Judge pointed out that Cllr Ian Lewis would speak for both defendants (Kane and Woodley).

Deputy District Judge Grosscurth said that he had a “couple of items to tidy up” which dated back to an order made in September to do with permission to change a defence. Cllr Ian Lewis explained that the defendants had previously been represented by Kirwans but that as costs had spiralled this had led to the defendants dispensing with Kirwans’ services as their legal representative.

Deputy District Judge Grosscurth asked if they intended to submit an amended defence? Cllr Ian Lewis said that their intention was to engage a different solicitor to do so or do it themselves. Deputy District Judge Grosscurth pointed out that they were supposed to file by the 21st August and that it would look like an extension.

Wirral Council said that there had been an application for a further extension to the date for the provision of a defence. Deputy District Judge Grosscurth said he had not seen it. He referred to an order of a different judge and the fact that it should have been filed no later than the 14th October which had now expired. He said that the application to further extend the date for the provision of a defence referred to by Wirral Council was not in the case file.

Wirral Council said, “I might be mistaken” and gave their agreement as long as it didn’t delay things too much. Wirral Council referred to the overriding principles in the Civil Procedure Rules and said that the case needed to move ahead.

Deputy District Judge Grosscurth said he would not alter the draft, but that since the 1st April that the time limits had been tightened up. He pointed out that everybody was deemed to know the law and the rules that guide all cases. He referred to a recent Court of Appeal case and said that the needs of litigants-in-person can be accommodated but that the Court couldn’t rewrite the rule book. He asked if Wirral Council had any further objections. Wirral Council answered “No”.

Deputy District Judge Grosscurth said that he would agree to extending the time for filing an amended defence. His next point was that he gathered the three people present (apart from the press, parties to the case and Cllr Ian Lewis) were users of the stable land but not technically parties to the hearing, just observers. He said to them to appreciate that they had “nothing to do with this matter” as the Council had made an application for possession of the land and it was up to them how they dealt with “your issues”.

Deputy District Judge Grosscurth said that he looking for an “early trial” and asked how long they expected it to take? Wirral Council replied that they had filed a witness statement of a David Dickenson, but that they might add a supplementary statement. Deputy District Judge Grosscurth asked how many witness statements the defendants would be submitting? Cllr Ian Lewis answered, “Three, Sir.”

Deputy District Judge Grosscurth pointed out that the Civil Procedure Rules were on the internet and that the defendants and Cllr Lewis could search for them in Google. He pointed that that the Civil Procedure Rules stated the form that witness statements should take and they needed to also include a statement of truth and that they would have to “look into that”. He asked how much time they would need to get prepared and serve their witness statements?

One of the two defendants asked if they could use the ones prepared by Kirwans? Cllr Ian Lewis answered (to Deputy District Judge Grosscurth’s question) three weeks. Deputy District Judge Grosscurth said that he couldn’t see there being many documents. Wirral Council answered that he didn’t think there were any relevant documents to be disclosed apart from the witness statements.

Deputy District Judge Grosscurth said he they should include in the witness statements anything they wish to rely on. If there was extra information brought up at the final hearing then it would either be ignored or the case would be adjourned (with costs awarded to Wirral Council if the case was deferred because of the defendants). He said he was ever conscious with litigants in person that there were no outstanding issues and that the person hearing the case would “not be ambushed”. Deputy District Judge Grosscurth asked for any documents to be included in the witness statements. He asked if there were any points to be raised?

One of the two defendants said that they had not received any correspondence from Wirral Council since July 2012 except for something last August. Deputy District Judge Grosscurth said that he would include in Mr. Dickenson’s statement as it was relevant. He said any documentation has “got to be disclosed” and under the rules of disclosure they had to disclose everything whether it was in favour of their case or not.

Wirral Council asked for standard disclosure.

Continues at EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 2.

