What are Merseytravel’s legal fees to defend a legal challenge to the £272 million rolling stock contract?
What are Merseytravel’s legal fees to defend a legal challenge to the £272 million rolling stock contract?
During the 2016-17 audit (which covers the start of April 2016 to the end of March 2017), I requested to inspect various invoices paid by Merseytravel and the Liverpool City Region Combined Authority and have since picked up copies from their headquarters.
In December 2016, a large rolling stock contract (for new trains) was agreed by councillors on the Liverpool City Region Combined Authority to be awarded to Stadler Bussnang AG. Stadler Bussnang AG will charge £272,424,952.00 for the new trains.
An unsuccessful bidder (Bombardier) brought a challenge to how the procurement decision had been arrived at and large invoices for legal work from DLA Piper UK LLP have been submitted to Merseytravel’s Rolling Stock Director (David Powell).
The thumbnails of invoices below each link to a higher resolution image for the same invoice.
Invoice 413 from DLA Piper UK LLP (invoice 54833489) dated 31st January 2017 is for £231,124.96. This is for the matter, “Fleet Replacement Project”. This is broken down to “To our fees for professional services” of £187,013.80 + VAT, followed by the following expenses, search fees (£2.00 + VAT), subsistence (£152.68 + VAT), travel (£5,195.65 + VAT) and Vroom Plus (£240 + VAT).
Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?
Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?
ICO Information Commissioner’s Office logo
A bit like the experience I had recently of waiting ages for a bus in Liverpool recently, only for four buses back to back to turn up, the Information Commissioner’s Office have in the last fortnight issued two decision notices involving FOI requests to Wirral Council.
The decision notice states “As the information was disclosed outside the 20 working day timescale the Commissioner has concluded that the Council breached the requirements of regulation 5(2). ”
I made the request on the 26th January 2015. Wirral Council ignored my request, so on the 24th February 2015 I requested an internal review. Wirral Council responded to the internal review on the 23rd March 2015 stating it had the information but was withholding it based on a regulation 12(5)(e) exemption.
“(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”
“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”
As mentioned in my opening sentence, I’m also aware of a decision notice involving a Freedom of Information request that’s been issued recently that hasn’t yet been published on ICO’s website.
“2. The Commissioner’s decision is that the Council has breached section 10(1) of FOIA by failing to respond to the request.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
The Council should inform the complainant whether the requested information is held. If the information is held it should provide it to the complainant or else issue a refusal notice in accordance with section 17 of FOIA.
4. The public authority must take these steps within 35 calendar days of the date of this Decision Notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court.”
and
“9. On receipt of the complaint the Commissioner contacted the Council to remind it of its duty to respond to requests for information within 20 working days and to ask that it respond to the complainant. Neither the complainant nor the Commissioner received a response.”
as well as
“11. The complainant made his request for information to the Council on 6 May 2014 but has failed to receive a response. The Council has clearly exceeded the 20 working day limit very significantly and therefore the Commissioner has found that the Council breached section 10(1) in its handling of the request.”
Certainly the common theme running through the two decision notices is Wirral Council exceeding the time limits in the legislation on responding to requests.
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Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office
Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office
Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).
Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013
As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.
If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.
So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.
By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.
She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:
“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”
The reasons she gave for refusing the request were:
“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-
The information is commercial or industrial in nature
Confidentiality is provided by law
The confidentiality is protecting a legitimate economic interest
The confidentiality would be adversely affected by disclosure.
I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.
This exception is subject to the public interest test.
Public interest factors in favour of disclosure
Promotion of transparency and accountability of public authorities
Public interest factors in maintaining the exception
Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
Disclosure of the requested information would also affect the bargaining position of the Council with third parties.
I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”
On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.
Today Wirral Council reversed their position and stated:
“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”
Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.
In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.
So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?
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)
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
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.
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).
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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.
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)
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