Why is Registrar Worth asking this blog to unpublish Wirral Council’s Grounds of Appeal about keeping the Hoylake Golf Resort contract secret?
I declare an interest in this piece below as the person who made the original information request. I have completely obscured the names and partially obscured the email address of the solicitors for the other parties (ICO and Wirral Council) dealing with this matter.
The case referred to below has since ended in a consent order (which has been sent out to the two parties ICO and Wirral Metropolitan Borough Council). I however have not yet seen the final consent order.
Below is a copy of an email received on the 15th January 2018. Although not explicitly stated, I think it refers to this story published on the 9th September 2017. The two day public hearing scheduled for the 13th and 14th February 2018 referred to in my response was cancelled on the 12th February 2018 and replaced with a 15 minute telephone conference on the 14th February 2018.
It’s also not lost on me that Wirral Council (a party in this matter) made a similar request to unpublish matters published on this blog involving the Open Golf Championship in Hoylake in July 2014.
from: GRC <grc@hmcts.gsi.gov.uk>
to: “john.brace@gmail.com” <john.brace@gmail.com>
date: 15 January 2018 at 12:15
subject: RE: EA/2017/0191 Wirral Metropolitan Borough Council vs Information Commissioner
security: messagelabs.com did not encrypt this message
I understand that you have published on the internet Wirral Metropolitan Borough Council’s grounds of appeal. You did not, and do not, have the Tribunal’s permission to so do. Please immediately take the document down from the internet and do not publish it again without having the prior permission of this Tribunal.
Yours sincerely,
Mrs R Worth
Registrar, General Regulatory Chamber
Kind regards,
Mrs Sharda Mistry
Admin Officer
General Regulatory Chamber (GRC)| HMCTS | PO Box 9300 | Leicester | LE1 8DJ
Tel 0116 249 4201
Fax: 0870 7395836
I am not authorised to bind my Department contractually, nor to make representations or other statements which may bind the Department in any way via electronic means.
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Below is my response.
from: John Brace <john.brace@gmail.com>
reply-to: john.brace@gmail.com
to: GRC <grc@hmcts.gsi.gov.uk>
cc: “*****************” <************@wirral.gov.uk>,
“Sonia Taylor” <************@ico.org.uk>,
“Judge Peter Lane” <presidentsoffice.grc@hmcts.gsi.gov.uk>
date: 6 February 2018 at 08:01
subject: Re: EA/2017/0191 Wirral Metropolitan Borough Council vs Information Commissioner
mailed-by: gmail.com
Dear Registrar R Worth (and others),
Thank you for your email dated 15th January 2018.
I have carefully considered your suggestion, but for the reasons below regretfully have to decline to do as you wish.
For the purposes of doubt, I am interpreting your message as applying to what is published at this address https://johnbrace.com/2017/09/09/what-are-the-21-paragraphs-of-reasons-why-wirral-council-opposes-release-of-the-hoylake-golf-resort-contract/ .
As you can see if you visit that page the date of publication is 9th September 2017.
At that time no hearing date had been set, so therefore the matter was not considered “active”.
To alter/change publication as a hearing date has now been set and the matter is “active” as you suggest, would potentially place me in breach of the Contempt of Court Act 1981.
Although the First-tier Tribunal does have powers to issue an order preventing publication or may give a direction prohibiting disclosure, the Registrar has previously argued the opposite in a case management note (later modified by the President) dated 20th July 2016 in EA/2016/0054 (and I quote):-
“1. Mr Brace attempts to control what the Tribunal and parties do with the DVD … This is not permissible. He has provided it for the purposes of an appeal in this Tribunal, therefore the Tribunal’s rules apply and a party can use it for the purposes of the appeal.
2. Mr Brace should note that the Tribunal has power to grant permission for documents that are referred to in open court but not read in full to be shown to a person who applies to see them (e.g. a journalist) 1;… Mr Brace is not able, in my view, to retain over the footage the sort of control that he seems to seek…. The Tribunal will not revert to Mr Brace about any “future queries about re-use or licensing” as he requests. The Tribunal will follow the law.”
Lastly, it has been pointed out to me that The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 requires in the First-tier Tribunal’s decision making for the First-tier Tribunal to make decisions in accordance with regard to the Senior President of Tribunal’s decision on who makes what decision.