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Cllr Simon Mountney: “Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money”

Cllr Simon Mountney: “Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money”

Cllr Simon Mountney: “Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money”

                           

Continuing from yesterday about last week’s Audit and Risk Management Committee meeting, Cllr Simon Mountney’s further comments start at 24:22 in this video clip and continue in the clip below.

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Cllr Mountney said, “Chair, thank you. Chair your comments about fraud are interesting because I don’t know of one councillor that would not support an employee who followed the procedures, made the decision but got it wrong. I think that’s what happens I hear every day of the week that’s important.

Perhaps they need training, perhaps they need guidance, whatever they need but not one councillor I don’t think has called for that person to be sacked, or fired or disciplined as they have with other council employees in the past and that’s the difference.

Steve you had an analogy about people given legal advice that you found yourself up against all this legal advice. That was probably because you’d done something wrong.”

Cllr Steve Foulkes said “I got divorced.”

Cllr Simon Mountney continued, “Whatever the case may be, it’s difficult to prove a wrong. You can get away with something, you can prove an innocent but you can’t prove a wrongdoing err the main reason you can’t frame people because now people find out about it down the line.

No one’s calling for employees to be dragged out and flogged publicly for making mistakes. That’s not what we’re asking for. Importantly as if you like a director of this company being a councillor, I want to learn the lessons that need to be learnt so that we can improve it.

Now, what we’re not doing is that process. An employee of this Council has just been paid tens of thousands of pounds for something that was done to them. Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money. How can we therefore learn the lessons? We’re not. So page after page after page has been written here to say we did wrong and we’re improving. No we’re not, because we’re not learning the lessons which have been learnt clearly from all these issues because we’re still doing it!

Please somebody tell me that the level of rigour, robustness and due diligence was in force against the payment of that large amount of money recently to a Council employee as is being applied to the Martin Morton issue, because I tell you that is impossible, impossible!? Two years that process has been gone one, two years! He’s been dragged through every last ditch, the man is at the edge and hang on, I haven’t finished, I’ve not said anything that’s wrong.

He’s been dragged through every ditch, he is at the end and yet we can find a large amount of money to pay for an individual in this Council within what appears to be, appears to be weeks. Now that same level of robustness and diligence cannot have been applied to that case as indeed applies to Martin Morton and therefore your comments about I want everyone to be treated the same is not happening in this Council! All these lessons which we’re supposed to have learnt, not one! Thank you.”

Cllr Jim Crabtree (Chair): “Surjit would like to come in.”

Surjit Tour, head of Legal and Member Services said, “I would advise it’s not appropriate for Members to discuss or go into detail about any particular case and I appreciate what Cllr Mountney has said.

What I would say however, I agree with Mr. Morton, he has legal advice, he has a legal adviser and matters are being dealt with through his solicitors.”

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Cllr Simon Mountney “There are major issues happening in this Council that are still being covered up”

Cllr Simon Mountney “There are major issues happening in this Council that are still being covered up”

Cllr Simon Mountney “There are major issues happening in this Council that are still being covered up”

                                   

Last Thursday as part of the consultation into the future of the Improvement Board, Wirral Council’s Audit and Risk Management Committee met. Whereas all councillors voted in favour of the motion on the report on Wirral Council’s response to critical reports 2010/2013, Cllr Simon Mountney voted against the earlier motion about the Improvement Board Review, this motion contained the phrase “it is clear that Wirral is now an outward looking Authority – open to constructive criticism and willing to address problems when they occur”.

I thought (for those who weren’t at the meeting) it would be interesting to report Cllr Simon Mountney’s comments here as from his comments it’s clear that not all Wirral councillors agree on the way forward. His comments start at 8:56 in the video below.

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Cllr Simon Mountney said, “OK, politically are we ready, perhaps we are today Chair, are we ready post the elections should things change this year or the year after, I’m not sure and I don’t think we’re politically savvy or grown up enough yet to ensure that if that and when that change comes that we are politically grown up enough to make sure that that is the case.

I think there are elements of the Council that perhaps don’t want that to change and whether we are politically grown up enough or savvy enough to make sure that that happens, I’ll reflect on the answer to that.

Strategically are we grown up enough? No, I don’t think we are. This report is historic but clearly it’s about things that have happened, all true. The first point here that says it was the Council that was perceived as having a silo culture and a lack of corporate and strategic thinking.

You know when the Chief Exec sits in front of us and says the last two budgets have been fire fighting budgets because we’ve got other things to think about that demonstrates to me that we haven’t been planning operations strategically, we’ve had too many other things to think about and all we’ve been doing is fire fighting.

So, yes moving forward, we might develop and grow, but historically this document doesn’t reflect what’s happened and I’ll pick one area, FOI requests.

The number of FOI requests that this Council receive, I believe gives a really good indication of how open and transparent and therefore you could use the argument, I would, as to whether good means a Council we are.

There are still major issues that I know of and I’m working very hard to get the evidence and as soon as I do I’ll bring it to you. There are major issues happening in this Council that are still being covered up and you know it’s wrong and I don’t understand why as a Council we persist with that type of attitude and ethos.

This Council is only ashamed of the ethos changes and the culture changes that as yet I see no evidence that that has changed. I’m aware of three or four incidents that should appear in this final second report but don’t and they don’t as yet, because they will, they don’t as yet because they’ve been covered up, they’ve been kept from me!

Now why that is I don’t know, but I will find out and I’ll let people know but based on that alone, this report doesn’t reflect the Council that I currently see.

Yes we are some way down the road, yes we are improving, yes there is improvement and yes there are policies in place and politicians in place that are making a difference but there is some and there is the ethos and culture that persists from where we came from and until that changes I’m afraid this report doesn’t quite reflect the Council that I see.”

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UPDATED: Wirral Council & Merseyside Pension Fund in “A bad day at Black Rock”

UPDATED: Wirral Council & Merseyside Pension Fund in “A bad day at Black Rock”

Wirral Council & Merseyside Pension Fund in “A bad day at Black Rock”

             

This is a rather complicated story in which I’m just going to state the facts and try not jump to conclusions or assumptions, but first a bit of background. Wirral Council is the administering authority for Merseyside Pension Fund which has assets of billions of pounds. The members of the Pension Committee (mainly consisting of Wirral Council councillors) are its trustees.

At tonight’s meeting the members of the Pension Committee will consider at agenda item 9 (gifts and hospitality returns) a report, the M21 Gifts and Hospitality form and the register of CPD (which means continuing professional development) and training.

Here are the entries about Blackrock, first from the M21 form.

Officer’s name Nature of hospitality/gift Value of offer Donor organisation Date of offer Organisation seeking work: Yes/No Offer accepted Yes/No
INVESTMENT MANAGER DINNER – FOLLOWING BUSINESS MEETING £50.00 BLACKROCK 22 Nov 12 Organisation seeking work? No Offer accepted? Yes
INVESTMENT MANAGER DINNER FOLLOWING BUSINESS MEETING £80 BLACKROCK 22 MAY 13 Organisation seeking work? YES –
Assessment is made by Consultant. 		Offer accepted? YES
INVESTMENT MANAGER DINNER – FOLLOWING BUSINESS MEETING £50 BLACK ROCK 28 AUG 13 Organisation seeking work? NO Offer accepted? YES

Now this is the only Blackrock entry from the CPD/Training Form.

Officer’s name Nature of non hospitality Donor organisation Value of offer Date of offer Organisation seeking work: Yes/No
INVESTMENT MANAGER DINNER – FOLLOWING BUSINESS MEETING BLACK ROCK 28 AUG 13 Organisation seeking work? NO

So what you may ask?