Attached is the practice direction of the Senior President of Tribunals.
In paragraph 16, it makes it clear that “Any other decision, including striking out a case under rule 8, making an order by consent under rule 37 or giving directions under rule 5 of the 2009 Rules (whether or not at a hearing), must be made by one judge.”
Therefore as neither legally valid directions or an order have been issued regarding publication by a Judge and if the hearing goes ahead on the 13th/14th of this month, plus as I am not a party in this matter (therefore there is no general duty on me to cooperate with the First-tier Tribunal in this matter), the decision has been made by someone independently of me that the existing publication of Wirral Council’s grounds of appeal (which was itself shared with myself by the First-tier Tribunal) should not be changed.
I hope that makes my position as clear as I can possibly do so. I have copied in all parties in EA/2017/0191 to prevent any misunderstandings that may arise.
Finally (although this decision is not binding on the First-tier Tribunal) I draw its attention to [2017] EWHC 575 (TCC) also attached, which rules that because Particulars of Claim can be provided to third parties without a judicial decision that even the Particulars of Claim in a dispute over a contract for new trains worth around £460 million are not “confidential”.
I realise the Civil Procedure Rules are however slightly different to the Tribunal Procedural Rules, however this hopefully set out my position with regards to publication of the Appellant’s grounds of appeal before this matter was active.
Yours sincerely,
John Brace
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You tell them, John
Well that seemed to be their attitude towards me, telling me how they want the world to be without asking or hearing my point of view first!
They’ve been somewhat quiet on the subject after my email of the 6th February 2018 and I haven’t had a reply to it (nor do I expect one).
From the way her email to me is phrased, I wonder if the Registrar had read the article she was referring to her email of the 15th January 2018 or and this is just a complete guess on my part and nothing I have any proof of, possibly whether somebody had told her about it (which prompted her email to me).
As usual brilliant reasoning the two fingers are poised over my laptop, well done again from you ardent admirer .
The judiciary appear not to like it, when I insist on their decisions being made in accordance with the law!
As let’s face it, if as some judiciary just have a “make it up as we go along” approach and don’t bother reading bundles or the law where will it all end?
Yes, bad unlawful decisions and lots of appeals! 😀
Further costs for the over stressed judicial system paid for mainly by the taxpayer and lots of embarrassment and red faces… which is partly why certain members of the judiciary don’t appear to be my biggest fans!
But when the same member of the judiciary seems to takes two contradictory legal positions on an extremely similar matter in two different cases and has a “have your cake and eat it” argument, it gets a bit well, fun to write about!
Especially as they take a judicial oath which is:
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
That is to say, the judiciary actually swear they will “do right to all manner of people” (“without fear and favour, affection or ill will”) and after the “laws and usages of this realm”.
I mean I would’ve complied with removing it if she’s actually had directions or a court order signed by a Judge!
John,
I have copied and forwarded the redacted contract to a number of people. The contract cannot be unpublished.
Hi John (H),
Thanks, I have the paper copy beside me as I write this comment to you.
Maybe it’s just me, but I had to read it a number of times to make much sense out of it!
I’ll be frank that there are bits of it I don’t fully understand the implications of, which will be in part because Wirral Council paid a legal firm (Pinsent Masons) to write it (not in plain English), in part because of the poor print quality, in part as bits are redacted and because my professional background isn’t to do with housing, land or golf courses!
So bits of it I do understand (for example I understand a lot about the planning application process and that side of decision-making at Wirral Council, the section on freedom of information section etc).
I’ve tried to learn some of the terminology in the parts I don’t understand, but as there are 24 A4 pages of defined terms and phrases in the contract it requires a bit of flicking back and forth pages.
Once something has been published on the internet, it cannot be unpublished. An internet posting is not like a book that can be burned. But even when a book is burned, it cannot be unpublished.
To request that something be “unpublished” is totalitarian.
Well not everyone has had the benefit of reading Fahrenheit 451.
Although yes, this scenario does come across more like the kind of totalitarian society in George Orwell’s 1984. 🙂
However being UK based and publishing in the UK, therefore falling within UK jurisdiction, the courts and tribunal system here can (within the legal framework) issue injunctions against publication or force matters to be unpublished.
In this case I was only asked to, not forced to though. There’s a difference!