Well at the Pension Committee meeting of the 16th September the Pension Committee received a report on Medium Term Asset Allocation Implementation of Framework along with two exempt appendices that I’ll publish here, exempt appendix 1 entitled “Framework for Implementation of Active Management of Medium Term Asset Allocation Revised as at 30th August 2013” and exempt appendix 2 entitled Overlay Manager Review (the Fund) 10th July 2013.

The latter exempt appendix 2, a report of Aon Hewitt Limited goes into detail of the two proposals from Blackrock and Northern Trust to be an overlay manager for the Merseyside Pension Fund. Blackrock’s proposed flat fee is £150,000 a year, Northern Rock’s is somewhere between £50,000 and £300,000 a year. The report states that “Blackrock’s fee is more competitive” and concludes by stating “However, having considered each key criterion, we believe BlackRock would provide a stronger overlay partner for the Fund”.

Exempt appendix 1 states in “next steps” at 9.1 “Officers are in the process of conducting contractual due diligence with Black Rock. Once complete BlackRock will set up the QIF and MPF will fund in cash approximately £50m (The cash will be largely be utilised as collateral for derivative instruments).”

The report makes clear at 2.2 that “Since the Pensions Committee [of the 24th June] and following advice from Aon Hewitt, BlackRock have been appointed as the Overlay Manager.”

So why did an investment manager of the Merseyside Pension Fund accept dinner from Blackrock on the 22nd May 2013, an organisation seeking work to the value of £150,000 a year from Merseyside Pension Fund, that ultimately won the contract? Will the “assessment made by consultant” into this practice be published? Will there be any questions into this asked of officers by members of the Pension Committee tonight? We’ll just have to wait and see.

UPDATED 20/11/13: The item on gifts and hospitality returns attracted no questions from members of the Pension Committee during the meeting itself, no calls for the assessment to be published and no explanations from officers. One other interesting thing about the M21 form and CPD form is officer’s names aren’t given under the heading officer’s name, just job descriptions.

UPDATED 25/11/13: In response to this FOI request, Wirral Council responded as follows:

“1. The ‘Assessment by consultant’ referred to in the M21 form does indeed refer to an exercise commissioned from the Fund’s strategic consultant, Aon Hewitt. The purpose of the exercise was to make recommendations to Fund officers on the appointment of a medium term asset allocation overlay manager. The original exercise had been to carry out due diligence on the Fund’s existing custodian bank, Northern Trust, to fulfill the role of overlay manager. However, concerns of a regulatory nature were raised by Aon Hewitt and it was decided to investigate alternative solutions alongside this by accessing the Fund’s Transition Manager Framework. BlackRock were a participant in the Framework, having previously gone through a competitive tendering process, and out of all of the Framework participants approached were the only one able and willing to carry out the role of overlay manager. Aon Hewitt were then asked to compare the suitability of BlackRock and Northern Trust to deliver the overlay manager service and make a recommendation to officers.

2. BlackRock were, and continue to be, an appointed investment manager for the Fund; currently managing over £300 million of Fund assets.

3. The Head of Merseyside Pension Fund made the final decision to appoint BlackRock as overlay manager for the Fund, on advice from Aon Hewitt and acting under delegated authority. This decision was reported to the Pension Committee at their meeting in September 2013.”

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Improvement Board (15th November 2013) The first five minutes (a transcript)

Improvement Board (15th November 2013) The first five minutes (a transcript)

Improvement Board (15th November 2013) The first five minutes (a transcript)

                          

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Above is video from the first twenty-six minutes of the Improvement Board. If you want to watch the whole meeting from start to finish you can watch using the playlist. If I was to write a report on the meeting, I don’t think it would really do it justice. Therefore it would be better instead to have a verbatim account of what was said (which I’ll be adding to the video as subtitles).

Those at the meeting got this handout which had the responses to the consultation and questions submitted to the meeting (although it’s best to read this about the questions as some had subtle alterations). The handout also contained the text of motions agreed at meetings of Wirral Council’s Coordinating Committee and at Wirral Council’s Audit and Risk Management Committee about the review. At the later meeting Cllr Simon Mountney voted against the resolution. So here’s the transcript of the first five minutes.

Joyce Redfearn, Chair of the Improvement Board: A very, very warm welcome. It is most encouraging to see so many people here.

If you can’t hear, can you please wave hands and indicate to us and we’ll try and project better. If you do want to move forward there are more seats at the front if that helps people but you know wherever you’re comfortable you are very welcome to stay in terms of the proceedings.

I probably should begin with introductions of the people sitting at the top table just so that you know who we are but we have deliberately taken away the tables and tried to make it a more relaxed and more informal situation. So we hope that that will create the right atmosphere this afternoon for you to be able to ask the questions and make your comments that you wish to make in terms of the review.

I’m Joyce Redfearn, I’m the Chair of the Improvement Board.

Graham Burgess: I’m Graham Burgess, Wirral Council Chief Executive

Cllr Phil Davies: I’m Phil Davies, Leader of the Council.

Dr Gill Taylor: I’m Gill Taylor from the Local Government Association and member of the Improvement Board.

Mike Thomas: I’m Mike Thomas, I’m the Council’s external auditor.

Joyce Redfearn: And we have other members of the Improvement Board in the audience, both past and present members of the Board so no doubt at times they may want to also join in as Board members in terms of the comments and queries that we’ve received.

To try to help things because we have had rather I’m pleased we’ve had a very strong response to the consultation and to the opportunity to ask questions. We have put out I hope everybody can see a piece of paper that says Feedback from partners but then it goes onto the questions which will be the main focus of today’s session and I have also as Chair agreed that Martin Morton with whom much of this began should have the opportunity to also make a statement at the end of the meeting at the end of the questions, so I hope people are comfortable with that, ok.

I’m not going to dwell on the initial feedback. We wanted you to be aware that there have been responses and this was actually yesterday evening when we’d just received these and we are expecting more potentially through the course of the day up to five o’clock this evening. They do give a flavour of some of the responses that are coming back and I hope this is helpful in terms of seeing what others are saying as well as as hearing today what the people in this audience actually feel and think about the review report, the work that’s been done by the Improvement Board and I suppose fundamentally the issue is where and how well prepared Wirral Council now is for the next stage which it still knows is an improvement journey.

Nobody is saying today this is the end of the story. This is part of where we will be continuing, but in a different form to see further improvements in Wirral Council.

So if we’re all happy to do so, I’d like to turn to the first question, so the heading, it’s on page one, two, three, four, five if you’re with me, questions or feedback submitted by the public and the first one is from J Yates.

I don’t know if J Yates is in the room and wants to identify themselves. It’s not necessary, we will actually take the question whether people want to idetify or not and themselves associated with that. OK, the first question there is about the timing and not having given at least five working days notice, I’ll ask Graham to respond to the question please.

Graham Burgess: I think I’ll stand up if that’s ok. First of all the requirement for public notice of meetings applies to statutory meetings of the Council, this isn’t a statutory meeting of the Council, this is a meeting of the Improvement Board and therefore the regulations in that respect don’t apply, but clearly we like to follow good practice where we can, so immediately following the last Improvement Board meeting because we knew there was a really tight timescale, we met with representatives of the media and made sure there was extensive coverage of the decision of the Improvement Board to hold this meeting and indeed I think in the Echo and in the Globe and on Radio Merseyside there was specific coverage of the intention to hold this meeting at this time on this day and that was almost two weeks I think before this meeting had been held.

So we did make sure there was coverage in those newspapers and also we updated with both the Globe and the Echo to ensure there’s some coverage even in the last day or two of this meeting taking place. So on that basis we think that we have advertised, in fact we’ve advertised this meeting, via our partners in the press, far more vigorously and intensively than we would a normal Council meeting.

Joyce Redfearn: Thanks very much.

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